Index

• Insight By Mile Causey: That Deflated Feeling
• Transition 2009: The Managers
• Q&A with FMA President Darryl Perkinson
• FTC Debuts Health Care Info Resource
• GAO: DOL Cannot Assess Benefits of Competitive Sourcing
• Brief: DOT IG Initiates Audit into Hiring, Placement of Controllers
• Brief: Premiums to Decrease for TRICARE Reserve Select
• Brief: OPM Says Burrowing Reports Incorrect
• Brief: NTEU Critical of Proposed Rules Change
• Brief: Federal Register Announces New Portal
• Brief: Web Site Posts Plum Book Jobs
• Informed Investor: FEDVIP Supplemental Dental and Vision Insurance
• Rulings Roundup: CBP Employee Loses Discrimination, Other Appeals
• You Be the Judge: Did Air Traffic Controller Deserve Dismissal?

Insight By Mike Causey: That Deflated Feeling

Times are so tough that some news organizations—which thrive on strife, bad weather and hard times—have instructed editors and producers to have at least one “feel-good” news item in each edition or broadcast. Hence the feel-good story one major financial journal ran last week with this happy (sort of) headline: FANNIE, FREDDIE HALT FORECLOSURES FOR HOLIDAYS.

That’s great (well, relatively good) news. In other words, a guy can tell his wife, “Honey, we don’t have to move until Jan. 2!”

Media outlets—which a month ago were warning of inflation and $6-a-gallon gasoline—are now warning of deflation. As it turns out, deflation is worse than inflation. Why am I not surprised?

Now that high gasoline prices have come down, it turns out that this is even worse. Low gasoline prices, it turns out, will hurt the economy, encourage Americans to return to their gas-guzzling ways, and discourage Detroit (if it is still around this time next year) to keep making cars that are not as good as, but cost more than, both imported and domestically produced Japanese vehicles.

Think about it. In a span of a couple of months, we’ve gone from inflated real estate prices, an overheated stock market and record-high gas prices—all driving the worst inflation since 1982—to a nightmare on Wall Street, plummeting gasoline prices, a housing crisis and deflation.

The tough thing for so many of us—those who bought homes the old-fashioned way (with good credit and jobs)—is that we are being blamed, yet we don’t know what it is we did. Or didn’t do.

Democrats in Congress (including those who got sweetheart mortgages and didn’t know it) are blaming the fat-cat executives who recently came to D.C., fedoras in hand, to beg for a bailout.

Republicans in Congress (including a smaller number who enjoyed mortgage preference) are blaming greedy unions for getting wages and perks that make American cars less competitive than higher-rated Japanese autos.

Fannie Mae and Freddie Mac (set up by the government and ordered more than a decade ago to back loans to people who couldn’t afford them) are trying to look heroic and caring. Little is said of the millions of dollars (government money) that the two outfits gave to political campaigns. Forgotten are the huge salaries and bonuses that executives of those two organizations gave themselves for their efforts—which helped run the housing market into a brick wall.

Credit companies looked the other way as some people—who in other times could not have afforded to buy a home—were given mortgages which, in hindsight, were certain to have high default rates.

Congress has gone through its annual exercise of demanding that auto company executives come to town for a knuckle-rapping by the appropriate House and Senate committees. Earlier, they did the same to oil company executives. It got them a lot of press, but didn’t (and never does) do any good.

The CEOs were dumb enough to fly from Detroit to D.C. in corporate jets. They should have taken coach and kept their ticket stubs as proof.

Before and after all this, Holly-wood stars (with even nicer private jets) fly here, there and everywhere, protesting various excesses. Their carbon footprints, in a single year, are bigger than the one you will create in your entire lifetime.

Only the media—which do the reporting and editing on corporate and political excesses—have remained pure.

Up to a point.

In the midst of all this, one major newspaper—which has a stable of knights and white horses—buried an item about one of its own executives who was retiring in his 40s with a high six-figure buyout package. Oops!

In the end, politicians will blame the other party for the mess. And the public, eventually, will blame the government.

This will bring new demands that the government be run more like a business: “Why can’t bureaucrats and senior federal executives act more like their private-sector counterparts?”
I couldn’t agree more. With a couple of caveats.

For our government-as-a-business model let’s not use Enron. Or AIG, or Citicorp, GM, Ford or Chrysler. Nor Eastern Airlines. Nor Braniff Airlines. Nor dozens of auto companies and airlines that have gone belly up.

Come to think of it, maybe we should revisit this government-like-a-business thing another time. This may not be the right moment to instruct federal agencies to pay more attention to the bottom line. Or to encourage federal workers who provide services to find ways to save money by curtailing or eliminating some of those non-profitable services.

I’ll get back to you on this. Meantime, if you do fail and run your operation into the ground, be sure you are big enough that Uncle Sam (and the taxpayer) must bail you out.

:: Back to Top ::

Transition 2009: The Managers

With the Obama transition team choosing leaders across all federal agencies, FEND is asking top representatives of federal employees for their thoughts on the transition—and the challenges and opportunities that this crucial time presents. For this week’s issue, FEND interviewed the president of the Federal Managers Association (FMA), Darryl Perkinson.

