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Dewey Publications Inc.
News and Case Alert
Issue #6-11
TABLE OF CONTENTS

Administrative Leave is Attracting Attention


Check That Email Before You Send


Civil Service Protections Take a Nose Dive For SES Employees of the VA


The Dewey Publications Podcast

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Administrative Leave is Attracting Attention

Agencies use administrative (paid) leave for all sorts of reasons: employees' attendance at social functions, traffic delays caused by terrible weather, and, with frequency, to get employees out of the workplace when they are under an adverse or performance-based removal proposal or being investigated for possible adverse action. There's little OPM guidance on administrative leave. On a microeconomic level, given the size of the federal budget, administrative leave can run into a fair amount of money. Some employees are on paid leave for more than a year, and at high salary levels. Reviewing the legal basis for administrative leave, its usage in various agencies and its cost, the October 2014, report from GAO: Federal Paid Administrative Leave bears reading. It is, of course, on the web, http://www.gao.gov/products/GAO-15-79



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Check That Email Before You Send

Ever sent an email to an unintended recipient? Perhaps the better question is how many times a month does it happen? The Federal Circuit considered the problem of inadvertent disclosure of confidential information in a precedential decision (rare), Wrocklage v. Homeland Security, Fed. Cir. 13-3159 (Oct. 21, 2014).

The appellant sent an email to an individual outside his agency with an attachment that contained confidential information. Quickly recognizing that he should not have sent the attachment, he contacted the recipient, who deleted the attachment without opening it. The end result for Mr. Wrocklage was an adverse action, sustained by the Board based on charges that included improper disclosure of confidential information. He appealed to the Circuit. His argument, credited by the court and resulting in a remand to the Board for further consideration of what, if any, penalty should be imposed for other charges in the case, was that the confidential information had not been disclosed. Why not? Because the recipient never opened the attachment and could not have known of the information it contained, therefore, no disclosure. Transmittal, yes; disclosure no. What's the lesson for agency practitioners? Probably not a bad idea to suggest to agency management that any time confidential information ("PII" or other) is sent within or by attachment to an email, the subject matter line of the email should carry a warning as to the confidential nature of the email. The recipient, seeing the warning, might think again before forwarding the material to someone else or even to a private email account for later work offsite.



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Civil Service Protections Take a Nose Dive For SES Employees of the VA

Responding to the problems of inattention to veterans seeking care at some VA medical centers, Congress enacted legislation severely limiting MSPB appellate protections for VA SES members who are fired or transferred. The legislation did not show the greatest knowledge or concern by its drafters of the structure of the MSPB, and even cut out higher level review by the Board of decisions of administrative judges. The legislation referenced Board hearing officers as administrative judges, putting that title on a statutory basis, when it was originally conferred as an honorific to Board attorney-examiners who used to be called presiding officials. Titles of AJs aside, the VA SES corps has plenty to be concerned about by reason of the statutorily-truncated and much expedited Board review procedures to which they are now consigned. There may, or may not, be constitutional due process issues with the new statutory scheme. Time will tell as a few cases make their way into the courts. MSPB finalized its regulations on October 22, 2014. The regulations are found at ecfr.gov and the statutory provisions are found at 38 USC 713.



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Can't Fall Asleep?
Night Time Listening

If you have trouble drifting off after an exciting day of civil service law, tune in or (for insomniacs) subscribe to more-or-less weekly audio podcasts of Peter Broida summarizing cases and events of interest to federal sector employment practitioners. Humor Peter. Share in his hobby. Be better informed without much work.

The Dewey Publications Podcast

October 22nd, 2014
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Several items of interest are discussed this week by Peter Broida:

  • Colbert v. VA, 2014 MSPB 80 (Oct. 16, 2014) (IRA whistleblower reprisal: liberal pleading standard applied as to the knowledge requirement and clarification of whether a constructive adverse action will be treated as an IRA case when it is initiated with OSC and then appealed to the Board).
  • SPORT and Dept. of Air Force, Edwards AFB, 68 FLRA No. 2 (Oct. 14, 2014) (furloughs: the "necessary functioning" exception excused an agency from delaying a furlough pending the outcome of impact bargaining).
  • New OPM Publication: Fostering Fair Employment Opportunities for Applicants Who are Unemployed or Facing Financial Difficulty Through No Fault of Their Own: What hiring officials need to know.

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