By William Wiley, August 15, 2018
Many of you in FELTG Nation are about to see something that has not previously occurred since your birth, and which is unlikely to happen again in your lifetime. Within the next couple of weeks, we in the United States of America are about to witness a once-in-a-life-time event. It happened in 1979, and it is happening again in 2018: The US Merit Systems Protection Board will soon have three brand spanking new members all at once. The only time that occurred before is when the first individuals to become The Board assumed office on MSPB’s zero birthday in January 1979, when it was created by the Civil Service Reform Act of 1978.
MSPB was not designed to have such a quantum shift in membership. The Creators carefully laid out the terms of the three members so that they each overlapped by a couple of years, theoretically assuring a gradual changeover in both case law and procedures. Sadly, that grand plan fell apart these past two years because of the Senate’s refusal to confirm President Obama’s nominee, and then the current White House’s inaction in filling two vacancies for a year and a half, with the term of the third remaining holdover member expiring in the meantime. By June of this year, three new appointees had been nominated to the Senate, with confirmation and the swearing in of all three nominees imminent as of this writing.
Coincidentally, MSPB recently has endured some of the most severe criticism in its 40-year history. For example, its decisions limiting an agency’s ability to reassign employees and to select differential penalties have universally been criticized by agency practitioners. Congress even passed legislation a few years ago to bypass the decision-making authority of the three members, preferring to rely on the judgment of a career staff attorney rather than President Obama’s political appointees (that legislation has now been invalidated by the courts). With all the ongoing activity relative to civil service reorganization, there has even been talk of abolishing the Board altogether.
What a perfect time for some significant changes at MSPB. And who better to recommend those modifications than the world-famous brains here at FELTG. So, buckle up, new Board members. Here comes some of the best advice for change that you’re ever going to get:
- Initial decisions should be more focused and structured. As we’ve argued in this space before, Initial Decisions written by the Board’s administrative judges are too long and cover too much irrelevant detail. In one decision we reported on recently, in the appeal of a misconduct removal, the judge did not reveal the charge until page seven. In another decision we addressed, the judge spent useless verbiage describing the color of the trellis on which the marijuana was being grown. Dear Board, the judge’s decision need not be a novel. We don’t need a back story with character development and subplots to figure out if you’re saying whether the guy should stay fired. Generally, every judge’s decision should start off the same way:
On June 15, 2018, the Government Services Administration removed William Wiley based on misconduct. The charges in the removal action were 1) Theft of Government Property, and 2) AWOL, 24 hours. In his appeal, Wiley claims that the removal action was motivated by whistleblower reprisal. I find that although Charge 1 was proven, Charge 2 was not. I also find that Wiley has not proven his claim of whistleblower reprisal. I SUSTAIN the removal.
The New Board should declare that focused, succinct decisions are highly valued. Judges and their supervisors should receive feedback from a centralized authority within the Board (not from individual regional directors) as to how well their decisions conform to these principles and to an established Board-wide format for drafting decisions.
- The Board should stop drafting full-text decisions in every appeal, labeling some as non-precedential (NP). This practice was adopted in 2010 in response to a few complaints that litigants (primarily the appellant’s bar) wanted to know why their wonderful, insightful, compelling disagreements with the judge were not adopted by the Board members on petition for review. Well, there are some mysteries in life that simply need not be revealed (e.g., how my mother gave birth to me without having sex). The US Supreme Court doesn’t issue a fulsome decision regarding every petition it receives, and America continues to be the greatest country in history. The Board issued full decisions in only about a third of its appeals until 2010, and the civil service remained strong.
It’s not that full decisions in every case are necessarily bad. It’s just that a) they are not worth the legal effort of HQ staff to produce them, and b) they are confusing to practitioners who the Board instructs can use NPs for reference, but they aren’t really controlling. With apologies to Bill Clinton, that’s like saying that you can smoke marijuana all you want, but you just can’t inhale it. Foolish.
Perhaps NP decisions were worth a try. Here at FELTG, we’re big believers in trying out different approaches. And, we’re also big believers in cutting our losses. Well, we’ve tried out these NPs, and the result is that they are not worth the effort. Dear Board, please consider going back to short-forming most petitions challenging judges’ decisions because most judges get things right, and most arguments contra are just spitting into the wind (with apologies to Jim Croce). Also, you don’t pull the mask off an old Lone Ranger, and you don’t mess around with Jim.
We are a full-service advising organization.
- Make it a Board objective to help agencies be successful in removals 100% of the time. No, no, no. That does not mean that you rubber stamp all disciplinary and performance removals that are appealed to you. By golly, there are civil service laws, and you are responsible for holding agencies accountable for adhering to them. The problem is that after 40 years of Civil Service Reform Act standards, you still set aside about one in five removals appealed to you. In other words, agencies screw up removal actions about 20% of the time when you review the merits of an action. This is just wrong. Agencies should get it right every time because agencies should not be firing anyone who does not deserve to be fired. There would be a full national emergency if 20% of the attempted landings of commercial aircraft resulted in failure. Why isn’t the Board at DEFCON 2 trying to make sure that all removals in government are handled properly?
“But Bill. That’s not our job. We get to stay above the fray, issuing stinging criticism and awarding copious back pay from Our Holy Mount, telling agencies after the fact when they blow it, but not doing much to help them know how not to blow it.”
Oh, really? Have you considered your FREAKING NAME recently? You’re supposed to be protecting the darned merit system, not just critiquing it when it breaks bad. Who better to honor our good civil servants by helping agencies remove bad employees only when it’s warranted?
You are an Executive Branch entity, not a judicial court. You should be down here in the trenches with us trying to make civil service work, not hovering above us criticizing what we do. Join the fight. We can use all the help we can get.
How to get started on this? Easy. Turn your decisions into teachable moments. After you adjudicate the action in your decision, evaluate the agency’s action. Sample last paragraphs:
Lessons Learned – In this case, the agency did a good job of focusing the employee’s poor performance on a single critical element of the performance plan. Had it tried to incorporate several critical elements into the demonstration period, the employee would likely have become confused and unfocused. By selecting a single element, the employee had the best chance to demonstrate mastery of his assignments and the agency’s resources were more focused.
Lessons Learned – For over 25 years, the Board has held that an agency errs when it creates two or more charges based on a single act of misconduct. Doing so here resulted in merger of the two charges in this case, thereby causing mitigation of the penalty to a suspension rather than a removal.
Dear Board, please rethink your role in our civil service. Don’t just tell us when we do things wrong. Tell us how to do things right. Make yourself useful. Nobody likes a critic because they take no responsibility for the work being done. Take responsibility. If we lose our precious civil service because of some of that legislation floating around Capitol Hill, you will have failed in your responsibility to protect the merit systems. If you look at the Board’s official seal, you will see that your protection responsibility goes back to 1883. Don’t let down our fore-parents. Wiley@FELTG.com