How do you expect the Obama administration to differ from the Bush administration, in regard to the work of the Federal Managers Association—and more importantly, its member managers?

Perkinson: I think we’ll probably go back and look at some of the issues with—and the ways that we were dealing with—the labor partners when the Clinton administration was in. I know that one of the first things they are looking at doing is labor-management partnerships, and I know that John Gage and Colleen Kelley [presidents of the National Treasury Employees Union and the American Federation of Government Employees, respectively] have talked about these on several occasions, and said that they are interested in them. I think we did make some good progress with the unions when we had labor-management partnerships in effect during the Clinton administration. Not that we were successful all across the country, but I think that the majority of managers and labor employees saw this as a positive step forward, and we did accomplish some good things. From a management perspective—and one of the concerns on my part—is that as we look at managerial positions, I think we need to try to avoid what we have done in the past: arbitrary cuts of percentages of positions and those types of actions. I think FMA will try to do this with its message and communications with the [Obama] transition team. We really need to discuss exactly where we need managers. And—unlike what I understand President-elect Obama to have said—I am of the opinion that we need more management support in the field than we do in the Washington area. I think that this is something a lot of managers would welcome—more help in the field operations. I think what the president-elect has said about reaching out and wanting to have communication—I think that that’s key—one [aspect] that we’ve been missing for eight years. There was not this [sort of] communication from this administration—they did not want to discuss with any groups what they thought about the civil service.

On your first point—labor-management partnerships—can you describe how those evolved on the ground under the Clinton and Gore administration, since you sound like you are interested in the Obama administration developing something similar. And, also, were those partnerships—as part of the Clinton-Gore “reinventing government” effort—done in an interactive, communicative manner?

Perkinson: That was part of it, when the [Clinton] administration created the National Partnership Council, we at FMA had a seat next to—alongside—some of the unions. At that time, Bob [Robert] Tobias was head of NTEU, and he was on the commission, for example. And, as a matter of fact, at one of our conventions … we held one of the partnership meetings. I think there is concern about who are going to be the partners on that again. If we truly want to have a relationship between management and labor, then all the sides have to be represented in some form.

To clarify this point for a lot of new federal employees who weren’t there in the 1990s, the Clinton-Gore folks were trying to reduce waste in the government; reduce the total number of employees, and—in places—they also tried to pursue … some aspects of pay-for-performance. So can you speak to that?

Perkinson: Well, if you remember correctly, they came out and said they were going to do away with the Federal Personnel Manual [FPM]. And they held a big demonstration—which included taking a wheelbarrow of FPMs, [and] tossing them over and burning them! 

So would that be among the Clinton administration’s mistakes, from your point of view? Mistakes you wouldn’t want to see repeated?

Perkinson: I think that particular time was a mistake, and I think the administration learned from that mistake because we went back and we wrote regulations. Because the administration said, look, there have to be some rules for [some] things, and the agencies replied, “Hey, you burned those last week, remember?” They even eliminated where we, as a professional management association, could hold discussions with them!

Sometimes union leaders have told us they feel like they are viewed as “the enemy” by the current administration. You know this—so what do you think, and how can it be avoided in future?

Perkinson: The very first thing that came out of the box—when the Bush administration came out of the box eight years ago—was they did away with labor-management partnerships. I personally think they did it as a pushback to the unions; as a message: “This is how we are going to be. You are not going to have free rein in our administration.”… the administration [should have] taken a step back and looked at some of the results of the partnerships—where we had a reduction of complaints filed against managers, and we tried to resolve issues at the lowest level possible. And we had fewer mediations and hearings—which cost the government a lot of money—because we tried to deal with our problems at the lowest level possible. I think if they had listened or paid attention to that, I think they would not have had to, carte blanche, agreed with everything the labor unions wanted to do—but they could have actually communicated with them.

How exactly did the labor-management partnerships that were tried in the 1990s work, on the ground?

Perkinson: First of all, they let the agencies set them up. So, at the DoD, you had a partnership for each branch of the service—Army, Navy, Air Force and Marine Corps. You had one at Social Security. One at the Department of Labor, and so on. All of them, then, reported to the National Partnership Council, which was headed by the director at OPM, who at that time was Jim King. They came out with a report of how things were going, and what kind of things the partnership wanted the labor-management teams to work on. It seemed to be a pretty good thing. I am not going to say there were no confrontations. But a lot less of those than we had seen in the past.

Do you think it might have worked because union reps got feedback from the employees and some of the managers got feedback from the employees, and it would all feed upward through a process?

Perkinson: Exactly.

There was a lot of strife between this administration and labor. We asked union leaders this question: Was there something unique about this administration, the stripe of the Bush administration, and their relations with unions—federal and otherwise?

