It really is nearly impossible to fire a federal employee
Some credulous Beltway media sure took the bait last week. Consider:
“A lot of people still think it’s close to impossible to fire a federal employee, but that’s just one of the misperceptions the Merit Systems Protection Board is trying to debunk with its new report, ‘What is Due Process in Federal Civil Service Employment?’ ” (Federal News Radio, May 11).
“The agency that hears appeals from fired federal employees has listed common misconceptions about the firing of federal employees—with Number One being that it never happens” (Washington Post, May 11).
The U.S. Merit Systems Protection Board (MSPB) has been around since 1979, when Congress spawned it from the Civil Service Commission. It is a quasi-judicial entity that, Government Executive magazine notes, “adjudicates appeals of ‘adverse personnel actions’ from federal employees who’ve been fired, suspended, furloughed, demoted or had their pay cut.” This makes it both expert about and invested in employee due process.
The agency’s new report has a helpfully descriptive title: “What is Due Process in Federal Civil Service Employment?” The board’s head, Susan Tsui Grundmann, told the media her agency spent a year working on it. Her executive summary states in placid governmentese:
In the Civil Service Reform Act of 1978 (CSRA), Congress sought to ensure that agencies could remove poor performers and employees who engage in misconduct, while protecting the civil service from the harmful effects of management acting for improper reasons such as discrimination or retaliation for whistleblowing. Recently, Congress has expressed an increased interest in amending the CSRA, including those provisions that apply to adverse actions. To assist Congress in these endeavors, this report explains the current civil service laws for adverse actions and the history behind their formation.
One need read just a few pages more to see this is a report with an agenda. Grundmann’s introduction makes this ringing declaration: “Due process is a constitutional requirement and a small price to pay to ensure the American people receive a merit based civil service rather than a corrupt spoils system.” This defense of the status quo is a blatantly political statement that denigrates the legitimate concerns of many members of Congress. The recent discussion on Capitol Hill has centered on how to amend the 1978 act to make its process more reasonable. No legislation would permit federal employees to be fired on a whim.
Grundmann’s pronouncement also is tendentious history. Congress destroyed the spoils system long ago, starting in the 19th century, by mandating that agencies use objective criteria for hiring. Being a good partisan was no longer enough; applicants had to take tests and demonstrate knowledge relevant to the work. This in no way describes what took place in 1978, when federal unions lobbied a Democratic Congress and President Jimmy Carter to erect a system that makes removing an employee all but impossible.
The 1978 statute and the myriad rules propagated there-after require a lousy employee first to be given notice of his shortcomings, allowed to pre-sent counter-evidence, then provided help and opportunities to improve. If the cock-ups continue, another meeting will be scheduled where the supervisor must marshal still more evidence. Should the boss dare to proceed with demotion or termination, the employee is entitled to be represented by an attorney.
Any adverse action against the employee can be appealed to the Equal Employment Opportunity Commission or the MSPB, which may overturn the decision for violating baroque legal standards. It is a grueling process, and very few supervisors can muster the time and energy to pursue it. Consider the case of S. P. O’Hara, who was caught viewing porn on his work computer in February 2012. It took a year and a half for the Department of Homeland Security to clear all the hoops required to fire him. He appealed to the MSPB, which did not decide his case until April 2015. (It supported his termination.)
Tucked in a cheekily titled appendix to the report (“Clearing up the confusion”) is the factoid that received so much buzz: “Perception: It is impossible to fire a Federal employee. Reality: From FY2000-2014, over 77,000 full-time, permanent, Federal employees were discharged as a result of performance and/or conduct issues.” That sounds like a big number that indicates the system is working. It is not.
The 77,000 employees the MSPB says were fired over the past 15 years averages out to 5,133 employees annually, or just 0.26 percent of the 1,940,000 civil service workforce. But the percentage is even lower. MSPB told me that 41 percent of the fired employees were in their first-year, probationary period. These employees lack the extensive job protections of permanent federal employees. Adjusting to include only those employees past their probationary period, we arrive at a figure of just 0.15 percent of federal employees who are shown the door each year. Statistically, that is pretty close to “impossible.”