Government Executive - Authors - Patrick Pizzella

Bringing Transparency to Administrative Law Judge Dockets

Patrick Pizzella — Wed, 30 Dec 2020 12:28:57 -0500

“Information is data endowed with relevance and purpose.” So noted management guru Peter Drucker, writing in the Harvard Business Review. At the Labor Department, we have worked to understand the data generated by our organization. We also have worked to understand where there are holes in the existing data. Uncovering these gaps and understanding the data helps provide the management information necessary for effective operations.

The Department enforces more than 180 federal employment laws. Many of these laws have provisions providing that the Department’s Office of Administrative Law Judges (OALJ) shall handle disputes that arise under them. The OALJ is the administrative trial court for the Department. Its 42 judges handle approximately 5,500 cases a year and the office currently has around 7,000 cases pending. In May, OALJ was directed to start providing quarterly reports on various metrics related to their case processing to the Office of the Secretary. This direction was made to help support the department’s effective operational and resource management while at the same time respecting the independence of the OALJ.

The OALJ is an important part of the Labor Department. The integrity of many of our programs depends on the good work of this office. ALJs are entrusted with significant authority when conducting proceedings under the laws Labor enforces.

The reports to be provided are based on those that are required for Article III federal courts. In 1990, an overwhelmingly bipartisan Congress passed the Judicial Improvements Act. The Act, among other things, created a reporting obligation for federal courts on the number of motions that have been pending for more than six months, the number of bench trials submitted for more than six months, and the number of cases that have been pending for more than three years. Passage of the Act has given the public a better window into how well the courts are operating.

There is also little doubt that reporting is a gentle nudge that keeps judges aware of older items on their dockets. This is important because federal judges “hold their Offices during good Behaviour,” i.e., essentially their lifetime, and are not subject to performance reviews.

Unlike Article III judges, most of the employees in the Executive Branch have their performance evaluated at the end of the fiscal year. They are on performance standards that measure their effectiveness. Not so for ALJs. The Civil Service Regulations provide that “an agency may not rate the job performance of an administrative law judge.” As such, they are similar to Article III judges in that they are exempt from performance reviews.

Having now received three quarterly reports, the initial indications are positive. The inventory of cases that are over two and three years old has decreased. In the second quarter of Fiscal Year 2020 there were 1,162 cases that were over two years old. That dropped to 979 at the end of the fourth quarter. For cases over three years old the number dropped from 556 to 407.

The OALJ continues to handle dispositive motions almost always within six months. In the latest report there was only one instance where a motion was pending for longer than six months. There were eight at the end of the previous quarter. The number of cases pending for more than six months after the record has closed decreased as well, to 798, down from 875 in the previous quarter.

The transparency provided by the reports serves the twin purposes of giving the public a better window into how well we are operating and also provides department’s leaders with management information to enable appropriate resource allocation. We believe Drucker would approve.

At the Labor Department we have striven to make continuous improvement a core principle of how we operate. Our efforts in this area are showing positive returns and we look forward to even greater returns when the improvements we have implemented, such as the transparency provided by these quarterly reports, show their full effect.

Patrick Pizzella is the U.S. Deputy Secretary of Labor.

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Three Steps the Labor Department Is Taking to Make Government More Effective

Patrick Pizzella — Wed, 24 Jun 2020 12:17:07 -0400

The management scholar Peter Drucker once said, “Efficiency is doing things right; effectiveness is doing the right things.” At the Labor Department we are committed to doing the right things. We have increased accountability within our programs and have taken a hard look at the department’s processes and use of resources to ensure we are being as effective as possible in serving the nation’s workforce. At the core of this effective government is good management, and the department recently took three management actions that emphasize our commitment to operational effectiveness.

First, the department reviewed its debt collection systems and found room to improve. The department’s collection rates are significantly lower than the federal agency average. We have to do better. Debts such as these are owed after enforcement actions are taken by the department. Thorough follow-through on enforcement actions means receiving the money that is owed. It is not enough to perform an investigation, initiate and complete an enforcement action, only to rest before the money is obtained. Rather, the department must vigorously pursue payment where payment is owed. Anything less is a disservice to the workers we have a responsibility to protect and lessens the deterrent effect of enforcement actions.

As such, Secretary Eugene Scalia issued an order directing more responsibility for debt collection to the chief financial officer, who will establish a centralized debt management division with the mission to improve the debt management processes. By centralizing these processes, the department will enhance deterrence and effectiveness and provide consistency across programs, leading to increased collections.

Second, on May 20, Scalia reasserted the secretarial prerogative to review decisions of an adjudicatory body within the department, the Administrative Review Board. Even though review board decisions are issued in the name of the secretary, oversight of these decisions had been essentially delegated to the board itself because no further review was occurring. Now, the secretary will be able to step in and review cases where such review is warranted. This enables him to examine the decisions that are issued in his name, an important part of fulfilling his oath to “well and faithfully discharge the duties of the office.”

