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MSPB Reminds Us It’s Not Impossible to Fire Federal Employees

Due process is necessary to protect all workers, and is a requirement of a merit-based personnel system, agency says.

A new report explaining due process for federal employees illustrates the tightrope agencies must walk to balance fairness and efficiency when it comes to firing workers.

There are good reasons for the current job protections afforded to federal workers, stemming back to the 19th century “spoils system” era when civil servants were hired and fired based on politics, the Merit Systems Protection Board detailed in its new report outlining the history and case law surrounding due process and how it applies to the federal workforce. But the patchwork of statutes and rules that have emerged since the 1978 Civil Service Reform Act has made managing the federal workforce “increasingly complex,” the report noted. Removing poor performers and those engaged in misconduct, while also protecting employees from discrimination and retaliation are not hopelessly incompatible goals, but they’re also not easy to accomplish efficiently.

Among its other responsibilities, MSPB adjudicates appeals of “adverse personnel actions” from federal employees who’ve been fired, suspended, furloughed, demoted or had their pay cut. The latest report from the agency is an effort to educate agencies and lawmakers about current laws governing the suspension and firing of employees, which includes notifying employees of any adverse action within a certain time frame, offering them an opportunity to present a defense, and providing a venue for appeal. The U.S. Constitution’s Fifth and 14th amendments state that the U.S. government cannot “deprive any person of life, liberty or property, without due process of law.” The Supreme Court precedent in Cleveland Board of Education v. Loudermill (1985) defines a public sector job as the employee’s property, and therefore employees cannot be removed or demoted from such jobs without due process. 

The notion of due process has cropped up a lot in the past year in the debate over firing employees and senior executives at federal agencies buckling under the weight of mismanagement and dysfunction. At the Veterans Affairs Department, for instance, problems with data manipulation, delays in scheduling medical appointments for vets, and retaliation against whistleblowers have pushed to the forefront the topic of how to fire misbehaving employees as expeditiously as possible within the confines of the law.

The 2014 Veterans Access, Choice and Accountability Act, which became law last year, makes it easier to get rid of senior executives at the department engaged in wrongdoing. But lawmakers have blasted the department for not firing any employees yet for the specific problems that erupted at the Phoenix, Ariz., facility.

Secretary Bob McDonald and Deputy Secretary Sloan Gibson have publicly and privately discussed the difficulty of firing employees while also complying with due process, and making sure the agency’s decision to fire someone isn’t overturned on appeal. Other agency leaders, including the director of the Secret Service and the former head of the Drug Enforcement Administration have expressed similar sentiments.

A new bill would allow the VA secretary to remove any VA employee based on performance or misconduct; the employee could file an appeal to the Merit Systems Protection Board within seven days of his or her removal. MSPB would have to rule within 45 days of the appeal filing. That legislation also would extend the probationary period for new VA employees from one year to 18 months, and allow the secretary to extend that even further. 

The MSPB report pointed out that due process, while “enshrined in the Constitution” is still somewhat elastic when it comes to its practical application related to federal workers and their jobs. “The process that is due can depend on the situation, and this is reflected in the current civil service statutes,” said MSPB Chairman Susan Tsui Grundmann, in a press release accompanying the report. “For example, 5 U.S.C. § 7513 provides that, when there is reason to believe that a serious crime has been committed, the minimum notice period before a removal takes effect can be reduced from the usual 30 days, but the statute still provides seven days so that the employee can reply to the charges.”

The report also included a list of misconceptions associated with adverse personnel actions. For instance, employees who have been removed do not continue to receive pay (although many agencies can and do place workers on administrative leave with pay pending an investigation prior to removal), and agencies can fire employees suspected of a crime without waiting for actual criminal charges to be filed. Where it can get tricky for agencies is on appeal: Agencies don’t want their personnel decisions overturned on appeal, so tend to move slower to remove employees at the beginning of the process.

MSPB also noted that there are several laws protecting private-sector workers, even though conventional wisdom and practice shows it’s easier to sack an industry employee than a government worker. “Many of the laws that apply to removing employees in the federal civil service also apply to private-sector employment or have a similar counterpart,” the report said, citing the 1964 Civil Rights Act and the 1994 Uniformed Services Employment and Reemployment Rights Act, which permit private-sector workers to sue companies who violate those laws.

While some federal employees and their advocates have expressed concern recently that lawmakers are poised to make them “at-will” workers, there are no bills pending that would completely strip away the due process rights of senior executives, or any federal employees, for that matter. Even the 2014 Veterans Access, Choice and Accountability Act still includes an expedited appeals process for fired VA senior executives.

As long as merit is part of the civil service system, the MSPB report said, due process is a “required element.”

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