Federal Redo of Leave Rules May Implicate Chemical Safety Board

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By Sam Pearson

A pending Office of Personnel Management regulation could shake up a long-running personnel dispute at the Chemical Safety Board, potentially freeing up more resources for ongoing investigations or internal reforms impacting oil, chemical and mining companies that could be subject to agency probes.

OPM’s proposed regulations (RIN:3206-AN49) would cap at 10 days per calendar year federal agencies’ use of administrative leave for employees accused of misconduct or performance concerns.

The changes could allow CSB to free up resources for other agency priorities, or save money if it helps it resolve the case of its managing director, Daniel Horowitz, who has been on paid administrative leave since June 2015 due to allegations of mismanagement and leadership failures. Horowitz has remained on the payroll since.

CSB operates on a $11 million budget, and doesn’t investigate all accidents within its statutory mandate. In 2016, the Environmental Protection Agency Inspector General suggested CSB conduct more, and faster investigations by “reprioritizing its resources.” Agency leaders have also said decisions to deploy to new investigations are based in part on fiscal considerations.

It’s hard to say if paying Horowitz’s salary has had an impact at CSB, Michael Wright, health and safety director at the United Steelworkers union, told Bloomberg BNA. But the funds are a significant amount of the agency’s small budget.

“I have no idea why it has gone on as long as it has,” Wright said.

Mark Farley, a partner at the law firm Katten Munchin Rosenman LLP, told Bloomberg BNA a new managing director, rather than investigative spending, would help CSB succeed. However, Farley said, CSB senior adviser Thomas Zoeller, who started in January 2017, appears to be performing many of Horowitz’s former duties.

The paid leave situation “hinders the chairperson’s ability to bring about the reforms that she has prioritized for the agency,” Farley said. “Being able to name an individual to that slot would likely enable Chairperson [Vanessa] Sutherland to reform the agency more quickly.”

The new law, originally known as the Administrative Leave Reform Act, was included in the fiscal 2017 defense authorization measure, which President Barack Obama signed last year.

The issue gained traction in Congress after a 2014 Government Accountability Office report found 57,000 federal employees were on paid leave for at least a month between 2011 and 2013, with agencies having spent $3.1 billion on paid administrative leave for all employees during this time.

After the proposed 10-day cap, agencies could issue paid “investigative leave” in 30-day increments while an investigation continued. Every 90 days, agencies would have to tell Congress why the employee was still on administrative leave, but not other types of leave such as notice or investigative leave. Agencies would have to comply 270 days after OPM publishes a final rule.

Other Leaves Could Be Unlimited

Sutherland told Bloomberg BNA in July Horowitz’s status with the agency had not changed.

Jeff Ruch, who represented Horowitz as director of Public Employees for Environmental Responsibility (PEER), said in an email to Bloomberg BNA the changes won’t do much for Horowitz’s situation.

Horowitz earned a salary of $158,700 during fiscal 2015 and took home $160,300 in fiscal 2016, according to a database of federal employee salaries. At that rate, Horowitz has earned more than $330,000 during the time he has been on administrative leave.

“Under these regulations, CSB could take Dr. Horowitz off administrative leave and instead place him on notice leave for an unlimited period,” Ruch said.

Ruch said in 2016 the removal was never finalized by the board, leaving Horowitz unable to formally dispute the personnel action. Horowitz declined to comment to Bloomberg BNA.

CSB Hasn’t Addressed Regulation

While the law came after reports of excessive use of administrative leave, critics say the proposed rule may not go far enough to crack down on wasteful pay.

Dozens of federal agencies, employee unions and advocacy organizations weighed in on the proposal during the comment period that ended Aug. 14, but no comments from CSB were available and the board didn’t respond to Bloomberg BNA’s request for comment.

Judy Galat, assistant general counsel at the American Federation of Government Employees, said in public comments OPM should make it easier for agencies to place employees on telework instead of administrative leave.

“This is consistent with the statutory goals of limiting the amount of time that an employee who is under investigation is in a leave status and not performing work for the agency,” Galat wrote.

Ruch’s organization, PEER, said in public comments the changes would not do enough to address the problem.

The group said often “employees are left in lengthy leave-limbos because agency management finds the employee inconvenient, an irritant, or a political threat but lacks grounds to justify removing him or her.”

OPM should also do more to call out managers who abuse paid leave categories, PEER said, such as identifying them in mandated congressional reports or subjecting the managers to discipline.

To contact the reporter on this story: Sam Pearson in Washington at spearson@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

The proposed rule is available at http://src.bna.com/rOs.

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