Fedweek

Newly finalized rules from OPM emphasize discretion for management officials when taking disciplinary action against federal employees on charges of alleged misconduct.

For example, the rules state that when taking disciplinary action on those grounds agencies need not follow principles of progressive discipline and need not take the same action in a given case that they took in a prior similar case—although they should take comparable situations into consideration.

They do not prohibit agencies from using tables of penalties but an explanatory statement discourages them, saying they are “rigid, inflexible documents that may cause valid adverse actions to be overturned” and are “contrary to OPM’s policy that proposing and deciding officials exercise independent judgment in every case according to its particular facts and circumstances in leveling the charge and the appropriate penalty.”

Specifically, the rules say (in their words) that:

* “The penalty for an instance of misconduct should be tailored to the facts and circumstances. In making a determination regarding the appropriate penalty for an instance of misconduct, an agency shall adhere to the standard of proposing and imposing a penalty that is within the bounds of tolerable reasonableness. Within the agency, a proposed penalty is in the sole and exclusive discretion of a proposing official, and a penalty decision is in the sole and exclusive discretion of the deciding official. Penalty decisions are subject to appellate or other review procedures prescribed in law.”

* “Employees should be treated equitably. Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time. An agency should consider appropriate comparators as the agency evaluates a potential disciplinary action. Appropriate comparators to be considered are primarily individuals in the same work unit, with the same supervisor, who engaged in the same or similar misconduct. Proposing and deciding officials are not bound by previous decisions in earlier similar cases, but should, as they deem appropriate, consider such decisions consonant with their own managerial authority and responsibilities and independent judgment. For example, a supervisor is not bound by his or her predecessor whenever there is similar conduct. A minor indiscretion for one supervisor based on a particular set of facts can amount to a more serious offense under a different supervisor. Nevertheless, they should be able to articulate why a more or less severe penalty is appropriate.”

* “Among other relevant factors, agencies should consider an employee’s disciplinary record and past work record, including all applicable prior misconduct, when taking an action.”

* “A suspension 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 demoted before a proposing official may propose removal, except as may be appropriate under applicable facts.”

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