November 21, 2003

Judging MSPB

By Shawn Zeller

If there is one clear loser emerging from the passage last week of civil service reforms for the Defense Department, it is the Merit Systems Protection Board, the independent federal agency that currently adjudicates federal employee appeals of agency disciplinary decisions.

If Defense moves forward, as expected, and creates its own internal appeals system, 700,000 Defense civilian workers would no longer have the opportunity to have MSPB administrative judges review their cases. They would still have the right to appeal decisions of the internal Defense system to the three-member MSPB in Washington.

Daniel M. Turbitt, vice president of the MSPB Professional Association and an administrative judge in Virginia, said the real losers in this scenario will be federal employees. "I have real concerns about the future of the civil service, and I am very frightened that we are setting up a scenario where we go back to a spoils system," he said.

Already, MSPB Chairman Susanne T. Marshall has told agency employees that she is considering closing the agency's Boston and Seattle field offices, which could mean the elimination of more than a dozen judgeships. The agency employees about 70 judges in 10 regional and field offices.

In an attempt to keep Defense under the MSPB fold, the professional association earlier this year hired a Washington lobbyist, former congressional staffer Timothy Moore, for the first time in many years. In its initial proposal, Defense had requested that its disciplinary decisions be removed entirely from MSPB's purview.

Congress ultimately adopted a compromise, allowing Defense to create its own appeals system but allowing employees to appeal decisions of that system to the MSPB's three-member panel in Washington.

Still, Turbitt worries that this MSPB review will only serve as a rubber stamp for agency decisions, because the standard to prove a case will be significantly lower, no MSPB administrative judge will have an opportunity to review evidence, and no hearings before an impartial reviewer will occur.

Meanwhile, in the legislation authorizing the creation of the Homeland Security Department last year, Congress also gave DHS the opportunity to set up its own disciplinary appeals system. If DHS Secretary Tom Ridge announces the creation of such a system when he unveils the details of Homeland Security's new personnel system later this year, it could spell further downsizing at MSPB.

Ironically, MSPB has, since its creation in the 1978 Civil Service Reform Act, supported agency management in about 80 percent of its decisions in cases that are adjudicated. And 94 percent of MSPB's decisions in cases appealed to the federal courts in fiscal 2002 were upheld. Even so, many Bush administration officials believe the current federal appeals system is slow, inefficient and too sympathetic to problem employees.

What is clear is that agency managers are often reluctant to use the system, particularly when a disciplinary decision relates to poor performance. But it's easy to argue, then, that the problem lies with the training of agency managers and the rules set up by Congress governing when employees can be disciplined, not with the MSPB. Both the MSPB and the professional association have submitted suggestions to Congress to improve and streamline the process, but to date these recommendations have not been implemented.

Also ironic is the appearance that the government is moving back towards the pre-1978 appeals system where agencies managed appeals themselves, often leading to disastrous results. When Congress created MSPB in 1978, Turbitt says, it wanted to create uniformity out of a "fractured, confused" system.

In 1996, Congress granted the Federal Aviation Administration authority to set up its own disciplinary appeals system. That marks the only time federal employees have been stripped of their MSPB appeal rights. FAA developed a system that it dubbed the "Guaranteed Fair Treatment Program," consisting of a three-member panel with one employee representative, one management representative and a third-party arbiter. Employees retained the right to appeal decisions of the panel to the federal courts.

But from the beginning, the system met with employee resistance. Despite its name, employees questioned the fairness of an in-house system, where FAA managers played a role in judging the appropriateness of disciplinary actions taken by FAA supervisors. Employees also resented the fact that even if they won their appeal, they would still have to cover their own legal fees. Under the MSPB system, the board had the authority to order the FAA to pay an employee's legal fees.

In 2000, FAA employee unions and managers convinced Congress to reinstate MSPB appeal rights as an alternative appeals option for the agency's workers. For the most part, MSPB has been the forum of choice for FAA staffers ever since.

At least in the past, MSPB has proven resilient and its wise jurisprudence over the years has won many supporters.

But with a new tide of civil service reform sweeping Washington and a keen desire to put more power in the hands of agency managers, this may be the agency's last stand.