Bad government workers virtually safe from firing, supervisors complain


WASHINGTON -- When Diane Clinton, a longtime legal secretary at the Labor Department, rebuked a young part-timer for letting the filing pile up, the subordinate punched Ms. Clinton and broke her jaw.

Yet the part-timer was not fired; she was instead transferred -- and given a raise.

Much to the frustration of federal government supervisors, such cases are not unusual. Firing a government worker is so difficult that "only somebody who aggressively seeks to be terminated" is likely to be, says James B. King, director of the Office of Personnel Management.

After the attack on Ms. Clinton, a representative of the American Federation of Government Employees intervened on the assailant's behalf "simply to assure her a fair hearing," the official says. The office at the Labor Department had a history of strained relations between its lawyers, most of them white, like Ms. Clinton, and its support staff, mostly black, like the part-time worker.

Ms. Clinton's boss, Marc Machiz, and his superiors decided not to fire the worker but to transfer her. With the transfer came a permanent job and a $3,890 raise.

"It was shocking," Ms. Clinton says, "but a lot of managers don't like confrontations. I understand that."

Mr. Machiz will not discuss the case, but other federal supervisors say they empathize with him. They complain that firing anyone has become so delicate and time-consuming -- and the repercussions so fearsome -- that getting tough is not worthwhile.

Convinced that they will fail -- or worse, be punished for having acted unfairly -- managers say they are staying clear of reforms passed by the Carter administration to discipline federal workers.

When Vice President Al Gore's National Performance Review team asked bureaucrats what needed fixing in the bureaucracy, inability to oust nonperformers was the most common complaint. Three out of four former Bush administration appointees said the same in a survey last year.

Mr. Gore's plan to "reinvent government" urges that removals be faster but asks Congress to decide how. A Senate proposal would increase the Equal Employment Opportunity Commission's investigative staff to clear a backlog of 17,000 federal complaints whose average age is 379 days.

"You go through the removal of one person from the federal service, you're not going to do it quickly again," says Mr. King, the administration's top personnel official.

Statistics bear him out. If America's civil service bureaucracy were reduced to a single office of 100 workers, one would be fired for serious misconduct every 10 years. One would resign under management pressure every 15 years. And one would be fired for incompetence every 70 years.

No comparable figures exist for the private sector. But compared with the only other tax-financed bureaucracy of comparable size -- the uniformed military -- surviving in the federal workplace is easy.

ew are let go

According to Pentagon records, 5,600 soldiers were dismissed for incompetence, from a force of 1.8 million in 1992.

By comparison, only 293 of 2.2 million civil servants were fired for incompetence last year, according to Mr. King's statisticians.

"If you pass your probationary period, you have a job, as a matter of law, for as long as you want it," Mr. King says.

A thicket of civil service protections is one factor that prevents federal managers from firing problem employees.

Strong unions -- representing about half of all federal workers, compared with 16 percent of private-sector employees -- are another.

A third big deterrent, managers say, is the intimidating number of discrimination claims filed by federal workers. One study found that federal employees file 12 times more complaints with the EEOC than do private-sector workers. Another study found that federal employees file bias lawsuits more than three times as often.

Reprisals charged

About half the government workers who make EEOC claims allege bias because they are black, Hispanic, women or are over 40. Thousands more claim to be whistle-blowers; physically or mentally handicapped; or victims of ethnic, religious or reverse discrimination. Still others claim to have been victims of reprisals by bosses after having made discrimination claims.

Few workers win their cases outright. But so many win negotiated settlements that Joe Dugger, a computer specialist in the Commerce Department, says: "I've known eight or 10 people who got fired over the last 20 years. I just don't know anybody who stayed fired."

Among recent examples:

* A letter carrier received his job back after he pleaded guilty to statutory rape of a 14-year-old. (She was not on his route.)

* A Defense Department security guard was put back on the job he had slept on. (He is now a recovering alcoholic.)

* A nonperforming secretary was reinstated and transferred. (Coping with poor bosses had induced a mental handicap that had to be tolerated.)

* A biologist who was eligible for retirement was reinstated even though it took him four months to complete tasks that took peers two days. (Supervisors failed to tell him precisely what "too slow" meant.)

Whether cases come before the EEOC or lesser-known review agencies like the Merit Systems Protection Board or the Federal Labor Relations Authority, they tend to produce the same effect, according to supervisors and their advocates.

Manager is 'defendant'

"They make the manager the defendant," says G. Jerry Shaw, a former bureaucrat whose Washington law firm often represents embattled supervisors. "That's the problem. That's why managers don't fire people."

"Absolute bunk!" says Irving Kator, whose law firm defends terminated workers. "If a manager's got a good case, there's no reason for them to be afraid. They only [have problems] when they don't follow the regulations they've made up."

If an agency is trying to clear up old complaints and avoid new ones, even weak claims are sometimes settled. Lawyers always have something to gain: Settlements will include government payment of their fees.

At the Agriculture Department, for example, managers must "avoid complaints" and "actively pursue" settlement of old discrimination cases to earn top ratings and bonuses from Secretary Mike Espy.

Building "a new management culture" is the goal, he explains in a covering memo.

"There are just too many disincentives -- and downright hazards -- for managers to take forceful action," says J. Merle Schulman, former personnel director for the Energy Department.

Mr. Schulman doesn't have time to talk for long. Retired since 1991, he is waiting to testify in the case of an employee he allegedly slighted in 1979.

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