Perkinson: I think that the problem got really more concentrated with the federal community and its unions. They tried [the Department of Homeland Security’s] MaxHR pay-for-performance, and then [DoD Secretary] Rumsfeld’s NSPS [National Security Personnel System]. If you look at Rumsfeld’s proposal for NSPS, they tried to get rid of collective bargaining—a basic union tenet. So that forced the unions to go to court, and of course they [the unions] won, as the courts said, “You’re right—you still need to have the right to collective bargaining.” I think laying down that gauntlet—with NSPS and MaxHR—shut down any kind of communication, back and forth, between the unions and the administration. 

Do you expect more pay-for-performance battles, or any attempt by the new administration to change the GS system under Obama?

Perkinson: I think for the time being, the new president is going to have a lot of stuff on his plate with the economy and two foreign wars. I think you will probably see pay-for-performance in a freeze for now. I think we saw this last week when [NSPS Program Executive Officer] Brad Bunn said we are not going to go into bargaining units, we are not going to make them part of NSPS. It was a notice that we are going to stand still, and let the new administration decide where to go from here.

The government represents pay-for-performance as: “we just want people to perform, and we are just providing incentive.” Why does it break down on the ground?

Perkinson: There is an air of concern on the part of federal employees with this. Look at the budget system. I think we all would be in favor of a funded pay-for-performance system—as long as there was not any forced distribution or quotas, it was transparent, and [it was] pretty clear how you did it—and it was funded properly. But the problem comes in with the way the federal government is—with the limits they have to put on the budgets sometimes, and the money they can’t then provide. It forces them into forced distributions and quotas.

Are you in agreement with the unions—NTEU and AFGE—in their objections and counterproposals on how to properly do pay-for-performance programs?

Perkinson: We are not in opposition to their proposals. I would like to hear more about them. I think we all agree on this: We want to reward those who produce for us. The unions have been successful in [not having the programs] applied to them, because of their fear that it will not be properly funded. Of those groups affected by [the programs] so far, I’d say the management group is the one most affected. That brings up a point for us, and we’d like to have a good discussion about this: if this pay-for-performance is not good enough to go throughout a whole agency, why is it good enough for us, the managers?

In a plan your association recently addressed in the media, your legislative director said that one of your top priorities will be FERS [Federal Employees Retirement System] sick leave credit reform. Can you tell us about that?

Perkinson: FERS sick leave credit will be a good tool for managers to have, to make sure that the employees can have some kind of credit for their sick leave, so they don’t exhaust their sick leave unnecessarily toward the end of their career. A good tool, and both sides will benefit from a productivity standpoint—and from a benefits standpoint.

So that employees don’t wind down the clock, just to get pay from it?

Perkinson: I think a lot of people in the FERS system—just because they know they can’t save their leave—exhaust their leave.

That can be very disruptive—when you sometimes have some people on the books but they’re never there at the end of their careers? And some people have stored up an awful lot of leave.

Perkinson: If they’re not there, I still have an FTE [Full-Time Equivalent] and I can’t put someone there. I can’t put anybody in, because they [the employees on sick leave] are not there. And, yes, it can be a lot of hours—I’ve had several folks email me about employees who have 3,000 or 3,500 hours.

Tell us more about the transition, from FMA’s point of view.

Perkinson: Today I participated in the Human Capital Management Conference in Arlington [Va.]. There’s a real uniqueness about this transition. This is the first transition in over 40 years when we have been in a state of war. Also, there are the effects of 9/11, and those security issues. And especially with a president-elect who is a communicator. He wants to respond to the American people fast. And the system that we have—because of things we have put in place because of 9/11 and because of being in two wars—kind of complicate that. It’s going to make things tougher.

What are the implications of those things you refer to—the security issues in wartime and Obama as a communicator?

Perkinson: On the wartime aspect, what it means to me personally—this is my personal opinion—this new president wants to make sure that no foreign power thinks that we are in a state of weakness at any moment just because we are transitioning presidents. That’s a very smart way to approach it. And that is why we have got to be very vigilant in how we approach and transition those segments of our power structure to the new president. We need to make sure that we do not miss a beat, and we are on top of the game so terrorists do not think there is even a small crack that they can take advantage of.

Next—Transition 2009: The Executives

Discuss this news topic at www.FederalSoup.com. Click on the "Inside the News" Forum.

:: Back to Top ::

FTC Debuts Health Care Info Resource

The Federal Trade Commission (FTC) on Nov. 19 announced the launch of a new booklet and interactive Web site to help consumers “tell fact from fiction” and find reliable health care information.

“Who Cares: Sources of Information About Health Care Products and Services,” at www.ftc.gov/whocares, was designed to serve as a central repository of consumer-oriented health care information.

Both the booklet and Web site point users to federal agencies and private organizations that provide reliable information about things such as generic drugs, hormone therapy, care-giving, vision surgery, alternative medicine, hearing aids, Medicare fraud and medical ID theft.

