Senators goof on MSPB letter

No one doubts the senators’ devotion to the cause of the nation’s veterans. But if they want things to improve, an ill-advised letter won’t help. I’m referring to a letter to Merit Systems Protection Board Chairwoman Susan Tsui Grundmann. It came from Sens. John McCain (R-Ariz.), Jeff Flake (R-Ariz.), Ron Johnson (R-Wis.) and Jerry Moran (R-Kan.).

It’s become the stuff of legend by now that MSPB judges (not the two current board members themselves) overturned three disciplinary actions against Senior Executive Service members whose conduct was puzzling, to put it charitably. But as employment attorney Debra D’Agostino of the Federal Practice group told me, the judges found that it was VA brass who screwed up, in part by being selective in the application of discipline.

The incensed senators, wanting scalps, don’t like this. They accused the board of overturning “disciplinary actions taken against corrupt VA bureaucrats.” Technically, the senators’ headline is accurate. But they also cited a section of Title V, a federal employment statute, that requires employees to maintain high standards of integrity, conduct, and concern for the public interest. Adding, “This clearly did not occur at the MSPB with respect to these cases.” That’s not so clear, actually.

I think they miss a couple of points. Discipline for lousy performance and willful misconduct isn’t revenge, and so top executives have to be careful how they apply it, and they have to do it consistently and fairly. Nothing wrong with senatorial oversight, but presuming errors in the judgment rendered by a judicially-oriented, independent body sounds like a threat. The senators asked, “We request details as to what steps the MSPB is taking to ensure that these types of incidents do not happen again.” What incidents — making best-possibles judgement based on law and facts?


The senators pre-supposed only one proper outcome of judicial proceedings. Not good.

Look at the record of the MSPB. From its annual report, you’d think they only hired hanging judges there. One chart on page 20 shows the MSPB in 2015 upheld agency decisions or actions on initial appeal, or left them undisturbed 99 percent of the time! In appeals to the board itself, the government’s actions toward employees prevailed 80 percent of the time. So it’s not as if the Board is overturning discipline in some wholesale manner. In point of fact it almost never disagrees with the action.

True, the numbers include a raft of cases of employees disputing the indisputable furlough cases from the 2013 budget lapse. But the pattern is clear.

Check out the telling chart on page 24, “Disposition of Initial Appeals Adjudicated on the Merit by Agency.  Veterans Affairs is one of the agencies for which double-digit numbers of adverse personnel actions were overturned — 22.4 percent, or 17 of 76 cases. Several did worse. Commerce had a third of its personnel actions overturned, but that was 2 out of 6 cases. At the Navy it was a mere 0.2 percent — of 5,539 cases.  Homeland Security, with all of its disgruntled officers, only 11.6 percent of its 43 cases, less than half the rate as VA.

The MSPB might be a tough venue, but it’s neither a kangaroo court nor place of refuge for miscreants. So maybe the senators should ask, why is VA decision-making with respect to its employees so far off the mark?