Kelley to House: Misguided Civil Service Reform Threatens Credibility of MSPB and OSC


7/12/07: NTEU President Colleen Kelley told a key House subcommittee today that current efforts to reform guidelines governing employee rights and merit protections are “misguided” and threaten the entire foundation of a strong, nonpartisan and professional federal career civil service.

The credibility of both the Merit Systems Protection Board (MSPB) and the Office of Special Counsel (OSC) is under attack, Kelley said in written testimony submitted to a hearing of the House Government Reform Subcommittee on the Federal Workforce. If the agencies’ basic mission — protecting the workplace rights of federal employees — is jeopardized, she warned, the federal government will suffer the repercussions for years to come.

“The administration’s proposed curtailing of due process protections centers today on employees of the Department of Homeland Security (DHS) and the Department of Defense (DoD), but threatens employees governmentwide,” Kelley said. “We need the MSPB to step up its responsibilities to assure that fundamental merit principles are honored in practice, as well as in theory.”

As the MSPB works with DHS and DoD to develop an expedited employee appeals system, Kelley urged the subcommittee to insist that the MSPB develop employee regulations preserving minimum standards of due process, eliminating artificial time frames for appeals actions and providing timely independent review of the performance of the departments’ personnel systems.

Kelley also voiced adamant opposition to the MSPB’s proposal of legislative changes to permit it to grant “summary judgment” in cases determined to have no “genuine issue of material fact,” thereby eliminating employees’ rights to a full evidentiary hearing. Kelley argued that this rule change would place an onerous burden on the many employees who lack experienced legal representation. “Employees in these cases would be highly vulnerable to the premature dismissal of their claims, due to nothing more than their inability to afford the services of an attorney,” she said. “Dismissing cases without a full airing of grievances will neither contribute to justice nor to employees’ perception that they have had a full and fair opportunity to be heard.”

The situation for federal employees seeking relief before the OSC also continues to be bleak, Kelley explained, due to perpetual controversy over its leadership, mass resignations of experienced staff members and a significant decrease in victories for injured employees in the past five years.

“We routinely advise employees we represent not to pursue whistleblower retaliation complaints, or any other prohibited personnel claims, with the OSC,” Kelley said, adding that since fiscal 2003 the agency has routinely placed expediency over the goals of thoroughness and fairness when processing its caseload. “The number of favorable outcomes in cases handled by the OSC fell from 7.4 percent of all cases processed in fiscal 2002 and 6.6 percent of all cases in fiscal 2003 to just 2.6 percent of all cases processed in fiscal 2006,” she said.