Third, we recently directed the department’s administrative trial court, the Office of Administrative Law Judges, to provide regular reports on the number and type of pending cases. With their mission to provide a neutral forum to resolve labor-related administrative disputes before the department, administrative law judges are often entrusted with significant authority in handling cases brought under the laws for which they have jurisdiction. Thus, the department must ensure that Office of Administrative Law Judges continues to produce high-quality work, and where possible, make improvements to case processing.

These regular reports will hold the office to a higher standard similar to the judicial process of Article III courts, which serves as a model for the fair and effective adjudication of disputes. This initiative also makes requested information about pending cases and dispositive motions publicly available, which is important not only for effectively managing the department’s work, but also for bringing increased public transparency to the process by providing the anticipated length of time for pending cases.

These three actions are part of our deliberate, ongoing strategy to drive progress that will result in more effective government for years to come. Positive effects flowing from these actions will benefit the wage earners, job seekers and retirees that the department serves.

Patrick Pizzella is the Deputy Secretary of Labor.

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Viewpoint: Rising Suspensions and Debarments Among Federal Contractors Is Good News for Taxpayers

Patrick Pizzella — Thu, 19 Dec 2019 08:00:00 -0500

Benjamin Franklin once said, “There is no kind of dishonesty into which otherwise good people more easily and frequently fall than that of defrauding the government.” That’s probably because people often forget that the ultimate victim of such fraud is not some faceless, faraway bureaucracy. It’s taxpayers like you and me.

The Labor Department does business with thousands of entities every year. We spend billions of dollars to help Americans obtain and maintain good, family-sustaining jobs. When we do business with individuals and companies we have a duty to remember that it’s taxpayer dollars we’re spending and we must spend them responsibly. We take that duty very seriously.

Unfortunately, some people and companies engage in illegal or otherwise inappropriate conduct, including fraud. Those are unacceptable business partners. The department is committed to keeping taxpayer money away from entities with irresponsible business practices.

The good news is that federal agencies have several tools we can use to protect government programs from fraudsters. Among these tools are suspensions and debarments, which allow the government to stop entities from doing business with not only the Labor Department, but the entire federal government when necessary to protect it from harm. At Labor, suspension is usually temporary, pending a full investigation, and debarment usually lasts three years.

Every fiscal year since 2009, the department has sent suspension and debarment numbers to a committee at the Office of Management and Budget charged with keeping track of bad actors the government should avoid. During the previous administration, the department’s suspension activity was minimal. From 2009 to 2016, the department imposed five suspensions; zero debarments were issued from 2010 to 2015.

Under President Trump’s leadership, Labor has significantly strengthened its suspension and debarment program. Between 2016 and 2017, we increased the number of suspensions from zero to eight, and debarments from one to 17. In 2018, we imposed a total of 21 suspensions and 15 debarments.

To build on this momentum and save more taxpayer money from going to irresponsible business partners, we also started a pilot program to make the suspension and debarment process more efficient. We took the first step in December 2018, when our inspector general and the secretary of Labor signed protocols to enhance information sharing between the IG’s office and the agency that handles our discretionary suspensions and debarments. This increase in cooperation has reduced the time required to process suspension and debarment referrals from the IG. That same month, we embarked on an effort to streamline suspension and debarment reviews across all departmental agencies. We also placed more employees on the suspension and debarment team, which has allowed us to process multiple referrals at the same time.

This pilot program has helped us more effectively identify problems in need of action. In 2019, we issued 125 suspensions and 130 debarments, a many-fold increase from the last several years combined. Our enhancements to this process have made us better at hiring honest people and upstanding businesses to put taxpayer dollars to work.

The goal isn’t to punish contractors, and we don’t measure success based on the number of actions taken. Rather, our intent is to reduce business risk and protect taxpayers from the waste and abuse caused by bad actors—something we haven’t been well positioned to do in the past. We’re no longer turning a blind eye to dishonesty. After all, as Benjamin Franklin would say, “Honesty is the best policy.”

Patrick Pizzella is the Deputy Secretary of Labor.

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Ruling on IG Investigations Is a Victory for Good Government

Patrick Pizzella — Mon, 29 Sep 2014 14:51:29 -0400

It is unusual for a member of a regulatory body to be pleased that a court overturned a decision by that body. Yet that is the position I find myself in with respect to a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit. In a victory for effective and efficient government, the court decided proposals concerning investigations conducted by inspectors generals are barred from collective bargaining.

