Fair Game

onstance Weiss, administrator of an Immigration and Naturalization Service processing center in Miami, insisted she was just following orders when she released and moved extra detainees from her facility just in time for a June 1995 congressional delegation visit. The Krome Service Processing Center, which houses immigrants pending processing or deportation, was well over its capacity, with close to 400 people squeezed into a camp designed for 210. Faced with complaints from public health officials, managers were discussing options for reducing the population.

The planned fact-finding visit of the Congressional Task Force on Immigration Reform spurred things on. Valerie Blake, deputy director of the Miami district office, ordered Weiss to reduce the population by the time of the visit. Within 48 hours of the task force's arrival, 149 people either were moved to other locations or released. Weiss kept supervisors informed of her actions via e-mails that also were forwarded to regional executives, including Deputy Regional Director Michael Devine. In one message, Weiss noted that the extra detainees had been "stashed out of sight for cosmetic purposes."

What followed were months of career-damaging allegations of wrongdoing and deception. A letter from frustrated Miami INS employees to task force chairman Rep. Elton Gallegly, R-Calif., launched an 11-month investigation by the Justice Department inspector general. The release of 54 people into the local community "was a direct response to a decision by senior INS managers at the regional and district levels to move aliens out of Krome so that the delegation would not see overcrowding at that facility," concluded Inspector General Michael Bromwich in his report to Congress, which also outlined other alleged deceptions. Creating such false impressions harms Congress' ability to formulate policy and oversee executive branch operations, he wrote.

The Justice Department fired Blake and demoted Weiss and Devine. Three promising careers were crumbling; three professional reputations were mired in scandal. That is, until the managers took their cases to the Merit Systems Protection Board. In separate decisions, three different MSPB administrative judges exonerated Weiss and Devine, and reduced Blake's penalty to suspension and demotion.

In the Weiss case, the judge ruled she wasn't at fault because she was merely following orders. Devine was said to be too far removed from the events to be held responsible. Besides, Devine received 60 to 80 e-mails a day, requiring him to scan messages quickly. He easily could have missed the troubling "for cosmetic purposes" phrase that would have signaled wrongdoing, the judge said.

In Blake's case, the administrative judge upheld all charges but, in light of her exemplary performance record, determined that the agency's penalty was excessive. Blake's urging of Weiss to remedy the overcrowded conditions before the delegation came wasn't intended to deceive, but rather was an "overzealous effort to present a 'sharp-looking, heads-up group of employees doing their jobs,' " the judge concluded. Justice appealed this ruling to the full, three-member MSPB, which reviews the decisions of its administrative judges. Stressing that Blake's actions came in response to high-level agency orders to do "whatever it takes" to reduce the population, the board not only affirmed the judge's general findings, but further reduced the penalty.

Infuriated by the decisions, Gallegly and House Immigration Subcommittee Chairman Lamar Smith, R-Texas, accused the board of making "imbecilic rulings." The IG had equally harsh but more substantive words. "The absence of accountability and common sense permeates these decisions," Bromwich wrote in an October 1998 letter to Gallegly and Smith. "The administrative judges and the MSPB excused managers because they were merely subordinates who could not be held responsible for following orders of supervisors, while at the same time excusing other managers on the theory that they could not be expected to know what their subordinates are doing. . . . I regard the results as disappointing, unsatisfactory, and, in the end, wholly unacceptable."

Critical Role

Few MSPB decisions have generated such controversy. And if one accepts the board's reasoning, few better illustrate how critical the MSPB can be to a civil service career. Weiss isn't the only federal manager to frantically carry out orders that, if given more serious thought, might be discarded as inappropriate. At the same time, a lot of federal executives who, like Devine, get bombarded daily by e-mail have scanned some messages faster than they should have, making them vulnerable to accusations that they knew of wrongdoing when in fact they didn't. Blake's situation, where a manager eager to solve a problem perhaps puts too much pressure on subordinates to find a solution, also is not unusual.

Managers often complain that the appeals process adds a procedural hurdle that makes disciplining problem employees more of a bureaucratic nightmare. Yet they too are protected by the system, as the INS cases show. It's a conflict inherent in due process rights. "If you go back to the beginning [of the merit system], there's been this tension between having absolute discretion by the executive and deciding what level of constraint you put on the executive, the President," notes MSPB Chairman Ben Erdreich. "The tension is part of the system."

Protecting federal employees from becoming fall guys for inappropriate decisions made by an agency's political leaders--which some observers believe played a part in the cases against Weiss, Blake and Devine--is also part of the system. As employment attorney G. Jerry Shaw puts it, "The reason in good part that the Merit Systems Protection Board exists is to protect employees, managers and everyone else from the vagaries of the political process." Shaw is a partner with the Washington law firm Shaw, Bransford, Veilleux and Roth.

The Process

Despite the recent uproar surrounding the INS cases, there's general consensus among Congress, agencies and employees that the agency does its job well. "The Merit Systems Protection Board, on balance, is something federal managers view very positively," says Mark Gable, legislative director for the Federal Managers Association. The courts appear to agree. In fiscal 1998, 92 percent of board decisions reviewed by the U.S. Court of Appeals for the Federal Circuit, to which final board decisions may be appealed, were upheld.

Even employees who lose their cases generally have a favorable opinion of the MSPB, says Shaw, who has represented both agencies and employees before the board. The unbiased review provides resolution to cases, allowing employees to move on with their lives, he says.

