Abolish the Merit Systems Protection Board
The government shouldn't be in the business of protecting pedophiles
Established in 1979 theoretically the Merit Systems Protection Board (MSPB), as its name suggests, theoretically ensures agencies are abiding by the Merit System principles. The Merit System, implemented initially by the Pendleton Act in 1883, replaced the spoils system of the early 19th century in which civil servants were hired and fired based on personal and political connections. In practice, the Merit System is anything but meritorious and the bulk of what MSPB does is second guess the human resources decisions of other federal agencies. Any time a federal employee is subject to an adverse action, like pay cuts, probations, suspensions, terminations, or denial of regularly scheduled raises, he can appeal to the MSPB. The MSPB acts as a quasi-judiciary, reviewing appeals and standardizing outcomes across federal circuits. There are other, negligible, functions. Abolishing the MSPB is necessary because it compounds unnecessary federal bureaucracy and helps to place civil servants beyond the reach of the President.
In truth, the vast overwhelming majority of cases MSPB hears uphold agency actions. In general, the MSPB upholds roughly 93% of agency actions, an increase from the 80% upheld from FY 2005 to FY 2015. Given federal employees are perfectly capable of bringing wrongful discharge claims in federal court, and can appeal MSPB decisions to the judicial branch, the MSPB represents an unnecessary bureaucracy that ultimately merely creates an additional step for agencies when trying to fire, demote, or deny pay raises to bad employees. Put simply, overwhelmingly the MSPB merely eats time, energy, and taxpayer dollars by prolonging the inevitable.
One must also consider the soft effect the MSPB’s existence has on agency HR personnel and managers who lack incentives ensuring the quality of performance of their agencies. Federal employees will oftentimes take the path of least resistance, i.e., giving the promotion or not firing someone, rather than doing so and having their decision tied up for years at MSPB. For example, in 2013, a VA Health Care System employee in Tuskegee took a drug rehab patient to a crack house while he – the VA employee – bought drugs and solicited a hooker, ultimately leaving the patient at the crack house overnight. The employee was still employed by the VA a year later.
Moreover, at the margin the MSPB has been known to directly protect bad federal employees. For example, DOT fired a GS-14 who “used a government-owned computer to access websites and download electronic media that contained sexually explicit material without authorization; and improperly spent … government funds … to access and download photographs and videos of a sexually explicit nature and to manage/maintain a private business.” The MSPB reversed DOT’s dismissal, imposing a 60-day suspension. In another case, the MSPB once again reversed an agency’s attempt to fire an employee for accessing and storing child pornography on his work computer. Ultimately EPA bought out the employee in question for $55,000. The list goes on.
There are constitutional concerns involved with firing public sector employees. Supporters of the MSPB will argue federal employees’ unique constitutional rights secured by Loudermill require the MSPB to exist. True, federal employees have the right to hear the charges for which they are being dismissed, mount a defense, and appeal the disposition to an impartial adjudicator. But the MSPB isn’t necessary. Opponents will also argue kicking federal employment cases to the court system may gum it up or take longer. But in fact, MSPB has a 3,600-case backlogand so provides no added efficiency. What’s more, letting federal employees sue in Article III court would both eliminate frivolous claims and also distribute caseloads evenly rather than centralize them at the MSPB. Some say the MSPB spares Article III courts; a moot argument because employees and agencies can appeal MSPB decisions into federal court. Abolishing the MSPB simply saves time, energy, and money.
At root, the MSPB just isn’t worth it. At its best, it is a stumbling block for agencies rightfully trying to fire bad employees. At its worst, it protects pedophiles. When the benefits are low and drawbacks are so high, it is time to admit the MSPB experiment, like many policies from the Carter Administration, was a failure and consign it to the dustbin of history.