Homeland Security Revises Rule for Disciplinary Appeals

By Stephen Barr
Wednesday, October 10, 2007

A key rule designed to streamline the handling of major disciplinary appeals by Department of Homeland Security employees is in place -- almost five years after President Bush set it in motion.

The rule, which was snagged in litigation at one point, came out of a collaboration involving the department, the Office of Personnel Management and the Merit Systems Protection Board. The merit board issued the rule Friday, describing how it will handle employee appeals that come its way from Homeland Security.

That step by the merit board permits the Department of Homeland Security to begin rolling out its new procedures for disciplining employees. Administration officials have contended that the new rule is needed to speed up the disciplinary process, part of a broader effort at Homeland Security to reshape the workforce after the Sept. 11, 2001, terrorist attacks.

Department employees who are not covered by union contracts will be covered by the rule soon. Homeland Security will bargain with unions over the implementation of the rule for the 50,000 employees covered by bargaining agreements, said Marta Brito P¿rez, the department's chief personnel official.

A number of the changes are designed to streamline the process used by Homeland Security employees to appeal major disciplinary actions -- such as a job suspension, a demotion or a firing -- to the merit board, an independent, quasi-judicial agency that rules in disputes between employees and agencies.

For example, Homeland Security employees will have 20 days to appeal major disciplinary action, instead of the 30 days provided most other federal employees. The rule firms up a 90-day deadline for the board's administrative judges to issue an initial decision on Homeland Security cases.

If there is no dispute over the basic facts in the case, one of the parties may seek a summary judgment, allowing the administrative judge to rule without conducting a full, adversarial hearing. In contrast, most other federal employees have a right to a hearing.

In crafting the new rule, Bush appointees also wanted to limit the power of the merit board.

The board sometimes scales back the punishment for misconduct when it concludes the penalty is unreasonable. The board can deem a penalty as too harsh if the agency has not taken into account other factors, such as a person's length of employment or a previously unblemished work record.

Bush appointees contended that such mitigation of punishment was inappropriate for Homeland Security employees given the vital nature of their work. Under the new rule, the board can modify the punishment imposed by the department only if "such penalty is so disproportionate to the basis for the action as to be wholly without justification."

Federal unions, led by the National Treasury Employees Union, objected to the new mitigation standard, contending it will make it almost impossible for employees to secure relief, even when a disproportionate penalty is imposed for a minor offense.

NTEU challenged the new rule in federal court, but an appeals court panel last year allowed the rule to go forward, saying that the union challenge was premature. Colleen M. Kelley, the union's president, said she will watch to see whether this part of the rule is administered fairly.

That and other changes being made through the new rule, Kelley said, "will make it more difficult for DHS employees to challenge actions taken against them."

P¿rez said the department has been consulting with unions and has modified some policies regarding job performance and misconduct as a result. Two parts of the new rule also will not be implemented, she said, until discussions have been held with unions.

One part would have created "mandatory removal offenses" that required the immediate firing of violators. The other part would have placed new hires on probation for up to two years, as opposed to the current one-year probation period. Employees on probation have limited rights, making it easier for an agency to end their employment.

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