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Two Senators are expressing shock at the high number of federal contractors working for the U.S. Department of Homeland Security (DHS). Senate Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (I-Connecticut) and Ranking Member Susan Collins (R-Maine) questioned DHS Secretary Janet Napolitano last week about the high ratio of contractors to civilian employees within the DHS workforce.

According to DHS estimates, DHS has 188,000 civilian employees (not including uniformed members of the Coast Guard) and 200,000 contractors working for it - for a total workforce of almost 400,000.

"To me, this is just a shocking and unacceptable number," Lieberman said last Wednesday at a Committee hearing called to discuss the Department's proposed FY 2011 budget. "Our Committee has long been concerned about DHS's heavy reliance on contractors because it raises the question of efficient use of taxpayer money but also the question of who is in control of the Department's mission: Is it federal contractors or full time employees?"

Lieberman said he appreciated that DHS has recently undertaken a review of the skewed balance of DHS workers, but he noted, "This is just the beginning of a turnaround that is necessary."

Lieberman and Collins have requested an agency-by-agency breakdown of the ratio of federal civilian employees and contractors, and are seeking assurances from DHS that contractors are not performing "inherently governmental" functions or other core services that could undermine the Department's ability to control its missions.

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This is your last chance to register for Freedom of Information Act (FOIA) and Privacy Act training!

To learn about FOIA's procedural requirements, fees, time limits, and exemptions under the Obama Administration, register today for "FOIA 101 and Avoiding Criminal and Civil Penalties Under the Privacy Act" through OmniGov Training Institute. The trainer for this engaging and informative program is Richard Huff, Former Co-Director, Office of Information and Privacy, U.S. Department of Justice.

The course, "FOIA 101 and Avoiding Criminal and Civil Penalties Under the Privacy Act," will be held:

Wednesday, March 3, 2010
2:00 - 3:30 p.m. (EST)
Webinar Course
$189 per connection/per location

Train Your Entire Staff for One Low Price!

For more information, and to register, click on www.omnigovtraining.org.

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A federal supervisor who sued a subordinate employee for defamation and intentional infliction of emotional distress may proceed with her case, the Fifth Circuit ruled in a recent decision.

In this case, the plaintiff was a Group Supervisor ("the supervisor") in the Office of Disability Adjudication and Review of the Social Security Administration (SSA). Her subordinate ("the subordinate") was a Case Intake Assistant in the same office. The Case Intake Assistant's duties included reviewing and analyzing cases from SSA claimants to ensure sufficiency of the evidence, preparing case summaries, communicating with claimants about their claims, and, when requested, receiving and reviewing incoming mail.

In July 2007, the supervisor proposed a three-day suspension of the subordinate for his alleged failure to properly process a large amount of mail that had been assigned to him. On October 2, 2007, the subordinate wrote a letter to the Disclosures Unit of the Office of Special Counsel (OSC), alleging that supervisor had been "confiscating" mail from SSA claimants and "holding on to it" for more than a year, rather than allowing the mail to be properly distributed for review. The subordinate claimed that the supervisor's actions violated the claimants' due process rights and constituted "gross mismanagement and abuse of authority."

The OSC investigated the allegations and took no action against the supervisor. The subordinate, however, was ultimately suspended by the SSA temporarily for failure to perform his duties. The subordinate subsequently filed a whistleblower claim with the U.S. Merit Systems Protection Board, alleging that the SSA retaliated against him for writing his complaint letter about the supervisor to the OSC. The MSPB held, however, that the subordinate had been reprimanded for his failure to do his job and not for his purported whistleblowing activity.

On September 29, 2008, the supervisor filed suit in Texas Civil District Court, claiming that the subordinate's letter to the OSC had defamed her. In the alternative, the supervisor claimed that the subordinate's letter had caused her intentional infliction of emotional distress.

