A new MSPB report addresses some ongoing points of controversy regarding disciplinary actions against federal supervisory and senior executive employees, issues that have arisen in the context of proposed reforms at VA and other agencies.
One common belief that is untrue, MSPB said, is that supervisors are rarely punished compared to non-supervisors. The report said that “because past conduct and performance are among the best predictors of future conduct and performance, length of service and grade-level tend to have a relationship to the rate at which individuals experience adverse actions. However, an analysis of appealable adverse action data shows that a supervisor is no less likely to experience an adverse action than a non-supervisor of similar age, seniority and grade.”
In addition, “case law explicitly states that agencies are permitted to hold supervisors to a higher standard than nonsupervisory employees.”
Regarding the SES, it said there is a misconception that the appeals process delays their removal—an argument used during last year’s debate over a change ultimately enacted into law truncating appeal rights for SES members at the VA, and that is being heard in debate over extending similar provisions government-wide.
MSPB noted that a career SES member who is removed for misconduct, neglect of duty, malfeasance or certain other reasons can appeal only after the removal has taken effect. If the removal is based on performance, the individual is entitled only to an informal hearing, it added, and while the request for the hearing may be filed before the effective date of the removal, the removal need not be delayed pending a hearing. “Thus, whether an action is taken for performance or conduct, the appeals process before the Board does not require any delay in the removal of the individual or in the termination of pay and benefits to that individual,” it said.
