Heads won't roll at the IRS
By: David Nather and Rachael Bade
May 22, 2013 05:10 AM EDT
Lawmakers pressing for more heads to roll at the Internal Revenue Service are going to be disappointed.
“Why weren’t more people fired?” Senate Finance Committee Chairman Max Baucus (D-Mont.) demanded at a hearing Tuesday on the IRS’s targeting of conservative groups, channeling the frustration of his colleagues.
Turns out it’s not so easy.
In fact, it appears that no one has been formally reprimanded and a spokesperson for the union representing IRS workers said it hasn’t been called to help any employees yet. Most employees involved in the targeting program are covered by protections for federal workers that could drag out the termination process.
The pressure is building: Lois Lerner, the director of the tax-exempt division at the IRS that oversaw the controversial program, will invoke her Fifth Amendment right against self-incrimination at a House Oversight and Government Reform Committee hearing on Wednesday.
The GOP is also calling for the resignation of Sarah Hall Ingram, an official who used to work in the tax-exempt division and who now oversees the agency’s implementation of the health care overhaul.
Here’s a quick guide to what it would take to show IRS officials the door:
Fire them — and brace for the appeals
The incoming acting IRS Commissioner, Daniel Werfel, could try to clean house — but he’d have to be prepared for a lengthy appeals process.
Under federal rules, a fired government worker has the right to appeal to the Merit Systems Protection Board. He or she can challenge the decision, argue that their actions don’t meet the threshold for termination and ask to be reinstated — especially if there was no warning of trouble in past performance reviews.
The board is set up so fired employees appealing their termination get two chances to prove they should stay. Their first stop is at the merit board’s regional level, which — for the Cincinnati-based IRS employees in question — would be in Chicago.
The initial appeals take an average of 93 days to process, said William Spencer, a spokesman for the board.
If the regional board rules against the IRS employees, they could appeal to the national Washington, D.C.-based board, which takes on average another 245 days.
The IRS employees wouldn’t collect a paycheck during the appeals process. They would get back pay only if they are ultimately reinstated.
Max Stier, who heads Partnership for Public Service, a nonprofit that recommends ways to improve the federal workforce, says it’s “not impossible” to get rid of federal workers. In 2012, he says, 8,755 federal workers were fired, and others likely resigned to avoid the ax — although there are no estimates of how many because it’s hard to track those kinds of departures.
“At the end of the day, if any agency has an employee who has really done something egregious and they want to get rid of them, they can do it,” Stier said.
Speed it up — and try not to get reversed
There’s also the option of getting the IRS employees out of the way more quickly — at least temporarily — by putting them on administrative leave.
But IRS workers could always fight back if they’ve had positive performance reviews until now — and the board has been known to mitigate penalties if an employee is a first-time rule violator.
Making this case about conduct does make it easier, however, to skip one part of the disciplinary rules for federal workers.
When someone is just a terrible worker, federal rules require the supervisor to give him or her an opportunity to improve. When it’s a conduct case, though — as the IRS scandal would be — the agency wouldn’t have to take the time to teach its employees not to do something as problematic as targeting conservative groups.
There are other cases in which fired employees wouldn’t even get to appeal. By law, the IRS commissioner can — but doesn’t have to — fire any employee who engages in the so-called 10 deadly sins as defined by a law enacted in 1998 to overhaul the agency.
The “sins” include falsifying information or destroying documents to cover up mistakes, violating a taxpayer’s constitutional rights, abusing privacy clauses to conceal information from a congressional inquiry and threatening to audit taxpayers for personal gain or benefit.
But would any of the activities related to the IRS scandal qualify? J. Russell George, the Treasury Inspector General for Tax Administration, suggested at Tuesday’s hearing that it’s possible — noting that one of the sins is revealing taxpayer information to harm a taxpayer.
When Sen. Maria Cantwell (D-Wash.) asked if the Cincinnati employees violated the sins, he responded: “In theory, it could be interpreted that way,” if they shared confidential information with outside groups. George is looking into the question.
Ask them to resign
There’s always another option: Even if the new IRS leadership doesn’t want to go through the hassle of getting rid of people, it could always ask them to resign.
Outgoing acting IRS Commissioner Steven Miller, for example, could have hung on if he’d really wanted to. Just because he was filling in for a politically appointed position doesn’t mean he can be fired by the president like political appointees typically can.
But when Treasury Secretary Jack Lew asked him to step down, he did. That could be an option if the administration wants to get rid of Lerner.
Sander Levin, the ranking Democrat on the House Ways and Means Committee, has already said he wants Lerner to be relieved of her duties, and her future is widely seen as being up in the air.
“If the president/Secretary Lew could ask Steve Miller to resign, they should be able to ask Lois Lerner to resign. They are both longtime members of the Senior Executive Service,” one former IRS employee told POLITICO.
Hope they take a hint
There’s also the chance that the IRS workers in Cincinnati could resign without being asked — not because they have to but because they understand how awful their lives will be if they don’t.
That’s what happens in other cases in the federal workforce, although the statistics aren’t available, Stier said. “If the line employees say, ‘We’re really in trouble here, we’re going to get fired, and I’m going to leave before that happens,’ they can do that. It happens a lot,” he said.
That could also help resolve the issue without changing the rules for firing federal workers, he said — because it’s not supposed to be easy to kick them out. If it’s too easy, it can be done for political reasons.
“The flip side is, you don’t want it to be so easy to fire someone that when a new party comes into power, they can fire everyone in the IRS and stock it with people who agree with their ideology,” Stier said.