On November 14, 2008, the Government - acting on the subordinate's behalf - removed the case to federal district court. The Government also filed a motion to substitute itself as Defendant in the case. As grounds for removal and substitution, the Government argued that the subordinate had been acting within the scope of his employment when he wrote the allegedly defamatory statements. Accordingly, the Government argued that the exclusive remedy for the supervisor's claims was the Federal Tort Claims Act (FTCA), and that the proper Defendant was the Government. The Government attached a certification from the United States Attorney for the Southern District of Texas asserting that the subordinate was acting within the scope of his employment for purposes of the FTCA. A week later, the Government moved for dismissal of the entire case, arguing that the supervisor had failed to exhaust her administrative remedies and that her claims were otherwise barred by the FTCA.

On December 9, 2008, the district court granted the Government's motion to substitute parties and dismissed the subordinate from the case. Also on that day, the district court issued a final order of dismissal. The supervisor subsequently appealed both the order substituting parties and the order dismissing the case to the Fifth Circuit.

The Fifth Circuit began its analysis of the case by examining whether the subordinate should have been dismissed and the Government substituted as the defendant under the Federal Tort Claims Act. The appeals court explained that the FTCA provides the exclusive remedy for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment. The Fifth Circuit stated that if the subordinate was acting "within the scope of his office or employment at the time of the incident out of which the claim arose," the action should be deemed an action against the United States and the United States shall be substituted as the party defendant.

Here, the Fifth Circuit stated, the United States Attorney for the Southern District of Texas certified that the subordinate was acting within the scope of his employment when he wrote the allegedly defamatory letter. Thus, this certification precludes the appeals court from ordering a remand to state court in the event that the Attorney General and the district court erred in determining the subordinate's scope of employment. However, the Fifth Circuit said, the certification does not preclude a district court from resubstituting the federal official as defendant for purposes of trial if the court determines, post removal, that the Attorney General's scope-of-employment certification was incorrect. Accordingly, the Fifth Circuit stated that the district court's order substituting parties is susceptible to review.

The Fifth Circuit went on to say that the "scope of employment" analysis is controlled by the law of the state in which the negligent or wrongful conduct occurred. In Texas, to be found within the scope of employment, an employee's act must fall: (1) within the scope of the employee's general authority (2) in furtherance of the employer's business and (3) for the accomplishment of the object for which the employee was hired. In addition, the conduct must be of the same general nature as that authorized, or incidental to the conduct authorized. In other words, the court stated, if an employee deviates from the performance of his duties for his own purposes, the employer is not responsible for what occurs during that deviation.

The Fifth Circuit then stated that for an employer to be liable for defamation by its employee in Texas, the defamatory statement must be (1) referable to a duty owed by the employee to the employer and (2) made while the employee is in the process of discharging that duty. For an employer to escape vicarious liability, an employee has to do more than "mentally turn aside" from his employer's business and must be outside of his actual duties of employment.

Here, the Fifth Circuit said, assuming the supervisor's allegations to be true, the subordinate's comments were not in furtherance of his specific duties as a Case Intake Assistant, but made out of a personal vendetta to punish the supervisor for her recommended suspension. The subordinate was not "acting for the employer's benefit" when he lied about the supervisor, nor were his defamatory comments "to accomplish an objective of his job," the appeals court stated. Moreover, the Fifth Circuit added, the subordinate did more than mentally turn aside from his duties - he deviated from his normal courses of action to fabricate a story that his supervisor was harming others.

Before the Fifth Circuit, the Government contended that the subordinate was acting within the scope of his employment because his letter complained of his supervisor's withholding claimants' mail, and the subordinate's duties included processing correspondence in a timely manner. The Government further argued that earlier case law established that government agents who allegedly defamed another in the course of their duties are shielded from defamation claims because their comments "were incident to the discharge of their duties."

The Fifth Circuit dismissed the Government's arguments, however, finding that the pertinent case law was distinguishable. In this case, the Fifth Circuit explained, no one at the SSA specifically tasked the subordinate to report on his supervisor's behavior, nor was it a specific function of his work duties. Instead, the subordinate gratuitously provided the allegedly defamatory statements to the OSC while doing nothing to seek relief through his own chain of command. The appeals court stated that the subordinate may have had a general duty to report misconduct or illegal activity, and that such a report, if true, may ultimately facilitate the performance of his duties. However, this general duty is not the same as being specifically tasked by one's superiors to provide information to third parties about a particular incident, nor is it akin to a supervisor's duty to keep his subordinates informed of relevant events, the Fifth Circuit found.

