B-204124.OM, OCT 5, 1981

B-204124.OM, OCT 5, 1981

SUBJECT: LEGALITY OF REDUCTION IN FORCE IN THE OFFICE OF THE SOLICITOR, UNITED STATES DEPARTMENT OF THE INTERIOR, B-204124-O.M. (CODE 966017).

DIRECTOR, FPCD - CLIFFORD GOULD:

THIS MEMORANDUM RESPONDS TO THE TWO LEGAL QUESTIONS RAISED IN THE REQUEST FOR LEGAL ASSISTANCE SUBMITTED BY GROUP DIRECTOR JOHN H. ANDERSON, JR. IN HIS MEMORANDUM OF JULY 23, 1981, CONCERNING THE SUBJECT ASSIGNMENT. THE QUESTIONS AND OUR ANSWERS FOLLOW:

QUESTION 1: "DID THE DEPUTY SOLICITOR'S ABOLISHMENT OF ALL PART-TIME POSITIONS EXCEPT ONE IN THE REDUCTION IN FORCE VIOLATE THE FEDERAL EMPLOYEES PART TIME CAREER EMPLOYMENT ACT OF 1978 (P.L. 95-437) OR ITS CONGRESSIONAL INTENT?"

ANSWER: IN OUR OPINION, THE DEPUTY SOLICITOR'S ACTION DID NOT VIOLATE THE FEDERAL EMPLOYEES PART-TIME CAREER EMPLOYMENT ACT OF 1978 OR ITS CONGRESSIONAL INTENT.

QUESTION 2: "WAS THE ABOLISHMENT INCONSISTENT WITH LEGAL OR ADMINISTRATIVE RIF REQUIREMENTS OR PROCEDURES?"

ANSWER: WHILE WE FIND NO APPARENT VIOLATION OF THE OFFICE OF PERSONNEL MANAGEMENT'S (OPM'S) REGULATIONS ON REDUCTIONS IN FORCE (RIF) ON THE BASIS OF THE DOCUMENTS SUPPLIED TO DATE BY THE OFFICE OF THE SOLICITOR, UNITED STATES DEPARTMENT OF THE INTERIOR, WE OBSERVE THAT AT LEAST TWO DIFFERENT ALLEGATIONS OF VIOLATIONS OF MERIT SYSTEM PRINCIPLES HAVE BEEN MADE TO THE MERIT SYSTEMS PROTECTION BOARD (MSPB) AND THE OFFICE OF SPECIAL COUNSEL, THE EVIDENCE FOR WHICH WOULD NOT NECESSARILY BE IN DOCUMENTARY FORM. FURTHERMORE, WE FIND THAT THE SOLICITOR'S OFFICE MAY HAVE VIOLATED THE INTERIOR DEPARTMENT'S POLICY, AS STATED IN ITS DEPARTMENTAL MANUAL, BY FAILING TO TAKE ATTRITION INTO ACCOUNT BEFORE CONDUCTING THE RIF. SUCH FAILURE MAY ALSO HAVE CAUSED EMPLOYEES TO HAVE BEEN UNNECESSARILY RIF'D.

ATTACHED IS AN ANALYSIS THAT MORE FULLY DISCUSSES THESE MATTERS.

ATTACHMENT

LEGALITY OF REDUCTION IN FORCE IN THE OFFICE OF THE SOLICITOR, UNITED STATES DEPARTMENT OF THE INTERIOR

DIGESTS:

(1) ABOLISHMENT OF ALL PART-TIME POSITIONS EXCEPT ONE IN INTERIOR DEPARTMENT SOLICITOR'S REDUCTION IN FORCE (RIF) DID NOT VIOLATE FEDERAL EMPLOYEES PART-TIME CAREER EMPLOYMENT ACT OF 1978, PUB.L. NO. 95-437, NOW PARTIALLY CODIFIED AT 5 U.S.C. SECS. 3401-3408 (SUPP. III, 1979).

