An Unlikely Critic

By Shawn Zeller

Critics of personnel reforms at the Defense and Homeland Security departments never could have imagined they'd have an ally in Neil McPhie. But when McPhie, appointed chairman of the Merit Systems Protection Board in 2003 by President Bush, testified before a House Government Reform subcommittee last month, he perhaps unwittingly found himself in exactly that role.

McPhie surprised the subcommittee members when he criticized new rules imposed by Homeland Security that will require MSPB to hear DHS cases using more management-friendly rules. McPhie also expressed concern about new timelines that will force the agency to speed through DHS cases before most cases from other agencies.

MSPB is an independent federal entity that adjudicates employee appeals of agency disciplinary decisions. In creating Homeland Security in 2002, Congress allowed the department to rewrite rules governing employee discipline. The Defense Department got similar authority in 2003. Both departments plan to require MSPB to set shorter timetables for hearing their cases, and to follow rules that will make it more difficult for employees to win their cases.

For example, the new rules will eliminate employees' right to a hearing if, after reviewing initial pleadings, an MSPB judge believes they do not merit consideration. They also will make it much harder for the board to reduce agency penalties. And they will allow DHS to discipline more than once employees whom the agency charges with serious but yet-to-be-determined "mandatory-removal offenses." If MSPB doesn't uphold the agency's firing decision, then DHS can impose a lesser penalty.

In his most telling comment to the Subcommittee on the Federal Workforce and Agency Organization, McPhie said, "The possibility that an employee would be subject to multiple actions based on the same underlying conduct raises a substantial question of fundamental fairness." Aides to McPhie have since said he meant to explain to the subcommittee what would happen under the DHS rules, not to express an opinion.

Already, the DHS and Defense changes are forcing other agencies - whose employees file the majority of cases - to wait longer for hearings on their appeals to the full MSPB in Washington. The board's Office of Appeals Counsel has implemented procedures that put appeals from DHS employees ahead of most others. So far, the agency has not begun to fast-track procedures for Defense cases. In 2003, the most recent year for which statistics are available, 22 percent of cases that came before MSPB judges were from DHS or Defense.

When the DHS rules take hold later this year, MSPB judges will have to move DHS cases in 90 days, as opposed to the usual 120. The three-member board in Washington also will have to reach decisions on cases that are appealed to it within 90 days, while cases stemming from mandatory removal offenses will require board action within 30 days. In 2004, the average appeal to the board took 141 days. "We are required to stop what [we're] doing and shift all [our] resources" to these cases, said McPhie. We are "between a rock and a hard place," he said, adding that the board will need more resources to maintain service levels.

MSPB's budget rose 5.8 percent in 2005, to $37 million, not enough to hire more lawyers or judges. And President Bush's 2006 budget request for MSPB provides no increase. In 2004, the agency bought out some employees and closed its Boston and Seattle field offices to save money. At the time, there was widespread speculation that DHS and Defense would use their authority to reduce or eliminate MSPB's role in processing their cases.

MSPB officials fought to retain the cases - and succeeded. Now McPhie hopes that a combination of increased funding and changes in MSPB procedures will allow the agency again to treat cases from all agencies equally.