RIF causes tiff at Commerce's OGC

Before getting rid of employees as part of a reduction in force (RIF), federal managers must classify employees into "competitive levels." Basically, this means grouping employees who do roughly equivalent jobs and then evaluating them against each other to determine who stays and who goes.

But a recent court case involving Patrick Heelen, a former attorney in the Office of the General Counsel (OGC) of the Commerce Department, shows that managers do not always follow those rules.

In the early 1990s, Heelen worked in OGC as deputy chief counsel for the Census Bureau in Suitland, Md. In 1994 Ginger Lew became the department's general counsel, and James White became chief counsel for Census. In May 1995, White asked Kathleen Styles, an attorney he had previously worked with, to join his staff. Like Heelen, Styles occupied a GS-15 position. Philip Freije was the third GS-15 attorney in the office.

In late 1995 or early 1996, Lew decided that a shortage of funds necessitated a RIF in OGC. On Feb. 29, 1996, Heelen received notice that his position had been selected for elimination. Heelen retired from federal service on May 24, 1996— the effective date of the RIF— but appealed the RIF procedures to the Merit Systems Protection Board. Predictably, the MSPB upheld the RIF, prompting Heelen to take the case to the U.S. Court of Appeals for the Federal Circuit (Case 97-3413, J. Patrick Heelen v. Department of Commerce, Aug. 28, 1998).

On appeal, Heelen asserted that Commerce did not properly establish competitive levels in this RIF. He argued that he should have been placed in the same competitive level as Styles, who had less seniority. However, for this RIF, OGC placed Heelen, Styles and Freije in separate, one-person competitive levels.

Heelen also argued that even if Commerce did establish proper competitive levels, the RIF did not identify his position for elimination.

The court determined that under applicable regulations, two positions are in the same competitive level if the incumbent of one can perform the duties of the other "without undue interruption." Undue interruption means a loss of productivity beyond that which is caused by the orientation of a new but fully qualified employee. The court said position descriptions are the primary determinants of whether positions are in the same competitive level, and the personal qualifications of the current incumbents of the positions are irrelevant to competitive level determinations.

As noted earlier, OGC placed each of the GS-15 attorneys who worked for White in a separate competitive level. Although a competitive level with one person is not specifically barred by regulation, the court ruled that it would be extremely rare for the duties of a position to be so unusual that only the incumbent could perform them without causing undue interruption to train a replacement.

In fact, the court said that it would "be unwise to create positions which lacked interchangeability because the absence or departure of an employee for any reason would disrupt the functioning of the government."

In this instance, the only justification for the one-person competitive levels in OGC's RIF was an unsigned document. Neither the personnel specialist who implemented the RIF nor the head of the OGC's personnel law division testified that she knew who wrote the document. When asked, White denied that he had determined the competitive levels for positions in his office. Suddenly, no one remembered anything!

An examination of the process that produced the revised position descriptions shows that White decided to supply new position descriptions for the attorneys in his office. He classified Heelen, Styles and Freije as GS-15 general attorneys and told them to prepare statements of their positions' unique requirements. Heelen went along with this foolhardy exercise and wrote that his job required unique characteristics such as "extensive knowledge of legal issues pertaining to all programs conducted by the Census Bureau, particularly the decennial census and the litigation generated by it."

Inappropriate Revisions?

After receiving the drafts from the attorneys, White directed Styles to revise them. At his direction, Styles revised Heelen's unique position requirements to remove any references to litigation. It is not clear why White wanted this revision made, but it backfired. The Office of Personnel Management's classification standards mandate that a GS-15 general attorney perform highly complex litigation. The agency's personnel specialist noted that Heelen's revised position description did not meet OPM's standard and added the phrase "performs litigation work" to the position description.

The court said its review of this maneuvering supported an inference that the position descriptions were manipulated in an attempt to create artificial distinctions between the positions occupied by the attorneys working for White.

This court then turned to the MSPB's determination that the incumbent of Heelen's position would not be interchangeable with the incumbent of Styles' position without undue interruption. The court ruled that the only complex litigation performed by the Office of Chief Counsel was litigation challenging the decennial census.

Therefore, a position occupied by an "expert on constitutional and programmatic census law [who] performs litigation work" (Heelen's position) and a position occupied by an "expert [in] complex federal litigation" (Styles' position) would probably entail very similar work.

In fact, Styles testified that each of the GS-15 attorneys could perform the duties of any other GS-15 attorney within that office, effectively torpedoing this charade. In other words, the separate position descriptions for each attorney were conjured from thin air.

In addition, the court ruled there was no evidence to support the MSPB's decision that the department properly fired Heelen. Lew testified that she decided which positions in her office would be eliminated due to the shortage of funds. In making this decision, she did not rely upon any particular set of documents. Rather, she relied upon her own perception of the future needs of the OGC.

Because substantial evidence to support the MSPB's decision was lacking, the MSPB's decision was reversed. Heelen was also awarded court costs. Chalk one up for the good people!

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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