Federal Manager's Daily Report

A rules proposal from OPM would strongly discourage, although not outright prohibit, use of tables of penalties, saying they are “inimical to good management principles” and have worked against agencies in employee appeals.

The proposal, part of a package designed to carry out the portions of the administration’s 2018 executive orders on disciplinary and union matters that are not under a court ban, notes that many agencies use such tables even though they are “not required by statute, case law or OPM regulation, and OPM does not provide written guidance on this topic.”

“Tables of penalties, by creating a range of penalties for an offense, limit the scope of management’s discretion to tailor the penalty to the facts and circumstances of a particular case by excluding certain penalties along the continuum. Agencies that specify a range of penalties should expect that adjudicators may be, and have been, impervious to agency pleas that someone who holds a particular position may not be restored to the workplace. Although the law permits the agency to impose the maximum reasonable penalty, some adjudicators have responded that the existence of an agency promulgated range of penalties belies this claim,” the rules proposal says.

Further, such tables “can foster a “by-the-numbers” approach in which managers may hide behind a chart imposed from above rather than take direct responsibility for their workplace. A further risk of having an agency table of penalties is that a supervisor may apply it so inflexibly as to impair consideration of other factors relevant to an individual case,” it says.

“In short, there is no substitute for managers thinking independently and carefully about each incident as it arises, and, as appropriate, proposing or deciding the best penalty to fit the circumstances,” it says.