HUD Can’t Fire Anyone Without Criminal Charges, Even Interns
A federal agency apparently interprets union-backed civil service protections to be so strong that employees, and even interns, can’t be fired for work-related misconduct unless they have also been convicted of it in a court of law.
That would mean a federal employee couldn’t be sacked for coming in to work drunk, not showing up at all, or anything else that is not a crime — or is a crime but is unlikely to be independently pursued by criminal prosecutors.
The Department of Housing and Urban Development (HUD) was unable to sustain a firing when its inspector general determined that an intern took two housing project units for herself, one of which she sublet out to someone else, and then lied about it.
The agency said it would be taking strong action, but also cautioned that the union would have a chance to make an argument. Soon after, the intern, Markquonda Mathis, was back at work and promoted to a position overseeing millions of dollars in grants.
Her misconduct had been fully established by the inspector general, the department’s internal investigators. The only mitigating factor she could have raised at a union hearing is that she didn’t wind up being charged criminally, since Virginia prosecutors said housing authorities’ forms didn’t ask basic anti-fraud questions that would help them prosecute swindlers.
“While HUD does not condone any employee misconduct, federal laws and regulations afford all federal employees due process and privacy rights even if they have engaged in confirmed misconduct,” HUD said in a statement.
“Confirmed misconduct” means that the inspector general officially found that the HUD employee stole benefits. The assertion would suggest that inspector generals’ findings have no weight on their own, unless they serve as a precursor to criminal action. (RELATED: Fed Worker Got TWO Subsidized Housing Units Despite Long Waiting List)
IGs don’t have the power to discipline, instead leaving that to the agency, so it is a catch-22 to say an employee can’t be disciplined based on the findings of an IG report because she has not already been disciplined by an outside authority. A large portion of IGs’ findings are issues that violate rules but not laws.
And since prosecutors often only bother to take cases that could result in years in prison, the idea that an employee can only be disciplined following criminal sentencing is fairly irrelevant, since if they were in prison, they would be unable to hold their job anyway.
The outcome illustrates the shape-shifting excuses that federal managers and unions use to ensure that federal employees aren’t held accountable. HUD is saying that workplace discipline is inseparably coupled to the results of a criminal trial. Just weeks prior, the Department of Veterans Affairs said the opposite — that discipline and criminal trials have no relation — to explain why an employee who was convicted of a crime after an armed robbery was not disciplined.
“Criminal prosecution or conviction for off-duty misconduct does not automatically disqualify an individual from federal employment,” VA spokesman Axel Roman told The Daily Caller News Foundation. “The administrative discipline process for poor performance or misconduct on the job, operates distinctly from the administrative process associated with off-the-job misconduct. Accordingly, one is not necessarily impacted by the other.”
New federal employees are on a probationary period and have drastically fewer protections than tenured employees. As many employees are fired during their initial probationary period as during the subsequent decades combined, since it is so much easier.
Mathis was only a “student trainee intern” at HUD, and her $31,000 salary was far higher than most interns.
“When this occurred, she was a student intern at HUD,” spokesman Jereon Brown acknowledged. “You obviously haven’t worked in federal service with these unions that we have,” he said.
The fact that the American Federation of Government Employees has become concerned with making sure an intern can’t be fired for stealing from the government indicates that there is virtually nothing a federal employee could do to get the ax.
Federal managers’ perceptions of what they must allow because of the unions are out of whack with actual regulations and precedent, observers say. In this case HUD managers should have been able to fire Mathis, but probably didn’t try hard enough to build a serious case, according to government-wide Office of Personnel Management (OPM) rules.
“If the person is a probationary Federal employee without adverse action procedural rights, instead of taking disciplinary action the agency could terminate the probationer’s services,” OPM said in a statement.
“If a tenured Federal employee engages in misconduct, there are established procedures to discipline the individual … An agency may take disciplinary action for misconduct regardless of whether criminal prosecution occurs.”
In Mathis’ case at HUD, a “notice of indefinite suspension” said “Your access card will be deactivated and the building security was directed to deny you access.” The department “will take the necessary administrative action to preclude the continuation of harm or financial loss to the department,” it said, noting the “notoriety of the offence” and the “impact on the agency’s reputation.”
But the suspension was dependent on factors including the “disposition of possible criminal charges.” And it noted that “your position is a bargaining unit position” and that the union could challenge any punishment.
Even though agencies all operate under the same government-wide personnel rules, HUD managers seem less willing to fire employees than other agencies, casting it as an inability rather than unwillingness. HUD fired only 5 of its 7,400 tenured employees in 2013–a much lower rate than anywhere else in government.
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