Still, it can be a grueling process. As with other types of litigation, MSPB hearings are adversarial duels between agency and employee, both of whom may feel wronged. The hearing itself usually comes only after months and sometimes years of investigation and discussion at the agency level. Once a manager proposes disciplinary action against a subordinate, the agency-sometimes via the inspector general- investigates allegations. Based on those findings, the agency decides whether to formally order the proposed action. Dissatisfied employees must file their appeal with the MSPB within 30 days of the action's effective date.

That filing sets in motion a pretrial discovery process, in which both sides exchange documents and depose potential witnesses, any of whom may be subpoenaed to testify. Initial hearings can take as little as an hour and as long as several days, depending on a case's complexity. A board-imposed 120-day standard, which starts the day an appeal is filed and ends when an administrative judge renders a decision, keeps the process on a fast track. Further appeal to the full board adds about seven months to the process.

For employees who hire attorneys, it can be an expensive ordeal. Attorneys fees for average cases run between $30,000 and $50,000, with complicated cases costing as much as $100,000. "It is a lot of money, and people have a lot at stake," Shaw says, noting that many people have their identities tied up in their jobs. Liability insurance--which costs about $300 a year and is subsidized by some agencies--can make a big difference. "It's a lot easier representing an employee if you know you're not going to bankrupt him," Shaw says. Employees who win their appeals often are awarded payment of legal fees.

Although managers who order disciplinary actions have in-house agency attorneys to handle their side of the case, the process isn't much easier for them. Within agencies, cases tend to become institutional, notes Shaw. For example, the agency must juggle investigations of the manager and employee, maintain objectivity and be ready to respond to potential political repercussions of an adverse action. Sometimes officials decide that, no matter how much time and effort a supervisor has spent documenting the behavior of a problem employee, a case simply isn't worth pursuing.

As Shaw describes it: "The focus becomes the agency, not the individual. The manager sits alone. That is a very uncomfortable place to be. It feels like the agency is not backing him up because it doesn't have his interests in mind. It has the agency's interests in mind."

To reduce the amount of animosity between agencies and employees, administrative judges urge settlement whenever they can, Erdreich says, noting that more than half the cases filed with the board are settled. In cases that go all the way to a hearing, there is a winner and a loser, but when parties settle, people can get back to work and both sides win, he adds.

Losing Rights?

Some federal employees-hose in the military and CIA agents, for example-have never had MSPB appeal rights. But only Federal Aviation Administration employees have actually had those rights taken away. In 1995, when Congress cut FAA loose from the civil service system governed by Title 5 of the U.S. Code, FAA had to create an entirely new personnel structure, including an appeals mechanism.

What they came up with is called Guaranteed Fair Treatment. Cases are decided by a three-person panel: The employee selects one person, management selects another and a third-party arbitrator is jointly selected from a list of qualified people compiled by the agency. No formal discovery process exists, although relevant documents typically are exchanged, and witnesses may testify but they may not be subpoenaed. Employees dissatisfied with the outcome may appeal to a circuit court of federal appeals.

Many observers, including the Federal Managers Association, which is fighting to get MSPB appeal rights reinstated at FAA, consider the new process unfair. FMA fears that because panel decisions don't have to be based on precedent, they may be inconsistent. Furthermore, having decisions appealable to 13 circuit courts of appeal "could lead to the unintended consequence of having different bodies of case law apply to FAA employees depending on where they work," FMA's Gable says. There's also no provision for awarding attorneys fees to employees who prevail, he notes.

But the biggest problem with the appeals process, Gable says, is that it's not conducted by a fully independent body. In his view, the FAA's new system recreates one that was "discredited and corrected 20 years ago." Congress never should have eliminated the FAA rights, he adds. "It doesn't make sense to reinvent something that's already working well."

FAA's new system is "a farce," agrees Shaw. "The perception of fairness is every bit as important as fairness itself," he says. "Employees need to have the ability to achieve closure and they can't do it if the system appears stacked." Shaw's law firm challenged the constitutionality of the process before the District of Columbia Circuit Court of Appeals. But the court found that FAA's new system "fully satisfies the requirements of procedural due process."

FAA officials stand by Guaranteed Fair Treatment. "The system we have is independent," because the third vote comes from an outside arbitrator, says Glenda Tate, FAA assistant administrator for human resources management. Of the 21 cases decided so far, 12 agency actions were sustained, seven were mitigated and two were reversed. While it's still too soon to make conclusive judgments, comparing these numbers with those of the MSPB-which in fiscal 1997 sustained nearly 70 percent, mitigated 4 percent and reversed 26 percent of agency actions in cases it adjudicated-suggests that the FAA system is indeed fair, Tate says.

Tate acknowledges that some people don't consider the new structure as independent as the MSPB. The agency is considering giving employees a choice to appeal either internally or to the MSPB. If Congress passes legislation on the matter, as the Federal Managers Association and the Senior Executives Association hope it will do, FAA will urge lawmakers to permit this option, Tate says.

An FAA reauthorization bill approved by a House panel in March would give employees the choice Tate advocates. The Senate version simply reinstates the MSPB appeal rights. It was unclear at press time how the bills ultimately would fare. Similar legislation passed the House and Senate last year but died in conference over other more contentious issues.

While he is careful not to speak specifically about the FAA system, board chairman Erdreich insists independent review is critical to preserving due process rights. "It doesn't have to be [the MSPB]," he says. "But it has to be in my view some independent agency or entity. . . . Otherwise you would slide back, I think, rapidly to a system that no one wants to see again, which would be the old spoils system, where coercion and pressure is put on employees."