The Web site provides a wide range of information. For example, under the “Scams & Frauds,” category, the Web site warns consumers to beware of prescription assistance programs that guarantee free or low-cost prescription drugs for a hefty upfront fee—they could be scams. Legitimate programs usually are sponsored by prescription drug companies, and assistance is based on a variety of things, including the applicant’s financial situation and the cost of the drugs, the Web site said. A better starting point, it says, is the Partnership for Prescription Assistance (www.pparx.org), which helps consumers find genuine prescription drug coverage assistance.

To help sort out conflicting health care claims, the Web site also points users to two government-sponsored operations—MedlinePlus (sponsored by the National Library of Medicine) and Healthfinder.gov (a product of the Office of Disease Prevention and Health Promotion in the Department of Health and Human Services). Healthfinder also offers consumer health guides, recent health news by topic and a directory of health-related organizations.

The “Who Cares” Web site lists some general rules to observe when looking at health care Web sites. FTC suggests looking for:

• Government Web sites. Sites ending in .gov—such as the Web sites for the Centers for Disease Control and Prevention (CDC) at cdc.gov or Centers for Medicare and Medicaid Services at medicare.gov—are produced by agencies of the federal government and generally reflect the most recent research and information.
• University or medical school Web sites, with addresses ending in .edu.
• Web sites for nonprofit groups that focus on research and teaching the public about specific diseases or conditions. These Web sites typically end in .org. But keep in mind that .org doesn’t guarantee a site is reputable. Scammers may set up bogus .org sites to rip off consumers.

To see more, go to: www.ftc.gov/opa/2008/11/whocares.shtm.

Discuss this news topic at www.FederalSoup.com. Click on the "Inside the News" Forum.

:: Back to Top ::

GAO: DOL Cannot Assess Benefits of Competitive Sourcing 

After a four-year workforce privatization effort, the Department of Labor (DOL) cannot reliably assess whether its competitive sourcing provides the best value for taxpayers, according to a Government Accountability Office (GAO) report dated Nov. 21. What’s more, DOL seems to have overstated outsourcing savings, while underestimating costs, the report said.

GAO looked at how well the DOL had managed its outsourcing competitions. Since 2004, DOL has held 28 competitions involving 1,029 full-time equivalent positions designated as “commercial”—positions of employees such as training specialists, information technology specialists and maintenance mechanics who provide providing recurring services that could be performed by the private sector.

Given that DOL employees have won all but three of the competitions the agency has held, Congress asked GAO to determine whether competitive sourcing has achieved increased efficiency or cost savings.

But GAO found that DOL’s estimates of cost savings can’t be trusted, the report said. “Without a better system to assess performance and comprehensively track all the costs associated with competitive sourcing, DOL cannot reliably assess whether competitive sourcing truly provides the best deal for the taxpayer,” the report said.

GAO found that weaknesses in DOL’s competitive sourcing procedures hindered its ability to determine if services are being provided more efficiently as a result of the outsourcing competitions.

For example, GAO said a sample of three DOL savings reports contained inaccuracies, and others used projections when actual numbers were available—which sometimes resulted in overstated savings. DOL cost analysis also was suspect because the agency excluded a number of substantial costs—such as the costs for pre-competition planning, certain transition costs and staff time, and post-competition review activities—which understated the full costs of contracting.

At the same time, certain groups of employees have been affected by the competitions more than others, the report said. Among the 314 workers who experienced a personnel action of some type as a result of the competitions, “47 percent were African-American (including all those who were either demoted or laid off), 60 percent were women, and 89 percent were 40 years old or older—significantly higher proportions than their representation in the general DOL workforce overall,” the report said. On the other hand, 10 of the 15 workers who were promoted because of the competitions were white, the report said.

And even though federal employees generally won, the competitions mostly hurt employee morale, according to GAO auditors who interviewed 60 employees involved with five competitions (including employees who assisted with competition activities, and employees whose positions were affected). Most said that they were dissatisfied with how the competitive sourcing process was implemented and that it had a negative impact on morale, according to the report.

DOL is not alone among federal agencies in having problems with producing accurate cost-saving estimates for the outsourcing process. GAO previously issued reports critical of DoD and the U.S. Forest Service, which GAO said did not develop comprehensive estimates for the costs associated with competitive sourcing. The latest report identifies similar issues at DOL, GAO said.

Problems in the A-76 process are government-wide, said American Federation of Government Employees (AFGE) President John Gage. “The A-76 process consistently overstates savings and underestimates costs,” Gage said. “All agencies’ competitive sourcing programs suffer from the same fatal flaws.”

To see more, go to: www.gao.gov/new.items/d0914.pdf or www.afge.org/Index.cfm?Page=PressReleases&PressReleaseID=909.

