‘Patchwork Legislation’ for Fixing Civil Service Panned

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By Louis C. LaBrecque

Congress may think it’s helping the government by passing bills aimed at addressing federal employee misconduct at specific agencies. Others see the situation differently.

“I’m frustrated with Congress’s nickel-and-dime approach,” William Wiley, a San Francisco attorney in private practice, told Bloomberg BNA July 5.

“They have their own valid frustrations—but instead of looking at the whole civil service system, they’re passing patchwork legislation” based on the headlines of the day, Wiley said.

Wiley represents agencies before the Equal Employment Opportunity Commission, the Merit Systems Protection Board, and the U.S. Office of Special Counsel. He also is president of the Federal Employment Law Training Group, which provides training to federal agencies and managers.

Tracking Discipline or Misconduct?

An example of Congress’s tendency to overreach is the Fixing Internal Response to Misconduct Act ( H.R. 2131), Wiley said. The legislation, which the House passed by voice vote June 21, is designed to ensure that the Department of Homeland Security deals with misconduct in a uniform way.

This approach is contrary to recent case law developed by the MSPB and to common sense, Wiley said.

The MSPB generally looks for consistency from “deciding officials” at agencies, not throughout an entire agency, Wiley said. There’s a reason for that, he said.

“Even if you track all the discipline, you can’t track all the misconduct,” Wiley said.

That’s because individual managers sometimes ignore instances of misconduct. For example, one manager may choose not to discipline an employee for showing up late to work, while another may administer a harsh penalty, Wiley said. This makes it difficult to compile information about how agency managers as a group are responding to specific forms of misconduct, he said.

The MSPB considers penalty consistency as a factor when it reviews discipline of federal workers in response to employee appeals, Wiley noted. But it’s one of 12 factors the MSPB considers, not the top factor, he said.

Problems With VA Accountability Law

The VA Accountability and Whistleblower Protection Act ( S. 1094), which President Donald Trump signed June 23, is another example of Congress inserting itself into agency affairs, Wiley said.

The new law will allow the VA secretary to provide employees with just 15 days’ notice of firings, suspensions of more than 14 days, and demotions, compared with 30 days’ notice now. It also establishes a new Office of Accountability and Whistleblower Protection within the Department of Veterans Affairs to hear appeals of adverse employment actions brought by senior executives at the department.

There’s no reason why members of the Senior Executive Service at the department should be treated differently than other VA employees, who will continue bringing appeals of adverse actions to the MSPB, Wiley said.

“Maybe we should not have an outside agency that’s never run a health care facility make these decisions,” Wiley said of the board. “But instead of answering that question head on, Congress treats the SES differently.”

It could be argued that senior executives at the VA are more in need of an independent body to hear their employment appeals than frontline workers, not less, Wiley said.

“These are the positions that are most likely to be subjected to political pressure,” he said.

‘You End Up With This Morass’

Congress hasn’t approached federal civil service issues in a holistic way since 1978, when it passed, and President Jimmy Carter signed, the Civil Service Reform Act, according to Jason Briefel, executive director of the Senior Executives Association. The SEA is a Washington-based professional association that represents the interest of about 7,000 career federal executives, including on issues of compensation and benefits.

“When Congress created the CSRA, it was an attempt to create a common set of civil service laws,” Briefel told Bloomberg BNA July 5.

“Forty years later, part of the challenge and frustration is that you have all of these mandates on the workforce” that aren’t uniform, he said. “There’s a requirement that the chief human capital officer for Agency X does this, while certain training is required for employees of Agency Y.”

“You end up with this morass,” he said.

Some members of Congress and their staffs are too casual about drafting legislation affecting federal employees, Briefel added.

“I had staff people telling me that, if it’s unconstitutional, we’ll fix it later” when Congress was drafting legislation it passed in 2014 that made it easier to fire federal executives at the VA, Briefel said.

The U.S. Court of Appeals for the Federal Circuit recently ruled that the Veterans Access, Choice and Accountability Act was, in fact, unconstitutional. The court on May 9 struck down the portions of the 2014 law that made it easier to fire senior executives at the VA.

Part of the problem may be that there are fewer staffers at agencies designed to help lawmakers understand issues, such as the Congressional Research Service and the Government Accountability Office, Briefel said.

Lobbyists are another source of information for Congress. But lobbyists “are not paid for providing impartial advice” to lawmakers who want to learn more about legislation, Briefel said.

Training Called Missing Link

Attempts to make it easier to fire specific groups of federal employees are based on the view that it’s practically impossible to hold them accountable under current law, according to Wiley.

That’s a misconception, he said. What’s problematic is the lack of knowledge among federal human resources and labor relations staff about how to discipline government employees, Wiley said.

Federal HR and labor relations staff used to get rigorous, uniform training on the subject, Wiley said.

“I was a labor relations specialist at the Navy,” he said. “If I spoke with a labor relations specialist at any other agency, they had the same knowledge.”

That kind of across-the-board training is no longer being offered, Wiley said. As a result, some federal HR specialists—and even some government attorneys—have misconceptions about the legal requirements for disciplining employees, he said.

“Some do a terrific job and some do a terrible job,” said Wiley, who’s also a former chief counsel to the MSPB chairman.

Fight Between Perfect, Good

There’s no question that federal civil service rules need to be modernized, Max Stier told Bloomberg BNA July 6. Stier is the president of the Partnership for Public Service, a Washington-based nonprofit that seeks to make the government more effective.

The question is how to achieve that goal, he said.

“The problems are enterprise-wide. An ideal set of solutions would take that on. But unless and until you can get that, specific efforts make sense,” even if some agencies are targeted for changes that could be applied more broadly, Stier said.

In the absence of a broader civil service overhaul, better training for federal managers would go a long way toward fixing agency problems, Stier added.

“When you look at the VA legislation, it’s being presented as a major fix,” he said. “But fundamental issues are unresolved, such as making sure you have qualified and capable managers at the VA.”

“There’s a very large training deficit” throughout the federal government, Stier said. “Investments in smart training make more sense than making it easier to fire feds,” he said.

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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