Anxious to remake the federal government, the Trump administration is cracking down on employees who break the rules, taking action in some instances in disciplinary cases that had languished under former president Barack Obama.
The White House in April instructed agencies to “remove poor performers” as they construct plans to shrink the workforce as part of a federal downsizing. Trump vowed during the campaign to shake up a government awash in “waste, fraud and abuse” — and the new administration has been vocal about its strategy.
Budget director Mick Mulvaney laid out detailed mandates to ensure that poor conduct be handled swiftly and poor performers monitored closely or given “appropriate discipline.”
After years criticizing the Obama administration for going easy on cases involving problem employees, Republicans are taking a hard line against misconduct at several troubled agencies.
Veterans Affairs, still recovering from criticism in 2014 that employee misconduct led to manipulated patient waiting lists at its medical centers, in July began publishing disciplinary actions online, including 525 firings since Trump took office. With 350,000 employees, VA in June became the model for a broader job protections shake-up sought by conservatives when Trump signed a bill creating a quick path for VA Secretary David Shulkin to fire employees who fail to meet conduct or performance standards.
At Homeland Security, the inspector general is conducting an agencywide review of misconduct actions. Employees were asked in a July survey whether the sprawling department created after the 9/11 attacks has “sufficient processes and procedures to address conduct issues.”
Commerce Secretary Wilbur Ross is asking career officials at the U.S. Patent and Trademark Office to explain how they have handled improper time and attendance reporting, an agency official familiar with the inquiry said. Investigators and congressional Republicans say the problems related to time and attendance tracking have gone unaddressed for years.
Interior Secretary Ryan Zinke has vowed zero tolerance for sexual harassers. This month the Yellowstone National Park superintendent went public with disciplinary actions he is taking against a dozen employees involved in a harassment case.
But in its efforts to fulfill the president’s campaign promise to “drain the swamp”of entrenched federal workers, the new political leadership in Washington is meeting resistance from powerful federal employee unions and finding that maneuvering around long-guaranteed civil service protections is not easy.
This month an administrative board ordered a stay of the firing of the former director of the VA Medical Center in Washington, who had been removed from his post to an administrative job in April. An inspector general’s probe found that patient health was endangered by managerial dysfunction.
Brian Hawkins was fired for a “failure to provide effective leadership,” VA officials said. He claimed wrongful termination and is back at work while his case is independently reviewed. In a test of the new law, which offers fewer protections for employees, Shulkin plans to remove Hawkins again based on another inspector general’s investigation, VA officials said. That inquiry found that he violated agency rules by sharing sensitive information about employees with his wife on their personal email accounts. Hawkins did not respond to a request for comment.
Even cases that Trump officials inherited from the Obama administration have been challenging. The Census Bureau took over litigation that sprang from an inspector general’s findings two years ago that employees in its hiring office gamed the system to improperly collect $1.1 million in salaries. It is still unresolved, an agency spokesman said.
A case now playing out at the Patent and Trademark Office shows the complexities of carrying out Trump’s mandate.
After a three-year investigation, the office has moved recently to fire or suspend 18 of about two dozen employees in a clerical support unit that dockets trademark applications, according to current and former agency staff and other government officials familiar with the case. One worker has been fired.
Agency officials conducted an internal inquiry whose findings were shared with The Washington Post, showing that the employees improperly charged the government hundreds of thousands of dollars over several years. In the most egregious cases, officials found that some employees worked two hours a day but billed taxpayers for eight, plus two more overtime hours.
A union official denied any impropriety, saying his members “were available to work” but often finished their tasks quickly and awaited more assignments, a practice that went on for as long as a decade.
“My employees are not in the wrong,” said Harold Ross, president of Local 243 of the National Treasury Employees Union, which represents the unit. “They produce fast. They’re available for the whole time. All of a sudden, management wants to come against them.”
Patent office spokesman Paul Rosenthal said in an email the agency does not comment on specific personnel cases.
“More broadly, the USPTO has always taken its time and attendance policies seriously,” he wrote. “Employees must accurately record their time worked. And the overwhelming majority of our employees do just that. But employees who falsify their work records or work hours . . . will continue to be held accountable.”
In another sign of the Trump administration’s efforts to more forcefully address employee misconduct, Rosenthal cited an agreement — signed by the union representing patent examiners — to allow supervisors to monitor staff work habits with tracking software that indicates whether employees are at their computers. Labor had resisted these changes, which the union signed the day before Trump took office.
Timecard abuse has been documented over several years in reports by the inspector general at the Commerce Department, the patent office’s parent agency. The office has been praised for its flexible work hours and telework policies.
The Post reported in 2014 that an internal investigation found patent examiners repeatedly misrepresented their hours and received unsubstantiated overtime pay and bonuses. Top agency officials removed the most damaging revelations from material turned over to the inspector general, documents provided to The Post showed. Commerce officials said the material was in draft form.
At the time, Obama officials pledged to hold employees accountable. But critics said few patent examiners were punished or paid restitution.
Commerce’s then-acting inspector general, Dave Smith, opened an investigation into the trademark employees, according to government sources. But top patent officials prevailed after asking that they be allowed to conduct their own inquiry.
Last fall, Smith released a computer analysis showing discrepancies between the time claimed by patent examiners and hours worked. But privacy laws prevented the agency from acting against 415 employees identified as the worst offenders. Under a new law, management is allowed to pursue administrative or criminal enforcement in such cases. It is unclear if the patent office plans to act.
Republicans’ frustration with patent officials and the unions boiled over at a House hearing in December after Trump’s election. Rep. Mark Meadows (R-N.C.), chairman of the Oversight and Government Reform Committee’s panel on government operations, dressed down the agency’s No. 2 Obama appointee, Russell Slifer, and the head of the patent examiners’ union for tolerating abuses.
The agency had long suspected timecard abuses in the trademark division, where jobs have been outpaced by automation. But managers could not document it until 2013, when they installed tracking software.
“We had never seen anything like it,” recalled Bill House, who retired in 2015 from the employee relations office, which investigates misconduct. The number of cases, the money allegedly bilked and the hours the employees spent not working “was so bad they pulled other [employee relations] specialists to work on it,” House recalled.
The treasury employees union is fighting the proposed discipline, said union and management officials who requested anonymity to discuss the subject. An arbitrator is scheduled in October to hear the first case, of the sole employee who has been fired.
Tim Hannapel, the NTEU’s national counsel, said the tracking software detects only part of the work employees are asked to do — tasks that include emails, phone calls, and monitoring rules and regulations.
“It’s substantive stuff, but there isn’t a code that tracks this work,” he said.
The union has turned down management’s offers to allow employees to resign with clean records if they reimburse taxpayers for unearned compensation, according to union officials and others familiar with the discussions. The employees, who are paid $59,693 annually on average, remain on the payroll.
The NTEU also is alleging disparate racial treatment because almost all of the employees are black. The union says relatively few higher-paid white patent examiners have been disciplined for similar misconduct claims.
The agency did not comment on the settlement negotiations or the discrimination claim.
“They turned a blind eye to the other employees,” Ross, the local union president, said of patent examiners.
Slifer, now an intellectual-property attorney in Boise, Idaho, said that when he and the unions worked together to respond to Congress’s accountability requests, it was clear that the relationship with the Trump administration would be different.
“The recognition that having a GOP majority in Congress and in the White House certainly put the unions on notice that they don’t necessarily enjoy the same support from Republicans as they have from Democrats,” he said.
He said employee accountability is more complicated than saying “if someone isn’t putting in their 80 hours [every two weeks] they need to be canned. It is important that you provide all employees due process and make sure they understand their responsibilities.”