:: Back to Top ::

In Brief: DOT IG Initiates Audit into Hiring, Placement of Controllers

The Department of Transportation (DOT) Inspector General (IG) on Nov. 19 announced that it had opened an audit into the way the Federal Aviation Administration (FAA) screens, hires, trains and places new air traffic controllers. The audit was in response to a request from Rep. Jerry F. Costello, D-Ill., chairman of the House Subcommittee on Aviation, according to a memo from Lou Dixon, DOT assistant inspector general for Aviation and Special Program Audits. Specifically, Dixon noted, Costello expressed concerns about whether FAA’s screening test—the Air Traffic Selection and Training, or AT-SAT—effectively identifies candidates’ potential to become air traffic controllers and whether the FAA Academy adequately trains candidates before FAA places them at facilities. Auditors will also look at how FAA determines whether candidates have the essential abilities to become successful controllers and what procedures the FAA uses to place controllers at air traffic facilities. To see more, go to: www.oig.dot.gov/StreamFile?file=/data/pdfdocs/Announcement_Letter.pdf.

:: Back to Top ::

In Brief: Premiums to Decrease for TRICARE Reserve Select

Starting next year, participants in the TRICARE Reserve Select (TRS) program will see monthly premiums drop significantly—TRS individual coverage will drop 44 percent, from $81.00 to $47.51, and TRS family coverage will drop 29 percent, from $253 to $180.17. The new rates go into effect Jan. 1 and are the result of the 2009 National Defense Authorization Act, which required TRICARE to analyze Reserve Select costs from 2006 and 2007 and set new rates for 2009, TRICARE Management Activity (TMA) said in a Nov. 19 statement. TRS is a premium-based health plan for National Guard and Reserve personnel available for purchase by members of the Selected Reserve who are not eligible for or enrolled in Federal Employee Health Benefit plans. TRS also features continuously open enrollment. “Now that TRS has been in place for several years, we were able to calculate premiums for 2009 from actual cost data obtained in earlier years,” said Army Maj. Gen. Elder Granger, TMA deputy director. To see more, go to: www.tricare.mil/pressroom/news.aspx?fid=480.

:: Back to Top ::

In Brief: OPM Says Burrowing Reports Incorrect

There has been no organized effort to move Bush political appointees into civil service jobs before President-elect Barack Obama’s inauguration Jan. 20, the Office of Personnel Management (OPM) said in a Nov. 20 statement. OPM labeled as “inaccurate” published accounts of such a tactic, called “burrowing,” which critics see as a last-minute attempt to fill key federal posts with Bush administration allies. Between March 1 and Nov. 3, numbers released by OPM indicate the Bush administration allowed 20 political appointees to become career employees, according to The Washington Post. The office turned down one candidate and two were withdrawn by the submitting agency. All the hires were made on the basis of merit, OPM said. “As a matter of record, no political appointee has been ‘reassigned’ to a career position since OPM began monitoring in March of this year,” said Kevin Mahoney, OPM associate director for human capital leadership and merit system accountability. To see more, go to: www.opm.gov/news/the-following-is-a-statement-from-kevin-mahoney-associate-director-human-capital-leadership-and-merit-system-accountability-on-the-hiring-of-political-appointees-into-career-positions,1441.aspx.

:: Back to Top ::

In Brief: NTEU Critical of Proposed Rules Change

The National Treasury Employees Union (NTEU) criticized a proposed Office of Personnel Management (OPM) rules change which the union said would allow agencies to indefinitely suspend workers without pay if they are suspected of serious misconduct. The proposed rule was published in the Sept. 18 Federal Register. Under current regulations, agencies may not indefinitely suspend employees—and must give them 30 days advance written notice—unless “there is reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment may be imposed.” But NTEU President Colleen Kelley said OPM seeks to expand agencies’ ability to impose no-notice, indefinite suspensions without pay by rewriting the rule to encompass any serious misconduct that “if proven” would warrant removal from the job—and to include any conduct that would pose ongoing risk to “the effective accomplishment of the agency’s operations.” Kelley said that such a definition is far too broad. To see more, go to: www.nteu.org/PressKits/PressRelease/PressRelease.aspx?ID=1337 or http://edocket.access.gpo.gov/2008/E8-21523.htm.

:: Back to Top ::

In Brief: Federal Register Announces New Portal

The Office of the Federal Register (OFR) on Nov. 19 announced it had launched a new Web portal that will allow greater access to government documents. The new Electronic Public Inspection Desk provides online access to documents governing federal regulations related to business, health and safety as soon as the documents are placed on file. By as early as 8:45 a.m. EST, the new desk grants public access to documents slated for publication in the next day’s Federal Register. Previously, such documents could only be seen this early by viewing the documents physically located at the Office of the Federal Register in Washington, D.C. To see more, go to: www.archives.gov/press/press-releases/2009/nr09-06.html.

:: Back to Top ::

In Brief: Web Site Posts Plum Book Jobs

A private human resource service provider announced on Nov. 17 it had launched a Web site to feature an electronic version of the 2008 Plum Book, listing all of the new Obama administration job openings. Avue Technologies, headquartered in Tacoma, Wash., designed the site specifically to encourage and assist those seeking appointments to the jobs. The Web site lets users search through the approximately 7,000 positions by geographic area and by professional interest, the company said. The company noted that this administration will fill 11 percent fewer jobs in the major departments and agencies in the executive branch, 13 percent fewer in the executive branch independent agencies, and about 3 percent fewer in the legislative branch. Additionally, the site also will track the “fill rate” of administration jobs—providing an overview of filled and unfilled positions and allowing applicants to easily monitor the administration’s progress, the company said. To see more, go to: www.transitionjobs.us.

