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.
In answer to the perception that “it’s impossible to fire a federal employee,” the Merit Systems Protection Board pointed out that over fiscal 2000-2014, more than 77,000 full-time, permanent, federal employees “were discharged as a result of performance and/or conduct issues.”
According to an Office of Personnel Management database, the executive branch had 1,847,000 full-time, permanent employees as of September 2014, excluding the U.S. Postal Service, intelligence agencies and certain other categories.
The firing figure does not include an unknown number of additional employees who resigned to avoid having a firing on their records, or who had worked at certain agencies whose central records do not specify why someone left their employment.
The MSPB acts as an internal court system for disciplinary actions against federal workers, with hearing officers who review documents, conduct hearings and issue decisions as would a judge. The losing side can appeal to the three-member governing board, which acts like an appeals court, and then potentially into federal court.
Only actions more serious than a two-week suspension can be appealed, and MSPB lacks jurisdiction over certain classes of employees — for example, employees in many intelligence-related positions are excluded, and employees have only limited appeal rights during probationary periods. In some cases, other appeal rights may apply within the employing agency or through union-negotiated grievance channels.
Of those fired, 41 percent were still in their probationary periods, which typically last one year and in some cases two years.
The merit board’s report comes at a time of heightened scrutiny of whether agencies hold federal employees accountable for poor performance or misconduct, especially in scandal-tarnished agencies. A law enacted last year shortened the appeals rights of senior executives at the Veterans Affairs Department, and numerous proposals have been raised in Congress to impose further limits both there and government-wide.
The report’s overall focus is on the laws and court cases that laid the groundwork of the current system, and how it operates. It says that the government “obtained a wealth of experience showing what can happen in the absence of such rules and with the supremacy of capriciousness . . . Congress found the results both unpleasant and unproductive.”
“The system remains imperfect, but the current statutes, containing a pretermination opportunity to respond, coupled with a post-termination review of agency decisions, have enabled the Government to provide the public with a merit-based civil service with due process under the law,” it adds.
The report also points out what it calls other misconceptions about disciplinary actions inside the government.
One is that an agency must pay a salary to an employee who has been removed until any appeal has been resolved. Said MSPB, “An employee does not continue to receive a salary once removed. If the action is found to have been unwarranted, then reinstatement and back pay may be awarded. But, there is no pay while removed.”
Another is that if an employee is suspected of a crime, the agency cannot fire the employee for the same underlying conduct until the criminal matter is resolved. In fact, an agency “is permitted to remove the employee without waiting for criminal charges to be filed.”
Also, it is not true that if an agency proposes an action such as a suspension and then learns the situation is more serious than it knew, it cannot propose a more serious action instead, MSPB said.
Another misconception is that the removal of a Senior Executive Service employee is delayed by the appeals process. MSPB said that whether an action is taken for performance or conduct, “the appeals process before the Board does not require any delay in the removal of the individual or in the termination of pay and benefits to that individual.”
In addition, it said, many of the same laws that form the basis of federal employee rights, such as anti-discrimination laws and reemployment rights of those who leave their jobs for military duty, also apply to the private sector.