A think tank with close ties to the Trump administration has recommended strengthening agency management’s powers in disciplinary cases even beyond provisions of recent executive orders and a bill that has started moving in Congress.
The Heritage Foundation, whose ideas have been reflected in many of the administration’s policies regarding federal employees, said that given the current law, “federal managers are likely to look the other way when poor performance and misconduct occur . . . The evidentiary burden required to uphold a removal or any other serious disciplinary action is also a major challenge to managers’ ability to remove poor performers with discipline problems.”
“When federal managers do consider taking on the herculean task of firing an employee, they often find little support from their agency’s leadership,” it added, attributing the high rate of success management has in forums such as the MSPB to agencies bringing disciplinary actions only when the case is “completely airtight. In all but the most egregious cases of misconduct and poor performance, managers likely resign themselves to the impossibility of firing a bad employee and hiring someone better.”
The report added: “Each layer of insulation surrounding the federal workforce was intended to address a clear problem. Stripping these protections away completely would be unwise, even if doing so would result in a more efficient civil service. Some procedural barriers to serious disciplinary action are necessary to protect the merit system even if they make misconduct and poor performance harder to address. However, the appeals system we have now does not strike the right balance between the competing goals of a non-partisan administration of the law on the one hand and promoting professional competence on the other.”
It recommended ending the performance improvement period required before discipline can be imposed on those grounds; doubling the probationary period for newly hired employees to the two years already in effect at DoD; and consolidating all appeals channels such as negotiated grievances, the MSPB, EEOC and FLRA into one.
A House committee recently approved HR-559, reflecting the first two of those recommendations; that bill further would bar coverage of disciplinary appeals from the grievance process but would not consolidate the appeals agencies.
The recent executive orders meanwhile told agencies to limit performance improvement periods to 30 days, compared to the 90 or 120 days commonly used, and to exclude disciplinary appeals from the grievance process. They would not affect the length of the probationary period because that would require a change in law, although they do urge agencies to use that period to screen out poor performers. Full compliance with those orders is expected to be a long-term process and they further are under court challenge.
