Civil servants put on paid leave can get stuck in an ill-defined limbo


WASHINGTON, DC - DECEMBER 30: Folks brave wind chill temperatures in the 20's to get a rare glimpse of the Emancipation Proclamation at the National Archives on its 150th anniversary Sunday, December 30, 2012 in Washington, DC. The historic document bearing President Abraham Lincoln's signature will be on view through New Year's Day. (Photo by Katherine Frey/The Washington Post) (Katherine Frey/THE WASHINGTON POST)
December 30, 2012

Paul Brachfeld, the inspector general for the National Archives, planned to ring in the new year with his wife with a relaxed visit to their vacation home near Bethany Beach, Del. In October, the couple took a cruise to Puerto Rico. Brachfeld runs every morning in Silver Spring, hikes with Spree, his Jack Russell terrier, in the woods most afternoons and catches up with his adult daughters in the evening. All while collecting his $186,000 government salary.

These days, his life seems like one long vacation. The veteran watchdog for the historical records agency is entering his fourth month on paid time off, one of an unspecified number of federal employees who are collecting paychecks and benefits to do . . . nothing. At least nothing to advance the immediate interests of the government.

Brachfeld, 54, was put on paid administrative leave in September after an employee on his staff accused him of misconduct. He has not been interviewed by the panel that investigates complaints against inspectors general. It meets just four times a year.

Cases such as his, in which a civil servant is accused of breaking rules, can go on for months and even years. Some involve accusations of cut-and-dried misconduct — threatening violence, for example — that lead to paid leave while the case is investigated. Other employees are caught up in more ambiguous circumstances, such as blowing the whistle on wrongdoing or filing a complaint alleging employment discrimination.

In a system that rarely fires people, no one can say how many are on paid administrative leave. It’s one number the government apparently doesn’t track.

“It’s the federal government’s dirty little secret, how much they do it,” said Debra D’Agostino, founding partner of the Federal Practice Group, an employment law firm.

Brachfeld, who was put on leave by the Archives’ chief after a dispute with an agent on his staff, said he was “placed under virtual home detention” based on “untested smears” to which he has not been able to respond. The agent alleges that the inspector general altered audits, used vulgar language and gave CBS News’s “60 Minutes” sensitive information before its release was authorized.

There are 64 reasons listed in the “Administrative Leave/Excused Absence” section of the Office of Personnel Management rule book that officially allow government employees paid time off. They range from giving blood to attending a Boy or Girl Scout jamboree. And then there are the Brachfelds of the federal world, who are paid to do nothing or banished to perform telework with the kind of flexible schedule in which no meaningful assignments materialize.

The status is not, as some critics of public-sector workers might conclude, a day at the beach — Brachfeld actually had to put in for vacation time to get his.

“I’ve had clients [on paid leave] for long periods of time who absolutely hated it,” said William Bransford, general counsel for the Senior Executives Association, which represents 7,000 government executives. “The perception that’s spun is that this is a paid vacation. But employees want to know what’s going to happen to them as quickly as anybody else.”

Getting paid not to work supposedly requires close supervision by managers. It means moving up the General Schedule pay scale, accruing a pension, as well as vacation and sick days, until you’re either fired or cleared to return to the office. While they’re not working, idled employees are not allowed to take another job.

Six employees’ sagas

No one can say how many cases drag on. The stories of six people put on administrative leave give some insight into how the system works for some.

Blake DeVolld, a civilian Air Force intelligence officer, was stripped of his top-secret security clearance in 2006 after his ex-wife, during a bitter divorce, told the FBI that she had found 15 classified pages in a box in his basement.

For three years, while he was under investigation, DeVolld, 52, scanned personnel records into a computer in a glass-enclosed room at the National Air and Space Intelligence Center in Springfield, Ohio. Then he was suspended without pay for two more years.

After six years, the Air Force exonerated him in June and reinstated his security clearance.

“They can put you in this status and leave you in there forever,” DeVolld said of the 1,000 days during which he drew a $93,000 salary to push papers. “It wasn’t really meaningful work, I’ll tell you that. I caught up on my reading.”

Much the same story unfolded for Maria Jones and William Porter, program analysts at the Energy Department and the Department of Health and Human Services, respectively, after they filed equal-employment-opportunity complaints alleging racial discrimination by their supervisors.

Jones, 49, says she was put on paid leave for eight months and received her $89,750 salary until she was fired in March. She said her boss, who was black, created a hostile work environment with disparaging comments about white employees. Jones is black.

At home in Prince George’s County, she was instructed to call her supervisor at the Office of Fossil Energy at 7:30 every morning to “find out what my schedule was.” But he was never in the office at that hour, so she left voice-mail messages. She says she talked to him twice in eight months.

“It benefited me because I was getting paid,” Jones said. “But it was a waste of federal dollars. Why did it take that long to fire me?” She said her performance reviews had been good before she filed her complaint; afterward, she said, supervisors became critical of her work, leading to poor evaluations and, eventually, her being fired.

Porter, who makes $112,000 a year, says his duties — billing for reimbursement for disaster expenses — were taken away, and he was sent to an office with no work for a year after he complained that his boss, who is white, created a hostile work environment with negative comments about blacks, including Nation of Islam leader Louis Farrakhan. Porter, who is black, then told managers that he has an anxiety disorder that was triggered by his agency’s failure to give him meaningful work.

