Getting Rid Of People At The IRS Won’t Be Easy

Ezra Klein was out this morning with a column calling for “heads to roll,” as he put it, at the IRS. Josh Marshall agrees with him, and says that it should start with Lois Lerner:

Yesterday we noted that Lois Lerner, the IRS official in charge of the unit overseeing tax exempt groups, would apparently plead the fifth at today’s hearings (here’s video of her testimony today). Rick Hasen said he thinks the issue is that she’s the person who is most likely to have lied or actively misled Congress when asked about the targeting issue earlier. People above her may not have had as direct information.

In the current political climate, that may well be good legal advice. And she has every right to take it and may be wise to do so. But that’s a decision that simply is not consistent with her remaining in her job. Whether or not she should be fired for whatever she did in the scandal itself, deciding to take the fifth means she needs to be removed from her position.

There’s just one issue, and it’s the fact that it isn’t going to be easy at all to fire someone like Lerner, even for cause:

Lawmakers pressing for more heads to roll at the Internal Revenue Service are going to be disappointed.

“Why weren’t more people fired?” Senate Finance Committee Chairman Max Baucus (D-Mont.) demanded at a hearing Tuesday on the IRS’s targeting of conservative groups, channeling the frustration of his colleagues.

Turns out it’s not so easy.

In fact, it appears that no one has been formally reprimanded and a spokesperson for the union representing IRS workers said it hasn’t been called to help any employees yet. Most employees involved in the targeting program are covered by protections for federal workers that could drag out the termination process.

(…)

The incoming acting IRS Commissioner, Daniel Werfel, could try to clean house — but he’d have to be prepared for a lengthy appeals process.

Under federal rules, a fired government worker has the right to appeal to the Merit Systems Protection Board. He or she can challenge the decision, argue that their actions don’t meet the threshold for termination and ask to be reinstated — especially if there was no warning of trouble in past performance reviews.

The board is set up so fired employees appealing their termination get two chances to prove they should stay. Their first stop is at the merit board’s regional level, which — for the Cincinnati-based IRS employees in question — would be in Chicago.

The initial appeals take an average of 93 days to process, said William Spencer, a spokesman for the board.

If the regional board rules against the IRS employees, they could appeal to the national Washington, D.C.-based board, which takes on average another 245 days.

The IRS employees wouldn’t collect a paycheck during the appeals process. They would get back pay only if they are ultimately reinstated.

There is one way to speed up the process, at least somewhat:

There’s also the option of getting the IRS employees out of the way more quickly — at least temporarily — by putting them on administrative leave.

But IRS workers could always fight back if they’ve had positive performance reviews until now — and the board has been known to mitigate penalties if an employee is a first-time rule violator.

Making this case about conduct does make it easier, however, to skip one part of the disciplinary rules for federal workers.

When someone is just a terrible worker, federal rules require the supervisor to give him or her an opportunity to improve. When it’s a conduct case, though — as the IRS scandal would be — the agency wouldn’t have to take the time to teach its employees not to do something as problematic as targeting conservative groups.

There are other cases in which fired employees wouldn’t even get to appeal. By law, the IRS commissioner can — but doesn’t have to — fire any employee who engages in the so-called 10 deadly sins as defined by a law enacted in 1998 to overhaul the agency.

The “sins” include falsifying information or destroying documents to cover up mistakes, violating a taxpayer’s constitutional rights, abusing privacy clauses to conceal information from a congressional inquiry and threatening to audit taxpayers for personal gain or benefit.

But would any of the activities related to the IRS scandal qualify? J. Russell George, the Treasury Inspector General for Tax Administration, suggested at Tuesday’s hearing that it’s possible — noting that one of the sins is revealing taxpayer information to harm a taxpayer.

Klein and Marshall may well be right that heads have to roll at the IRS. Indeed, they probably are. However, it’s not going to be nearly as easy to do as they seem to think it is, and the effort to pin all of the blame on Lois Lerner before this investigation is even complete sounds to me like an effort to try to bring an early end to a controversy that they both know could potentially be a huge problem for the Obama Administration and the implementation of the Affordable Care Act.

FILED UNDER: Bureaucracy, Government, Quick Takes, US Politics
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed for too young in July 2021.

Comments

  1. Josh Marshall says:

    My issue with Lerner has nothing to do with whatever actual culpability she may have or a principle of head rolling. It’s really that an executive shouldn’t stay in place when they’re taking the fifth, not under these kind of services when restoring trust is so critical. Some readers who work on federal HR said that while firing may be very difficult because of civil service rules, putting her on administrative leave would be pretty simple. And that would accomplish most of what needs doing.

