Tom Devine of the Government Accountability Project has an unfortunate habit of being loose with the facts and revising history. It happens in private, but more problematically it also happens in public, where public records contradict his past statements (including, oddly enough, an article from just last month. More on this below).
Election of Remedies
In proposed sections 1201.21(d) and 1209.2(c) and (d), the Board would strip agencies of the burden to prove the merits of its charges against employees who file Individual Rights of Action (“IRA’s) or the reasonableness of its penalty, including whether termination or another personnel action “will promote the efficiency of the service.” The Board’s rationale is that the changes are necessary to comply with 1994 amendments to the Whistleblower Protection Act (“WPA”) requiring employees to make a choice of forum. Those amendments are codified in 5 USC 7121(g)(3). Unless modified, this regulation could force employees to choose between their rights under the WPA, or their rights under the rest of the Civil Service Reform Act. There is no sound basis in policy or law to force that choice, which in terms of damage to the merit system would far outweigh the nuts and bolts benefits in the proposed regulations.
In overview, the Board’s job is to protect the merit system. While it is necessary to comply with statutory requirements, the Board should not engage in any nondiscretionary actions that shrinks the scope of the merit system. That is what has happened here.
First, the provision in the 1994 amendments was meant only to apply to employees in collective bargaining agreements. (“CBA’s”) It provides no authority to shrink the rights of others not covered by CBA’s. Nor is there any policy basis to strip OSC complainants of civil service merit system rights that govern all other Board proceedings. The choice of forum provision was enacted to prevent duplicative, parallel due process proceedings conducted by the Board (either through a direct appeal or OSC-based complaint), at the same time as a labor management conducted by the Federal Labor Relations Board through its arbitrators. There is not a word of legislative history, or any record at all, that it was intended to require inconsistent standards for employees who start with the OSC, compared to starting with the Board. Nor is there any record basis that the amendments force the Board to discard the efficiency of the service standard or create an exception to the overriding requirement of 5 USC 7701(c)(1) that an agency must prove performance-based charges with substantial evidence, and misconduct based adverse action by a preponderance of the evidence.
Indeed, the Board does not have that authority. Prohibited personnel practices are an additive basis to reject an agency action [“notwithstanding paragraph (1)”], not substitutive. Congress has not created an “WPA OSC” exception to section 7701(c)(1), and the Board cannot do so on its own.
If the Board feels compelled to adjust regulations for the 1994 amendments, it should act in a way that minimizes dilution of the merit system. To the maximum extent possible, restructuring hearing procedures should not affect overall agency burdens. To illustrate, if an agency cannot prove the merits of its charges, that factor combined with protected activity and knowledge should satisfy the nexus element for a prima facie case of retaliation as a matter of law. As a matter of law, it also should defeat the agency’s clear and convincing evidence defense of independent justification, based solely on the strength of evidence criterion to assess the agency defense.
Similarly, there is no authority in law to remove an employee for reasons that do not promote the efficiency of the service. Correspondingly, the final regulation should specify that as a matter of law if there is protected activity and knowledge, a personnel action that does not promote the efficiency of the service establishes compliance with the nexus element for a prima facie case of retaliation, and as a matter of law defeats the clear and convincing evidence defense based solely on failure to meet the discriminatory treatment criterion.
In short, it is unnecessary to overturn longstanding Board case law and doctrines of jurisprudence, merely for compliance with a 1994 WPA amendment passed to avoid duplication between arbitrations, and OSC or Board rulings or hearings. If the Board feels compelled, however, to act within the law it must make corresponding adjustments so that it does not arbitrarily force employees pursuing their WPA rights through to Special Counsel to sacrifice the most basic rights of the civil service system. [Emphasis added.]
Here’s the relevant portion from AFGE’s comment:
AFGE opposes the Board’s proposal to limit the issues before the Board when an appellant chooses to pursue an Individual Right of Action appeal. The proposed rule is an overly harsh rule that, as the Board admits, reverses longstanding Board law. It also leaves an appellant with no way to keep a case whole when the appellant chooses to pursue a claim with the Special Counsel. This makes no sense and, AFGE believes, is contrary to the statute. Nothing in 5 U.S.C. 7121(g) requires this result, and the Board’s rule will subvert the will of Congress by discouraging employees from seeking the assistance of the Special Counsel. The Board should not make this change. [Emphasis added.]
These two comments are rebutted by the legislative history of H.R. 2970, a 1994 law that amended the Whistleblower Protection Act of 1989 (and by extension the Civil Service Reform Act of 1978) to “further protect Federal employees who report misconduct from reprisal for that action.” In reality, though, Congress added the election of remedies provision to serve the interests of two unions (AFGE and NTEU) at the expense of the Office of Special Counsel, and by extension at the expense of federal employees.
