MSPB chairman says DHS personnel changes will overburden judges

The chairman of the Merit System Protection Board told a congressional subcommittee Wednesday that disciplinary process changes soon to take hold at the Homeland Security Department would put employee rights at risk and overburden MSPB's judges. MSPB is an independent federal agency that adjudicates employee appeals of agency disciplinary actions.

The remarks of MSPB Chairman Neil A.G. McPhie, an appointee of President Bush, seemed to catch Rep. Jon Porter, R-Nev., the chairman of the House Government Reform Subcommittee on the Federal Workforce and Agency Organization, off-guard.

He questioned why McPhie had sought to preserve MSPB's role in adjudicating employee appeals of Homeland Security disciplinary actions during the past two years, but then claimed that DHS' new requirements posed an undue burden on MSPB. In addition, Porter said the tenor of McPhie's comments to the subcommittee was different from when he talked with subcommittee staffers in advance of the hearing.

The 2002 Homeland Security Act, which created DHS, allowed the department to develop a new pay-for-performance system to replace the decades-old General Schedule. After months of deliberations, the department announced details of its plan in February. The system will start to go into effect later this year. DHS officials said the department would also revamp rules governing labor relations and employee discipline.

Under the terms of the 2002 legislation, DHS could have decided to create a disciplinary system separate from MSPB's. Instead, at McPhie's urging, it decided to continue to use MSPB judges to hear disciplinary appeals.

But DHS used its authority to change the rules governing those appeals. For example, Homeland Security rules require that the board expedite DHS cases, mandating that initial decisions by MSPB judges be rendered within 90 days. The board's current standard is 120 days. The rules also require that appeals of those decisions to the full three-member Merit Systems Protection Board, which McPhie chairs, be decided within 30 days, and in special cases, 45 days.

As a result, McPhie said, "We are required to stop what we're doing and shift all resources to these cases…. Non-DHS agencies will say that's not acceptable." The bottom line, he added, was MSPB will have to put aside cases originating at non-DHS agencies and move through Homeland Security cases. "We are between a rock and a hard place," he said, adding that the board will need substantially more resources to maintain current service levels.

Under the new DHS rules, MSPB can still overturn an agency decision, but its right to uphold a decision while also reducing the penalty was eliminated. The exception is if the MSPB judge finds that the penalty "is so disproportionate to the basis for the action as to be wholly without justification." In his written testimony, McPhie noted that this change means that "DHS will have to meet a much lower threshold to sustain a penalty."

In countering McPhie, DHS Chief Human Capital Officer Ronald James said the constriction on MSPB's power to reduce agency penalties was sparked by DHS' special mission. MSPB case law and precedent, he said, do not reflect the post-Sept. 11 era. "If an employee at DHS doesn't show up to his post, [the consequences are] a little different than at other agencies," James said.

McPhie voiced other concerns he said could affect due process for employees. He noted that the new DHS rules allow MSPB judges to dismiss cases without a hearing if they believed the cases were wholly without merit. In his written testimony, McPhie said, "This new authority will be helpful in expediting the adjudication of cases, although it may also prove controversial in that civil servants' long-held right to a hearing… has been eliminated."

Finally, McPhie questioned a provision in the DHS rules that will allow DHS to bring multiple cases against employees. The department will set up mandatory removal offenses, but if MSPB does not sustain a mandatory removal decision, the department can then bring another, nonremoval case based on the same conduct. "The possibility that an employee would be subject to multiple actions based on the same underlying conduct raises a substantial question of fundamental fairness," McPhie said.