:: Back to Top ::

Informed Investor: FEDVIP Supplemental Dental and Vision Insurance

The Federal Employee Dental and Vision Benefits Enhancement Act of 2004 allowed the Office of Personnel Management (OPM) to establish the Federal Employees Dental and Vision Insurance Program (FEDVIP), a supplemental dental and vision benefits program available to federal and postal service employees, annuitants and their eligible dependents.

Employees and annuitants may enroll or change their current dental and/or vision insurance plan during the current FEDVIP open season, which concludes at the close of business on Dec. 8. This week’s column reviews FEDVIP eligibility rules, enrollment procedures and premium costs.

While some Federal Health Benefits Program (FEHBP) health insurance plans offer some dental or vision benefits as part of their benefits package, FEDVIP offers comprehensive dental and vision benefits. Some FEHBP plans offer separate dental insurance plans that are not part of the FEHBP, but which are listed in the FEHBP plan’s brochure under “non-FEHBP benefits” available to FEHBP plan members. These plans are not part of the FEDVIP.

The following employees are eligible to enroll in the FEDVIP: (1) federal and postal service employees who are eligible for FEHBP coverage—whether or not they are enrolled; and (2) annuitants, survivor annuitants and compensationers—regardless of their FEHBP eligibility.

Individuals who are not eligible to enroll in the FEDVIP, regardless of their FEHBP eligibility are:

• Deferred annuitants;
• Former spouses of employees or annuitants;
• FEHBP temporary continuation of coverage (TCC) enrollees;
• Temporary employees expected to work less than six months in each year;
• Intermittent employees;
• Seasonal or occasional employees who work for one calendar year that amounts to less than six months of work; and
• Anyone receiving an insurable interest survivor annuity who is not an eligible family member.

Eligible family members for the FEDVIP are the same ones who are eligible for FEHBP coverage. These include an employee’s spouse and unmarried dependent children under 22 years old. Dependent children include adopted, foster and stepchildren, recognized biological children, and any child age 22 or older who is incapable of self-support due to a mental or physical disability that existed before the child became age 22.

Eligible individuals may enroll in the FEDVIP during the current open season concluding at the close of business on Dec. 8, 2008, or during a subsequent benefits open season held each year from the second Monday of November through the second Monday of December. They also may enroll after a qualifying life event that permits enrollment outside of the open season. New employees have 60 days starting from the day they are hired to enroll. Eligible employees and annuitants may enroll in either a dental and vision insurance plan, or both.

To enroll, employees and annuitants need to go on the Web site www.benefeds.com, or call, toll-free, 1-877-888-3337 (TTY 1-877-889-5680).

The following types of enrollment are available:

• Self-only—covers the enrolled employee or annuitant;
• Self plus one—covers the enrolled employee or annuitant plus one eligible family member; or
• Self and family—covers the enrolled employee or annuitant and all eligible family members.

Coverage for those enrolling in the FEDVIP during the current open season will start Jan. 1, 2009. FEDVIP coverage is similar to FEHBP coverage in that it automatically continues from year to year. Coverage may normally be canceled only during an open season. But it may also be canceled at any time if an employee or an employee’s spouse is called to active military duty, or if an employee transfers to an agency not participating in the FEDVIP.

Information about dental and vision insurance plans may be found at www.opm.gov/insure/dental/index.asp and www.opm.gov/insure/vision/index.asp. Dental insurance premium information may be found at www.opm.gov/insure/dental/rates/index.asp and vision insurance premium rates may be found at www.opm.gov/insure/vision/rates/index.asp.

Vision insurance premium rates vary by company, while dental insurance premium rates vary by company, type of coverage and the rating area. A rating area is a group of ZIP codes that correspond to a particular rate charged by a dental plan. Each FEDVIP dental plan can have up to five rating areas, and those areas vary from plan to plan. An individual’s residential ZIP code may be in rating area 1 for one plan, but in rating area 2 for another. Employees and annuitants may find their rating areas on the dental rating area chart.

Dental and vision insurance premiums of employees are deducted from their salaries on a pretax basis known as “premium conversion.” Unlike with FEHBP, employees cannot opt out of premium conversion. Annuitants, survivor annuitants and compensationers have their premiums deducted from their annuity checks on an after-tax basis. Both employees and annuitants pay the full amount of the FEDVIP premiums. The federal government does not contribute to the cost of FEDVIP dental and insurance.

:: Back to Top ::

Rulings Roundup: CBP Employee Loses Discrimination, Other Appeals

Marsha L. Payton, a career employee of the Customs and Border Protection (CBP) unit of the Department of Homeland Security (DHS), recently lost a series of matters on appeal in federal appeals court.

