Wielding The Ax

Jeffrey Alan Love

Urban legend says it’s impossible to fire a federal employee for anything less than committing murder. The recent scandals involving feds at the General Services Administration (misusing taxpayer funds) and the Secret Service (procuring prostitutes) have revived the old saw: What does a federal employee have to do to get axed?  

It is harder to fire a career government employee than a political appointee or a private sector worker, as a general rule, largely because of laws protecting career civil servants from being dismissed without cause or for politically motivated reasons. “Employees should be retained on the basis of adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards,” notes one of the nine merit system principles in the 1978 Civil Service Reform Act.

“It’s in the public interest to have some protections for career employees against arbitrary action, particularly politically motivated [action],” says John Palguta, vice president of policy at the nonprofit Partnership for Public Service. Palguta also has worked at the Office of Personnel Management and the Merit Systems Protection Board, the agency that adjudicates appeals from employees related to their job status. 

Political appointees, in contrast, can be sacked on the spot since they serve at the pleasure of the president. They usually resign—voluntarily or under duress—shortly after a controversy erupts, while career employees involved could end up hanging onto their jobs for some time, even in the face of wrongdoing. One example is Martha Johnson, former appointed head of the General Services Administration, who resigned immediately after news broke this spring of GSA’s notorious $820,000 Las Vegas training conference in 2010. But Jeff Neely, the senior executive and regional commissioner behind the boondoggle, remained at the agency on administrative leave until late May, when he reportedly retired—not exactly the same as being fired. 

Government managers can fire federal employees for poor performance or misconduct under Title 5 of the U.S. Code (Chapters 43 and 75). It’s easier to dismiss someone for misbehaving— showing up to work drunk, for example—than it is for mediocre performance, which is subject to interpretation and rarely yields a smoking gun. “It comes down to judgment, so it’s easier to challenge a performance-based action,” says Henry Romero, who was associate director for workforce compensation and performance at OPM during the Clinton administration. Managers also must give employees the opportunity and time to improve if subpar work performance is the problem. 

In a 2009 report, MSPB said that complexities involved in performance management—not the law—present the greatest challenge to handling poor performers. “The agency is required to articulate a performance expectation, measure it and document the extent to which the employee has failed to meet expectations,” said the report. “According to an MSPB survey of proposing and deciding officials, this is where the actions become difficult. Our survey respondents told us that supervisors have difficulty creating standards for performance and documenting how well employees are meeting those standards.”

Even in instances where conduct rather than performance is the issue, agencies often place employees on administrative leave while an investigation unfolds and the government affords the employee due process. So firing a federal employee typically involves a lot of things most managers try to avoid: paperwork, confrontation and the prospect of being overruled by the agency or MSPB.

“You will find some federal managers are reluctant to take action for fear of being overturned, or for fear of taking too much time and effort,” says Palguta. “Some managers, quite frankly, might let the situation slide.” 

And why wouldn’t they? Reasons managers have cited over the years for failing to take action against bad apples include lack of support from upper management, reluctance to engage in a tedious and time-consuming process, and fear of grievances or other actions. A 1999 OPM report on dealing with poor performers in government noted that several supervisors said there was “little negative cost to them for taking no action.”

Romero likened managers’ fears of firing or demoting workers to those of parents who can’t control their children: The bad behavior reflects poorly on them. “I have found that there is rarely any glory in being viewed as a tough manager,” says Romero, now a senior adviser at Virginia-based consulting firm Federal Management Partners. “Nobody winds up in the agency newsletter for firing three employees this year.” 

Managers should educate themselves about federal hiring and firing statutes and processes, say Romero and Palguta. Agencies don’t always take the time or effort to properly train supervisors in those areas, so managers have to be proactive about their education. For example, they say, managers should take advantage of the yearlong probationary period new employees are subject to because it’s easier and faster to unload a poor performer during that time. Look to your agency’s human resources office and general counsel, in particular, Palguta says, to provide guidance on options and procedures. “The fact of the matter is, if you do the right thing as a government manager, your chances of being successful in having that decision upheld is in excess of
90 percent, probably 95 percent.”

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