GovernmentExecutive.com

The Merit Systems Protection Board issued a proposed rule last week outlining how it will handle the adjudication of cases arising from the Homeland Security Department's new personnel system.

The rule, published in the Federal Register Friday, seeks to streamline the process by which department employees can appeal disciplinary actions -- such as suspensions, reductions in pay, removals or furloughs -- with the merit board. The new rule is the result of collaboration among the department, MSPB and the Office of Personnel Management.

Under the rule, DHS employees will have 20 days to appeal a disciplinary action, unlike the 30 days permitted to most other federal employees. The rule also allows the removal of employees for national security reasons without opportunity for appeal.

The department also may establish up to a two-year probationary period for certain jobs, as opposed to the current one-year period for most other federal employees. Employees generally have limited appeal rights during a probationary period, making it easier for an agency to fire them.

Additionally, if there is no dispute over the basic facts of a case, the agency or the adjudicating official may file a motion for summary judgment, allowing the judge to issue a decision without conducting a hearing. In contrast, most other federal employees hold a guaranteed right to a hearing with no option for summary judgment.

Previously, the merit board could modify a DHS employee's punishment if it found the penalty unreasonable. But the board's new rule will allow a mitigation standard to take effect, preventing the board from changing an employee's penalty "unless it is so disproportionate to the basis for the action as to be wholly without justification."

Federal labor unions challenged the mitigation standard as part of a broader court case against aspects of personnel reform at DHS. But the U.S. Court of Appeals for the D.C. Circuit reversed a lower court ruling and upheld the standard, arguing that the mitigation provision's legality was not ripe for judicial review.

The National Treasury Employees Union said Wednesday that the mitigation standard and other changes will make it much more difficult for DHS employees to challenge actions taken against them. "NTEU will monitor the implementation of the new mitigation standard closely and, if warranted, renew its challenge at the appropriate time," President Colleen Kelley said.

Larry Orluskie, a spokesman for DHS, said Wednesday that the changes will have a minimal effect on employees. "For 99.9 percent of DHS employees, this means absolutely nothing because most are never going to have to worry about it," he said. "They're all good workers."

Nonbargaining unit employees at DHS will be covered by the new rule on Nov. 5, Orluskie said. The department will extend the rules to bargaining unit employees as collective bargaining agreements come under renegotiation.

"There has been significant collaboration with the unions," Orluskie said. "We've been working closely with the unions on adverse actions and appeals, and as we put out our own management directive, there will be decisions we've worked out in collaboration with the unions."

Comments on the proposed rule can be submitted through Nov. 5, and can be e-mailed to mspb@mspb.gov, faxed to (202) 653-7130, or mailed to:

Office of Clerk of the Board
U.S. Merit Systems Protection Board
1615 M St. NW
Washington, D.C. 20419

COMMENTS

• Maybe this is something that Govexec could do a piece on, and increased perception in how federal employees need to protect themselves FROM the managers in government service. BTW, what kind of insurance is this, and how do I get it? Concerned Citizen Posted October 16, 2007 7:47 AM
• I was reinstated by TSA after being wrongly fired. TSA and DHS will keep pushing the boundaries of employee rights farther and farther back. Congress and the Unions all know this. TSA tried to argue that an employee like me didn't have an MSPB right. I did and once the MSPB said so, they didn't even try to defend their case. 99.9 percent of the employees better worry, and they better get insurance because you are going to need at least 100k for a hearing and almost all that even if they fold, like they did in my case. Get 250K if you can. And they will make up charges as well, all on the hopes you won't be able to defend yourselves. MSPB and Congress should all be ashamed of themselves for letting any of this happen in the first place. I joined the border patrol in 1980 and rose through the ranks of the BP and INS, never once did I worry about this kind of thing happening to me, but I had a right to a hearing. I just didn't understand how important that right was. Even those who serve honorably need to worry. Bob Coleman Posted October 15, 2007 9:24 AM
• In proceedings the board does not require the agency to back their statements with facts or sections of law. The board itself does not back it’s their decisions with any facts of law or prior case presidents. As a result the board just gives the impression that cases are being carefully considered. The result is a product less similar to an immigration decision and more similar to what you would expect of a decision from a hearing China, Russia our courts in Cuba. The agency is allowed to state it's a matter of national security the court accepts it. The process allows the agency to continue to use the "because I said so defense" and it is likely that the agency will remain at 43 out 43 unless we add or loose an agency and then it would be likely to be last respectively. You get the impression that because the agency can't seem to score big numbers on illegal aliens or drug smugglers etc. because it must respond to luke warm the political will it turns in on itself to deflect criticism. wayne e. burke Posted October 15, 2007 3:39 AM