In my last article, I discussed the merits of VA’s plan to restrict the employee protections of its senior executives. While I don’t support an approach that 1) treats one group of senior executives in government differently from others based on a few cases, and 2) may serve as a disincentive for the best and brightest employees to enter the department’s SES cadre, I also recognize there are legitimate reasons why VA’s leadership wants to make the changes they are proposing.
Their frustration mirrors that of leaders and managers throughout government who have tried to hold employees accountable. Simply put, they feel the system is rigged against them because they believe it takes too long and is too difficult to remove a poor employee. Moreover even if they succeed in removing the employee, the U.S. Merit Systems Protection Board or an arbitrator may overturn the action.
I have often argued that the problem lies less with the law and more with the people trying to administer it. All you need is the will and the skill to deal with a poor employee but far too often government officials lack one or the other, if not both.
With respect to the will, experience has taught me that many government leaders and managers give up before they start because they have bought into the cliché that it is too difficult to fire a government employee. As a result, they do nothing, move them or even promote them and hope the problem will magically goes away.
Concerning the skill, over the last 20 years or so, we have seen the deterioration of the human resources management field, which was caused primarily by the centralization of HRM in many agencies, triggering an outflow of experts in the field. As a result, while the workforce has grown savvier, more educated and more litigious, government managers have often had a hard time finding experts they can turn to who can give them good personnel advice.
Part of VA’s reasoning for moving senior executives from Title 5 to Title 38 is to take away their right to appeal cases to the Merit Systems Board. This appears to be driven by VA’s frustration with a few recent MSPB decisions.
However, to put things in perspective, relatively few cases are actually reversed by MSPB. For example, in 2013, only 4 percent were actually reversed, although this number is a bit misleading since about 25 percent of the cases were settled before the Board issued a decision. These settlement agreements may or may not have been acceptable to the government, depending upon the circumstances of the case.
Having represented the government before MSPB, I certainly understand why VA and others would prefer not to have MSPB involved. After all, like any adjudicative body, some MSPB administrative law judges tend to be more sympathetic to employee concerns than others, and this can sometimes lead to decisions that leave the government less than satisfied. On the other hand, I suspect that unions and other entities that have represented employees before the Board have also been unhappy with some of its decisions.
What’s To Be Done?
First and foremost, agencies need to develop their human resources management staffs and help them improve their advisory skills, especially in the areas of employee relations, labor relations and equal employment opportunity laws. This will help ensure that government managers receive the advice they need and deserve. Fortunately, the government seems to recognize the importance of this as OPM and the Chief Human Capital Officers Council have deemed this as a critical skills gap that needs to be filled.
One way to accomplish this is to ensure that human resources management staff who give advice on dealing with problem employees get extensive experience before MSPB, EEOC and arbitrators. After all, HRM experts should generally be advising government managers on performance and conduct issues, not attorneys, because their role is to help line officials deal with complex HRM issues and improve operations, which is typically not the role of a government attorney.
Secondly, government and congressional leaders need to understand that MSPB doesn’t operate in a vacuum. Rather, it renders its decisions within a framework established by law. Specifically, for actions taken under 5 USC Part 752 (conduct cases and some performance-based cases), agencies have to 1) prove their cases by a preponderance of the evidence (51 percent or more); 2) establish there is a clear connection between the misconduct charged and the employee’s job; and 3) show that the penalty was reasonable using the Douglas Factors as a guide.
I have never understood why Federal managers have to prove cases under 5 USC 752 by a preponderance of the evidence while proving performance cases under 5 USC Part 432 by substantial evidence. (Substantial evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree—which is a lower standard.) It seems to me that using the substantial evidence standard under both Parts 432 and 752 will ensure consistency, make it more difficult for MSPB or arbitrators to “second guess” government HRM decisions and still provide federal employees with a reasonable degree of protection.
Thirdly, in 2010, MSPB issued three decisions (the cases of Lewis/Villada/Woebcke) that for all intents and purposes, essentially mandated that agencies implement the same penalties for the same or similar misconduct throughout an agency. As a result, agencies are now much more at risk of having their penalties overturned if an appellant can show that somewhere in their agency (and some agencies have hundreds of thousands of employees) someone was treated differently than them.
I suspect that these decisions factored into VA’s proposal to take their senior executives out of Title 5 and place them under Title 38, where MSPB would not have jurisdiction. It makes you wonder if down the road, other agencies will also look to distance themselves from MSPB and reduce the protections of their senior executives, and perhaps other employees.
That is why I strongly recommend that MSPB consider reversing the above decisions and revert back to the approach that existed prior to those three decisions, when consistency of the penalty was one of a variety of factors to consider in determining whether the penalty was reasonable.
Three changes would certainly make it easier to remove poor government employees:
- Develop the Federal government’s human resources management workforce to make them more effective advisors. (To be accomplished by agencies in conjunction with OPM.)
- Change the standard of proof for cases under 5 USC Part 752 from a preponderance of the evidence to substantial evidence. (To be revised by Congress.)
- Rescind the three MSPB decisions, known as the terrible trilogy, and use the same approach for determining the appropriate penalty that was used prior to those decisions. (To be changed by MSPB.)
It will not be easy to implement the above recommendations, especially the second one. However, if the all three entities did their part, it would certainly result in something that most people desire—more accountability for Federal employees.
Stewart Liff is an HRM, visual performance management and team development expert. He is the President and CEO of Stewart Liff & Associates, Inc. and is the author or co-author of seven books, including Managing Government Employees and A Team of Leaders. He can be reached at firstname.lastname@example.org.