OPM has proposed a wide-ranging set of rules to give management greater discretion and control over disciplinary matters while speeding up the process in several ways.
The rules, published yesterday (September 17) in the Federal Register, would carry out provisions of three executive orders issued last year that were excluded from a court order blocking a number of other provisions.
“A proposed penalty is in the sole and exclusive discretion of the proposing official, and the penalty decision is in the sole and exclusive discretion of the deciding official, subject to appellate or other review procedures prescribed in law and cannot be the subject of collective bargaining,” the notice says. Any union contract provision to limit that discretion will be deemed “contrary to law and non-negotiable.”
Among the key provisions of the proposed rules, published for a 30-day comment period, are that in discipline based on alleged misconduct, an agency is not required to use progressive discipline and may instead impose any penalty “within the bounds of tolerable reasonableness.”
Further: “conduct that justifies discipline of one employee at one time by a particular deciding official does not necessarily justify the same or similar disciplinary decision for a different employee at a different time”; and “an agency should consider an employee’s disciplinary record and past work record, including all prior misconduct.”
Also, “a suspension or a reduction in pay or grade should not be a substitute for removal in circumstances in which removal would be appropriate. Agencies should not require that an employee have previously been suspended or reduced in pay or grade before a proposing official may propose removal, except as may be appropriate under applicable facts.”
The rules would generally limit the period for the employee to respond to a disciplinary notice to the 30 days required by law and then take any action within another 15 days.
They meanwhile would carry out a provision of a 2017 law requiring disciplinary actions against management officials who are found—by the agency head or by an outside authority such as the MSPB—to have retaliated against a whistleblower. For a first offense penalties can range from a suspension of as little as three days to firing; for a second, firing is required. The officials would have 14 days to reply to the proposed action, which will take effect by default if the agency determines that the response is “insufficient” to disprove retaliation.