GovernmentExecutive.com

As part of the proposed personnel overhaul at the Homeland Security Department, officials intend to lower the standard of proof needed to impose disciplinary actions or to fire employees for wrongdoing. Some lawmakers are upset, saying that the proposed adjustment would allow DHS to fire an employee even if the majority of evidence showed that the person was innocent.

Rep. Chris Van Hollen, D-Md., attacked the proposal Wednesday during a joint hearing of House and Senate subcommittees that have oversight on federal management issues. He said the proposed adjustment "can't be defended."

According to the DHS proposal, the standard of proof needed by appeals boards would be lowered from a "preponderance of evidence" to "substantial evidence." Under the "preponderance" standard, more than half the evidence must point toward an employee's guilt. The "substantial" standard is not readily defined.

"I'm clearly going to pursue this issue through the regulatory process and others will as well," Van Hollen told Government Executive. "We all want a system that will get rid of the bad apples but we also want a system that is fair."

DHS Deputy Secretary James Loy played down the difference between the terms "preponderance" and "substantial." He said also that the adjusted standard of proof was necessary for ensuring homeland security. When pressed on this and other personnel reform issues, Loy repeatedly cited the Sept. 11, 2001, terrorist attacks as justification for the changes. He drew support from some lawmakers.

"In the interest of protecting the homeland...'substantial' is adequate," said Rep. John Mica, R-Fla.

Del. Eleanor Holmes Norton, D-D.C., said, however, that the idea of firing an employee when the majority of evidence exonerates them "bordered on the unconstitutional."

Van Hollen said that the proposal "seems to turn fairness upside down." He said that Loy and Office of Personnel Management Director Kay Coles James never explained why the lowered standard of proof was necessary.

"They didn't even attempt to make a case," he said. "They made a blanket statement without any evidence to support it."

Flexible NASA

President Bush Tuesday signed the NASA Flexibility Act of 2004 which-as the name suggests-grants NASA more flexibility in recruiting and retention. Officials from the space agency praised the decision.

"I am very excited about this human capital legislation," said NASA Administrator Sean O'Keefe. "With fewer students entering math and science studies, there's greater competition to attract those graduates who do make science and technology a career. This law now gives us additional tools."

The bill will allow the agency to boost its recruiting efforts by offering scholarships to students who agree to work for NASA, paying relocation costs, and offering recruitment bonuses and greater vacation time to incoming hires. Managers would also be able to offer higher starting salaries.

Last August, NASA officials created a team to begin work on human capital efforts that must be taken care of before the "additional tools" contained in the law can be used effectively.

COMMENTS

• There needs to be much more honesty. Lowering the bar is an attempt to create an "at will" employment system. It isn't hard to show preponderance of evidence in most cases. What is hard is actually getting management to take any action at all. Lowering the bar on disciplinary cases will not have the desired effect if managers don't wish to make the jump in the first place- at any bar level. I am more concerned about performance issues- since discipline and performance are now forced on the same track- any showing of poor performance in a critical element can lead to removal without needing to show that the employee was given an opportunity to improve and failed. I guess this administration wants to completely empty the entire civil service. Every federal employee I know in 15 years of service- including the vaunted SES, has failed at one project or another. All DHS employees are now open for removal on single project failures with very little due process rights. Like I said- at will employment. And lets be honest, are any of us being paid enough in comparison to the private sector to risk at will employment in the federal government? HR Specialist GovExec.com reader Posted March 1, 2004 7:38 AM
• Oh the DEMOCRATS are so concerned. Both parties abuse the civil service. The reinvention of gummint in the 1990's didn't help my prospects. After 20+ years in the civil service they passed a law which essentially closed the door on my face for future advancement (Clinger-Cohen). And I don't feel like going back to school, I've got a family and other priorities. Sheesh, both entrenched parties stink... GovExec.com reader Posted February 27, 2004 7:46 AM
• The DHS is equal to a REPUBLICAN policy and that means "lowering the bar" to fire you. The DEMOCRATS want civil servants to HAVE RIGHTS. You decide on election day. GovExec.com reader Posted February 26, 2004 10:43 AM