Magazine | June 17, 2013, Issue

Hard to Fire

(AP Photo/J. Scott Applewhite)
Why Lois Lerner may linger

Lois Lerner, who is at the center of the IRS targeting scandal, is clearly not a model federal employee. But it is very difficult to fire her or anyone else associated with the scandal. As USA Today reported in 2011, federal employees enjoy so much job security, thanks to civil-service and union protection, that in many agencies they are more likely to die in a given year than to get laid off or fired.

As the IRS’s director of exempt organizations and government entities, Lois Lerner presided over the targeting of hundreds of conservative groups that applied for nonprofit status. Ridiculous and intrusive demands for information meant that most applicants couldn’t get going until after the 2012 election was safely past. She misled members of Congress, who asked her dozens of times about complaints linked to her office. The Washington Post’s “Fact Checker” awarded her four Pinocchios, signifying “whoppers” for “misstatements and weasely wording.” She further undermined confidence in the IRS when she took the Fifth Amendment and refused to answer questions before a congressional committee.

The day after she took the Fifth, acting IRS commissioner Danny Werfel asked her to resign. She refused, and all he could do was place her on paid administrative leave. Lerner will sit at home and draw her $177,000 annual salary for an indefinite period. If the decision is made to fire her, she will have 30 days to respond. Then the lengthy process leading to her actual removal will kick into motion.

So far, it appears no one has been formally reprimanded in the IRS scandal, although some workers were given additional “training.” The powerful union that represents IRS employees reports it hasn’t been asked to come to the aid of any of its members yet.

Of 2.1 million federal employees, only 8,755, or 0.4 percent, were let go last year. John Sullivan, a management professor at San Francisco State University, said such numbers are unheard of in the private sector. “Rates below 1 percent in the firing and layoff components would indicate a serious management problem,” he told USA Today.

Using the Merit System Protection Board, any worker can appeal a termination notice and argue for reinstatement. An appeal is made first to a regional administrative-law judge and takes an average of 93 days to process. A second appeal, to the Washington office, normally takes up to another 245 days — over eight months.

A fired employee’s chances improve dramatically if his past performance reviews give no hint of warning or censure. Lerner allies say she had sterling performance reviews, and indeed, when she was named head of the exempt-organizations division, her boss, Steven Miller, publicly praised her as an “exceptional” employee.

My colleague Dan Foster asked Donald Kettl, dean of the University of Maryland’s School of Public Policy, if Lerner’s strong performance reviews could benefit her appeal. “Oh yeah,” he said. “If in the past year your judgment has been applauded by your superiors, and then something happens that embarrasses them . . . then you’ve got that paper in your 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.’”

We’ve been this way before. Back in May 1998, the Washington Post reported that President Bill Clinton called “himself ‘outraged’ by the latest reports of abusive tax agents” and “pledged new efforts to overhaul the Internal Revenue Service and tame what he said has ‘seemed to be an unaccountable, downright tone-deaf agency.’” Recently, President Obama used the same word, “outraged,” to describe his reaction to the new reports of IRS wrongdoing.

It turns out that one reason for Clinton’s expression of outrage was to deflect from his own IRS scandal. In 1995, a White House and DNC report entitled “Communication Stream of Conspiracy Commerce” listed magazines, think tanks, and other Clinton critics. Shortly afterward, the IRS began a series of audits of “more than 20 conservative organizations . . . and almost a dozen individual high-profile Clinton accusers, such as Paula Jones and Gennifer Flowers,” as historian James Bovard reported in the Wall Street Journal.

#page#Billy Dale, head of the White House Travel Office, was audited after he accused the Clinton team of firing him. On a break from poring through FBI files, Anthony Marceca, a White House security employee, performed an impromptu check of the IRS records of Chris Emery, a White House usher, who was fired shortly thereafter for incurring the wrath of Hillary Clinton. Marceca also did IRS checks on other White House employees.

The reform bill that emerged in response to those scandals was relatively modest, but it did make it easier to fire abusive IRS employees and officials. The law was changed to lay out ten “deadly sins” that can result in immediate firing with no possibility of appeal.

The “sins” include violating a taxpayer’s constitutional rights, failing to obtain approval signatures authorizing the seizure of a taxpayer’s property, threatening to audit taxpayers for personal gain or benefit, and concealing information from a congressional inquiry.

J. Russell George, the Treasury inspector general for tax administration, told Congress in May that it’s possible IRS employees committed some of the deadly sins: “In theory, it could be interpreted that way.” Duh.

Changing the system that protects incompetent or unethical federal employees is difficult. A few years ago the National Taxpayers Union issued a study that linked campaign contributions from powerful federal-employee unions to efforts in Congress to protect union members. “The unions often block bills” that would create “a less rigid, more accountable system,” says NTU vice president Pete Sepp.

He points to what happened after a 2012 scandal involving a lavish General Services Administration meeting in Las Vegas that featured clowns and mind readers. Lawmakers were furious that Paul Prouty, a top GSA official, after being suspended, was reinstated following an appeal and given eleven months of back pay. The House passed a bill to allow agencies to more easily suspend high-level employees, but the Democratic-controlled Senate blocked it.

Representative Jason Chaffetz (R., Utah) has his own frustrating story. For years he has been upset that over 300,000 federal employees owe a total of $3.5 billion in back taxes to the IRS. Last month, the House finally passed his bill requiring the federal government to fire workers with “seriously delinquent” tax obligations. It would also prevent such people from being hired in the first place.

Chaffetz was already picking up signals that his bill could face trouble in the Senate and be derailed. Luckily, he says, the IRS scandal may mean that his legislation will actually become law. “Ensuring accountability is always difficult in Washington,” he tells me. “That’s why it’s important that opportunities for reform such as we have now aren’t wasted.”

In This Issue


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Hard to Fire

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