By Luke Rosiak – Federal managers are using illegal secret settlements that pay disruptive, incompetent or dangerous employees not to work for months on end before quitting on an agreed-upon date as an alternative to endless termination paperwork, legal appeals and costly battles with civil service unions.
Government employees accused of wrongdoing often spend months on paid leave, while publicly agencies cryptically speak of lengthy “investigations,” even when establishing misconduct can be as simple as talking to a few people or reviewing some documents. Eventually, the agencies will say, just as vaguely, that the person is “no longer employed.”
Evidence obtained by The Daily Caller News Foundation suggests some of these investigations are a sham in which agency officials and the employees have agreed in advance to use paid “administrative leave” as the basis of a hidden settlement.
The U.S. Office of Personnel Management says administrative leave is supposed to be used only for short periods of time, normally when an employee is a specific danger. Even so, the federal government spends $1 billion annually paying people to stay away from the office.
A November 2015 inspector general report said, however, the Environmental Protection Agency (EPA) used administrative leave to give bad employees, who managers wanted to fire, massive payouts in exchange for resignations instead.
One of the employees who was charged with possession of marijuana was paid for no work as an inducement to quit and waive appeals, saving managers the hassle of going through discipline proceedings.
“The settlement for a 6-month administrative leave period was negotiated between counsel and the employee’s attorney, and many factors, including litigation risks, were considered. Counsel said she was ‘told’ to grant 9 months to a year of administrative leave as part of the settlement but only agreed to allow 6 months as a compromise,” the IG wrote.
Rules limit administrative leave to no more than 10 days to sort out a plan of action after an employee has been charged with a crime, the IG said — even then, only if “circumstances require immediate action,” presumably meaning if the crime posed a risk to government property or safety of employees.
In another case, EPA managers paid an employee not to work for 20 months in a concerted effort to ensure he could qualify for a disability retirement pension.
The employee had sent “a hostile email and made inappropriate statements that caused anxiety and disruption in the workplace … The agreement allowed the employee to take disability retirement by July 8, 2014, and maintain his administrative leave status until” then, the IG wrote. “This was a significant and costly offer, but there was no documentation in the file as to how the settlement agreement terms were arrived at.”
At least the final 6.5 months of leave were specifically worked out with the employee as part of a deal. The employee signed a separation agreement in February 2014, and remained on the payroll until July. The other 13 months were punctuated by two attempts to fire the employee. Both failed because the employee union successfully blocked them.
An agency isn’t necessarily allowed to keep staff members at home just because disciplinary proceedings are underway, but EPA failed to document its justification for doing so in the second EPA case.
Congressional oversight panels have often asked why so many employees are on paid leave, and received evasive answers from executive branch officials. This suggests that settlements based on specific periods of administrative leave in exchange for resignation may not be rare.
Meanwhile, unions and other special interest advocates claim administrative leave is no reward, as the employee is supposed to be in limbo, living in fear of how the situation will be resolved.
The Government Accountability Office and the Merit Systems Protection Board have said since 1990 that using predetermined administrative leave to get an employee to quit is not allowed.
Sen. Chuck Grassley wrote to EPA and other agencies in December 2015 pressing them on the issue and noting that in some cases managers used lengthy leave on bad employees after they could only get disciplinary boards to approve a suspension, not a firing.
“This is astounding given that an employee for whom an agency proposes a ten-day suspension is necessarily one who the agency has determined is not a threat to safety… as that employee will be returning to work after 10 days,” the Iowa Republican wrote in the December 2015 letter.
The EPA has not responded to Grassley’s request for information on the cases, despite a Jan. 6 deadline.
An EPA spokesman told TheDCNF that the agency “has been working with first-line supervisors to provide tools and resources to enable them to address poor performance early, swiftly, and professionally.”
The agency also said it has a new policy on administrative leave that became effective Christmas Eve 2015 and requires approval by a high-level official for more than 10 days of paid leave. But at least for now, the requirement only applies to non-union employees.
It’s not clear how that would make any difference, as union-backed resistance to disciplinary action is what causes bosses to resort to perverse incentives in the first place.
The EPA spokesman said the agency would try to apply the new policy to its unionized workforce “after any required negotiations with our unions.”
Grassley told TheDCNF that “case law and common sense tell you that agencies shouldn’t use leave and writing checks to get rid of bad employees. The EPA needs to explain its questionable actions.”
Another mechanism for secretly paying off bad employees is by them filing a complaint — however frivolous — alleging discrimination or other wrongful treatment. The agency is then permitted to pay the employee, supposedly to settle the complaint, in exchange for resignation.
Earlier this week, TheDCNF reported that the Department of Veterans Affairs had paid $86,000 in such a settlement with a hospital director after he had sex with a colleague’s mom, then harassed her about it. The director also threatened to fire a human resources director who said he never did any work, thus violating laws intended to protect federal whistleblowers.
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