Moreover, once an employee is fired, there is no guarantee he will stay fired. Each has the right to appeal to the Merit Systems Protection Board (MSPB), a Carter-era body created as part of an update to the civil-service reforms in the century-old Pendleton Act (a.k.a. the only reason you remember Chester A. Arthur’s name). As a board spokesman told Politico, the initial appeal, before a regional administrative-law judge, takes an average of three months to process. A second appeal, to the D.C. board, could take another nine months or more. In the meantime, the terminated will usually have the full-throated advocacy of a union lawyer to go along with a set of MSPB guidelines that set a high bar for the terminators.
IRS brass have presumably done little or none of the paper-trail building required to off Lerner, and they can’t skip steps in the process simply because the offender is a political inconvenience to the president of the United States.
Should Lerner ever actually be fired, and should she decide to appeal, she will no doubt point to her lack of a disciplinary history, and indeed to the praises sung of her by the likes of Miller, who was then commissioner of the Tax Exempt and Government Entities Division. In announcing her promotion to her current position in 2005, Miller lauded Lerner as “an integral part of the EO team [who] has successfully increased the IRS presence in the exempt community.” (And how!) He went on, specifically praising Lerner’s “integrity, skills, and judgment” as “exceptional.”
I asked Kettl if such praise was likely to complicate the case for firing her.
“Oh yeah,” Kettl said. “If in the past your judgment had been applauded by your superiors, and then something happens that embarrasses them . . . then you’ve got that paper in the file that you can pull out and say: ‘Look at this. This isn’t on me, this is on everyone else who put me in this position.’”
Indeed, both Kettl and Chris Edwards, director of tax-policy studies at Cato and author of the institute’s study on federal firing practices, emphasized that the key in Lerner’s case would be whether her role in the targeting rose to the level of illegality.
“Federal workers almost never get fired for poor performance, but they do occasionally get fired for misconduct. So if IRS workers routinely and willfully ignored laws and regulations, that is certainly grounds for firing,” Edwards told me.
According to a 22-year veteran of the IRS’s investigatory division, who is now retired and asked not to be named, the clearest source both for criminal charges and grounds for termination against Lerner and others at the IRS is probably section 1203 of the IRS code, amended in 1998 as part of the congressional GOP’s Taxpayers Bill of Rights. Known as the “10 Deadly Sins” inside IRS circles, section 1203 spells out the kinds of misconduct that, if proved, result in automatic termination.
Among them? “Providing a false statement under oath with respect to a material matter involving a taxpayer or taxpayer representative”; “concealing information from a congressional inquiry”; and “the violation of any right under the Constitution” of a taxpayer.
Sure, all of this sounds painfully familiar. But the question is whether the new management at the IRS will be willing and able to put the rap on Lerner, as opposed to either “rogue” subordinates or crusading superiors. If they can’t get the “administrative or judicial determination” that Lerner is guilty of any of the 10 Deadly Sins, all they’ll have to fall back on is poor judgment or incompetence. And in Washington, those sins are merely venial.
Kettl agreed. “Did she break the law or did she simply exercise poor judgment? And is it clear that it was her poor judgment, or her superiors’? I’m not sure that under these circumstances I’d want to be the one making that the procedural case.”
And if you think that the publicity of the IRS scandal will make it easier to fire Lerner, or for her firing to stick, think again. Jeff Neely, the GSA administrator who was infamously photographed last year in a hot tub enjoying a glass of wine at a taxpayer-funded conference in Las Vegas, and who became the focus of a congressional investigation into wasteful spending, retired with benefits. His colleague Paul Prouty was fired for his role in the conference, but was reinstated on appeal to the MSPB — with eleven months’ back pay.
Given all these hurdles, it would certainly be understandable for the White House to resort to asking its allies in the blogosphere to create public pressure on Lerner. Maybe she’ll quit — or be struck by lightning. Either seems likelier, at this point, than a pink slip.
— Daniel Foster is news editor of National Review Online.