By William Wiley, July 18, 2018
Here’s the beginning of a story that recently ran on the first page of the Style section of the Washington Post:
The Washington Post has dismissed a reporter for inadequately attributing material and closely parroting sentences from other publications in articles based on outside news sources. The reporter, [Jane Doe], 26, was let go last week before completing the newsroom’s mandatory nine-month probationary period for new employees. The Post’s editors found that she used without proper attribution reporting by at least a dozen other news organizations in articles she wrote since being hired in October.
The article goes on from here, describing the misconduct in detail as well as giving a bit of history about the (now former) employee’s resume.
Are you blown away by this? Isn’t it illegal or something to disclose the details of an individual’s termination? In fact, we’ve even Jane Doe-ed her real name here in our newsletter. We sure don’t want to reveal names in the federal government.
Well, maybe we should.
Most members of the public, as well as a lot of federal employees themselves, believe that a federal employee cannot be fired. Both Congress and the White House keep trying to make it easier to hold employees accountable for their performance and conduct by loosening the rules. We are on the verge of losing our civil service protections altogether if a couple of outlier Congressional bills become law, bills that would make the federal civil service “employment at will.”
In reality, hundreds of individuals are fired from federal agencies every month. Some are in unions while others do not have the extra protections that unions bargain for their members. Some are probationers, and some are tenured career employees. At least that’s what OPM statistics tell us, statistics that are consistent with MSPB’s annual report of appeals. But how would anyone know that if they were not an insider in the system, familiar with OPM and MSPB reports, or a reader of our beloved FELTG Newsletter?
You’re probably thinking that there must be a federal law that prohibits the disclosure of such information. Why would we make such a big deal out of it if there weren’t? Well, I’ve been looking for 40 years for a law or regulation that would prohibit the disclosure of the identity of and circumstances surrounding terminated civil servants, and I can’t find one. In fact, of the few cases that touch on the subject, the federal courts have come down on the side of mandating the disclosure of such information when it is requested under the Freedom of Information Act, at least for the more senior employees of an agency. When we’re talking about government employees, the balance between the individual’s rights to privacy, and the rights of the public to know about misconduct and unacceptable performance, the public’s need for information usually gets the judicial nod.
The Privacy Act often is referenced as the authority for not releasing information about employee malfeasance. However, that law allows for the release of information for a “routine use.” If OPM government-wide or an agency in its own Federal Register announcement would state that the release of discipline and conduct information by name was a routine use for collecting the record, that would seem to satisfy the legal requirements for privacy.
The salary and cash awards of federal employees are already a matter of public record, available on the web. There’s a relatively mundane need for the public to know that information. We can certainly make a good argument that knowing who has engaged in misconduct harming the government so much that they had to be fired serves a greater public good. Bar association discipline records are available for public review by the name of the offending attorney. Keeping the names of misbehaving federal employees secret enables that person to move on to other positions in which he can repeat his harmful ways. If a federal employee was fired for violent behavior, wouldn’t it serve a public good to make the public aware of who that person is? How about being fired for sexual harassment?
President Trump, through his recent Executive Order, has mandated the centralized collection of a lot of information about civil servants who are disciplined. For the sake of the public as well as for the sake of the federal employees who do good work and who obey the rules, perhaps it’s time that government agencies publicized their discipline and removal actions. If you’re a Big Coward, remove the names, but at least start to get the word out to the broad media that bad employees are fired from their government positions every day for good reasons. Maybe that will reduce the pressure that’s starting to build to do away with the idea of a protected civil service altogether. [email protected]