Thus, the Fifth Circuit found that the subordinate was not hired nor tasked with reporting on his supervisor's behavior, and that any purported duty to do so in order to prevent fraud, waste, and abuse was tangential to his duties as a Case Intake Assistant. Assuming the supervisor's allegations are true (which the court must do at the pleadings stage), the subordinate's defamatory letter was not "for the accomplishment of the object for which he was hired," and therefore was not "within the scope of his office or employment." Accordingly, the Fifth Circuit ruled that the Government erred in certifying the subordinate's actions, and the district court erred in substituting the Government as Defendant.

Consequently, because the United States is not the proper Defendant, the Fifth Circuit reviewed the district court's dismissal of the supervisor's claims based on the laws that would have applied if the subordinate had remained in the case. Earlier, the district court had held that the supervisor's claim of defamation was barred by the statute of limitations. However, the statute of limitations for a tort claim of defamation is one year, and the supervisor filed her case less than one year after her subordinate published the letter, the appeals court stated. Accordingly, the Fifth Circuit held that dismissal of the supervisor's defamation claim was improper.

In addition, the district court had held that the supervisor's claim of intentional infliction of emotional distress was barred by her failure to exhaust administrative remedies. However, the Fifth Circuit stated that because the Government is not a proper party, this case does not fall within the FTCA's exhaustion requirements. Accordingly, the dismissal of the supervisor's second claim was also improper, the Fifth Circuit ruled.

Therefore, the district court's order substituting the Government as Defendant was reversed; the district court's order dismissing the supervisor's tort claims was reversed; and the case was remanded for further proceedings.

The case is Anderson v. United States, U.S. Court of Appeals for the Fifth Circuit, No. 08-20825, February 8, 2010.

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As a federal career coach, and federal career development trainer, many federal jobseekers and federal employees ask me this question: What training or courses can I take, so that I will be more marketable for a federal job or promotion?

Federal managers are looking for employees who know the importance of continual learning and updating of skill, because that equates to improved job performance.

For specialized jobs, I always recommend specific job training for your specialized field. But in general for ANY FEDERAL JOB, I do have answers about recommended training that can add value to your application, or add value to your skills for any federal job applicant or federal employee.

Here are my top training recommendations for 2010 for value-added performance as a current or future federal employee:

Excel Training: If you are not skilled in Excel today, or not proficient, I recommend introductory, intermediate or advanced training in Excel. The federal agencies keep track of almost everything in Excel. Mangers like spreadsheets, charts, pies and graphs, with color if possible. They want information organized in 10 different ways and presented efficiently. The better your excel sheets and reports are, they more well received will be your work product.

Power Point Training (PPT): Yes, PPT is still alive and well in government. Take a class in PPT, so that you can improve on any PPT that needs to have a new look. If you can add color, photographs, excel graphs and even action, these features could liven up any briefing and make the speaker/manager look good. Managers will appreciate the new look and maybe an improved PPT will make the meeting shorter PPT!

Technical Writing and editing: Even if you can write well, you can learn to write better. Writing in a concise way could be a NEW skill for many government workers. Federal managers know about the Active Voice (recommended since about 1996) writing style, but most still do not use it when appropriate. The old passive voice, bureaucratic writing still is still prevalent in most memos, emails and reports. Continual improvement in writing, editing, and even learning how to write in an engaging way, could be an excellent skill for any current fed or aspiring federal employee in any occupational series. Good writing and editing skills are always in demand for any federal job.

Communications / Public Speaking: One of the most popular KSAs you will find any federal job vacancy announcement is the ability to communicate orally. That's because federal employees speak to team members, supervisors, customers, vendors, contractors extensively. The federal managers want to hire staff who are articulate and able to speak to others professionally. Gain confidence and current skill in speaking and communications to stand out as a current fed, or as a potential new federal employee.