(2) WHILE WE FIND NO APPARENT VIOLATION OF RIF REGULATIONS IN INTERIOR DEPARTMENT SOLICITOR'S ABOLISHMENT OF CERTAIN POSITIONS, AT LEAST ON BASIS OF DOCUMENTS SUPPLIED, OTHER ALLEGATIONS OF VIOLATIONS OF MERIT SYSTEM PRINCIPLES HAVE BEEN MADE AND ARE BEING INVESTIGATED IN OTHER FORUMS. INTERIOR SOLICITOR'S OFFICE APPEARS TO HAVE VIOLATED DEPARTMENTAL POLICY BY NOT GIVING CONSIDERATION TO ACHIEVING PERSONNEL REDUCTION THROUGH ATTRITION BEFORE CONDUCTING THE RIF.

BACKGROUND INFORMATION

IN MARCH 1981, THE NEW DEPUTY SOLICITOR OF THE INTERIOR DEPARTMENT DETERMINED THAT HE HAD INSUFFICIENT FUNDS TO PAY HIS CURRENT STAFF THROUGH THE END OF THE FISCAL YEAR. HE THEN DECIDED TO REDUCE HIS WORK FORCE. MEMORANDUM OF MARCH 17, 1981, HE FIRST TERMINATED ALL TEMPORARY EMPLOYEES (23 IN NUMBER) AS OF MARCH 20, 1981. ADDITIONALLY, HE DECIDED TO CONDUCT A REDUCTION IN FORCE (RIF). HE THEN ABOLISHED ALL BUT ONE PART-TIME POSITION, AND ALL GS-11 ATTORNEY-ADVISER (GENERAL) POSITIONS IN WASHINGTON, D. C. AS A RESULT, 28 MORE EMPLOYEES, AFTER BEING GIVEN PROPER NOTICE, WERE SEPARATED ON APRIL 24, 1981.

WE UNDERSTAND THAT ALL THE PERMANENT PART-TIME POSITIONS, EXCEPT FOR THE ONE NOT ABOLISHED IN THE RIF, WERE OCCUPIED BY FEMALES, AND THAT AT LEAST TWO OF THE FEMALES HAVE FILED CHARGES ALLEGING THEIR DISCHARGE CONSTITUTED SEX DISCRIMINATION. THESE CHARGES ARE PENDING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE MERIT SYSTEMS PROTECTION BOARD (MSPB). FURTHERMORE, SUBSEQUENT TO THE RIF, THE INTERIOR DEPARTMENT HAS ISSUED AT LEAST THREE VACANCY ANNOUNCEMENTS FOR ATTORNEY-ADVISERS (GENERAL). VACANCY ANNOUNCEMENT NOS. 1-81 AND 3-81 SOUGHT, RESPECTIVELY, 6 AND 1 ATTORNEYS FOR THE SOLICITOR'S OFFICE IN WASHINGTON, D. C., AND VACANCY ANNOUNCEMENT NO. 5-81 SOUGHT 1 ATTORNEY FOR THE REGIONAL OFFICE IN SALT LAKE CITY. IS ALSO OUR UNDERSTANDING THAT ONE ATTORNEY WHO HAD BEEN RIF'D APPLIED FOR A POSITION UNDER VACANCY ANNOUNCEMENT NO. 1-81. IN A COMPLAINT FILED WITH THE OFFICE OF SPECIAL COUNSEL, HE ALLEGES THAT DURING HIS INTERVIEW IN JUNE 1981 FOR A POSITION UNDER THAT VACANCY ANNOUNCEMENT, THE ASSOCIATE SOLICITOR FOR CONSERVATION AND WILDLIFE INQUIRED ABOUT HIS POLITICAL PARTY AFFILIATION AND POLITICAL ACTIVITIES.

WE ALSO OBSERVE THAT A THRESHOLD ISSUE IN THIS INVESTIGATION IS WHETHER THERE WAS AN ACTUAL SHORTAGE OF FUNDS SO AS TO JUSTIFY THE RIF. THIS ISSUE IS NOT TREATED HERE, BUT IS THE SUBJECT OF MY SEPARATE MEMORANDUM TO YOU, B-202979-O.M.

