Sen. Joseph I. Lieberman, D-Conn, the former Chairman of the Senate Governmental Affairs Committee and now its ranking member, sent a letter on May 19, 2004, to Department of Homeland Security (DHS) Secretary Tom Ridge and Office of Personnel Management (OPM) Director Kay Coles James, responding to the proposed DHS personnel regulations issued February 20, 2004 (Federal Register, Vol. 69, No. 34, 2/20/04 – see Federal Legal Corner 3/3/04). The Senator explained: “DHS and OPM assert that the purpose of the regulations is to enable the Department to carry out its mission, but I fear the actual effect of these sweeping changes would be the opposite: to undermine the employee safeguards that prevent arbitrary and abusive workplace practices and that sustain the employee morale and performance on which the Department’s mission depends.”
Shortly after the September 11, 2001, tragedy, it was Sen. Lieberman who first proposed and most staunchly advocated the concept of the new DHS to improve coordination of domestic security and intelligence efforts. However, Sen. Lieberman quickly observed that the Bush Administration was not taking DHS in the direction the Senator envisioned. He fought Republican senators’ 2002 legislation to give DHS unfettered discretion to exempt tens of thousands of employees from collective bargaining requirements.
Sen. Lieberman’s May 19, 2004, letter raised concerns regarding employee appeals, collective bargaining and management of employee pay and performance. In particular, regarding employee appeals, Sen. Lieberman noted that the proposed DHS rules would throw “up roadblocks in the way of employees seeking due process.” Sen. Lieberman targeted the reduced burden of proof that DHS proposes for management to justify its adverse actions based on employees’ alleged misconduct – designed to vastly increase management discretion, at the expense of employees’ right to challenge unfair actions. Sen. Lieberman said, “[I]t would not further DHS’s homeland security mission to require deference to a manager’s decision to fire a maintenance worker for pilfering cleaning supplies even when evidence shows it was probably someone else who did it.”
Sen. Lieberman further observed regarding employee appeals that the “proposal would strip employees of the right to obtain review of whether the penalty selected by the Department is excessive.” The DHS proposal essentially eliminates the agency’s responsibility to consider the twelve mitigating factors in Douglas v. Veterans Administration, 5 MSPR 280, 305-06 (1981) (“the Douglas factors”), which are the basis of much of federal employment law, and which all agencies currently must use in considering whether their proposed misconduct penalties are appropriate.
Sen. Lieberman questioned the proposed rules’ “mandatory removal offenses,” which are not clearly defined, nor selected in consultation with the affected employees and congressional leaders. The proposed DHS regulations would create a whole new bureaucracy to hear appeals of the “mandatory removal offenses” – taking the appeals away from the independent MSPB and giving exclusive appellate jurisdiction to a three-member panel appointed by the DHS Secretary. Sen. Lieberman cited a conflict of interest, in that the panel would be beholden to the same DHS management that employees challenge with their appeals.
After addressing the appeals process, Sen. Lieberman attacked the proposal’s abrogation of DHS employees’ collective bargaining rights. DHS proposes to replace neutral mediators with a management-driven, internal DHS panel and hopes to allow management exclusively to decide what issues to negotiate, what information to provide unions and even which employees have a right to union representation. For example, management would leave Transportation Security Administration (TSA) screeners out in the cold – with no collective bargaining rights.
Federal employees’ rights are entering a critical phase because the statutory collaboration process between the employees’ unions and the management representatives concerning the proposed DHS regulations runs through July 23.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **
