Focus on deadlines for discipline, not administrative leave

Recently, the media and Congress have focused on the lengthy periods of administrative leave federal agencies are placing their employees on while the employees are under investigation or facing discipline. The knee-jerk reaction has been to demand agencies stop using or reduce administrative leave.

The House Oversight and Government Reform Committee is considering the proposed Administrative Leave Reform Act, which would cap administrative leave for misconduct or performance issues to 14 days per year. The Senate is considering the Administrative Leave Act, which puts a 5-day limit on administrative leave and creates a new category of investigatory leave with a 120-day limit (which can be extended by the agency and/or OPM).The Senate has proposed requirements for placement on this investigatory leave and seems to encourage reassignment or telework as an alternative. Neither of these proposed bills put a deadline on how long the agency can take to investigate and issue a disciplinary action.

Monica Molnar is a senior associate with The Federal Practice Group focusing on federal sector employment matters and litigation.
Monica Molnar is a senior associate with The Federal Practice Group focusing on federal sector employment matters and litigation.

This does not get to the underlying problem. The true issue is agencies, surprisingly, have no enforceable deadlines for completing their investigations or for issuing disciplinary actions. In many cases, this has resulted in employees being on administrative leave for months or even more than a year without knowing the outcome of the disciplinary issues.

To fix this problem, the focus should be on creating and enforcing a deadline for agencies to complete their investigations and make decisions about disciplinary actions. Unfortunately, no bills are under consideration that would address these concerns.

The issue of unnecessarily lengthy administrative leave arises because federal employment is property that cannot be taken by the government without due process. This due process requires agencies to notify the employee of any charges against him or her and to provide the employee with an opportunity to respond prior to the agency taking any serious disciplinary action. As a result, agencies place employees on administrative leave pending investigations or discipline. What has become objectionable about this practice is that employees can remain in administrative leave limbo for months, or even a year or more.

Paying a federal employee when he or she is not completing any work is an astronomical waste of resources and talent. A report issued by the Government Accountability Office found that from 2011 to 2013, the government spent $3.1 billion on administrative leave. During the same period, GAO identified 26,000 employees that had a higher average of 51 days of paid administrative leave (ranging between 15 and 730 days; 17,000 of those were identified as charging higher amounts of leave). A sample of these employees found that the most common reason for charging higher than average administrative leave was personnel matters. Not only has this been called an improper use of taxpayer dollars, it’s exasperating for the employee who spends this time not knowing the outcome of the disciplinary issue or the fate of his or her career.

When faced with an investigation, most federal employees want the investigation completed quickly. What most federal employees get instead is a snail-like process where an investigation is not completed for months. After the investigation, it may be another lengthy period before the agency issues a proposed disciplinary action, and then following the employee’s response, the agency all too often takes weeks or months to issue its decision. It is important to note that the appeals rights of federal employees to the Merit Systems Protection Board does not contribute to this problem. Employees are not placed on administrative leave pending an appeal (in cases of termination, they are separated and no longer being paid while their appeal is pending). These appeals in fact can be the most efficient part of the disciplinary process, thanks in no small part to the presence of strict deadlines for case processing. The average processing time for non-furlough cases in FY 2014 was 115 days. If deadlines were applied to the internal agency disciplinary process as well, it could similarly increase the efficiency of that process.

Reducing the cost to taxpayers for administrative leave is a good start, but the disciplinary process at the agency level must also be reduced by requiring deadlines enforceable by the Merit Systems Protection Board. This will both save taxpayer money and resources, and protect and improve the due process rights of federal employees.

Monica Molnar is a senior associate with The Federal Practice Group focusing on federal sector employment matters and litigation.