Before I became a member, the FLRA had ruled that federal agencies and unions could bargain over proposals related to inspector general investigations. In reviewing the FLRA’s decision, the federal appeals court was required to resolve a conflict between two statutes that were passed more than 35 years ago—the Inspector General Act and the Federal Service Labor-Management Relations Statute. Siding with the Homeland Security Department and overruling the FLRA, the court determined that collective bargaining is “antithetical” to IG independence as established by the IG Act. Despite being a member of the FLRA, I believe that the D.C. Circuit got it right in this case. The cause of good government and the interest of the taxpayer will be well-served by this decision.

In 1978, Congress overwhelmingly passed the IG Act, which established the Office of the Inspector General in many agencies to combat fraud, abuse, waste and mismanagement in the programs and operations of the federal government.

The law’s provisions are devoted to establishing IG’s independence from the agencies they oversee. Under the law, agency heads cannot prohibit an IG “from initiating, carrying out, or completing any audit or investigation.” In addition, agencies must give IGs “access to all records, reports, audits, reviews, documents, papers, recommendations, or other material[s] available” related to the IG’s duties. Only the president can remove or transfer an IG from his or her position. Even then, the president must provide the reasons for such action to Congress within 30 days.

The D.C. Circuit’s decision protects this statutory independence—and the important work performed by IGs—by barring proposals concerning IG investigations from the collective bargaining process. As DHS stated in its brief to the court, collective bargaining would have “the ironic result of permitting” agencies and unions “to accomplish through collective bargaining precisely what the [IG] Act bars [an] agency head from doing—i.e., controlling the way an [IG] conducts investigations.” As DHS so aptly stated, “Congress could not have contemplated” when it passed the IG Act that the IGs’ independence, which it had so carefully and painstakingly created, would “be negated by collective bargaining.”

If agencies and unions could bargain over proposals involving IG investigations, the ability of IGs to investigate union corruption would be seriously undercut. IGs often partner with the Labor Department’s Office of Labor-Management Standards to investigate wrongdoing by union officials. In 2012, for example, following joint investigations by OLMS and Labor’s IG, a former president of the American Federation of Government Employees in Clever, Missouri, and a former president of the National Association of Government Employees in Alexandria, Virginia, both pleaded guilty to charges related to embezzlement of union funds. In 2013, OLMS and the Veterans Affairs Department’s IG determined that a former AFGE president in New York City had embezzled more than $110,000. These investigations would have been significantly hindered if unions, through collective bargaining, could place restrictions on IGs and the timing, techniques and procedures that they use.

The D.C. Circuit’s decision also contributes to, in the words of the Federal Service Labor-Management Relations Statute, the effective conduct of public business. IGs contribute significantly to improving the economy and efficiency of the federal government. In 2012, IG investigations resulted in more than 5,000 criminal prosecutions, more than 1,000 civil actions, and more than 3,000 personnel actions.

In recent years, IGs have uncovered significant wrongdoing in the federal government. Just last year, the Environmental Protection Agency’s IG determined that a former senior official had defrauded the agency of nearly $900,000 while pretending to work for the CIA. In 2013, an IG at the Treasury Department discovered that the IRS had used inappropriate criteria to identify tax-exempt applications for review, impermissibly basing such selection on the entity’s name or policy position. And, in the process of rebuilding after Hurricane Katrina, various agencies’ IGs investigated allegations of fraud, waste and abuse that led to 407 arrests and 225 convictions.

The D.C. Circuit’s decision is not just a victory for common sense, but it is also a victory for the taxpayer and those who believe in the importance of an effective and efficient government. As President Carter remarked after the passage of the IG Act, “the real damage of fraud and abuse cannot be measured just in dollars or cents, for the value of people’s trust and faith in their institutions of self-government are priceless.” By safeguarding the independence of IGs, the D.C. Circuit’s decision helps ensure that the purpose of the IG Act will be realized, and the Federal Labor-Management Relations Statute will not be used to complicate the work of IGs.

Patrick Pizzella was confirmed as a member of the Federal Labor Relations Authority in October 2013 and previously served as assistant secretary for administration and management at the Labor Department (2001-2009). The views expressed are his own.

(Image via Stocksnapper/Shutterstock.com)

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A Beneficial Union

Patrick Pizzella — Wed, 01 Oct 2008 00:00:00 -0400

Better technology combined with open labor relations can cut the cost of official time.

As the renowned British composer, Sir Hugh Allen, once stated, "Jumping at several small opportunities may get us there more quickly than waiting for one big one to come along."

During these times of limited resources, the Labor Department has taken advantage of every small opportunity to achieve savings, including in the area of official time-authorized, paid time off from assigned duties so government employees can represent a union or its bargaining unit employees.