Budget Training: Yes, if you could just take a basic course or any level course in budget management, this could be a value-added skill for your job. Most federal jobs touch on budget in some way or another, even if the budget work is only 10% of the job. You could manage a budget, update a budget, create reports on the budget, inform managers about budget availability, or justify a budget. Everybody has some role in budget watching, management or maintenance. Add budget skills to your resume for just about any federal job.

Acquisitions / Contract Management Training: The government is purchasing more than ever and performing through contractors in some offices. If you take a course in FAR, Acquisitions or Contract Management, you could be taking a step toward a federal job, or an added skill in your current federal job. It does seem as if federal managers are providing training in acquisitions to many occupational series, so that everyone can be more aware of ethical and regulatory practices for purchasing and contracts. Courses in this area could show that you are aware of the importance of acquisitions in government services.

Customer Services Training: Government jobs are all about customer services just read an agency's mission statement. Whether the customers are internal or external, showing that you care about customers, problem-solving, communication and improving services, can make you more attractive as a federal job applicant or current fed. Good customer service is growing in government because of the demand for more service everywhere.

Computer Training, including Database Training for Information Management and Keyboarding: Courses in database management are of great interest and need to the federal workforce. You can take training past Excel and go to Access. Or just take a course in database management, to learn about managing information efficiently. Any classes you can take to increase knowledge of Microsoft Office programs or keyboarding skills (yes, if you type 60, you can get more done in a day) make you better equipped in today's computer-driven workplaces.

Kathryn Troutman is the founder and president of The Resume Place, Inc., located in Baltimore, Maryland, specializing in writing and designing professional federal and private-sector resumes, as well as coaching and education in the federal hiring process. For the past 30 years, Troutman has managed her professional writing and consulting practice, publishing and federal career training business, and with her team of 20 Certified Federal Resume Writers, The Resume Place advises and writes more than 300 federal resumes per month for military, private industry and federal clients world-wide. She is also the author of several critically acclaimed books, including Ten Steps to a Federal Job, Writing Your NSPS Self Assessment, and Federal Resume Guidebook.

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One of Young Government Leaders top issues for 2010 is performance management in government. We are proud to present a forum for young federal public servants to engage on the issue with Shelley Metzenbaum, the Office of Management and Budget's Associate Director for Performance and Personnel Management. Ms. Metzenbaum will be speaking to the YGL audience on March 11, 2010 from 6:30 p.m. to 7:30 p.m. at the National Academy of Public Administration at 900 7th Street, N.W.

Shelley Metzenbaum has dedicated her entire career to improving government. During this presentation, Shelley will discuss OMB's strategies for improving government performance and how the young government workforce can become more engaged. The presentation and discussion will revolve around three of the top priorities of this administration for improving government performance including:

* Using performance information to lead, learn and improve outcomes;
* Communicating performance coherently and concisely for better results and transparency;
* Strengthening problem solving networks in the federal government.

Don't miss this opportunity to interact with a top White House Official and engage in a discussion on how the young government workforce can become engaged in the process!

The event is free but register online at http://www.younggovernmentleaders.org.

YGL is a grassroots organization founded in 2003 by a group of young people interested in meeting other energized Federal government employees. Today, YGL has more than 1,800 supporters in the Washington Metropolitan Area, with local chapters in cities across the United States. As the only 501(c)(3) not for profit professional organization founded and led by young federal personnel, YGL's mission is to educate, inspire, and transform the next generation of government leaders, offering professional development, networking, and leadership opportunities for its members. For more information about YGL, go to its website by clicking on www.younggovernmentleaders.org.

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This week on FEDtalk, the attorneys of Shaw, Bransford & Roth will host a special two-part show. First, USIS will discuss the security clearance process, and then the Federal Managers Association will talk about their upcoming convention and the top issues facing federal managers.

The radio show airs this Friday, March 5, 2010, at 11:00 a.m. Eastern time. Click here Friday to listen - www.federalnewsradio.com - or tune in to 1500 AM in the Washington, D.C. area.

Join the conversation! Email your questions to fedtalk@federalnewsradio.com, or call in during the show by dialing 1-877-936-9333 (toll free).

FEDtalk® is a live radio talk show produced by Shaw, Bransford & Roth, PC. Bringing you the insider's perspective from leaders in the federal community since 1993.