11/20/08: In very strong terms, NTEU National President Colleen Kelley has taken sharp issue with a proposed Office of Personnel Management (OPM) rules change which she said would represent an extraordinary and completely unwarranted expansion of agency authority to indefinitely suspend federal employees without pay.
In detailed comments submitted to OPM, President Kelley argued that OPM's proposal “would permit agencies to suspend an employee indefinitely for a myriad of alleged offenses, while investigating — at the agency’s leisure — whether removal is appropriate.” She added: “The impact of this change on federal sector labor relations cannot be overstated. Agencies are being given license to suspend employees indefinitely without pay for virtually any serious misconduct. This is not supported by statutory language and cannot be squared with fundamental principles of due process.”
Currently, the principal reason for which an agency may impose an indefinite, unpaid suspension is when it has reasonable cause to believe that an employee has committed a crime for which he or she could face imprisonment. OPM, Kelley noted, proposes to expand significantly those grounds to encompass any serious conduct that, “if proven,” would warrant removal from the job — including a vague and extremely broad category of conduct alleged by the agency to pose a significant, ongoing risk to “the effective accomplishment of the agency’s operations.” The scope of its potential new grounds is “breathtaking,” she said.
In NTEU’s view, “virtually any alleged misconduct would satisfy these grounds, at least at the outset, before the misconduct has been fully investigated.”
Another serious flaw in OPM’s proposal is that it would leave the duration of the indefinite suspension within the agency’s sole control as it conducted it own internal investigation. Employees would be suspended without pay and without effective recourse for as long as the agency wished.
These proposed regulations, she said, are “a dramatic departure from decades of precedent” interpreting laws and rules covering federal adverse actions. She noted that applicable statutory provisions not only do not specifically refer to indefinite suspensions, they do not define the grounds for their imposition. The efforts by the courts and the Merit Systems Protection Board to fill in the gaps give no support for this undertaking by OPM.
Kelley further criticized OPM for its claimed rationale in support of its proposal — namely, that it needed to “clarify” pre-existing law, ensuring that agencies act “judiciously” and only when an indefinite suspension would promote the efficiency of the federal service. In a briefing earlier this month to NTEU and other concerned parties, OPM claimed that, in the past, agencies had used overly-expansive interpretations of their authority to impose indefinite suspensions.
NTEU has not seen any evidence of such abuse in any of the agencies where it represents employees, President Kelley said. She warned that, rather than caution agencies to act judiciously, the OPM proposal “will actively encourage agencies to suspend employees indefinitely whenever a serious act of misconduct merely is alleged.
“Indefinite suspensions are a powerful agency tool that can have a profound adverse impact on employees,” she said. As punishment, it is “extremely harsh and must be reserved for the investigation of the most serious offenses—crimes for which a sentence of imprisonment could be imposed.”