A federal agency apparently interprets union-backed civil
service protections to be so strong that employees, and even interns, can’t be
fired for work-related misconduct unless they have also been convicted of
it in a court of law.
That would mean a federal employee couldn’t be
sacked for coming in to work drunk, not showing up at all, or anything
else that is not a crime — or is a crime but is unlikely to be independently
pursued by criminal prosecutors.
The Department of Housing and Urban Development (HUD) was
unable to sustain a firing when its inspector general determined that an intern
took two housing project units for herself, one of which she sublet out to
someone else, and then lied about it.
The agency said it would be taking strong action, but also
cautioned that the union would have a chance to make an argument. Soon after,
the intern, Markquonda Mathis, was back at work and promoted to a position
overseeing millions of dollars in grants.
Her misconduct had been fully established by
the inspector general, the department’s internal investigators. The only
mitigating factor she could have raised at a union hearing is that she didn’t
wind up being charged criminally, since Virginia prosecutors said housing
authorities’ forms didn’t ask basic anti-fraud questions that would help them
prosecute swindlers.
“While
HUD does not condone any employee misconduct, federal laws and regulations
afford all federal employees due process and privacy rights even if they have
engaged in confirmed misconduct,” HUD said in a statement.
“Confirmed
misconduct” means that the inspector general officially found that the HUD
employee stole benefits. The assertion would suggest that inspector generals’
findings have no weight on their own, unless they serve as a precursor to
criminal action.
IGs
don’t have the power to discipline, instead leaving that to the agency, so it
is a catch-22 to say an employee can’t be disciplined based on the findings of
an IG report because she has not already been disciplined by an outside
authority. A large portion of IGs’ findings are issues that violate rules but
not laws.
And since
prosecutors often only bother to take cases that could result in years in
prison, the idea that an employee can only be disciplined following criminal
sentencing is fairly irrelevant, since if they were in prison, they would
be unable to hold their job anyway.
The
outcome illustrates the shape-shifting excuses that federal managers and unions
use to ensure that federal employees aren’t held accountable. HUD is saying
that workplace discipline is inseparably coupled to the results of a
criminal trial. Just weeks prior, the Department of Veterans Affairs said the
opposite — that discipline and criminal trials have no relation — to explain
why an employee who was convicted of a crime after an armed robbery was not disciplined.
“Criminal
prosecution or conviction for off-duty misconduct does not automatically
disqualify an individual from federal employment,” VA spokesman Axel Roman told
The Daily Caller News Foundation. “The administrative discipline process for
poor performance or misconduct on the job, operates distinctly from the
administrative process associated with off-the-job misconduct. Accordingly, one
is not necessarily impacted by the other.”
New
federal employees are on a probationary period and have drastically fewer
protections than tenured employees. As many employees are fired during their
initial probationary period as during the subsequent decades combined, since it is so much easier.
Mathis
was only a “student trainee intern” at HUD, and her $31,000 salary was far
higher than most interns. “When
this occurred, she was a student intern at HUD,” spokesman Jereon Brown
acknowledged. “You obviously haven’t worked in federal service with these
unions that we have,” he said.
The
fact that the American Federation of Government Employees has become concerned
with making sure an intern can’t be fired for stealing from the government
indicates that there is virtually nothing a federal employee could do to get
the ax.
Federal
managers’ perceptions of what they must allow because of the unions are out of
whack with actual regulations and precedent, observers say. In this case HUD
managers should have been able to fire Mathis, but probably didn’t try hard
enough to build a serious case, according to government-wide Office of
Personnel Management (OPM) rules.
“If
the person is a probationary Federal employee without adverse action procedural
rights, instead of taking disciplinary action the agency could terminate the
probationer’s services,” OPM said in a statement.
“If
a tenured Federal employee engages in misconduct, there are established
procedures to discipline the individual … An agency may take disciplinary
action for misconduct regardless of whether criminal prosecution occurs.”
In
Mathis’ case at HUD, a “notice of indefinite suspension” said “Your access card
will be deactivated and the building security was directed to deny you
access.” The department “will take the necessary administrative action to
preclude the continuation of harm or financial loss to the department,” it
said, noting the “notoriety of the offence” and the “impact on the agency’s
reputation.”
But
the suspension was dependent on factors including the “disposition of possible
criminal charges.” And it noted that “your position is a bargaining unit
position” and that the union could challenge any punishment.
Even
though agencies all operate under the same government-wide personnel rules, HUD
managers seem less willing to fire employees than other agencies, casting it as
an inability rather than unwillingness. HUD fired only 5 of its 7,400 tenured employees in 2013 –a much lower rate than anywhere else in government.
