Fedweek

GAO has said that a recent executive order stating that agencies are not required to use progressive discipline “will affect how agencies will determine appropriate penalties going forward.”

In a report on federal employee misconduct, GAO noted that whether an agency used ever-increasing penalties for more serious infractions–or repetition of the same infraction–is part of the standards that MSPB uses when deciding whether the agency’s choice was appropriate in a case being appealed–the so-called “Douglas factors.”

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Said GAO, “For instance, if an employee commits a first offense, the agency may choose to suspend the employee for 14 days or less. After that, the employee might learn from his or her mistake or correct the action, and not commit another offense, and therefore the agency will not discipline the employee again . . . Alternatively, if the employee commits the same offense a second time, the agency may choose to suspend the employee for longer, or impose stronger adverse actions, including removal.”

However, it noted that one of the recent set of three executive orders on federal workforce matters states that “supervisors and deciding officials should not be required to use progressive discipline” and that “the penalty for an instance of misconduct should be tailored to the facts and circumstances” of each case.

GAO added that OPM officials told it that “progressive discipline is not defined or required by civil service law, rules or regulations.”

OPM similarly disagreed with GAO’s recommendation that all agencies adopt tables of penalties defining consequences for certain actions, saying they could restrict management’s discretion, leave its decisions vulnerable to being overturned for failure to follow those standards, and could discourage agencies from “constructive early intervention in favor of a more punitive approach that focuses only on the offenses the table covers.”

Since issuance of the executive orders, some experts in federal employment law have pointed to the difference between their language and MSPB precedent, suggesting that federal courts may ultimately have to determine the policy regarding progressive discipline.