The impact of 2017 law forms of requiring discipline for certain forms of prohibited personnel practices in the federal workplace is still to be resolved, the MSPB said in a recent white paper on the so-called PPPs.
The Kilpatrick Act—named for a whistleblower who suffered retaliation—”must be read carefully to fully understand its coverage and restrictions,” it said. For example, it said that while there are 14 PPPs—which apply to any employee who has authority to take, direct others to take, recommend, or approve any personnel action—the Kilpatrick Act applies only to supervisors.
The law requires agencies to take disciplinary actions against supervisors who are found to have committed one of three specific prohibited actions, as determined by the agency head, an administrative law judge, the MSPB, the Special Counsel, a federal judge or an agency inspector general. The agency must propose at least a suspension of no less than three days for a first offense and must propose firing for a second offense.
While one section of the law refers to discipline for committing any of those prohibited actions, it said, another section refers to only three of them: retaliation for whistleblowing; retaliation for exercising appeal or similar rights, supporting other employees exercising such rights, cooperating with an inspector general or the Special Counsel, or refusing to obey improper orders; and improperly accessing employee medical records.
Further, the law refers to discipline against those who take a barred action but “does not explicitly address the question of recommending, approving, or directing others to act,” which is part of the general law, it said.
It is unclear how widely that law has been invoked in the four years since it was enacted. Interpretations of such questions typically are left to appeals that set precedent but the MSPB has been without a quorum and thus unable to issue decisions that entire time.