Agency Use of Administrative Leave: What's All the Fuss?
By Debra Roth, SEA General Counsel
From the April 2014 ACTION Newsletter
If you haven't been sufficiently tuned into to the static from Capitol Hill these past few years, then this is a good opportunity to let you know that the wide-spread agency practice of placing employees on extended administrative leave while under investigation is receiving increased scrutiny not just from the Hill, but also from the media. How and why are agencies using administrative leave, and what's the concern? Mostly, it's a perception that somehow an employee placed on administrative leave benefits from getting paid without having to go to work. That idea couldn't be farther from the truth.
It seems that over the past 10 years or so, the use of administrative leave has increased dramatically, and the duration of time for which an employee serves in such a status now regularly exceeds many, many months. That wasn't always how agencies managed the workforce. If you're a federal law enforcement office (Special Agent) or a member of the career Senior Executive Service and you are placed under an internal investigation, particularly an OIG investigation, almost always an agency will likewise place you on administrative leave. And, in today's federal workplace, being on administrative leave lasts not just through the close of the investigation, but through issuance of a proposed disciplinary action. Why is that so? And why so long?
First, let me say that not a single client of my law practice comes to mind who thought that being on extended administrative leave was a good thing. It's not. It's almost always a very bad sign of the agency's viewpoint regarding the nature of the allegation(s) under review. If you're placed on administrative leave during a pending investigation, chances are high that it will also result in the issuance of a proposal of an adverse action such as demotion or removal - and our clients are so advised. But even for those employees who are unrepresented, they have a sufficient instinct to know that when the agency says you cannot come to work, chances are things could end poorly. So when the media and other critics exclaim that federal employees placed on extended administrative leave are getting some sort of benefit – a paid vacation- I know that is simply not true. Even Congress is beginning to realize that this is not something favorable for the employee but rather abuse by the agencies at outrageous expense to the taxpayer.
To understand what is really happening with regard to agency use of administrative leave, start with the OPM regulations that authorize its use. That regulation is a subsection of the OPM regulation governing the procedures for an agency taking and adverse personnel action against an employee. Per OPM regulation at 5 CFR section 752.404(b)(3):
"Under ordinary circumstances, an employee whose removal or suspension ... has been proposed will remain in a duty status in his or her regular position during the advance notice period. In those rare circumstances where the agency determines that the employee's continued presence in the workplace during the notice period may pose a threat to the employee or others, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests, the agency may elect one or a combination of the following alternatives:
. . . .
(iv) Placing the employee in a paid, nonduty status for such time as is necessary to effect the action."
There's a lot to comment on here, but I'll summarize. Note that the OPM regulation states that the use of administrative leave is concurrent with the issuance of a proposed disciplinary action. Yet for years agencies are placing employees on administrative leave months before that, concurrent with the initiation of an investigation.
Second, per OPM regulation administrative leave is the rare circumstance. Not anymore, not for a long time, and everyone knows it. So why hasn't OPM clamped down on this?
Third, if you know someone who has been placed on administrative leave, you're probably thinking that the person wasn't a threat to him/herself or others or to Government property. That's because the agencies are using the catchall "or otherwise jeopardize legitimate Government interests." Really? Keeping the typical Senior Executive who is under investigation in a duty status (the ordinary circumstance), or assigning the employee to other duties that no longer pose a threat to the agency's interest (another OPM authorized alternative to administrative leave) jeopardizes what governmental interest? The reality is that there is no legal mechanism for forcing agencies to justify this determination – except for OPM or congressional oversight.
Most affected employees and observers have concluded that the agencies are simply abusing this tool. Years ago, at the Justice Department they took this OPM regulation seriously and allowed agencies to only place an employee on administrative leave for 14 days without specific approval from the Assistant Attorney General for Administration to exceed the set limit. While I'm not sure this procedure is still in place, it is an example of how the use of administrative leave was supposed to work.
In sum, yes, the use of administrative leave by agencies is dramatically up and the length of time an employee is on administrative leave has dramatically lengthened. But if you read OPM's regulation authorizing such leave, it is clear that the true intent was for it to be a limited tool in the management/HR tool chest for dealing with unusual circumstances when an adverse action is being issued. The growing interest by congressional overseers, based on the legitimate concern with the use of taxpayer dollars, may change the landscape.