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Wednesday, April 22, 2015

Where is Federal Employee Accountability?

By Robert B. Charles

Let the federal firings begin.  Only they will not.   Open secret:  Federal employees are nearly impossible to fire.  Lives have been endangered at the Department of Veterans Affairs by a combination of objective incompetence, personal indifference, apparent greed and periodic complicity.  Law enforcement agencies with historically top flight reputations have been suddenly sullied by a few bad apples, including at the U.S. Secret Service and DEA, where a handful of rogue or misguided agents have chosen to abuse authority, avert procedure, transgress established polices, or all three.  Across the Federal government, well-intentioned agencies are now safe harbors for incompetence.  What is going on?  Why can’t top managers fix this?  

The answer is a glaring irony.  Good people, good managers, high integrity federal leaders are often totally and completely hamstrung by a no-longer-defensible set of “protections” for Federal employees.  These so-called “protections” often allow an employee who should objectively have been fired and summarily removed -- and would have been anywhere in the private sector -- to stay on the job.  That employee is allowed to keep invoicing the U.S. taxpayer, by asserting a long list of often seemingly absurd bases for remaining employed. 
The result?  This puts good federal agency leaders in an untenable position, either legally unable to remove the offender (and legally liable for preemptive action), or having to defend indefensible conduct by the offending federal employee.  This simply is not right -- and needs to be fixed. 

This bizarre state of affairs can often last up to two years, with sequential opportunities for federal employees in the wrong to continue defending their right to a sizable paycheck, appealing denials, appealing the appeal of denials, cross-filing against others (or claiming whistleblower status), seeking settlements that would never be considered in the private sector (again at taxpayer expense), working on alternative and conditional ways to remain employed, planning paid retirement and retiring with full benefits, or otherwise using the system to dance about their offense, preserving their job and benefits.

How did we get here?  Why does this absurd process exist?  How can we fix it?  Essentially, the process is a hand-me-down from President Jimmy Carter.  It is known as the Merit System Protection Board (MSPB), perhaps more aptly the “Federal Job Preservation Board.”  In an effort to prevent hiring and firing based on political affiliation or “spoils,” we live with a “board” that claims to “protect the Federal Government’s merit-based system of employment by hearing and deciding cases involving personnel actions.”   
Good in theory, the idea is an abomination in practice, disserving the country and making Federal employee management a fraught, largely unworkable task.  Objectively, the MSPB system does not work -- either to assure merit-based hiring, or to timely separate deserving from undeserving claims.  The cost is enormous, indefensible and unsustainable.  The time has come to admit failure, dissolve and reconstitute it.  The MSPB statute has given birth to a dysfunctional federal agency, in need of simplification. Unknown to most Americans, this agency perpetuates the very waste it was intended to prevent.   

But it is worse than this.  While Federal firings are nearly impossible, Federal hiring is no longer anchored to reality -- it is no longer competitive.  Ask the experts.  According to one recent report, “President Obama’s removal of the essay portion of the [Federal] job application … has people applying for jobs indiscriminately, leaving civil service bosses with little ability to judge.” Even the MSPB further reports, after a survey of managers across the Federal work force, “references” are seldom sought in Federal hiring, opening up huge gaps in competence and reliability.  And after one year, the general inoculation from firing kicks in.

On the firing side, lack of reality abounds.   MSPB itself details a process that virtually prevents firings.  There are five separate sections of a statute that provide broad bases for any employee to appeal any demotion or removal from a federal position, once hired.  In just one of these five sections, there are eleven separate bases for reinstatement or reemployment.  In just one of those eleven bases, there are seven independent claims that allow reinstatement, all beginning with the words “Failure to reemploy…” or “Failure to reinstate.…”  In other words, the government is presumed at fault, and the job retained.  There are officially 125 pages of such appellate opportunities.

In short, Federal employees often have -- in effect -- a job for life, since even minor oversights in documentation, agency notice, record keeping -- or even assertions to that effect -- produce a default to interminable appeals, all locked to a presumption against the firing agency and in favor of continued employment, reemployment (with past benefits) or reinstatement (ditto).   

If this were not bad enough, appeals can then proceed to federal litigation in the U.S. Court of Appeals.  The result?  A never-ending drain on agency of time and money, forcing endless leveraged settlements, compromises, reemployments, reinstatements, and well-paid (but arguably undeserved) retirements.  No wonder leaders of Federal agencies feel vexed!   

The process is actually worse than it appears. Forget the bizarre, convoluted, interminable job-preservation (no firing) process that we pay for.  Forget questions of poor administration of this byzantine, broken process.  Forget the offense this “no firing” process represents -- no kidding -- to average, hardworking, merit-based Americans, who has no idea how their hard-earned tax dollars pay for employees gaming the system.  Focus only on the here and now.
Today, the caseload carried by this dysfunctional federal agency, seeking to effectuate a dysfunctional federal firing process -- which would never survive the private sector -- is beyond credible management.  The threat of lawsuits and inability to fire bad apples hamstrings both agency heads and Congress.  In 2013, furlough appeals from civilians at the US Defense Department alone topped 30,000. 

Today, the backlog is sizable.  Nor will this dysfunctional agency and byzantine law be easily reformed.  It is a hazard, both to diligent agency heads -- of any political stripe -- and to average Americans.  Yet in 2013, the American Federation of Federal Employees glibly defended these massive employee appeals, as a policy weapon for preserving the vast Federal government.  

When Congress tried to rein in federal spending that year, the group said, “We are not just going to roll over and take this lying down.”  They then twisted fiscal reform into an assault on federal employees, saying “The extraordinary number of MSPB appeals is another example of the broad scope of economic hardship sequestration has inflicted on working Americans.”  Really?  On most working Americans?  Isn’t the MSPB that hardship?  
Consider recent Census numbers.  They reveal that 4.1 million Americans are now Federal employees.  Against that number, however, there are 86.4 million private sector employees, none of whom enjoys lavish “job for life protections,” or license to do anything they wish on the job -- from creating false schedules and endangering lives at the Veterans Administration to ignoring standard operating procedures, spending full days viewing pornography to having foreign sex parties at taxpayer expense (all recent examples of Federal employee actions that appear to avoid firing). 

So here is the bottom line:  Average Americans have a right to know about this absurdity.  They have a right to be incensed at such abuses.  We have a right to demand reform of this broken system -- this inscrutable, impenetrable process.  The process has become the enemy of the mission.  Ironically, it preserves, protects, defends and perpetuates itself, together with a shocking lack of accountability for Federal employees.
Congress can no longer ignore this mess.  In recent weeks, we have seen leaders of the VA, U.S. Secret Service, DEA, and others dragged before Congress, trying (without much success) to explain an absurd process that effectively prevents them from firing and removing those who deserve to be summarily removed -- with legal prejudice. 

Maybe now is a time for common cause -- aligning frustrated agency heads, frustrated congressional members, and average Americans who deserve real accountability.  Let’s stop pretending the system works; it is badly broken.  Let’s agree and fix it.  With proper -- not excessive, unrealistic, or ridiculous -- protections, let accountability begin.  Let’s have honesty in the workplace, and in egregious, obvious and overdue cases, let the firings begin. 
Robert B. Charles is a former Assistant Secretary of State, former U.S. House Oversight Counsel, and former adjunct professor of Congressional Oversight at the Harvard University Extension School.  He runs a Washington DC consulting firm.

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