Fed up with yet another embarrassing Secret Service incident of alleged misconduct early this month, several members of Congress in recent weeks have called for heads to roll at the agency — but the agency’s hands are tied when it comes to rapid firing, and a lasting solution might require action from Congress itself.
“You have got to have a system that has robust accountability,” Rep. Ron DeSantis, R-Fla., insisted at a hearing earlier this week. “And that’s the question that we’re looking at today, where is the accountability in the agency? It just seems throughout this saga with different problems, there’s no swift accountability.”
“There needs to be rapid response in these incidents – we can’t put this into a bureaucratic process where I get an answer in eight weeks or 10 weeks,” Rep. Steve Lynch, D-Mass., told Secret Service Director Joseph Clancy during the same grilling.
But attorneys who specialize in federal labor law say Secret Service employees, after their first three years of probation, are part of the competitive civil service and guaranteed a series of due-process rights that the agency cannot simply ignore. Although other agencies are exempt from that system, legislation making that change for the Secret Service has not materialized.
The Supreme Court has established that employees in government jobs protected by civil service are entitled by the Constitution to keep them unless there is some reason to take them away, which requires due process and establishing persuasive evidence for firings.
“Congress likes to demand immediate action, but you can’t just make accusations,” said Debra D’Agostino, a founding partner of The Federal Practice Group, which focuses on federal labor law. “You have to have the evidence to back it up and I don’t think that’s asking a lot.”
Most federal employees, including the Secret Service, have additional protections, including the right to appeal any adverse employment decision to an appeals board outside their particular agency, the U.S. Merits Systems Protection Board.
The MSBP considers all the evidence the agency has developed against the employee and the person’s response and can either back the department’s decision or overturn it and reinstate the employee.
The vast majority of the time, the board affirms the agency’s original decision, but if the agency doesn’t have the evidence, it can reverse a firing or disciplinary action – and that can be embarrassing and awkward.
“There’s nothing that an agency doesn’t like more than having to fire someone and have that employee walk back through the door – it’s just uncomfortable,” D’Agostino said. “They want to get it right the first time.”
Clancy repeatedly has tried to explain the dynamic to members of Congress calling for swift and decisive action.
After the Secret Service was accused of interfering with the Department of Homeland Security inspector general’s investigation into the Colombia prostitution scandal, the new chief is being extra cautious.
In dealing with the most recent allegation – that two senior agents reportedly disrupted an active bomb investigation by driving a government-owned SUV through the crime scene at the White House – Clancy has told Congress that he has handed the case off to the DHS inspector general to handle and did not conduct his own even preliminary investigation first.
He placed the two agents in question in non-operational, non-supervisory roles while the inspector general thoroughly reviews the matter and has promised to discipline all agents involved in any wrongdoing if and when the IG finds convincing evidence of wrongdoing.
But several members of Congress argue that the Secret Service’s mission of protecting the president and first family is too important to have disciplinary action tied up in a lengthy bureaucratic process.
Other agencies, such as the FBI, the CIA, the Defense Intelligence Agency, the National Security Agency and others, are excepted from the competitive civil service system and have fewer appeal rights for disciplinary actions or job terminations. For instance, they are generally barred for appealing decisions to the MSPB, claiming they need more speed and flexibility to perform their missions and maintain good order and discipline.
Rep. Jon Mica, R-Fla, said former Secret Service Director Julia Pierson previously asked Congress for legislation making some changes to agency civil service protections but suggested that the issue got dropped when she was forced out of the post last fall.
“Well, hell, you don’t have the ability to command, because your hands are tied by Title 5,” Mica said during Tuesday’s hearing, referring to the law that lays out the competitive service protections. “You can’t hire and fire. You have to go through this layer.”
“I chaired the Civil Service subcommittee,” he said, “And I know how difficult it is to get rid of folks, even discipline folks. Most people are just moved horizontally to some other position.”
Clancy agreed and noted that in January he moved several top agency officials out of key positions and into other DHS slots outside of the Secret Service in the agency’s biggest management shake-up in its 150-year history.
“That’s one of the problems,” Rep. Jeff Duncan, R-S.C., then chimed in. “So, too often, federal employees who really mess up, they aren’t really disciplined…they’re not fired, they’re not terminated, they’re just moved to a nice desk job some place else.”
Cheri Cannon, a partner at Tully Rinckey focusing on federal labor law, said even the excepted agencies exercise similar due-process rights and policies internally and don’t simply fire employees without first building their case.
In this case, she said, Clancy is acting appropriately by deferring the matter to the inspector general and waiting to find out what the evidence is before taking any action.
“Right now, Clancy doesn’t have the ability to fire anybody without evidence,” she said. “I understand why he didn’t. He didn’t want anyone to think that it wasn’t an independent investigation. What if they come back and say these guys didn’t do anything wrong? And the flip side of that, if they do find evidence of misconduct, he can look at these agents and say, ‘You guys screwed up, here’s your punishments and we’re proven we’re not out to get you.'”
Meanwhile, she says, Clancy has power to raise the standards and penalties for various incidents of misconduct. And some Hill experts say the problem isn’t so much the civil service rules as the Secret Service’s corporate culture.
A senior congressional aide who has closely evaluated the Secret Service’s myriad problems said members who really know the issue want the firing process to be less onerous and more efficient, but they believe the true issue isn’t how quickly the agency can terminate someone.
“It’s the cultural and leadership problems that allow the behavior,” the aide said.
Rep. Mark Meadows, R-N.C., a member of the Oversight and Government Reform Committee, agrees.
“I think what most of us in Congress want to do is have a belief that the new director will set internal policies,” he said. “If we find that there is a legislative impediment to protecting the president, both Democrats and Republicans would be immediate in terms of addressing it.”
“But really this is not as much a legislative problem as it is a management problem,” he concluded. “They have some of the tools. They’re just leave the tools in the tool box.”
