One significant change ahead at DHS in the area of employee
appeals will be consolidating into one the separate
processes traditionally used in government for
performance-based discipline and conduct-based discipline.
Both types of actions will remain appealable to the Merit
Systems Protection Board, although under a quicker time
schedule.
Under current rules, management must prove its case in a
performance-based case by “substantial” evidence, while
in a misconduct case it must show the “preponderance of
the evidence.” Under the originally proposed DHS rules,
the lower “substantial” standard would have applied to
both, but in the final rules, the higher “preponderance”
standard will apply to both.
The effect is to raise the bar for management decisions
in performance-based cases, officials said. But they
added that the consolidation will ease confusion for
managers faced with having to discipline an employee,
since the line between what is poor performance and what
is misconduct is sometimes hard to draw. The faster
timeframe also could eliminate the potential for a
drawn-out battle that is often called a disincentive
against taking disciplinary action.
And while management will have a more difficult time
proving its case before MSPB, the merit board will have
less leeway in reducing—formally, “mitigating”—an agency
action. Mitigation will be allowed only where the penalty
is so disproportionate as to be “wholly unjustified.”
That could become a factor when, for example, MSPB upholds
only some of the charges against an employee.