  2. Josh,

    Administrative leave is certainly a different issue, and not at all legally objectionable of course.

    My concern is that Lerner ends up being the sacrificial lamb while people like Ingrham walk away from this with a bonus and a promotion.

  3. B. Minich says:

    Klein seems to realize this. In fact, he quotes the Politico report extensively. He seems to be calling for heads to roll despite the reluctance to fire people because of how hard it is to fire people.

  4. Josh Marshall says:

    @Doug Mataconis: Really don’t feel like we’re disagreeing. My thinking here is very narrow – that when you take the fifth in a case like this and you’re in a position of key responsibility, it’s just not tenable. Would also say that any sort of willful deception of Congress – even if it doesn’t meet the criminal standard – is probably enough for termination under these circumstances. But I don’t know the specifics of what she said and didn’t say enough. It’s really just about taking the fifth. In a sense, the executive level stuff seems secondary to digging down to who did what and why it happened. More investigation, not less.

  5. Josh,

    I get that, but of course the Committee could solve this problem by granting her immunity.

  6. Josh Marshall says:

    @Doug Mataconis: I would think the Dems on the committee might be leery of doing that thinking they’d get nicked for letting her off the hook or something. But I certainly wouldn’t disagree with it if they chose to go that route.

  7. Jenos Idanian says:

    What a coincidence. Klein and Marshall were at the White House yesterday, and now today they’re parroting the same talking points. It’s like the JournoList cabal never really went away.

  8. Todd says:

    I can’t get past the feeling that IRS employees are going to be fired simply for making (admittedly poor) decisions that are now causing “political difficulty”. I just don’t see the malicious intent. Maybe I’m naive, but I have a much easier time believing than groups with terms like “Tea Party” in their name were flagged for additonal scrutiny, not because they were obviously Conservative, but because they were obviously “political”.

  9. bill says:

    it’s not surprising, the military is still paying that wacky muslim who killed all those troops at fort hood- while those injured are out of luck as it wasn’t during combat. yes, that’s our gov’t at “work”.

  10. Dean says:

    @Todd:

    I have a much easier time believing than groups with terms like “Tea Party” in their name were flagged for additonal scrutiny, not because they were obviously Conservative, but because they were obviously “political”.

    I could buy that argument if the list also included terms that are generally associated with Liberal groups, such as “progressive” and “organize.”

  11. Caj says:

    Get rid of some in the IRS for what I think is a perfectly valid reason by checking out these right wing folks claiming tax expemptions! If anyone thinks the Tea Party, Patriots, Freedom anything etc isn’t part of a political wing they must be nuts! Believe you me if the IRS had been going after any left wing groups only this wouldn’t even be an issue! Republicans would say the IRS are just doing their job!

  12. PD Shaw says:

    Someone licensed with the SEC who invokes a privilege against self-incrimination in response to an SEC investigation risks regulatory sanctions. Link I believe the rule is also true in environmental matters. Could the operators of Deepwater Horizon refuse to answer questions from the government about the extent of the spill? In historically regulated areas, the expectation that one can plead the fifth without fundamentally jeopardizing regulatory oversight is far less lenient. Oversight was understood to be part of the job.

  13. Caj says:

    As far as I’m concerned right now over this never ending IRS saga, IRS stands for Irrational Republican Shenanighans!!

  14. Dave Schuler says:

    That’s exactly the point I’ve been making since the IRS thing first made the news. As long as civil service employees have positive reviews (which they almost certainly do), they will be darned hard to fire.

  15. stonetools says:

    I agree with Doug that there may very well be a rush to jugment there and a wish to get rid of Lerner immediately I disagree , though that this is :

    an effort to try to bring an early end to a controversy that they both know could potentially be a huge problem for the Obama Administration and the implementation of the Affordable Care Act.

    For one thing, the Republicans certainly aren’t going to drop the investigation even if Ms. Lerner is fired immediately. They’re going to want to milk this all the way to the 2014 elections and beyond.
    Rather, Marshall, Klein, and Democrats want to show that they, too, are just as tough on IRS wrongdoing as the Republicans.
    I think there may be a danger of them repeating the Sherrod Brown screw up. She was fired immediately because the Administration wanted to get ahead of the pack and show that they too opposed a black government employee who was discriminating against whites. They acted before the facts were in -and were dead wrong.I would just wait for the investigations to finish before indiscriminately firing people because they happen to work for an unpopular agency and have been accused of wrongdoing.

