By William Wiley, September 13, 2017
A couple of things happened last month that caused me to do some personal psychoanalysis. In the first incident, I had just completed a training class for agency lawyers. As is my usual introduction to the seminar, I had said that I have 40 years of experience doing civil service law, much of it at the highest levels of government. I’ve personally been involved in nearly 10,000 adverse actions, either on the taking end or the adjudicating end. No brag – just fact: I have more experience in firing bad government employees than just about anyone you’re ever going to meet.
As the seminar broke up, one of the participants approached me to discuss a particular point. Although in the session I had said that the best approach was X (the issue doesn’t really matter), in her opinion the better approach was Y, the exact opposite. She had previously identified herself as being new to civil service law, having worked in her position less than 18 months.
In the other incident last month, I had provided advice to a client regarding a particular matter, and told him the correct answer was “red” (again, the issue is unimportant). When he consulted with a senior attorney within his agency, that attorney responded with a detailed brief that referenced several MSPB decisions for the proposition that the correct answer was red, but in his opinion, without reference to any authority, he concluded that the better answer was “blue.”
In both incidents, I was taken aback. In fact, I found myself feeling anger. How could these people disagree with me? Don’t they know who I am?? On recognizing those feelings, I became embarrassed at myself. How arrogant I must be to expect everyone to agree with what I say. What a jerk. Thank goodness, I didn’t say anything. They are entitled to their opinions, just like I’m entitled to mine.
But the more I thought about it, using my highly advanced self-analysis tools developed through a year and a half of graduate school in psychology, I came to the conclusion that my anger was not based on arrogance. Rather, it was based on the objective fact that these two agency lawyers, well-paid and held out to be civil service law experts, were ignoring the case law and substituting their own opinions as to what the correct answer should be. That X is the better approach than Y is not my opinion, it is the conclusion that anyone would reach who has read the case law extensively. That red is better than blue was borne out by the second attorney’s own research, which he promptly rejected because he believed personally that the correct answer should be blue.
And therewith is one of the problems in our profession. We are paid to give our opinions as to the proper courses our clients should consider. We are smart (more or less), and it is a real ego stroke to have another smart person ask for our opinion on something. But we breach the responsibility of our profession, whether we be lawyers or Human Resources specialists, when we give our personal opinions rather than legal opinions based on written decisions of the boards, commissions, authorities, and courts. It’s the individuals who inhabit those lofty institutions who are empowered to have opinions, not we lowly agency advisors.
If we say that the answer is X or red, we should be able to point to authority for that conclusion. Here at FELTG, we pride ourselves on being able to do that for everything we teach. Whether we rely on case law or science for a particular proposition, you can be sure it’s not just us spouting off what we think the answer should be. If anyone else tells you the answer is Y or blue, tell them to put up or shut up. Unless that advisor is a judge or a Presidential appointee empowered to oversee some aspect of the civil service, without a citation to a piece of paper somewhere for authority, his best guess is no better than chance. And perhaps, even worse.
This issue is the same as the issue that caused Martin Luther to break with the Christian church of that time. Up until the day in 1517 he nailed his theses to that door, the church upper hierarchy decided what Christianity should be. They read the book (in Latin, thereby limiting interpretation to the priestly Latin-speakers), told the believers what the book actually meant to say, and sometimes shaded their interpretation in exchange for a small contribution to the church building fund. Well, Martin Luther said that’s wrong. He believed that there was no need to place interpreters between the written word and the worshiper. Let the congregation read the pages for themselves, in English and German and other languages relevant to the people. His reform efforts got him uninvited to the church’s Christmas party, but his point was right-on.
Martin Luther’s call to arms was “solo scriptura!” The Bible didn’t need interpretation, it spoke for itself. In our world of civil service law, we might say something like “solo authority!” Our advice to our clients should come from published controlling authority, not from some internal opinion of how the world should be. Amen. Wiley@FELTG.com