By William Wiley, December 14, 2016
We’ve been predicting it here at FELTG for nearly a year. Congress and the in-coming administration are fed up with what they believe are glitches in our civil service system, which require that bad federal employees be coddled and tolerated rather than held accountable and removed from service. We’ve been saying you’ll need to be prepared for the civil service world to be different starting in 2017.
Well, our prediction was off by about three weeks. The civil service world is starting to change NOW. So buckle up your seat belt and prepare for a bumpy ride.
The first change that is going to make a direct impact on an agency’s ability to fire bad employees is the passage of the ”Administrative Leave Act of 2016” just last week. The “sense of Congress” behind that piece of legislation is that agencies have been abusing the right to place an employee on administrative leave (regular salary, but no work required) for years. You may have seen some of the articles in the media, the ones about the federal employee sent home by his agency on extended administrative leave pending the outcome of an agency investigation into suspected misconduct. My favorite recently was the SESer who was sent home for two years pending the outcome of an agency investigation. He was interviewed while he was putting in a vegetable garden behind his home in Falls Church, noting that it was his second growing season on full pay (and earning years of credit toward retirement, as well). Just think. If you’re some out-of-work coal miner in West Virginia who’s trying to get by on a few hundred dollars a month of unemployment insurance and you read about this guy, you just might be tempted to elect someone to run the government who promises to drain the swamp of stuff like this.
Well, the water has begun to recede. Last week, Congress passed legislation that, for the first time in history, places specific limitations on an agency’s ability to grant indefinite administrative leave. Effective no sooner than September 2017, and no later than May 2018, every major agency in the Executive Branch will have to have a policy in place that explains in detail when administrative leave will be approved, who can approve it, and acknowledges significant limits in its application. Fortunately, buried deep in the legislation that limits administrative leave, there’s a beautiful little nugget of change that provides for something that we here at FELTG have been campaigning for more than a decade.
But first, the major thrust of the legislation:
- In general, an agency can place an employee in an administrative leave status no more than 10 workdays each calendar year. Currently, there is no limit.
- The law creates a new category of excused absence distinct from administrative leave: Investigative Leave.
- Investigative Leave (IL) is limited. Any agency manager (apparently) can be delegated the authority to impose up to 30 days of IL. However, any extensions beyond the initial 30 days can be implemented only by the agency’s Human Capital Officer. Extensions can only be in 30-day increments and cannot exceed a total of 90 days of extension.
- Placing an employee on IL for more than 70 days can be challenged to the Office of Special Counsel as based on a prohibited personnel practice (most likely, whistleblowing).
- You’re going to love this: If the employee resigns before the investigation is completed, and the investigation results in “adverse findings” about the employee, the agency has to include those findings in the employee’s Official Personnel Folder.
- The agency has to give the former employee notice that this is going to happen.
- The former employee has the right to respond to the notice in writing and with documents (thank god, no hearing).
- The former employee has the right to appeal the final decision of the agency to retain the notation to the Merit Systems Protection Board.
When I read about this requirement to document the OPF of a former employee, perhaps a now-retired senior citizen, I was reminded that in the Middle Ages, some societies would dig up the bodies of deceased individuals, try them in some sort of medieval court, then punish the body if it was found guilty of the charges. I once worked with a manger who objected to a troubled employee retiring because he wanted to “brand” her with a removal. Come on, kids. When they’re gone, they’re gone. What a spectacular waste of government time and energy to argue otherwise.
But enough said about the big stuff. If you conduct investigations, you will want to seriously read this new legislation and be as active as possible in the drafting of the implementing regulations. It’ll be a new world order for a lot of Inspectors General and Professional Responsibility agency investigators starting next year. And perhaps in some future FELTG newsletter, we’ll flesh out the details of what’s required under the new legislation if you conduct investigations. We’ll certainly be adding some new slides to our famous and fabulous Workplace Investigations seminar next scheduled for April 24-28, 2017.
It’s the non-investigatory nugget we’re after in this new law that will make your life better when it comes to firing bad employees. It has little to do with the “sense of Congress” to control leave abuse, but it’s tucked right in there along with all the restrictions on agency authority. The change that may save your life (no kidding), that we have fought for here at FELTG since 2001, is a new form of excused absence called Notice Leave.
If you want to read about that little gift, you’ll have to check out a later article in this here newsletter. After you read it, call the grandkids and tell them that the chances that you’ll be around until they graduate from high school just went up 1000%. That is IF your agency figures out how to take advantage of this long-overdue flexibility. And of course, we at FELTG are happy to tell agencies how to do just that. Wiley@FELTG.com