What is the intent behind the fifth Merit System Principle?
To understand this principle’s intent, one ought to consider the balance that must be struck between a Federal employee’s right to be hired and fired solely on the basis of his abilities vis-a-vis the public’s expectation of a Government that is impartially administered and flexibly managed. Simply put, the public has a right to an efficient and effective Government which is responsive to their needs as perceived by elected officials. S. Rep. No. 95-969, at 4 (1978), as reprinted in Committee on Post Office and Civil Service House of Representatives, 96th Cong., Legislative History of the Civil Service Reform Act of 1978 (CSRA), at 1468 (1978). In fact, the idea embodied in this Merit System Principle has been referred to as “the fundamental policy” of the CSRA. See National Treasury Employees Union v. Merit Systems Protection Board, 743 F.2d 895, 912 (D.C. Cir. 1984).
What effect does this principle have upon the Federal Government?
This principle can impact the Federal workforce on a grand scale. For example, during a furlough, whereas 5 U.S.C. 7513(b) requires Federal agencies to give employees 30 days’ advance written notice with an opportunity to reply before being furloughed, 5 C.F.R. § 752.404(d)(2) authorizes immediate furloughs under emergency situations, such as when Government funding is about to lapse, just like what happened in April 2011 when a government shutdown seemed imminent. In situations such as these, the public’s expectations of efficiency and effectiveness triumph, although the courts have found that “precipitous action which deprives [Federal employees] of their livelihood must be restricted to very narrow circumstances.” Horner v. Andrzjewski, 811 F.2d 571, 577 (Fed. Cir. 1987). One additional such circumstance involves seasonal employees. Since they are appointed during periods of increased workloads and are considered temporary workers, they may be placed in a nonduty, nonpay status without the 30-day advance written notice as long as doing so is in accordance with the terms of their employment. National Treasury Employees Union v. Devine, 10 M.S.P.R. 194, 198 (1982). The Merit Systems Protection Board (MSPB) reasoned that requiring agencies to adhere to the adverse action procedures under 5 U.S.C. § 7513, especially the advance notice provision, “would be unreasonable because it would frustrate the desired flexibility of this effective and efficient employment concept.” Id.
What is the MSPB’s role in protecting employee rights as to the fifth Merit System Principle?
Set forth as a separate requirement, but consistent with the fifth Merit System Principle, 5 U.S.C. § 7513(a) requires that an agency take an adverse action against an employee “only for such cause as will promote the efficiency of the service.” That is the standard against which every adverse action is tested by the MSPB. Further, pursuant to 5 U.S.C. § 1204(a)(2), the Board has the authority to order agencies to comply with Board decisions and to restore an employee as nearly as possible to the situation he would have been in but for an agency action the Board has found unjustified or unwarranted. Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984). Thus, the Board will require an agency to place an aggrieved employee into whatever position would be the same as or the most similar to the position from which he was separated. For instance, in Holtgrewe v. Federal Deposit Insurance Corp., 57 M.S.P.R. 307, 312 (1993), the Board found that the agency’s failure to reinstate an employee at the office from which he was removed, allegedly due to overstaffing there, was not in compliance with its order to reinstate him into a similar but lower-graded position. The Board was not persuaded by the agency’s argument that placing the employee into a new location would satisfy the fifth principle since the agency failed to provide evidence as to when the office to which he should have been assigned had become overstaffed. See id. On the other hand, the Board has held that to accommodate a disciplinary demotion, agencies are not required to create jobs for which there is no need since doing so would be inconsistent with the fifth Merit System Principle. Jackson v. Veterans Administration, 31 M.S.P.R. 135, 136 (1986). Rather, in such circumstances, the employee is entitled only to a position for which he qualifies, after which he could be considered for reassignment, if warranted.
Among the issues that have repeatedly arisen in MSPB appeals is whether an employee’s reporting of Government inefficiencies played a role in an adverse action against the employee. The Whistleblower Protection Act and the Whistleblower Protection Enhancement Act of 2012 prohibit any employee with the authority to take, direct others to take, recommend, or approve any personnel action from taking, failing to take, or threatening to take or fail to take, any personnel action because of the disclosure of information by an employee or applicant for employment that the employee or applicant reasonably believes evidences, among other things, gross mismanagement or gross waste of funds. 5 U.S.C. § 2302(b)(8).
In January 2011, the Board issued a decision reversing the placement of the Chief of the U.S. Park Police on administrative leave and her subsequent removal for statements she made to the press pertaining to safety and other issues. Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 71 (2011). The Board concluded that the motive to retaliate against the Chief was strong because her statements to the media could potentially embarrass the agency before Congress and imply that Congress was not properly funding the agency. Although this is an example that most closely illustrates the ninth Merit System Principle, it also strongly relates to the requirement of the fifth Merit System Principle that the workforce be used effectively and efficiently. Several significant decisions finding retaliation for an employee’s disclosures of government inefficiencies also illustrate the Board’s enforcement of this merit system principle. See, for example, Schnell v. Department of the Army, 114 M.S.P.R. 83 (2010); Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197 (2011).
Has MSPB’s task changed given increased scrutiny of efficiency and effectiveness in the Federal workforce?
In recent years, Congress has focused increasingly on government efficiency, which has led agencies it has studied to take actions to remedy the problems that have been found. While not all of these are appealable, disciplinary actions taken against employees are, so MSPB has seen a number of appeals over time growing out of what have been considered “scandals” affecting the agency’s efficiency and effectiveness, and that of the government as a whole, such as spending on training conferences. Congress’s legislation changing the rights of Senior Executive Service employees of one agency resulted in a severely reduced period for adjudicating appeals from employees subject to an action under the new law. One way in which MSPB was affected to a very great extent was Congressionally-mandated sequestration, which caused several agencies to furlough employees in order to save budgeted dollars. This resulted in more than 33,000 appeals being filed during the summer of 2013. Various plans to reorganize certain agencies have been discussed on Capitol Hill as well, but whether any changes will result in matters that may be appealed to MSPB remains to be seen. Certainly, though, in such times, the need to adhere to the fifth Merit System Principle is even more important.
Has the MSPB studied issues relating to utilization?
Efficient and effective utilization of the Federal workforce requires effective supervision. As Supervisors Retire: An Opportunity to Reshape Organizations (2009) examines the need to use succession planning and select an effective and diverse cadre of supervisors for the 21st century. Similarly, A Call to Action: Improving First-Level Supervision of Federal Employees (2010) provides recommendations for improving the selection, training, and management of Federal supervisors.
Given the influence of supervisors on the workforce, effective supervision often significantly impacts organizational performance. The Power of Federal Engagement (2008) explored the role of supervisors in engaging employees and the impact on organizational outcomes.