DHS extended administrative leave policy under Senate scrutiny

The chairman of a powerful Senate committee is demanding answers from the Department of Homeland Security on its use of extended administrative leave.

Sen. Chuck Grassley (R-Iowa), chairman of the Senate Committee on the Judiciary, sent a letter this week to DHS Secretary Jeh Johnson asking for a more detailed response to his questions from a year ago regarding 88 employees placed on extended administrative leave, and what steps the agency is taking to improve its policies.

“DHS provided responses to my questions on January 17, 2015. DHS reported 88 employees who had been placed on paid administrative leave for over a year or more,” Grassley stated in his Oct. 19 letter. “Unfortunately, DHS’ explanation of the reasons for such extended periods of paid leave were too broad and vague to assess whether other actions might have been more appropriate. DHS failed to explain how it met applicable OPM authority to use administrative leave ‘for those rare circumstances’ in which the employee ‘may pose a threat to the employee or others, result in loss of or damage to government property, or otherwise jeopardize legitimate government interests,’ or how its actions were consistent with the numerous GAO decisions cited in my letter limiting administrative leave to brief duration. DHS also failed to explain why such extended amounts of time were needed to conduct investigations into security issues, misconduct, or fitness for duty.”

Grassley requested a response to his letter no later than Nov. 2. A request for comment from DHS was not immediately returned.

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A cost to taxpayers

In October 2014, Grassley and Rep. Darrell Issa (R-Calif.) sent a letter to the Homeland Security Department requesting information that stemmed from a GAO report on the practices and policies of paid administrative leave.

“Federal agencies have the discretion to grant paid administrative leave for a variety of reasons, such as weather closures and blood donations,” the report stated. “While paid administrative leave costs taxpayers, it has not been reviewed or reported on extensively.”

Federal employment attorney John Mahoney explained that there is no blanket administrative leave policy for the federal government, but at the discretion of individual agencies.

“It’s pretty much all over the place,” said Mahoney, who is based in Washington. “It’s something Congress is looking hard at. The way the letter references it, billions of dollars are being spent per year to pay federal employees to sit home and do nothing, which is certainly from their [Congress’] perspective, an apparent waste of taxpayer money.”

DHS responded to Grassley and Issa’s letter in January with a list of 88 employees who were currently on administrative leave for one year or more, and employees who were no longer on leave but had been on leave for one year or more. The list also included their job titles, how many hours they were on administrative leave, and a short explanation for why they were not reassigned or placed on unpaid leave.

For example, a border patrol agent was paid $340,858 for 6,208 hours of administrative leave due to misconduct.  Another employee, a welder, was paid $72,818 for 2,112 hours of work and was placed on leave for fitness for duty.

Reasons for not reassigning employees ranged from suffering from a medical issue to security clearance to alleged misconduct and concern for protection of government resources. Mahoney said placing an employee on administrative leave can be a useful tool in the short term. If a person engages in threatening behavior, or there is a breach of security “it certainly makes sense to place them on leave for a short period of time.”

The problem, however, Mahoney said, is “you get those cases where it just keeps going and going and going,” and even though employees are getting paid, “they’re civil servants by nature, public servants, and they want to get back to work.”

Alan Lescht, also a Washington-based employment attorney, echoed a similar feeling of frustration that clients have shared.

“People have these jobs because they want to work,” Lescht said. “It’s not like they go to St. Thomas for the next six months.”

“What ends up happening frequently is people end up getting depressed, they get very upset and they’re basically in limbo,” Lescht said. “Federal employees are not asking to be put on administrative leave, they’re not going in and saying ‘hey, I want six months of administrative pay.’ This is being imposed on them. To the extent that there’s a general concern about this, it’s really about management that are making these decisions. They are the ones who are taking their time to do the investigations, because it shouldn’t take a year to figure out if someone did something. Usually with most federal employees the issues are not all that complicated.”

Working for taxpayers

Grassley’s most recent letter asks DHS to provide “a detailed narrative of the circumstances surrounding the employees’ extended paid leave,” as well as a “full account of the circumstances surrounding each employee’s use of administrative leave,” the reason for being placed on administrative leave, and a status update on what Johnson said in his January letter was being planned to strengthen the agency’s leave policy.

In his letter, Grassley said he and Sen. Jon Tester (D-Mont.) were working on legislation that “would force agencies to make a decision on whether an employee is a danger to fellow employees and must be removed from the workplace or whether that person can be reassigned while his case is resolved.”

“The goal is to make sure federal employees are working for taxpayers and not lingering on paid leave at taxpayer expense,” Grassley said.

A spokeswoman from Grassley’s office said in an email that both senators were “getting close to having a final product” and that the senator planned on following up in a similar way with other agencies.