DISCUSSION

QUESTION 1: "DID THE DEPUTY SOLICITOR'S ABOLISHMENT OF ALL PART TIME POSITIONS EXCEPT ONE IN THE REDUCTION IN FORCE VIOLATE THE FEDERAL EMPLOYEES PART-TIME CAREER EMPLOYMENT ACT OF 1978 (P.L. 95-437) OR ITS CONGRESSIONAL INTENT?"

ANSWER 1: THE FEDERAL EMPLOYEES PART-TIME CAREER EMPLOYMENT ACT OF 1978, PUB.L. NO. 95-437, 92 STAT. 1055, 5 U.S.C. SECS. 3401-3408 (SUPP. III, 1979) AND IN A FEW OTHER SCATTERED SECTIONS OF THE UNITED STATES CODE. OPM'S REGULATIONS PROMULGATED UNDER THE ACT ARE FOUND IN 5 C.F.R. PART 340 (1981). THE INTERIOR DEPARTMENT'S INTERNAL REGULATIONS ARE FOUND IN 370 DEPARTMENTAL MANUAL (DM) CHAP. 340, REPRINTED IN 46 FED.REG. 18799-18801 (MARCH 26, 1981) WITH A LISTED EFFECTIVE DATE OF MARCH 18, 1981.

THE PURPOSE OF THE ACT, AS STATED IN SEC. 2(B) (UNCODIFIED), IS "TO PROVIDE INCREASED PART-TIME EMPLOYMENT OPPORTUNITIES THROUGHOUT THE FEDERAL GOVERNMENT." THE ACT FURTHER REQUIRES THE ESTABLISHMENT AND MAINTENANCE OF A PART-TIME CAREER EMPLOYEE PROGRAM, 5 U.S.C. SEC. 3402(A)(1), BUT ALLOWS SUCH EXCEPTIONS AS MAY BE NECESSARY TO CARRY OUT THE MISSION OF THE AGENCY. 5 U.S.C. SEC. 3402(A)(3).

THE LEGISLATIVE HISTORY OF THE ACT, AFTER REITERATING ITS PURPOSE, MAKES IT CLEAR THAT THE ACT DOES NOT MANDATE ANY PART-TIME QUOTAS, BUT RATHER RELIES ON GOALS WHICH AN AGENCY SHOULD ENDEAVOR TO ACHIEVE ON A TIMELY BASIS WITHIN THE CONTEXT OF THE MERIT SYSTEM OF EMPLOYMENT. H.R.REP. NO. 95-932, 95TH CONG., 2D SESS. 1, 8, 17 (1978); S.REP. NO. 95-1116, 95TH CONG., 2D SESS. 1-2, REPRINTED IN 1978 U.S.C. CONG. & AD. NEWS 2596-2597; 124 CONG.REC. H1948 (MARCH 13, 1978) (REMARKS OF MR. GILMAN).

AS FINALLY ENACTED, THE ACT LEGISLATED CERTAIN SPECIAL PROTECTIONS FOR PART-TIME CAREER EMPLOYEES BY MANDATING THEIR INCLUSION IN RETIREMENT, LIFE INSURANCE, AND HEALTH BENEFITS. ACT, SECS. 4(A), 4(B), 4(C)(2), CODIFIED, RESPECTIVELY, AS PARTS OF 5 U.S.C. SECS. 8347G, 8716B, 8913B, AND 8906B (SUPP. III, 1979). HOWEVER, DESPITE ITS EXPRESSLY STATED PURPOSES, NEITHER THE ACT NOR ITS LEGISLATIVE HISTORY SIGNIFICANTLY DEALS WITH THE EFFECT OF A RIF ON AN AGENCY'S PART-TIME CAREER EMPLOYMENT PROGRAM.