  16. Todd says:

    @Dean:

    I could buy that argument if the list also included terms that are generally associated with Liberal groups, such as “progressive” and “organize.”

    Progressive I could certainly see, but I find it kind of interesting that the word organize is considered to be a “liberal” term.

    btw, I wonder why it is that so many of these groups wanted to be able to keep their donors anonymous? (which is the real reason they register as 501 c 4 instead of one of the other tax exempt categories that allow more explicit political activity .. but also require more disclosure)

  17. PD Shaw says:

    @Dave Schuler: Firing people is still a form of management; just not a terribly cost-efficient approach.

  18. RGardner says:

    “An Act to Prevent Pernicious Political Activities” 1939 AKA The Hatch Act certainly applies here.

    And I’d love to hear the word “pernicious” used more often. [Congressman Issa (R-CA) should use it to great theater].

    And “scurrilous” in regards to the now-somewhat-questioning, former worshiping, Obama supporting press corps are finally stepping up to their 4th estate role (he’s a light worker… LA Times in 2008).

    Yet again, the issue isn’t the crime, but the cover-up (possibly – timelines are still being established) – but the way the stories keep changing there is some substance to the story. Looks like a festering cesspool.

    Some of these old words are fun.

  19. JKB says:

    Apparently, you not only can but must fire IRS employees for some acts, which seem close to what they’ve done. Could get interesting.

    I’m quite surprised that no one has mentioned Section 1203 of the Internal Revenue Code, which mandates terminations of IRS employees who commit any of what are known in the Service as the “10 Deadly Sins.” Passed in the 19990s after the last major Congressional hearings (Revenue Reform Act of 1998), section 1203 is the neutron bomb that hangs over employees.

  20. PD Shaw says:

    @JKB: Interesting from your link:

    Finally, I’d note that when I was working at IRS-CID, taking the Fifth in any proceeding was grounds for termination. I have no idea whether that’s true for other IRS employees, but a Special Agent could never take five and survive. You don’t have a constitutional right to a government job.

    I would not be surprised if that is true. It follows from my earlier link: taking the Fifth is completely defensible and is not an admission of criminal misconduct, but doing so can have significant consequences in civil lawsuits (the jury may be allowed to draw an adverse inference), can result in loss of job, or have regulatory/professional implications.

  21. JKB says:

    @PD Shaw:

    There is no right to not answer in an administrative investigation. It’s part of the employment contract that they must cooperate. However, when government is the investigator/employer, if something is found that indicates criminality, the admin investigation stops and untainted investigators do the criminal investigation where the employee can invoke the 5th and prior compelled answers are inadmissible.

    BTW, a good investigator doesn’t do interviews with employees he suspect might end up as criminal suspects until after other avenues are exhausted so that anything found isn’t tainted by the employee’s compelled statements.

  22. superdestroyer says:

    The IRS can force them out very quickly by reorganizing. Close the tax exempt office in Cincinannti and move it back to Washington, DC. Then make sure that the people currently in the job do not get the new jobs. They will get the message very quickly.

    Congress could also threaten to cut the budget of the IRS and zero out funding for the tax exempt office to force lay offs. What is amazing is that administrators of the IRS feel that it is OK to irritate the people who fund them.

  23. Phillip says:

    @stonetools: Shirley Sherrod, not Sherrod Brown.

  24. Dave Schuler says:

    @PD Shaw:

    My point is that the Civil Service Code prohibits her termination for practical purposes unless she has a history of wrongdoing or incompetence documented in previous performance reviews.

  25. wr says:

    @RGardner: “Some of these old words are fun. ”

    Yes, they are. Now you should work on learning how to combine them to form coherent sentences.

  26. wr says:

    @superdestroyer: “Congress could also threaten to cut the budget of the IRS and zero out funding for the tax exempt office to force lay offs. What is amazing is that administrators of the IRS feel that it is OK to irritate the people who fund them. ”

    So you’re saying that the IRS should ignore criminal acts by friends of members of congress or be punished?

    Keen thinking there, as always!

  27. Jenos Idanian says:

    @wr: So you’re saying that the IRS should ignore criminal acts by friends of members of congress or be punished?

    That would be an improvement of the apparent status quo, where the IRS carries out the political dirty work of the Obama administration. I’d prefer a totally hands-off IRS over an IRS that is the enforcement arm of the political party in power.

  28. John says:

    @Todd:
    Then why weren’t groups that had the words “progress” or “progressive” targeted? They are just as politial sounding but on the left.