In September 2004, Payton was found culpable of misconduct by CBP, and managers removed her from her post. Payton appealed, in a timely manner, in an initial administrative response to the Merit Systems Protection Board (MSPB). She offered various arguments countering the charges. But, in February 2005, the administrative judge (AJ) with the board rejected her arguments and upheld the removal action. Payton appealed again, to the full board, but again the board denied her case.

More than a year later, Payton filed yet another appeal to MSPB. But, under the circumstances, the board’s clerk determined that the appeal was untimely and rejected her effort.

After more than another year had passed, in May 2007, Payton filed four new appeals with the board. Each asserted a distinct legal argument, according to official documents in the case. The documents characterize Payton as “asserting various reasons that her 2004 removal was improper.”

However, not one of the appellant’s arguments moved the board. In September 2007, the AJ dismissed every one of her appeals. Later, Payton appealed all of her cases to the full board. But the panel turned her down.

Payton next appealed to the U.S. Court of Appeals for the Federal Circuit. The appeals court agreed to hear all of her appeals—but ultimately affirmed each one of the board’s denials of them.

For example, in one of her appeals, the court rejected her argument by finding that Payton had filed the appeal late and therefore forfeited the case. In another, it found that she had inaccurately characterized her removal as an improper application of Reduction-in-Force.

But, the main reason cited by the appeals court for rejecting her raft of claims was the concept of res judicata. This term, as reiterated by the appeals court, holds that parties in a legal case generally cannot litigate anew “claims that were, or could have been, raised in an earlier action” (emphasis added). The documents note that this common legal doctrine had been reaffirmed in recent years in federal employment jurisprudence—for example, in the precedent Carson v. DOE, 2005.

In greater detail, the court added that res judicata pre-vents retrying such issues under three specific circumstances. First, the concept applies when a “prior decision” has been made and, as the documents put it, “rendered by a forum with competent jurisdiction.” Second, the doctrine applies when the earlier decision in question was made on the merits of the case. Finally, res judicata can move a legal body to reject a new appeal if the prior case centered on the same cause of action and involved the same parties or their representatives. The court found that each of these conditions applied in the current set of cases, and again denied all of Payton’s appeals, thereby affirming her removal by DHS.

(Payton v. DHS, Dockets Nos. 2008-3158, -3162, 3163, -3164, 11/19/08)

DoD Grocery Manager Thwarted in Firing Appeal

Charles E. Posey, a Grocery Department Manager with DoD at a facility in Alabama, recently failed to prevail in his bid to overturn the department’s effort to remove him from his job.

Posey actively held the grocery post between 1995 and 2000, when his efforts to continue his work finally ended in the firing. In taking their first formal action, Posey’s managers filed unsatisfactory performance charges against the appellant in September 1998, and then imposed on him a 30-day performance improvement plan (PIP). Posey rebutted the allegations and complained he was suffering retaliation for whistleblowing. The following month—according to official documents—he complained in a letter to his congressman of “mismanagement” at his workplace.

The appellant’s efforts did not bring relief. In February 1999, his managers expanded the charges and imposed a second PIP—at 60 days, twice as long as the first. In September 1999, managers formally proposed removal based on continuing unsatisfactory performance. In exchange for Posey’s offer in a settlement agreement in January 2000 to waive his appeals rights, DoD suspended removal and offered the appellant the right to continue working under a last chance agreement (LCA).

Nonetheless, in April 2000, DoD removed Posey for violating the terms of the agreement. Posey in turn, appealed to Merit Systems Protection Board (MSPB). An administrative judge (AJ) with the board, however, upheld the unsatisfactory performance charges—and Posey’s removal. As for the whistleblower claim, the AJ found that “Posey had not shown that he suffered retaliation because of his whistleblowing claim.” Finally, the AJ found that DoD had not acted in bad faith.

Posey appealed to the U.S. Court of Appeals for the Federal Circuit. The court affirmed MSPB’s findings, writing that “the board’s conclusions regarding Posey’s duties and supervision are supported by substantial evidence.” To date, his removal stands.

(Posey v. DoD, U.S. Court of Appeals for the Federal Circuit, Docket No. 2008-3232, 11/19/08)

:: Back to Top ::

You Be The Judge: Did Air Traffic Controller Deserve Dismissal?

“So, one day I was at work and suddenly my supervisor called me into a meeting,” said Stephen Adams,* an Air Traffic Control (ATC) Specialist with the Federal Aviation Administration (FAA) at a major airport. “The supervisor tells me I am going to be disciplined for claiming ‘unauthorized’ overtime.

“I forcefully told the supervisor the charge was ridiculous—I simply requested the overtime, a mere 45 minutes of it, to cover time I took to do paperwork on another supervisor’s orders,” he continued. “Since then it’s gotten worse for me: I let off a little steam after that meeting and FAA claims I threatened my supervisor’s life—something I never did, and I’m appealing.”

“Mr. Adams may not recall his words—but several witnesses said he was extremely angry at the time he was charged with the overtime violation, and made a death threat besides,” responded FAA attorney Rachel Simons. “Too bad he went so overboard—he was only going to be suspended over the initial overtime charge. It pays to keep things in perspective.”

