When agency managers do not know what to do with someone, too often they put the employee on paid administrative leave. Despite a 2017 law designed to curb this practice, it still happens a lot, according to a group called, Public Employees for Environmental Responsibility (PEER). For more on the findings, the Federal Drive with Tom Teminspoke with PEER Senior Counsel Peter Jenkins.
Tom Temin What made you look at this and what did you find?
Peter Jenkins Well, it really drove us as at PEER, as an organization that provides pro-bono legal representation for whistleblowers in federal environmental agencies and also state and local action set. But with the federal agencies, we’ve had several clients who were put on extended administrative leave without any guidelines, any boundaries on that administrative leave. In a prominent case, we represented a former managing director of an agency who was put on leave by his agency, paid for three years, which was extreme. And of course, it was tremendously stressful for him. It’s been stressful for other clients who’ve been in the same situation, and it cost the federal government literally millions of dollars that we documented. And it’s not just us documenting that, but the [Government Accountability Office] and others have done studies and looked at the data and realized it’s costing the federal government tens of millions of dollars these extended administrative leave.
Tom Temin So the administrative leave is imposed if the agency thinks someone did something wrong, but they don’t know how to deal with the case or resolve it sounds like.
Peter Jenkins Right. And they’re supposed to go to investigative leave after ten days under the 2016 law that Congress passed. And then the investigative leave has limits. But the problem is that the Office of Personnel Management never followed through with the regulations that Congress directed it to issue, that were to implement that law. And OPM was supposed to have issued those regulations in 2017, in September 2017. They did a draft, but they never finalized it. That draft was done back under the Trump administration, but administration has not picked up the ball and done what it’s supposed to do. Now it’s been more than six years since those regulations were due, and as a result, the agencies themselves don’t have the guidance that they need to fully carry out what Congress told them to do in 2016.
Tom Temin And you mentioned an agency managing director. So it’s not just low level people or functionaries that end up on administrative leave, but it sounds like a high ranking official.
Peter Jenkins Well, we had another who was the head of the EPA Children’s Health Office, the head of the whole office, something like 17 employees. She was also put on extended administrative leave without explanation, which claimed it is illegal. And are still claiming as illegal, her case is still live. So we have had other clients at different levels of the government. And in fact, it’s the higher level ones that tend to be more controversial and get extended out because the political appointees and others at the high levels don’t want to deal with these whistleblowers.
Tom Temin That was my next question. Is it mostly whistleblowers that end up on administrative leave or can someone commit some other alleged misdoings?
Peter Jenkins Well, certainly they can, but it’s just a practical matter that Peter represents whistleblowers. So we select clients who are the people who are stuck in that situation, so that’s who we deal with. Now, there are other people who are put on administrative leave for all sorts of other reasons. And the general concern that Congress had 2016 was that often they’re just left there because it’s convenient for the managers to not deal with them. It’s easier to do nothing as a federal manager than to actually tackle the issue. So it’s costing taxpayers millions for this neglect.
Tom Temin We’re speaking with Peter Jenkins. He’s senior counsel at the Public Employees for Environmental Responsibility or PEER. And in your recent release on this, you mentioned that some agencies do keep statistics on this like they’re supposed to, including the National Park Service and some amazing stats on administrative leave there.
Peter Jenkins Right. And this was after this 2016 law was passed. So in FY 2018 through ’20, there were a total of 260 person years valued to taxpayers in excess of $10 million of people sitting on administrative leave. Now, we don’t know, obviously, every single one of those cases was about. Some of them could have been whistleblowers, some of them could have been legitimate, but we don’t know. So Congress wanted to get a handle on this issue, and that’s why we’ve threatened to sue OPM if they don’t issue the implementing regulations.
Tom Temin And the regulations require agencies to keep these statistics. What else are they supposed to do under the law?
Peter Jenkins Well, they’re supposed to have very defined processes for how administrative leave then shifts to investigative leave. If the person is under investigation or if they’re not sure whether they’re going to put them under investigation, there’s something called notice sleeve that has side boards on it. So there’s different categories of lead. Then OPM is supposed to report on the total number of cases and the agencies are supposed to report. We have urge them to make that reporting more transparent, more public posted on a OPM website. The other thing we have urged in our petition, since they haven’t finalized the regulations and they’re still mulling over what to do, we’ve said what we need to do is see some consequences for managers who abuse the law, who abuse the regulations, because, as I said, it’s easier for managers to just put people on administrative leave and then not deal with them. But that’s a form of abuse. If it goes on for too long and in violation of the law. So we want to see those managers subject to some potential consequences, such as the Office of Special Counsel finding that itself is a prohibited personnel practice that they can be disciplined for.
Tom Temin And just to look at this from a different angle of someone feels, if an agency head feels that someone should be put on administrative leave, why don’t they just fire them?
Peter Jenkins Well, you can’t just fire a civil servant, as you know. You have to go through the normal process of issuing a notice of proposed removal and then a final thing, that does take time. But this process that we’re talking about is before they issue that sort of a notice. It’s when they’re investigating and deciding what to do. And so once they issue that notice, then you’re under a different clock altogether. But if it’s a matter of just investigating or just trying to decide what to do, that’s what this administrative leave act is about.
Tom Temin Sure. And as you mentioned, someone on administrative leave for three years does seem not only excessive, but absurd. Anything more than a month sounds absurd. If you’re trying to find out what it is you need for fact finding. I wonder, this is speculation, but if it is the political people appointees that put people on administrative leave, I mean, if you have an agency head or a bureau head, that would have to be a political appointee, probably above that person to be able to put them on leave. They know they’re on short time because that’s the way of political appointments. And is it just a convenient way of kicking it into the next administration, if you will, or the next person that takes over?
Peter Jenkins It can be or in the Trump administration, it was often figuring out ways to get rid of high level people in the bureaucracy that they didn’t like, that they wanted to sidetrack without going through the hassle of proposing to fire them, so they just put them on extended leave. That was some abuse that happened under the Trump administration, as you probably know.
Peter Jenkins No. Well, I shouldn’t say only the Trump administration, but we had a lot more clients under the Trump administration, let’s put it that way.
Tom Temin Got it. All right. So you have a lawsuit going?
Peter Jenkins No, we filed this petition, 60 days. Then we said, if you don’t issue these final regulations or otherwise guarantee that you’re about to, then we will withdraw the petition and sue them. And we think there’s good case law that agencies can be forced to issue regulations that they’ve sat on for years, years and years when Congress directed them with a timeline. Congress said this should have been done by September of 2017.
Tom Temin And do you have any feedback or any signals coming back at you from OPM that they intend to get on this?
Peter Jenkins No, but we expect we’ll hear from them.