He was dispatched to a year-long detail for Tricare, the military health-care system, which assigned him to telework. But Porter says months passed without his hearing from a supervisor, and he was given very few assignments. “They’re having me sit and do nothing, and I’m collecting six figures.”

Peter Van Buren, a former Foreign Service officer who penned an unflattering book in 2011 about his year leading two reconstruction teams in Iraq, was sent home to Falls Church for two months on administrative leave after he wrote an offensive post about Secretary of State Hillary Rodham Clinton on an unauthorized blog just as his book was published. Then he was assigned to telework that consisted of copying Internet addresses into a file from a computer in his bedroom. This continued for 11 months while he drew his $150,000 salary.

“Telework is a great way to deep-six somebody,” Van Buren said. “And the State Department can say, ‘We’ve got another guy teleworking!’ ” He retired in September under an agreement with the agency, years sooner and with a smaller pension than he had planned.

And Stephen Patrick, a courier who transports nuclear material and drove a government car 340 miles without authorization, was fired from the National Nuclear Security Administration, which is part of the Energy Department, in August. His tug-of-war with his bosses, after he challenged a 30-day suspension, lasted five years. For four of them, Patrick, 45, was on administrative leave in Canton, Ohio, making $47,000 a year plus automatic raises.

The agencies that employed DeVolld, Jones, Porter, Van Buren, Patrick and Brachfeld declined to comment on the cases, saying they were not authorized to discuss personnel issues.

No official limits

Private companies tend to tackle thorny personnel issues differently. A problem employee can be placed on leave with pay. “But the notion of extending it indefinitely? It’s anathema to a private employer,” said Barbara Brown, a Washington employment lawyer.

In government, civil service protections mean that firing someone is not so easy, even when the employee deserves it.

“Every time I hear these kind of stories, I think, ‘Ye gods! It takes government a long time to make a decision!’ ” said Sen. Charles E. Grassley (R-Iowa), a longtime advocate for whistleblowers and a critic of government inefficiency. “It’s a culture within all of government — we’ve been handling personnel issues this way for 40 years, so we’d better keep doing it this way.”

“Resolving these cases gets put to the bottom of the to-do list,” said D’Agostino, the employment lawyer. “Meanwhile, the employee is still accruing time. At agencies that are downsizing, it makes it hard to function.”

Unions and managers say it is rare for do-nothing status to draw out. But it’s an area where managers have wide discretion.

Colleen M. Kelley, president of the National Treasury Employees Union, said paid leave is used “in rare circumstances” while an employee who is “considered a potential threat to themselves or others in the workplace” is being investigated.

There are no official limits on how long the limbo can go on. In 1990, in the case of a U.S. Forest Service employee put on paid leave for 22 weeks, the comptroller general ruled, “We are unaware of any legal basis where . . . an employee can be placed on extended administrative leave with pay.”

“It’s used for employees who are not meeting conditions of employment,” said Terry Sutherland, spokesman for the Pentagon Force Protection Agency. He said administrative leave decisions are made “at a very senior level” and “looked at very closely.”

“The intent is, it’s supposed to be very quick and simple,” Sutherland said. “When it goes beyond those normal situations, we ask, ‘What did this individual do? Would bringing them back be disruptive?’ ”

He acknowledged that long-term leave “is not good for the person and not good for the agency.”

Life after leave

The six employees say their experience showed an ugly side of due process. They all say that after conflicts with their supervisors, they were marginalized in an attempt to get them to quit. That’s often easier for the government than firing, which, as Patrick’s case shows, can take years and end up in litigation.

It took the Energy Department four months to officially fire Patrick after it sent him a termination notice. This followed a slew of psychological evaluations, accusations, memos and appeals by him and his supervisors. He fought them at every step, won an appeal in 2008 and was ordered back to his courier job by a top Energy Department official.

But the agency kept blocking his certification to guard nuclear materials, and without it, he could not keep his job.

“I appealed a 30-day suspension, and they were hellbent to get rid of me right then and there,” he said. “I took a freaking government vehicle out to dinner. When all is said and done, you’re talking to a federal employee who got paid a government salary for five years and didn’t do a damn thing.” He is suing to get his job back based on his bosses’ failure to reinstate him after he was ordered back to work.

DeVolld says his ordeal so sapped his pride that he chose to leave the Air Force after he was cleared. He now teaches intelligence and national security at a Christian college near his home.

“This thing took five years and ruined my career,” he said. He filed a lawsuit against the Air Force in federal court in Ohio in December, charging that his two-year suspension without pay violated his right to due process.

Porter is now back at Health and Human Services on administrative leave. He has given his supervisors doctors’ notes certifying his readiness to work. The Equal Employment Opportunity Commission did not advance his job discrimination complaint, but he is suing HHS in federal court, alleging that the government denied his rights under the Americans With Disabilities Act.

He cared for his dying mother-in-law and is now digging a hole for a patio in his garden in Upper Marlboro. “My doctors tell me to keep busy,” he said.

If he could do things over, he said, “I would have shut my mouth.”

Brachfeld, meanwhile, continues to collect his paycheck and awaits the opportunity to tell his side of the story.

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