At the time it was supposedly no big deal, because OSC was a trap for the unwary and advocates sought its abolition. So a couple of unions kneecapping OSC to divert union or future union litigants away from them (and thus ensure their sustainability by being the only viable option for employees under duress) was understandable.
Tom Devine, also at the time, made a couple of comments to preserve OSC’s viability but did not raise further concerns.
The provision passed but MSPB did not attempt to amend their regulations to reflect it until this year.
Here’s what Congress, the Special Counsel at the time, AFGE, NTEU, and Devine said about 5 U.S.C. 7121(g)(3), on September 14, 1993. Pay close attention to whether “the provision in the 1994 amendments was meant only to apply to employees in collective bargaining agreements,” as Devine now argues, or whether it was conceived to apply to all federal employees.
Rep. Pete McCloskey (page 2):
In addition, the bill would give Federal employees alternative venues to seek resolution of disputes that might arise in their case. This change will not only give employees who do not want to seek corrective action from OSC a choice of where to seek redress, but it should provide an incentive for OSC to improve its performance in the eyes of Congress and Federal employees. If the changes are enacted, and OSC continues to be perceived as hostile to complainants, Federal employees may stop seeking help there and OSC’s role in the context of whistleblower protection will cease to exist.
Kathleen Day Koch, then-Special Counsel (page 7):
As I state earlier, Mr. Chairman, I have not addressed those sectons of the bill that do not directly impact OSC. However, I do have a concern with Section 5(d) of the bill which would appear to diminish the protections currently available to whistleblowers. The bill as drafted would force whistleblowers to choose between coming to OSC and going directly to the board.
The bill would not allow whistleblowers to exercise the independent right of action they currently have which allows them to take their rcase before the board after coming to OSC. I believe that the current independent right of action provision which was added by the Whistleblower Protection Act is an effective measure for ensuring maximum consideration of whistleblower claims and should be maintained. [Emphasis added.]
Mark D. Roth, AFGE (pages 16-17):
AFGE views the alternative forum option offered by the bill as a direct acknowledgement that the OSC has failed to act in a timely and effective manner in too many of the situations brought before it, to the detriment of those the office is charged with helping. The beauty of this bill is that it simply allows individuals raising allegations of prohibitive personnel practices to obtain relief elsewhere.
This option is crucial where, as here, the avenue presently in place, namely the OSC, has proven itself unsympathetic or ineffective. I would stress that the bill neither allows multiple bites of the same apple nor does it abolish outright the OSC.
Again, this parallels in many ways the administration’s current reinvention effort which requires various centralized regulatory agencies, like the GSA, GPO, and OPM to, “compete.” Although many OSC customers have called for the sunsetting of that office, we believe that by breaking up the Special Counsel’s monopoly and requiring that office to compete with others, this bill may provide that office with the necessary incentive to provide a quality product in order to survive or it will see its whistleblower market go elsewhere.
We support many features of the bill. We just want to briefly mention two features that we think are extremely significant and that is, one, the bill’s express language guaranteeing that employees charging a prohibited personnel practice may utilize negotiated grievance procedures and two, the direct empowerment of arbitrators to order corrective action and stays from those practices and/or discipline in meritorious cases.
Grievance and arbitration is a proven mechanism. It allows for swifter and less costly resolution of prohibited personnel practices than either the courts or the OSC and MSPB can provide. Thus, the resulting law would allow for the swift correct of the practice and discipline of those who are found guilty of committing it. [Emphasis added.]
[Roth's written statement is also worth reading, on pages 18-19]
Tim Hannapel, NTEU (pages 20-21):
We are also very much in favor of the bill’s attention, as Mr. Roth just testified, to the role of the negotiated grievance procedure for resolving disputes that arise in the workplace. . . . Together with the recognition of the plenary powers granted to the arbitrator, the salutary objectives of that grievance procedure would be much easier to realize. We believe that the combination of these significant improvements should lead to greatly expanded protections for whistleblowers. . . . Third, we suggest that even more attention be paid to the negotiated grievance procedures, possibly by making it the exclusive administrative remedy for items that fall within its scope, and this would honor the significance of the labor/management relationship that is embodied in the collective bargaining agreements. . .
To be fair to Hannapel, he focused his comments on union issues – the negotiated grievance process. When Rep. McCloskey asked Hannapel to clarify (page 24), Hannapel answered:
For people who are in a bargaining unit, rather than going to the Office of Special Counsel or to the MSPB, they would be required at the administrative level to use the grievance procedure.