According to the Office of Personnel Management, the average annual official time usage in the federal government from fiscal 2004 to fiscal 2006 was 3.3 million hours. That equates to an average annual cost of nearly $125 million. In 2004, the Labor Department strategized to curb its own staggering costs in this area. The result was a three-pronged initiative to reduce the need for and to better manage the administration of official time-with the goal of accomplishing the department's mission.

First, to reduce costs associated with official time, the department revamped its Labor Employee Relations Management System, an automated system developed to track employee and labor-relations data. The upgrade has streamlined the administration of official time by providing managers real-time access to their employees' official time usage. This access reduces the misuse of official time by allowing managers to track whether a particular agency, office or employee is using more than a reasonable amount. Also, it allows managers to provide timely corrective guidance.

Then Labor negotiated collective bargaining agreements with its national and field unions to clarify contractual ambiguities and increase flexibility for managers. The new agreements have decreased the number of grievances filed and referred to arbitration. Accordingly, official time usage has been significantly diminished.

The third prong of the department's initiative was to develop a robust alternative dispute resolution program. A significant percentage of Labor's official time results from litigation related to workplace disputes. The ADR program has reduced demand for such litigation by resolving many disputes informally at their earliest stage. This resulted in savings of more than $600,000 in fiscal 2007 alone.

The sum of these disparate strategies has had a unifying result. Since 2004, Labor has reduced official time usage by 37,000 hours, or 40 percent, an average of three hours per bargaining unit employee. The department has been at the vanguard of official time management, decreasing those hours 16 percent from fiscal 2006 to fiscal 2007. According to OPM data for the same time frame, the government-wide average actually increased by 3 percent. The Labor Department's reductions since fiscal 2004 have saved $1.1 million.

All this was achieved despite factors that increased the demand for official time, such as negotiations of two collective bargaining agreements and midterm negotiations regarding the department's implementation of the President's Management Agenda in key areas such as expanded electronic government and competitive sourcing.

The culmination of the effective use of electronic management systems, strategic contract negotiations, and open minds to alternatives in dispute resolution can optimize the demand for and administration of official time-and demonstrates that seizing small opportunities makes sound fiscal sense.

Patrick Pizzella is assistant secretary and chief human capital officer at the Labor Department.

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Shedding Light

Patrick Pizzella — Sat, 01 Oct 2005 00:00:00 -0400

Annual reports must include the bad with the good to be effective.

Transparency, or telling it like it is should be incentive enough for executives, analysts and program managers to take performance measurement and results seriously. But achieving transparency is not as easy as it sounds. Clear communication can be bought or taught. Exposing weakness is far more difficult.

No one likes to admit failure-especially in their organization's annual report. If managers and their staff believe executives want nothing more than to declare victory, then they will dodge accountability for clear, measurable achievements.

The foundation of effective performance management is commitment by the chief executive to honest, fair and accurate self-assessment. This leadership gives agency heads and program managers not just a fighting chance but a mandate to establish a policy of transparency-and to enforce it.

Political appointees inherit people, organizational structures and processes that must be carefully steered toward new policy objectives. Successful strategies identify fixed elements and degrees of freedom, and optimize both. In 2001, the Labor Department had a solid goal structure, but it contained too many objectives, some of which were vague. Since then, the agency cut in half the number of performance goals and the ones remaining are outcome-oriented.

Labor's Performance and Accountability Report has improved by 40 percent on the George Mason University Mercatus Center's annual score card of agency reports. Labor's report ranked No. 1 for the past three years among two dozen federal agencies rated by Mercatus, and it earned a certificate of excellence from the Association of Government Accountants for the last five.

The secret: transparency.

The PAR, mandated by the 1993 Government Performance and Results Act, is meant to improve effectiveness by informing decision-makers of the consequences of budgetary and management choices. Because it is a feedback mechanism, its quality affects agency performance. If strategic management is not evident in the report, then it is either absent or hidden-and there is no reason to hide good practices.

A good report involves much more than clear, outcome-oriented goals and measures, but it is impossible to produce a good report without them. At Labor, programs create and own their goals. At the departmental level, officials monitor quality and consult with agencies on performance so their proposed goals, indicators, targets, claims and analyses are challenged on all fronts for relevance, clarity, consistency and ambitiousness.

When those accountable for producing results also are accountable for setting goals and reporting progress-and that report is under a bright light-other pieces fall in place.

The Labor Department puts a premium on informing the public about its efforts to benefit America's workforce. "The Department of Labor is proud to have the Mercatus Center recognize us for the third year in a row as the top federal agency in communicating to the public how we utilize taxpayers' dollars," says Labor Secretary Elaine L. Chao. "The scoring regimen raises the bar every year, so being a repeat winner is a great distinction."

According to President Bush, "Government likes to begin things. . . . But good beginnings are not the measure of success. What matters in the end is completion. Performance. Results. Not just making promises, but making good on promises." The Labor Department is making good on its promises-through transparency.

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