IG’s long stretch in limbo of administrative leave is unfair to him, agency and taxpayers

Joe Davidson
Columnist May 4

Getting paid almost $190,000 a year to skip work might sound great, but it’s not.

Ask Paul Brachfeld. He’s been on paid administrative leave from his position as the National Archives inspector general (IG) since Sept. 14, 2012. That’s more than 19 months, or about 600 days.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

Too long.

“I don’t think anybody would like to live the life I’ve lived,” Brachfeld said.

He was put on leave by his boss, David S. Ferriero, the archivist of the United States.

The particulars of Brachfeld’s case aside, it raises important questions about the use of administrative leave by federal agencies and about the independence of those inspectors general who answer to the leaders of the agencies the IGs investigate.

Ferriero placed Brachfeld on administrative leave because of professional misconduct allegations that the IG strongly denies. The Office of Special Counsel found that he did not violate federal personnel practices. An investigation by the Council of the Inspectors General on Integrity and Efficiency (CIGIE) isn’t finished.

As stressful as this situation is for Brachfeld, and as important as this case might be for Ferriero, the details of the allegations (covered previously by my colleague Lisa Rein), and their validity, are not at issue here.

His case raises the larger issues of fairness and the potential for conflicts of interest.

Placing federal employees on administrative leave for long periods of time is not fair to the employee, to the agency and certainly not to taxpayers.

That’s the position Sens. Charles E. Grassley (Iowa) and Tom Coburn (Okla.) and Rep. Darrell Issa (Calif.), all Republicans, took in a Feb. 21 letter to Ferriero. They complained that by “effectively leaving [Brachfeld] in limbo,” the archivist is wasting taxpayer dollars and harming the agency’s mission. Citing precedents of the comptroller general, the Office of Personnel Management (OPM) and the Merit Systems Protection Board, the letter said agency discretion to grant administrative leave “only applies to short periods of time.”

Ferriero’s answer in a March 7 letter said he does “not control the schedule and timeliness of the outside investigations that, in my judgment, warrant keeping him on leave.” The precedents cited by the members of Congress, Ferriero added, don’t apply to “the use of administrative leave in connection with investigations into alleged, high-level misconduct.” Those allegations included altering audits and improper use of law-enforcement information.

Brachfeld said CIGIE’s draft report, which he would not release, did not substantiate any of the allegations.

“Being out of work is demoralizing . . . ,” Brachfeld said, “especially because I know I’m innocent of all allegations.”

Neither CIGIE nor Ferriero’s office would comment on Brachfeld’s case.

Keeping Brachfeld on leave might be warranted in Ferriero’s view, but Grassley said, by e-mail, that “having people on unpaid leave for a long time is one of the worst possible personnel scenarios you could have at any agency. . . . The agency might suffer in initiative and productivity with a key person gone. When an inspector general is put on ice, the agency operates with less oversight to the detriment of good government and accountability.”

It’s difficult to determine how common is the use of extended administrative leave. No one has government-wide statistics. At the Justice Department last year, only two employees were on administrative leave for six months or more out of 113,000 staffers. If other agencies are anything like Justice, that minuscule percentage indicates cases of administrative leave are scarce.

Yet Debra Roth, who represents Brachfeld and the Senior Executives Association (SEA), said that on the basis of her law practice, “it’s not rare at all.” Not being allowed to appeal that status feeds a “culture of misuse of administrative leave,” she said by phone.

“Per OPM regulation administrative leave is the rare circumstance,” she wrote in SEA’s newsletter. “Not anymore, not for a long time, and everyone knows it. So why hasn’t OPM clamped down on this?”

An OPM spokeswoman said it does not regulate administrative leave; the agencies do. That means there could be a hodgepodge of practices.

Certainly, there are differences in the way inspectors general are selected. CIGIE has 72 IG members, including 38, generally in smaller organizations, appointed by the agency heads. At least theoretically, that could create a situation in which an IG’s independence could be compromised. Will an IG vigorously investigate the boss? Will the boss banish an IG who does?

There is no indication that is the case at Archives. And Grassley doesn’t think it is a problem elsewhere. “Inspector general independence isn’t necessarily compromised by the way the inspector general is appointed,” he said. “The conduct of the individual is what matters.”

Grassley and Sen. Claire McCaskill (D-Mo.) worked together on a 2010 law that strengthened some IG positions. But although the independence of agency-appointed IGs has not proved problematic so far, she is not satisfied with the current setup.

“I don’t know how an inspector general can be independent if that IG owes their job to the head of that agency,” she said. “It doesn’t make sense to have an IG hired by the person they’re supposed to be overseeing, so we need to continue taking a hard look at how to ensure the necessary independence to keep up the highest levels of accountability.”

Twitter: @JoeDavidsonWP

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.

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