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Firing Lois Lerner
Not impossible, but almost.

Lois Lerner appears at a Congressional hearing on May 22.

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Daniel Foster

How do you solve a problem like Lois Lerner? Former IRS commissioner Douglas Shulman, under whose foggy watch the targeting of conservative groups occurred, was easy to fire — he had already quit. And acting director Steven Miller was no sweat to dispatch, either. He merely “resigned” a month before he was going to leave anyway — effective in 30 days. But Lerner, director of the office that actually did the discriminating, and precisely the kind of middle manager the White House has been keen to blame this unfortunateness on throughout, is a different matter. Even as she pleads the Fifth Amendment at a congressional hearing, she holds onto her job.

That’s not to say there isn’t a desire, all the way up to the top, to see Lerner go. Exhibit A is the administration’s gathering of friendly bloggers, for the kind of White House meeting they don’t want to do over the phone, and those bloggers’ turning around and calling for Lerner’s removal within a half hour of each other. But as a civil servant, she is protected by both the full weight of federal law and the advocacy of a powerful union, making her tricky to get rid of.

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Statistically speaking, the firing of a federal employee is a rare event. A Cato Institute study showed that in one year, just 1 in 5,000 non-defense, civilian federal employees was fired for cause. A widely cited analysis by USA Today found that in FY 2011, the federal government fired just 11,668 out of 2.1 million employees (excluding military and postal workers). That’s a “separation for cause” rate of 0.55 percent, roughly a fifth the rate in the private sector.

And the firing of employees who fit Lerner’s profile is rarer still. Lerner is very much a “white-collar” employee, and the same analysis found that blue-collar employees (such as food-service workers) were twice as likely to be fired. Lerner is a twelve-year vet at IRS, and before that was associate counsel at the Federal Elections Commission for many years. But fully 60 percent of federal employees fired were in their first two years on the job. Lerner has averaged $185,000 in salary from 2009 to 2012, but only 0.18 percent of federal employees making more than $100,000 were let go for cause. Most relevant of all, Lerner is a lawyer, and just 27 of the government’s 35,000 lawyers lost their jobs in 2011 — six fewer than left federal employment via the Big Sleep.

Part of the reason so few federal workers are let go is surely the, shall we say, culture of lowered expectations synonymous with government bureaucracy. But the greater part of it is that firings are complex and time-consuming. Forty-nine states have “at-will” employment laws, meaning that, specific contracts and covenants aside, a private-sector employer can let an employee go for any reason at all, with a few exceptions for things like discrimination and (ironically enough) the intimidation of whistleblowers. But in Washington, the process can take 18 months or more.

“It’s much more difficult to fire government workers, because it requires much more evidence of wrongdoing, and it is a longer process for creating the paperwork, for documenting it, and so forth,” Donald Kettl, dean of the University of Maryland’s School of Public Policy and a nonresident senior fellow at Brookings, tells me. “There are lots of cases where supervisors give up, and either decide it’s easier to transfer [a poor employee] or, in the time-honored tradition, to promote them.”

“It worked in Seinfeld,” Kettl adds.



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