WE NOTE THAT PRESENT RIF REGULATIONS REQUIRE THAT FULL-TIME POSITIONS AND PART-TIME POSITIONS BE PLACED IN SEPARATE COMPETITIVE LEVELS. 5 C.F.R. SEC. 351.403(B)(1) AS AMENDED BY 46 FED.REG. AT 13201 (FEBRUARY 20, 1981). THE ONLY OTHER REFERENCES TO THE MATTER OF RIFS IN THE REGULATIONS ARE FURTHER DEFINITIONAL CLARIFICATIONS OF PART TIME CAREER EMPLOYMENT IN RELATION TO TENURE GROUPS, BUT THESE MERELY CLASSIFY TENURE GROUPS FOR PART-TIME EMPLOYEES IN THE SAME MANNER AS THOSE FOR FULL-TIME EMPLOYEES. COMPARE 5 C.F.R. SEC. 340.202 (1981) AND 370 DM 1.2 REPRINTED IN 46 FED.REG. AT 18800 (MARCH 28, 1981) WITH 5 C.F.R. SEC. 351.501 AS AMENDED BY 46 FED.REG. 3807 ET SEQ. (JANUARY 16, 1981).

WHILE IN VIEW OF THE VERY BROAD DEGREE OF ADMINISTRATIVE DISCRETION ALLOWED BY THE ACT, WE CANNOT CONCLUDE THE INTERIOR DEPARTMENT'S RIF VIOLATED THE ACT, WE OBSERVE THAT SUCH ACTIONS CERTAINLY DO NOT ENCOURAGE A VIABLE PART-TIME CAREER EMPLOYMENT PROGRAM AND MUST BE REPORTED TO OPM UNDER 5 U.S.C. SEC. 3407 (SUPP. III, 1979) AND 5 C.F.R. SEC. 340.204 (1981).

QUESTION 2: "WAS THE ABOLISHMENT INCONSISTENT WITH LEGAL OR ADMINISTRATIVE RIF REQUIREMENTS OR PROCEDURES?"

ANSWER 2: OPM'S REQUIREMENTS AND PROCEDURES FOR CONDUCTING A RIF ARE FOUND AT 46 FED.REG. 3805-3812 (JANUARY 10, 1981) WITH TWO FURTHER AMENDMENTS APPEARING AT 46 FED.REG. 13199 AND 46 FED.REG. 13200 (FEBRUARY 20, 1981). WE ALSO NOTE THAT FURTHER OPM GUIDELINES (BUT NOT REGULATIONS) WERE RECENTLY PUBLISHED ON JUNE 30, 1981 AS REVISED FEDERAL PERSONNEL MANUAL, CHAPTER 351.

A FEDERAL AGENCY THAT IS SUBJECT TO OPM'S RIF REGULATIONS MUST FOLLOW THEM WHEN THE RELEASE OF AN EMPLOYEE IS REQUIRED BECAUSE OF LACK OF WORK, SHORTAGE OF FUNDS, REORGANIZATION, RECLASSIFICATION DUE TO CHANGE IN DUTIES, OR THE EXERCISE OF REEMPLOYMENT RIGHTS OR RESTORATION RIGHTS. SEC. 351.201(A). (FOR CONVENIENCE OF REFERENCE AND DUE TO THE NUMBER OF SUBSECTIONS INVOLVED, WE WILL HEREAFTER CITE THE RIF REGULATIONS AS THEY WILL APPEAR IN THE NEXT PERMANENT EDITION OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS. UNLESS OTHERWISE NOTED, THESE REGULATIONS APPEAR AT 46 FED.REG. 3805-3812 (JANUARY 10, 1981).

AN AGENCY MUST THEN ESTABLISH COMPETITIVE AREAS, COMPETITIVE LEVELS, AND RETENTION REGISTERS AS DEFINED, RESPECTIVELY, IN SECS. 351.402, 351.403 AS AMENDED BY 46 FED.REG. AT 13201 (FEBRUARY 20, 1981), AND SEC. 351.404. THE RETENTION REGISTER LISTS THE NAMES OF EACH EMPLOYEE IN THE ORDER OF HIS/HER RETENTION STANDING AS DETERMINED IN THE FOLLOWING MANNER. THE EMPLOYEES ARE CLASSIFIED ON THE BASIS OF TENURE OF EMPLOYMENT AND VETERAN PREFERENCE. AS TO TENURE, EMPLOYEES ARE RANKED IN THREE GROUPS WHICH ESSENTIALLY CONSIST OF:

