Handling Doomed Employees

O

ne of the hallmarks of employment in the private sector is that when a decision has been made to fire an employee, he goes immediately to the door, often accompanied by security personnel. In the federal sector, this, to put it mildly, does not happen. A non-probationary federal employee is generally entitled to a relatively elaborate appeal process even before removal, consisting of a formal proposal letter, an opportunity to reply in writing and also orally, and then a decision letter-usually signed by a higher level official.

Although the 1978 Civil Service Reform Act provides at least 30 days' advance notice following the initial proposal before an employee can be fired, the truth is that agencies often take many months or even years to take a removal or suspension action. Unfortunately, there is rarely a good reason for these maddening delays. In most cases, the problem is not rooted in some complex inspector general investigation, but rather in the all-too-familiar phenomena of over-vetting and indecision. Specifically, the matter is passed from office to office-line management, human resources, counsel-and each office collectively wrings its hands and says: "Ooh, ooh, what do we do with this?" I once represented a Treasury Department manager whose relatively simple case took more than three years to run from investigation to decision.

From the employee point of view, this snail-like process is an outrage. To live for many months with the sword of Damocles suspended above one's head is punishment in itself, and I believe that the affected employee's managers have at least a moral obligation to put the heat on whomever is holding up the process to bring the matter to a rapid conclusion. But moral issues aside, agencies have a real interest in effecting removals expeditiously, for delay can becloud or even vitiate what could have been a clear-cut slam-dunk removal of someone who is unfit for federal service.

Harmless Errors

Federal employees are under the widespread but mistaken belief that when an agency takes too long to complete the internal investigation and decision process, or violates its own rules, regulations, polices, procedures or directives, the action is automatically voided. This is absolutely not so. In fact, to overturn a disciplinary action due to agency error, the Civil Service Reform Act requires that the employee show "harmful error in the application of the agency's procedures in arriving at [a] decision."

In practice, this is a difficult burden for the employee. For example, the Veterans Affairs Department has a regulation mandating that when the VA receives an allegation of patient abuse by an employee, management is supposed to convene a "board of investigation" to conduct an inquiry. Failure to do so, however, will not invalidate the action the agency takes on the allegation.

Likewise, postal management has an obligation when it opens an employee's locker to allow the employee or a union representative to be present, and failure to do so constitutes a violation of the union contract. Nonetheless, when a manager, totally disregarding this provision, opened an employee's locker and discovered undelivered mail, the employee failed to convince the Merit Systems Protection Board to reverse the disciplinary action for delay of the mails. The MSPB opined that the error was harmless because the employee was unable to show how his or the union official's presence would have caused the mail not to be found when the locker was opened.

Not every delay causes harm-and remember, the burden is on the employee to show how he was prejudiced or injured by it-even when the agency violates its own regulation mandating that the action be taken within a certain time. However, if the employee can demonstrate that the agency's delay was unreasonable and inexcusable and that it adversely affected his ability to defend himself against the charges, the employee will prevail. Some examples might be death or disappearance of witnesses, the fading of witness' memories over time, or the loss or routine destruction of relevant documents.

Showing the Connection

Federal employees are not fired or suspended for having been bad boys and girls but rather "only for such cause as will promote the efficiency of the service." To take action against an employee, an agency must prove a nexus between the misconduct and the job. The principal ways that an agency does this are by offering evidence to show that the employee's behavior has caused management to lose trust and confidence in him or that the employee's conduct has interfered with or adversely affected the agency's mission.

In a number of cases, the MSPB has in effect said to an agency: "Wait a minute! On the one hand, you're saying that you need to fire the employee to promote the efficiency of the service. But having full knowledge of what the employee did, you allowed him to remain on the job for several months and you can't point to any harm done to the agency's mission by his continued presence. Thus you've gutted your own argument that you've lost confidence in him. Removal mitigated to a suspension."

An agency guilty of an inexcusable protracted delay can't win if harmful error results from the delay, but it can often dodge the "promote the efficiency of the service" bullet by its handling of the employee in question while the process inches along to completion. In fact, agencies should always consider taking one of the following three interim actions:

  • Suspension under the "crime provision" of the Civil Service Reform Act. Title 5, U.S. Code, Section 7513 provides that when an agency has reasonable cause to believe that an employee has committed a crime for which a term of imprisonment may be imposed, it may indefinitely suspend him without pay pending final disposition of the case in the criminal courts. Although a crime provision suspension usually follows an indictment or a finding of probable cause (less than a preponderance of the evidence) by a magistrate, it need not. When management itself has sufficient facts to support a conclusion that there is reasonable cause that a crime has been committed, it may impose the suspension even in the absence of formal action by the criminal justice system. These situations are not common, but the crime provision should be utilized when appropriate.
  • Paid administrative leave. Certain kinds of employees should not be present at their jobs pending adjudication of their cases. People who have threatened or assaulted their co-workers, serious sexual harassers, those who have stolen agency property and folks who have threatened to sabotage agency computers or other property are examples of such employees. In spite of the fact that it may seem morally repugnant to allow them to get paid for staying away and may be seen by them or their co-workers to be a windfall, it is usually an effective method to defeat the argument that an agency has not actually lost confidence in them or that they are not having an adverse impact on the agency's mission.

    Although a given employee may be delighted to be on paid administrative leave, it is irrelevant whether he likes it or not, because placement on "admin" leave is largely an unappealable action. As a footnote, those who have committed crimes may have to be put on paid administrative leave rather than be suspended under the crime provision. This occurs, not infrequently, when the prosecutors choose not to share information with an agency due to their unwillingness to reveal their case in "mere" administrative proceedings and thus possibly compromise the criminal case. When this occurs, the crime provision is simply not an option.

  • Hide the cookies. When the crime provision is inapplicable and an agency chooses not to place the employee on paid administrative leave, there is still one more option. At the very least, the agency should separate the employee from the continued ability to do what he is accused of doing. If he has misused a computer, deny him further access; if he has stolen from the petty cash fund, make someone else the petty cash fund cashier; if he has misused his credit card or cellular phone, take the card or phone away; and if he sexually harassed co-workers, place him in the agency monastery.

How does an agency expect the MSPB to believe it has lost trust and confidence in the employee or that the agency mission was negatively impacted when, having full knowledge that the employee misused government property, it allowed him to continue to use it while the action was pending?

Delays by agencies in investigating and processing disciplinary actions are widespread, largely without justification and morally indefensible. If these unnecessary delays result in harmful error, the agency will lose its case. Even if there is no harmful error, the agency will weaken its case, perhaps fatally, by delaying. So keep things moving, and once it looks like removal may be the goal, get the employee off the work site or at least away from the cookie jar. Otherwise, an employee who ought not to be on the job will stay there.

William N. Rudman is an attorney specializing in federal employment law. He retired from federal service in 1993 as deputy undersecretary of Defense and director of the Defense Technology Security Administration. He conducts training in federal employee discipline and performance issues for the Brookings Institution and Government Executive.

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