MSPB will have 1 voting member in March. What happens next?

An upcoming seat-change at the Merit Systems Protection Board has some federal employment experts wondering whether it’s the beginning of the end for the agency.

Come March 1, the three-member board will lose Susan Tsui Grundmann, member and chairman of the MSPB, when her term expires. The board has already been a member short, meaning Grundmann’s departure will likely leave Mark Robbins as the lone voting member for MSPB.

The possibility is virtually inevitable, said William Wiley, an attorney and former chief counsel to the chairman of MSPB and now co-founder of the Federal Law Training Group. He was present at the agency in the late 1980s when MSPB was last in this situation.

President-elect Donald Trump has roughly 4,000 political appointees to name, and appointing two new MSPB members won’t likely be at the top of his priority list now, Wiley said. MSPB members must also go through a Senate confirmation.

“In all fairness, the senators are a lot more interested in who he’s nominated to be Secretary of State than they are [in] who’s nominated to the MSPB,” Wiley said, who predicted the board could have new members sometime in the summer.

Once the Senate confirms the MSPB board members, it’ll take some time for the new appointees to get up to speed on the case backlog with help from the agency’s career attorneys.

The agency can still perform many of its functions with a one-member board. But there are some cases — when a federal employee appeals an MSPB judge’s decision for example — where the board must weigh in.

Yet administrative judges and regional MSPB offices will continue to issue initial decisions.

“With only one member, it can go through everything at the board headquarters,” he said. “It can even have the one sitting member tentatively vote if he chooses to. He can go ahead and vote, but it can’t be issued. In some fashion or another, the challenges to the judge’s decisions would just sit and wait for President Trump to name his … members.”

Debra D’Agostino, an attorney and partner at the Federal Practice Group, said she deals most often with the regional MSPB offices. She doesn’t anticipate that a one-member board will have a great impact on the work she and her colleagues do with the regional offices.

“It’s really going to be the petitions for review, the appeals that get filed of the [administrative judges’] decisions that are going to be log-jammed,” she said. “That’s not a huge percentage of the cases. By and large the cases will get processed at the regional office level just as they’re getting processed now.”

But there’s no doubt the agency’s case work won’t slow down. It processed a record-high 30,000 cases in fiscal 2015, according to MSPB’s most recent summary report.

Wiley recalled a time in 1993, when the board was down a voting member and the remaining two couldn’t agree on decisions. Cases began to pile up.

“I knew … that those cases were waiting somewhere, but I couldn’t find them,” he said. “I looked around and looked around and finally, I swear this is true, I found about 60 or 70 case files stacked in the shower that was in the front office. That was the only space they could find to put them out of the way where they wouldn’t bother anybody. … The challenge coming up in March  is that with only one board member, all the cases will sit in the equivalent of a shower somewhere.”

MSPB’s future

The upcoming presidential transition and MSPB seat-change is prompting broader questions about the agency’s future — and whether two vacant spots on the board could leave the doors open to major changes about its function.

“The larger concern that people who do what I do have is whether or not the board is going to be around much into the future,” D’Agostino said.

Many lawmakers argue it simply takes too long to fire a federal employee under current law.

And President-elect Trump has also said he plans to fire poor-performers in government more quickly, though it’s still unclear what form that proposal would take.

There are signs that the movement is already beginning to happen. Lawmakers grew particularly frustrated this year, as they watched MSPB overturn punishments for three senior executives at the VA under the VA Choice Act.

That frustration prompted Congress and senior VA leaders to to consider moving some VA health professionals from Title 5 to Title 38.

And a separate piece of legislation from retiring House Veterans Affairs Committee Chairman Jeff Miller (R-Fla.) removed MSPB rights for senior executives at the department and replaced them with an internal, secretary-appointed board of VA employees who would review their colleagues’ disciplinary cases, similar to Title 38.

Having agencies shoulder more of the responsibility to review employees’ disciplinary appeals is way the board could lose some of its authority.

“We’re talking about the next two board members, they may be the last two board members,” Wiley said. “Because if you turn over the review of disciplinary actions to an internal board, at least you would have people that were in contact with what the agency was doing. Right now, you have some 20-year experienced attorney who’s never worked anywhere but Washington, D.C., making these decisions. To put it back in the agency, you wouldn’t need an MSPB, but you’d pay a price for that.”

A separate House bill proposed similar procedures for all civilian employees.

Neither bill passed Congress this year, but D’Agostino and other federal workforce experts say those pieces of legislation may have an easier path in a Republican White House and Congress.

“It’s clearly on the agenda and it has been for the past while, and I don’t see it going away,” D’Agostino said. “The only thing that’s really been stopping it is that Obama said that he’d veto. Once that’s gone, there’s going to be a lot of room to move ahead with big, big changes. Maybe not doing away with the board entirely, but certainly that’s a possibility.”

Wiley said he predicts the next administration will consider major civil service reform — changes that go beyond slight tweaks to federal employees’ disciplinary procedures or moving some sectors of workers to another personnel system.

“This is when you swing for the fences,” Wiley said. “My bet would be they will abandon get[ting] them out of Title 5 … and reducing the notice period … and cutting the board members out. They have the authority now to reduce this from soup to nuts. How far they’ll go is really hard to predict.”