GROUP I - CAREER EMPLOYEES NOT SERVING PROBATIONARY PERIOD

GROUP II - CAREER EMPLOYEES SERVING PROBATION, AND CAREER-CONDITIONAL EMPLOYEES

GROUP III - INDEFINITE EMPLOYEES, TERM, STATUS

QUO, AND TEMPORARY APPOINTMENTS EACH OF THE ABOVE GROUPS IS DIVIDED INTO THREE SUBGROUPS: "AD" FOR VETERANS WITH 30 PERCENT OR MORE DISABILITY; "A" FOR OTHER VETERANS, AND "B" FOR NON VETERANS. SEC. 351.501. WITHIN EACH SUBGROUP EMPLOYEES ARE RANKED BY SERVICE DATES WHICH REFLECT TOTAL FEDERAL SERVICE (CIVILIAN AND CREDITABLE MILITARY) AS DETERMINED BY THE LENGTH OF SERVICE REGULATION, SEC. 351.503, AND CREDIT FOR PERFORMANCE, SEC. 351.504. A SPECIAL SECTION, SEC. 351.502 GOVERNS THE CLASSIFICATION OF EMPLOYEES IN THE EXCEPTED SERVICE. EMPLOYEES ARE THEN SEPARATED IN THE INVERSE ORDER OF RETENTION STANDING. SEC. 351.602.

IN CONDUCTING THE RIF IN THIS CASE, THE DEPUTY SOLICITOR DECIDED THAT ALL PART-TIME POSITIONS (WITH THE EXCEPTION OF THE POSITION OF CORRESPONDENCE CLERK), ALL LAW CLERKS, AND ALL ATTORNEY-ADVISER (GENERAL) POSITIONS AT THE GS-11 LEVEL IN WASHINGTON, D. C. WOULD BE ABOLISHED. THIS REPRESENTED A TOTAL OF 28 EMPLOYEES WHO WERE SEPARATED ON APRIL 24, 1981.

ON THE BASIS OF THE MATERIALS WHICH YOU RECEIVED FROM THE INTERIOR DEPARTMENT, OUR REVIEW CONFIRMS YOUR AUDIT TEAM'S CONCLUSION THAT THE RIF WAS CARRIED OUT IN A PROCEDURALLY CORRECT MANNER ACCORDING TO OPM'S RIF REGULATIONS AS MENTIONED ABOVE.

IN ADDITION TO THESE REGULATIONS, HOWEVER, WE NOTE THAT INTERIOR DEPARTMENT POLICY, AS STATED IN 370 DM 351, 1.1 REQUIRES THAT "CONSIDERATION SHOULD ALSO BE GIVEN TO ACHIEVING PERSONNEL REDUCTION THROUGH TEMPORARY FREEZE ON APPOINTMENTS OR PLANNED ATTRITION." THE DEPUTY SOLICITOR CONCEDES THAT ATTRITION WAS NOT TAKEN INTO ACCOUNT IN THIS RIF. THE FAILURE TO TAKE ATTRITION INTO ACCOUNT MAY HAVE VIOLATED THE INTERIOR DEPARTMENT'S INTERNAL POLICY. IT MAY ALSO HAVE CAUSED EMPLOYEES TO HAVE BEEN UNNECESSARILY RIF'D. FOR FURTHER EXPLANATION, SEE MY SEPARATE MEMORANDUM TO YOU, B-202979-O.M.

AS NOTED ABOVE, OTHER ALLEGATIONS OF IMPROPRIETY ARE PRESENTLY BEFORE THE MSPB AND OFFICE OF SPECIAL COUNSEL, THE EVIDENCE FOR WHICH WOULD NOT NECESSARILY BE CONTAINED IN DOCUMENTARY FORM.

PERSONNEL LAW MATTERS I

ASSISTANT GENERAL COUNSEL - ROBERT L. HIGGINS

ATTORNEY-ADVISER - JOSEPH L. MCCANN