FACTS: On Feb. 16, 2005, Air Traffic Control Specialist Stephen Adams left work at the end of his shift. Normally, like his colleagues, Adams would sign out at the end of his shift. But he failed to do so that day. His supervisor later noted for the record that Adams left the control room at 1:45 p.m.

Adams later appended the sign out sheet to indicate he had left work at 2:30 p.m.—making a claim of 45 minutes of overtime. When confronted about the discrepancy, according to official documents in the case, he told one supervisor that another superior had “ordered him to obtain a medical document before his next shift.” He argued he had followed through on that order—and rightly claimed the extra time the task had taken him.

Unsatisfied with his explanation, FAA managers ordered a meeting to inquire into the incident. Adams reported to the meeting, accompanied by a union representative. The manager questioned Adams, accused him of making a dubious overtime claim on an earlier occasion—and ultimately proposed a five-day suspension for Adams’ alleged misstatement of his hours.

Afterward, the union representative and Adams returned to the union office to discuss next steps. At this point, according to the union representative, Adams’ anger boiled over. In a rage over the suspension proposal, Adams allegedly ranted numerous expletives—and then threatened to kill his regular supervisor. “The words came from his whole being, the words came out like a roar,” the union representative later reported. The rep, rattled by the threat, called the FAA Hotline and reported it. The FAA evaluated the threat—and, on July 27, 2005, charged Adams with threatening others at work and proposed removing him from his job.

Adams appealed his removal to the Merit Systems Protection Board (MSPB). In his appeal, the appellant denied ever having made the threatening comments. However, an administrative judge (AJ) found that “the preponderance of evidence, including several sworn statements,” by the union representative and others, showed Adams had indeed threatened to kill his supervisor. Further, the AJ found that Adams improperly had claimed 45 minutes of overtime “without authorization.” The AJ found the penalty, removal, was reasonable.

Adams also had filed a Whistleblower Protection Act (WPA) claim, arguing he was removed due to two previous protected disclosures he had made regarding agency safety violations. But the AJ rejected this claim, finding that under the circumstances, FAA would have removed Adams regardless.

Adams next appealed all facets of his case to the full board, which ruled against him. He then appealed to the U.S. Court of Appeals for the Federal Circuit.

Did Adams threaten his supervisor—and should he be removed for that act?

DECISION: The appeals court considered Adams’ latest appeal. The court first determined that multiple sworn statements indicated Adams indeed had made the indirect death threat toward his supervisor. On this matter, the court wrote, “It is not for this court to reweigh the evidence before the board.” Additionally, the court rejected Adams’ legal arguments as to why any such threat that may have been interpreted by witnesses was not one he could be disciplined for.

The court agreed with Adams that time spent dealing with ordered paperwork can constitute legitimate overtime. However, according to the court, here no supervisor actually had ordered the document work, or that overtime be taken, contrary to Adams’ claim. The court therefore upheld the unauthorized overtime charge. Finally, the court affirmed dismissal of Adams’ WPA claims, ruling that his death threat would have resulted in firing regardless—and upheld his removal.

(U.S. Court of Appeals for the Federal Circuit, Docket No. 2007-3201, 11/24/08)

Discuss the outcome of this case at www.FederalSoup.com. Click on the "You Be The Judge" Forum.

*Names and dialogue are fictitious, but details are based on a real case.

:: Back to Top ::

Maxine Lunn, General Manager
Phil Piemonte, Managing Editor
Nathan Abse, Staff Writer
Frank Klimko, Contributing Writer
Mike Causey, Columnist
Edward Zurndorfer, Columnist

Published by 1105 Government Information Group; Anne Armstrong, President

1105 Government Information Group is part of 1105 Media, Inc.; Neal Vitale, CEO

SUBSCRIPTION RATES: Newsstand: $5.00
1 year - $97, 2 years - $184, 3 years - $262

For electronic delivery, phone (703) 707-1815 or email sitelicense@FederalDaily.com

Call customer service at 1-800-989-3363, or mail to: Federal Employees News Digest, P.O. Box 809, Herndon, VA 20172-0809

The Comptroller General has ruled that federal agencies and departments may buy Federal Employees News Digest publications with government funds. This decision is No. B-185591. Federal Tax ID 20-4583700

NOTICE:  WARNING CONCERNING COPYRIGHT RESTRICTIONS The copyright law of the United States (Title 17, United States Code) governs the making, dissemination, and reproduction of any Federal Employees News Digest publication.  Criminal copyright infringement is investigated by the FBI and may constitute a felony with a maximum penalty of up to five years in prison and/or a $250,000 fine.  Unlawful dissemination or reproduction of protected information may give 1105 Government Information Group a civil right of action against you and your employer, if applicable. To report copyright violation or unauthorized distribution of this document, please call (703) 707-1815 or email sitelicense@FederalDaily.com

Copyright ^© 2008 by 1105 Media, Inc. All rights reserved. Reproduction in whole or in part in any form or medium without expressed written permission of 1105 Government Information Group is prohibited. For our private policy, click here.