On the outside: options for fired feds

Thursday - 7/29/2010, 9:40am EDT

Bill Bransford, partner, Shaw Bransford & Roth

Click below to hear the interview

Download mp3

By Dorothy Ramienski
Internet Editor
Federal News Radio

The forced resignation of Agriculture Department employee Shirley Sherrod has gotten a lot of attention.

Ousted Agriculture Department employee Shirley Sherrod now says she will sue a conservative blogger who posted an edited video of her making racially tinged remarks last week.

But what should other federal employees and managers do if they find themselves in similar situations? And what legal recourses do they have?

Bill Bransford is a partner at the law firm, Shaw, Bransford & Roth.

He says she really has no legal recourse against the government because she's a political appointee who serves at the pleasure of the president and the secretary.

"She was asked to resign and she did, and that was really the end of the matter until everyone realized that her comments were taken out of context and she was unfairly attacked. Then, she was supported by some of the people who attacked her and apologized to, and offered this job."

The situation, he adds, is unprecedented, and one of the most remarkable things is that she wasn't offered her old job back -- she was offered a new one. Bransford says he wonders why.

"I say there's probably a story behind the reason why she was not offered her old job back. I know, because I used to work in government, and I talk to high level government people. They [would] sit around and say, 'what should we do about this? We could giver her her old job back,' because she had only been gone about a week. But they decided not to, and there's a reason, and I have no idea what it is."

While political appointees have no real legal recourse, other federal employees do, and Bransford says career senior executives can find themselves involved in cases like this.

"The career manager -- and, usually, it's the career senior executive who has to interface with the political appointee and has to develop a relationship with [him or her] so that government works well, and it does create, I think, an awkwardness in the workplace when somebody gets fired and then rehired and they have this sideshow going on."

Despite these distractions, he says, in his experience with sticky situations like this, most feds are professionals and act accordingly.

One thing to keep in mind is that some political appointees were, at one time, career feds. Bransford says SESers should pay close attention here.

"If they're in the career Senior Executive Service and they move from a career SES job to a political job, when that political job is over, they're entitled to go back into the career Senior Executive Service."

As for Sherrod, Bransford said whether she decides to go back into federal service is obviously up to her. He also commented on her plans to sue the blogger, Andrew Breitbart.

"There's the First Amendment and Supreme Court decisions and defamation laws that require proof of actual malice. And, when in fact she said the words that she said, but there was an editing job which the American media does all the time -- that might be a real uphill battle to prove actual malice on the part of the blogger. He wasn't saying false things about her, just apparently taking them out of context."

There is, however, tort law that involves showing someone in a false light, but Bransford said there is a fine line there and declined to expand further on the matter.