MSPB focus

By Neil McPhie

Gross mismanagement or simple mistake: How to tell the difference.

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.


Recent years have seen a steady stream of reports highlighting federal agency blunders that have chipped away at the general public’s confidence in the capabilities of senior managers. Scandals, such as the mishandling of human remains at Dover Air Force Base and the General Services Administration’s $823,000 Las Vegas conference, have left on the federal government the seemingly indelible stain of gross mismanagement. So I was not surprised to see the Obama administration include in its fiscal year 2015 executive budget funding for “administrative actions to produce a Federal executive corps with a broader, stronger experi¬ence base.”

Even before news about the Dover and GSA scandals broke, federal employee confidence in management had been eroding in some regards. A Merit Systems Protection Board (MSPB) survey found that the share of federal employees who claimed the most serious form of wrongdoing observed concerned “waste caused by a badly managed program” rose to 38.9 percent in 2010 from 35.3 percent in 1992. And the Office of Personnel Management’s annual Federal Employee Viewpoint Surveys revealed that 17.5 percent of employees surveyed in 2013 claimed their immediate supervisor or team leader was doing a poor or very poor job, up from 11.6 percent in 2010.

However, my experience as chairman of the MSPB showed me that just because an agency suffered a costly or humiliating misstep does not mean gross mismanagement is its root cause. In fact, many Office of Special Counsel reports on investigations into whistleblowers’ gross mismanagement claims often conclude no such wrongdoing occurred. For example, in its 2012 report on alleged wrongdoing at the Department of Veterans Affairs’ VA Texas Valley Coastal Bend Health Care System, the OSC concluded that “while the facility, similar to any health system (VA and private) has opportunities to improve in some areas…the [Fact Finding] Team did not find any systematic pattern of violations of any kind, or practices suggesting gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

When I was chairman of the MSPB, the Board heard the case, Wood v. Department of Defense (2005). In a decision I co-authored, the Board noted, “Gross mismanagement means a management action or inaction which creates a substantial risk of significant adverse impact on the agency’s ability to accomplish its mission. It is more than de minimis [i.e., minor] wrongdoing or negligence and does not include management decisions that are merely debatable.”

By the nature of their positions, subordinates often are not privy to all the information available to a manager, making it difficult for them to say whether certain actions or inactions constitute gross mismanagement. However, as the Board noted in Wood, for a whistleblower to be protected by the Whistleblower Protection Act, he or she does not have to provide irrefutable proof of such wrongdoing. The Board added, “it is not necessary to show, as the administrative judge required here, that the gross mismanagement is blatant…Instead, an employee must disclose such serious errors by the agency that a conclusion that the agency erred is not debatable among reasonable people.”

Before they blow the whistle on gross mismanagement, federal employees need to be careful about being overly critical of management’s actions or inactions. The question is not so much whether a manager erred but whether they endangered the safety of anyone or the mission of the agency. Additionally, keep in mind that rank-and-file employees may not be seeing the entire picture, so it is advisable to consult with an attorney who can provide an opinion – based on the available facts – as to whether suspicions of gross mismanagement are reasonable. Managers, too, need to remember that just because they made a mistake – even a big mistake – they are not automatically guilty of gross mismanagement.

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