McCloskey followed up on this issue with Tom Devine, whose statement did not mention the election of remedies issue:
[Rep. McCloskey, page 33:] What about Mr. Hannapel’s comment a short time ago that for covered employees, perhaps those four options [OSC, MSPB, union, federal court] should for the time being exclude the MSPB and OSC initial coverage and focus on obviously encouraging the collective bargaining grievance process while still allowing the de novo right in the Federal Court?
[Tom Devine, pages 33-34:] We think that his point is well taken, that the latter two options are the best routes for an employee to have a fighting chance of defending his or her career successfully. We favor the idea of managed competition, however, which doesn’t force an employee to go one route or the other, but maintains the option of choosing an alternative.
[McCloskey:] As you know, my bill has the four options basically, but should we restructure the process for the [union] covered employees, just have the two options to start with?
[Devine:] We think that the way the bill is drafted, by maximizing your choices, it also maximizes the chances that you will be able to defend yourself somehow.
McCloskey’s version and Devine’s response, minus the federal court option, is what was enacted in 5 U.S.C. 7121(g)(3). This exchange makes clear that Congress contemplated forcing employees to choose between OSC, MSPB, and a union, regardless of one’s union membership. Devine did not raise any consequence issues at the time.
The Art of Spinning
Devine is also now attempting to reframe the issue from one of Congress forcing employees to choose between a union, an MSPB direct appeal, and an OSC complaint, to one of Congress not having intended to “require inconsistent standards for employees who start with the OSC, compared to starting with the Board,” because if they didn’t mention it, they must not have meant it.
It’s a crafty argument, but ultimately it fails because the inconsistent standards issue is a consequence of forcing employees to choose between fora. Congress need not, and certainly does not, anticipate or speak about every foreseeable and unforeseeable consequence of their main policy choices. Moreover, they rely on subject matter experts to raise these issues for them. In this case, that would have been Devine himself, or the Special Counsel.
Notably, the Special Counsel at the time, Kathleen Day Koch, raised the issue of consequences when she said:
The bill would not allow whistleblowers to exercise the independent right of action they currently have which allows them to take their case before the board after coming to OSC. I believe that the current independent right of action provision which was added by the Whistleblower Protection Act is an effective measure for ensuring maximum consideration of whistleblower claims and should be maintained.
She may not have gotten it exactly right, but that’s the problem with predicting consequences.
By reframing the issue from one of Congress making broad, structural changes, to one of Congress neglecting to speak about one of several consequences of their broad decisions, Devine tries to cast doubt about the validity of the plain language of the law. He is trying to redefine reality.
All the other issues Devine mentioned (interaction with section 7701, efficiency of the service) are problems that arise when a rights-limiting provision is introduced into a rights-enhancing legislation; it’s going to be awkward, no matter what. That doesn’t mean the original decision to limit whistleblower rights wasn’t intended by the unions or Congress.
Prior Inconsistent Statement
Oddly enough, Devine’s comment is also contradicted by… Devine’s recent public statements. Here is what he told Bloomberg BNA in a June 12, 2012 article (subscription required, though available in full here) (full disclosure: I work at BNA, though not in the employment division. These are solely my own views):
Tom Devine, legal director at the Government Accountability Project, a Washington, D.C.-based nonprofit that represents federal whistleblowers before the board, told BNA June 7 that, with the exception of the change affecting federal whistleblowers, the MSPB proposed regulations are “stuffed with nuts and bolts changes that would make the board more user-friendly.”
Although the whistleblower provisions will make life more difficult for federal whistleblowers and their legal representatives, Devine said, “it’s difficult to criticize the board for conforming its regulations to clear statutory language, even after an 18-year delay.”
“The next step is obvious. When Congress reauthorizes spending for the Merit Systems Protection Board, it should modify the statute,” he said. “There is no excuse for whistleblowers who process claims through OSC to have second-class rights, but the problem is not with the proposed rule—it’s with how Congress wrote the 1994 law.” [Emphasis added.]
Final word: If Devine and AFGE truly feel that 5 C.F.R. 1209.2 is not in accordance with the law (assuming it’s enacted as proposed), they should file suit, challenge it under the Administrative Procedure Act, and let a federal judge look at all the facts and arguments. If that judge finds that 5 C.F.R. 1209.2 was mandated by 5 U.S.C. 7121(g)(3), or is a reasonable interpretation thereof, then I would imagine that Devine and others would seek a legislative change.
Or they could avoid getting exposed by a judge and seek legislative change directly.
Either way, will Devine and other responsible actors acknowledge their role in this fiasco? Based on his conduct, I wouldn’t bet on it.
Read more public comments here.