UPDATE ON OGE ADVERSE ACTION REGULATIONS

Not long ago we pointed out a case where MSPB overturned an employee’s removal from FDIC because the agency failed to get approval from the Office of Government Ethics (OGE) of an FDIC-created rule of conduct. It was titled, “MSPB Recognizes OGE Defense to Disciplinary Actions.”  When the Board returned the case to the Regional office judge to conclude, the employer, FDIC, appealed again.  Only this time it asked OGE its opinion about whether FDIC needed to get conduct rules it created approved by OGE before applying them to employees.  FDIC also changed its rhetoric to boost its chances, calling its rule not a conduct rule but a minimum fitness rule. To our surprise, OGE bought into the FDIC change of labels and declared it did not have to approve a fitness rule in advance. Although the OGE decided to ignore the MSPB’s thinking on the issue, the Board decided that politeness, which lawyers call “comity,” required that it respects OGE’s view—even though OGE trashed MSPB’s view first.  The Board adopted the OGE/FDIC argument, reversed its previous decision and upheld the employee’s termination.  (See Jonson v FDIC, 2015 MSPB 36 (2015)) maybe now Jonson appeals arguing that FDIC did not follow the regs dealing with minimum fitness or qualification rules and the Board can deal with this a third time. So if you run into the same wording shell game by an agency imposing a new rule for firing employees, contact the local’s lawyer and start pushing back early, e.g., by demanding bargaining before implementation.