Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.
With New Year’s Day around the corner, many federal employees are readying resolutions for 2015. Many of their promises, whether they are to lose weight or get a new job, will likely not be kept. In fact, a 2014 survey found that 11 percent of Americans had broken at least one New Year’s resolution a mere six days into January and 22 percent copped to cheating a few times but still staying the course.
Federal agencies also do not have stellar track records when it comes to keeping promises. Sometimes the Merit Systems Protection Board (MSPB) will even allow agencies to get away with a broken promise; other times the Board will hold them to their word.
Agencies generally can break promises when it turns out whatever was promised cannot be delivered. The key to such broken promises is the promising official’s honest belief as to the deliverability of whatever was promised. Such predicaments fall into the legal category of “detrimental reliance on misinformation.” For the MSPB to intervene and stop the agency from breaking a promise, the employee needs to show the agency engaged in “affirmative misconduct.” In other words, the official must have promised something he or she knew was not deliverable, and the employee must have reasonably relied on that misconduct, as the Board recently noted in Ellis-Smith v. Department of Defense (2014).
Breaking a promise for a promotion also generally will not constitute harassment or an abuse of authority, an MSPB judge concluded in Dolinsky v. General Services Administration (2008), a decision the Board affirmed while I served as its chairman. The appellant, a regional emergency COOP coordinator, claimed the senior advisor to the agency’s regional administrator had used a promised promotion to a GS-14 position to lure him from another agency to his own. While the senior advisor lacked the authority to hire or promote in this situation, he did take steps, “to no avail,” to reclassify the appellant’s GS-13 position, the MSPB judge noted.
Allegations of broken promises also frequently arise when an agency discloses information that, under a settlement agreement, it had agreed to expunge. In Vanover v. Department of Agriculture (2012), the MSPB outlined several scenarios where an agency’s promise of a clean employment record may fall short of employees’ expectations. The Board said an agency’s promise to provide an employee with a clean employment record “could not be interpreted to preclude the agency from sharing information with law enforcement authorities about potential criminal conduct allegedly committed by the appellant and related to her removal.” Similar agreements would not bar an agency from withholding “evidence from the Department of Labor (DoL) that would weaken the appellant’s claim for workers’ compensation benefits.” Agencies are likewise not able “to withhold negative information about the appellant from OPM in a later background investigation into the appellant’s suitability for another federal job.”
One promise the MSPB will not let agencies break involves a promise to help an underperforming employee. Before removing an employee for performance-based reasons, an agency must afford him or her an “opportunity to demonstrate acceptable performance,” which should happen during a performance improvement period (PIP) While an agency is not required to formally train an employee during a PIP, it will not satisfy this opportunity-to-improve requirement “where it promises an appellant assistance during a PIP, and then both fails to provide such assistance and otherwise prejudges the appellant or hinders the appellant’s chances to succeed,” the Board said in Corbett v. Department of the Air Force (1993).
One New Year’s resolution we should all make is promising to hold the government accountable for the promises it makes. And if an agency has broken a promise or is dragging its feet, federal employees should consult with an experienced federal employment law attorney who can help them compel it to keep its word.
Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.
