By William Wiley, May 15, 2019

Civil service law is a narrow field, we have to admit. A person could be the best litigator or Constitutional lawyer in history, and still trip over some of the intricacies of the law that those of us in the FELTG Nation are supposed to know.

Recently, I was reminded about one of the potential areas of misunderstanding in our field. I had helped a supervisor draft a performance standard for a critical element to place a poorly performing employee into a performance Demonstration Period (aka PIP), and it read something like this:

Two or more incidents of unacceptable performance during the demonstration period will constitute a Level 1, Unacceptable rating.

This is an example of a classically easy to prove performance standard. We make sure that the employee knows what constitutes a mistake under the problematic critical element, count mistakes as they are made during the Demonstration Period, and then voilà! He either passes or fails based on the number of maximum mistakes we tell him we will allow. MSPB has accepted this approach as valid for decades.

After the employee failed to perform acceptably during the Demonstration Period by making too many mistakes, as is the practice at the supervisor’s agency, she ran the proposed removal memo through legal for review. Here is the advice she got from the general counsel’s office.

Legal Comment: The critical element will not be upheld by MSPB because it sets forth a backwards performance standard in that it tells the employee what not to do, rather than informs the employee of what must be done to achieve the minimum level of performance to avoid removal. Standards that only describe what an employee should not do, MSPB and the courts have found to be invalid “backwards” standards.

Wow. That advice is just breathtakingly wrong.

As we have taught at FELTG for many years, we have to worry about a standard being impermissibly backwards if and only if we are dealing with a MINIMALLY ACCEPTABLE, Level 2 standard that doesn’t leave any room under it for Level 1 Unacceptable performance. Take a look at the Minimally Successful standard in one of the lead backwards-standard cases (Jackson-Francis v. OGE, 103 MSPR 183 (2006)):

  • Critical Element: Develops courses for agency officials and employees
  • Minimally Successful:
    • Does not identify training needs of the targeted audiences.
    • Fails to use principles of course design to develop performance-based training.
    • Fails to develop training designed to enable agency officials to determine whether rule violations occurred and employees to determine if they violated any of the rule prohibitions.

If Jackson-Francis utterly fails to complete the tasks identified in this critical element, using this standard, the agency would have to rate her as Minimally Successful and cannot fire her EVEN THOUGH SHE FAILED TO DO ANYTHING! Obviously, the agency intended for this to be the Unacceptable level of performance.

However, by mislabeling it as the Minimally Successful level, the agency has misled the employee and cost itself a bunch of back pay and attorney fees.

I will concede that the Board chose an awkward phrase when labeling this type of problematic (and illegal) performance standard as “backwards.” It would have been clearer if it had simply said that a standard at the Minimal level is improper if it defines performance at the Unacceptable level. However, it did not choose the simpler route, so we are stuck with having to understand this term in a more conceptual way.

Folks, we have to know this stuff. It’s OK to not know it if it’s not your job, but it’s not OK to be the supposed go-to person for legal advice and not know the case law. This little episode is a great example of being almost too smart.

The attorney-adviser knew a bit about Board law: that backwards standards are illegal and they have something to do with telling an employee what not to do. However, he was missing a vital piece of deduction.

It makes sense that a standard that describes only failure at the Minimally Successful level cannot be used to fire someone, but it does not make sense that a standard that describes failure at the Unacceptable level could not be used. Legal advice that does not make sense practically is almost always bad legal advice.

Read the cases. Ask questions of practitioners who know what they are doing. Come to the FELTG MSPB Law training (held next in Dallas June 3-7).

If we don’t do a good job, not only do we let down the line managers who need us, but we also let down the citizens who rely on government for services. And last time I looked, that’s just about everybody. Wiley@FELTG.com

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