By William Wiley

Why new glasses? Because the Board seems to have lost its focus. Let me tell you what I mean.

Way back in 1977, when yours-truly was but a babe in the world of “civil service personnel,” Congress was thinking up legislation that was destined to become The Civil Service Reform Act of 1978. In those primordial discussions, Congress began to develop the concept of a new federal agency, independent and given the responsibility to oversee all the major discipline in government (more or less). I remember clearly a couple of Senators referring to this still-conceptual embryonic oversight entity as the “Merit Board.” Nice tight name, I thought. “MB” works well as the acronym (certainly better than the unfortunately-named “Sam Houston Institute of Technology”). So we called it the Merit Board, at least for a few weeks.

Then, without a lot of fanfare, when the draft legislation began to take shape, the name appeared not as the Merit Board, but as the “Merit Systems Protection Board.” A couple of years later when former Civil Service Commissioner Scotty Campbell spoke at one of our earliest conferences, he related that the change was made to emphasize that this new agency had been created to protect the system itself, not to ensure some sort of individualized “merit” throughout government. The concept was that no single small agency could be responsible for every adverse personnel action within the two-million-plus government workforce. Rather, the most that could be hoped for was that the new MSPB would make sure that the merit-based systems were in place for use by the managers who run the various government agencies, and that the systems would provide the protection to the employees within those systems.

That’s why its named the “Merit Systems Protection Board,” not the “Federal Employee Protection Board.” If it were intended to be the FEPB, rather than the MSPB, it would be responsible for protecting the right of individual employees to be treated based on its definition of merit. In comparison, as the MSPB, it is designed to be responsible for protecting the system in which agency managers deal with agency employees, to make sure that those SYSTEMS are grounded in merit.

I know, I know. Sounds a lot like an angels-on-the-head-of-a-pin rumination, doesn’t it. Well, let me show you the distinction in practice.

Hypothetical Scenario: Agency fires employee because of theft.

MSPB World:  MSPB decides whether Agency provided Employee the procedures required by the merit system. Did Agency give Employee clear notice of why his removal was proposed? Check. Did Agency allow Employee to defend himself? Check. Did Agency provide Employee the reasons for the removal, all based on the proposal? Check and done. The focus has been on the application of the system by Agency.

FEPB World:  FEPB decides whether it can protect the employee who is in a merit system from being fired. Did Employee steal from Agency? Did Employee get due process? Did Agency pick the best penalty? The focus has been on the protection of Employee from removal.

Non-hypothetical Scenario:  A supervisory employee responsible for keeping terrorists out of our airplanes lies in a report. Twice. The judge even found part of her defense of herself to be an unbelievable “convoluted” rationale. Who would want a convoluted liar to be responsible for life-and-death decisions? Agency fires her.

MSPB World:  She got notice, she defended herself, the agency made a decision based on all the facts. Done.

FEPB World:  Ah, ha! I, the FEPB, conclude Agency did not prove all charges. I, the FEPB, conclude that she’s really not that bad of an employee because she lied in only a single report, has decent performance ratings, there’s tension in the workplace, and she had no prior discipline. I, the FEPB, conclude that removal is beyond reasonable and that “her misconduct would not preclude her from providing efficient service in a non-supervisory” lower-graded position, plus a 30-day suspension should replace the removal. Brown v. DHS, SF-0752-14-0816-I-1 (2016) (NP).

Note that in the FEPB World, not only did that Board declare that removal was unreasonable, it also concluded that the agency needed someone in a lower-graded position, and even though it might need someone in a lower-graded position, it could spare that individual for a month while suspended. Sure feels a lot more like managing an agency than simply protecting a merit system, doesn’t it?

The scenario in which this loss of focus has become most publicized imvolves the recent reversals of adverse actions taken by DVA against three of its Senior Executives. Instead of MSPB ensuring that the systems that were in place were complied with, it interjected itself into those systems and made decisions that were always intended to be made by the line managers who run DVA. For example, as we noted recently last month, in one of those reversals the Board’s judge said, “Deputy Secretary Gibson … stated [a co-worker’s conduct] that would go to lacking sound judgment is different. I do not see it as different,” and “Deputy Secretary Gibson testified that he had no intent to discipline [appellant’s co-worker] because [the co-worker] did not receive [$274,019.12 in] relocation benefits. I do not find that these are meaningful distinctions. First, although the she did not relocate, [the co-worker] had a sizable pay raise to lose [of $18,000 per annum].” Graves v. DVA, CH-0707-16-0180-J-1 (January 29, 2016). This is a perfect example of the Board’s case law steering its judge toward the defense of the employee rather than the defense of the system, substituting its judgment for that of the line manager responsible for the operation of the agency.

Think of it this way. You’re ready to buy a new car. I go car shopping with you. We get to the point of considering two cars: a Ford and a Chevrolet. You conclude that the Chevrolet is the better car. I conclude that the Ford is the better car. Given that you are the one buying the car, responsible for driving it, and accountable should anything go wrong with it, who should make the buying decision: you or me? That’s right, you should, and so should it be the agency making judgment-call decisions like this within a merit-based system.

MSPB Chairman Grundmann was called upon earlier this month by several members of the US Senate to explain how the Board could possibly have not affirmed the demotions/removal in these DVA cases. In response, the Board stated that it was just following the law. Well, that’s just nonsense.  The Terrible Trilogy precedent (recent case law that calls for setting aside a penalty if anyone else in the agency who did anything remotely similar was not removed) exists solely as case law developed by the Board under Chairman Grundmann in 2010, and is not required by statute or regulation.  However wrong in its own right, the Board’s disparate penalty analysis was obviously designed for use in cases governed by Douglas, i.e., cases in which penalties can be mitigated.  That is the whole point of the Terrible Trilogy precedent — to justify mitigating a removal penalty to something less even though removal otherwise would be justified.  The Board was in no way required to apply this precedent to cases in which penalty mitigation was prohibited by law, as It is in the DVA/SES adverse actions.

MSPB should not be faulted for following the law, as it said in its response to the Senate inquiry. However, it certainly should be faulted for developing that law in the first place, for turning away from being the protector of our merit systems to being the protector of employees from what it believes IN ITS JUDGMENT to be unwarranted discipline.

By the way, since you’ve decided on the Chevrolet, may I suggest you consider the 2016 Corvette. That baby is wicked-cool and handles as if it was on rails. Of course, it’s your decision, not mine. Wiley@FELTG.com

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