Fedweek

Disciplinary actions against federal employees must be “fair and reasonable” but beyond that management has wide discretion in deciding how to handle instances of poor performance or misconduct, OPM has told agencies.

“In enacting current law, Congress provided managers with maximum flexibility to pursue adverse actions, whether the underlying impetus is a conduct issue, a failure to perform, or any other reasons related to federal employment, as needed for the efficiency of the service,” new guidance says.

The guidance is the latest in a series of messages from OPM on the issue with largely the same theme. Earlier it issued proposed rules to carry out the disciplinary policies in three May 2018 executive orders—provisions that were not affected by a court injunction that has now been lifted but which still haven’t been formally written into federal personnel regulations—and soon after that it told agencies to eliminate by next April any internal procedures not required by law or regulation that have the effect of limiting management’s discretion in taking discipline.

The new guidance, like the proposed rules, strongly discourages agencies from using tables of penalties or progressive discipline. It says those practices “do not and should not replace supervisory judgment, and managers may not rely on these tools extensively as a replacement for managers using their best judgment given the totality of the facts and circumstances. It is vital that supervisors use independent judgment, take appropriate steps in gathering facts, and conduct a thorough analysis to decide the appropriate penalty.”

It adds that in some appeals of disciplinary actions, “agencies have argued to arbitrators that it is inconceivable that the conduct at issue could have resulted in any penalty less than removal. Arbitrators have pointed to the existence of tables of penalties for that type of misconduct as a basis for mitigating the penalty.”

“A supervisor is responsible for ensuring that a disciplinary penalty is fair and reasonable. If a penalty is disproportionate to the alleged violation or is unreasonable, it is subject to being reduced or reversed even when the charges are sustained,” it added, providing a review of legal precedent in that area.

OPM further said it “strongly encourages agencies to review existing collective bargaining agreements to identify any provisions which conflict with these statutory rights and, whenever practical and appropriate, take steps to eliminate any conflicting provisions. Agencies should also avoid adopting any contract provisions in future collective bargaining that interfere with the exercise of management’s statutory rights.”