And the truth shall set you free.
Yes, here at FELTG, we’ve been known, on occasion, to whack old MSPB upside the head when the Board issues some lame-brain decision that undermines the ability of agencies to run an effective government (or causes employee rights to be violated). This week, however, we feel the need for speed, to point out when the Board has been unfairly attacked and its decisions mischaracterized by people who should know better.
Last week, at least a dozen different news organizations (and I use that term loosely), reported that MSPB was being berated for reversing a removal that was discussed in recent testimony before the House Committee on Oversight and Government Reform. According to those reports, the testimony on the Hill by Acting EPA Deputy Administrator Stanley Meiburg and by Assistant Inspector General for Investigations Patrick Sullivan described the reversal by the Board of a removal of an EPA employee who:
- Was a registered sex offender,
- Was a convicted child molester who imitated a police officer, and
- Who kept child pornography on his computer.
According to reports, after being told by Deputy Administrator Meiburg that when EPA fired this employee, MSPB found the “basis for the removal was not sustained,” Chairman Chaffetz exclaimed,
“How do you lose that case? It’s just pretty stunning. How do we need to change the Merit Systems Protection Board? Because what’s not happening is we’re not protecting the American people and the taxpayers, and we’re not protecting the employees that have to sit by this freak of a pervert.”
Well, speaking of perversion, take a look at what the “real” facts are in this case. Yes, EPA fired this guy. And, yes, the Board reversed the removal. It just sounds horrible that a child molesting, police officer imitating, registered sex offender cannot be fired from government because of the nasty US Merit Systems Protection Board. News reports like this make all of us civil servants (current and retired) look bad in the eyes of the public. No wonder that Congress is jumping up and down – as have a number of recent candidates for the Presidency and current agency heads – about changes that should be made to gut the civil service system. There’s legislation afoot that would remove significantly large groups of civil servants from the protections of Title V, just so that the evil MSPB cannot get its hooks into a removal appeal and reinstate a non-deserving employee into the federal government.
So why did the Board order the reinstatement of a child molester to the civil service? Did it think that child molesting is not such a big deal? Did it say that the government is a good place for registered sex offenders to be? That’s sure what all the hullaballoo on Capitol Hill sounds like.
No, the Board ordered the removal to be set aside because the agency did not prove the charge: AWOL.
That’s right. This guy was not charged with child molesting, impersonating a police officer, or having child pornography on a government computer. He was charged with AWOL. And the Board set aside the AWOL charge because the agency failed to satisfy the requirements of a lead decision from 1981, a 35-year-old precedent (which, frankly, I don’t like, but the law is the law; see Pearson v. Navy, 8 MSPR 405 (1981)).
I leave it to others to conjure why two top agency officials would testify before Congress in a manner that resulted in the Committee Chairman concluding that MSPB was the bad guy in this scenario. Did they not tell Congress that the removal was reversed for a reason unrelated to this employee’s status as a sex offender? Did they not know that? Or, did they actually make that point, but the committee members accidentally heard something else? Did no one stop to think that the basis for the reversed removal was relevant?
Sometimes Board decisions deserve to be held up to the bright light of public ridicule. But this case is not one of them. Instead, in this situation perhaps that bright light needs to pointed somewhere else. Wiley@FELTG.com