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