So why are employee unions upset that the Homeland Security Department and the Pentagon plan to create lists of offenses for which the only possible punishment is firing?
The answer, in part, is union officials don't trust Defense and Homeland Security management to limit mandatory firings to these most obvious examples. It's also about appearances, says American Federation of Government Employees President John Gage. "It is really going to cause a problem for employees who take their jobs seriously and are committed to service," he says. "It looks like they are bad guys, and can't be trusted." Managers are more supportive. Karen Heiser, a spokeswoman for the Federal Managers Association, told a congressional committee earlier this year that the mandatory removal offenses are "a good way to aid in creating a culture that adheres to the sensitive nature of [national security] work."
The debate over mandatory removal offenses, known as deadly sins, is just one part of the larger fight between unions and management as DHS and Defense move forward with plans to implement new personnel systems later this year. Congress granted them that right in 2002 and 2003.
According to the final rules issued by Homeland Security in January, and the preliminary ones (still subject to change) by Defense in February, both departments will establish lists of mandatory removal offenses. Homeland Security has pledged to publish its final list in the Federal Register. Defense says simply that it will make employees aware of the offenses. At both departments, employees accused of committing the offenses will have the right to appeal. At Defense, appeals will go to the Merit Systems Protection Board, the independent agency that adjudicates appeals of agency disciplinary actions. The MSPB will not have authority to reduce the penalty, but can overturn the agency's decision. DHS will set up a three-member internal board to review mandatory removals. The DHS secretary will appoint board members, but unions can contribute to a list of candidates. It will be difficult to remove board members, who will serve overlapping three-year terms. Employees can appeal the board's decisions to MSPB, but the administrative judges will not have the right to review the facts of the case.
Much of the controversy over deadly sins stems from DHS and Defense being less than forthcoming about which offenses meet the criteria. Defense says it prefers not to describe offenses so the secretary would have more flexibility to set and change the list as circumstances require. At the IRS, where a 1998 law created a list of mandatory firing offenses, a lack of flexibility has proved problematic, the Defense rules say.
DHS, by contrast, provided a fuller list in its final rules after employees complained about its refusal to provide details. The list includes no-brainers such as aiding terrorists, but some are subject to interpretation. One, for example, says an employee cannot divulge sensitive law enforcement or confidential information. DHS already has a history of trying to fire employees who have complained publicly about security breaches and border control weaknesses. Unions say the rule aims to silence whistleblowers.
Another vague rule says an employee will be fired for "intentionally or willfully engaging in activities that compromise, or could compromise, the information, economic or financial infrastructure of the federal government." That rule worries unions since the gravity of such offenses could vary considerably, and the agency's in-house review panel will not have the right to mitigate penalties when it believes the employee is guilty.
Even if the in-house board overturns a decision, DHS retains the right to bring another adverse action under disciplinary procedures used for nonmandatory removals. In comments submitted to a House subcommittee in March, MSPB Chairman Neil A.G. McPhie said, "The possibility that an employee would be subject to multiple actions based on the same underlying conduct raises a substantial question of fundamental fairness."
Defense didn't claim a right to multiple actions, but the Pentagon laid out in stark terms how dimly it viewed MSPB's authority to reduce penalties that it finds too severe. "These regulations are intended to ensure that when a penalty is mitigated, the maximum justifiable penalty must be applied," its rules state.
That sentence set off Sen. Carl Levin, D-Mich., during a Senate Armed Services Committee hearing in April. "That's unfair. It's harsh. It's extreme on its face," he said. "The message that provision sends is that the department is concerned only about discipline and [has] no interest in fairness. Even convicted criminals are not always subjected to the maximum permissible penalty." Levin said the rules are not what Congress intended when it gave Defense authority to create a new personnel system in 2003.
Government Accountability Office official Derek Stewart, who oversees civilian personnel issues at Defense, said at the hearing that the department would be wise to learn from the Internal Revenue Service's example.
IRS' list of offenses, which included harassment of taxpayers, proved to be too vague, according to Stewart. "IRS employees feared that they would be falsely accused by taxpayers and investigated, and had little confidence that they would not be disciplined for making an honest mistake," he said.