Following is a section of an MSPB white paper on “prohibited personnel practices” which addresses the responsibility of leaders in preventing such practices in the federal workplace.
Section 2302 of title 5 states that, “The head of each agency shall be responsible for preventing prohibited personnel practices[.]” It may sound self-evident, but the best way to prevent PPPs is not to tolerate PPPs. PPPs may occur in isolation, but they are more likely to be part of a pattern of accepted practices and a broader culture.
Data from the 2016 Merit Principles Survey (MPS) shows that a survey respondent who reports being personally affected by a PPP is more likely to say they experienced two or more PPPs instead of only one. The pattern was similar among respondents who observed a PPP without being personally affected. This is consistent with findings from other researchers that a culture which permits certain unethical behaviors tends to be one where other unethical behaviors are prevalent.
Senior leaders set the tone for an ethical culture . . . this ethical culture may be influenced to some extent through senior leaders’ communications about the importance of ethical behavior, but the demonstration of ethical behavior is even more important.
For example, among respondents to OPM’s 2017 Federal Employee Viewpoint Survey (FEVS) who agreed that their senior leaders maintain high standards of honesty and integrity, 88 percent agreed that PPPs are not tolerated. The relationship between ethics and the PPPs is not coincidental. As noted, it was part of the rationale for codifying the PPPs in 1978. Prohibiting certain practices is one of the means to create and manage a merit-based civil service with an ethical culture.
There are many different ways that a cultural problem can come to the attention of an agency head. The FEVS and the MPS regularly contain questions about PPPs, with the FEVS being administered more often and the MPS containing more detail. Internal agency surveys can also include questions about PPPs and ethical cultures. IGs may issue reports regarding investigations of allegations that a PPP has occurred. Cases brought before the Equal Employment Opportunity Commission or MSPB can indicate problems, even if the case decisions do not specify which official committed the alleged offense. Large numbers of complaints to an internal Equal Employment Opportunity office can also be a warning sign.
When there are indications of a possible problem, the agency head has the responsibility to inquire, directly or through others (e.g., order an investigation), and address underlying issues or practices. In some cases, there may be several individuals whose improper conduct played a role in the alleged PPP or unethical behavior. Each individual should be held to account for their own actions and initiatives (or lack thereof in instances of negligent supervision).
Establishing what happened and who is responsible can require a thorough and impartial investigation that follows and documents the evidence and opens new lines of inquiry when needed. IGs can be very useful for this task, as their staff are trained to follow professional audit, investigative, and inspection standards. While an IG operates under the general supervision of an agency head, an IG is independent with the right by law to have access to agency employees and records. Foremost, that independence means that even the head of the agency cannot “call off” an IG investigation, even if its direction or findings prove unpleasant. Nor may an agency head instruct an IG to reach any particular conclusion. This gives IGs a level of credibility that is unlikely or impossible to attain if any person in the alleged offender’s chain of command conducts the investigation.
An agency leader asking an IG to investigate a specific event or specific widely-held perception helps prevent PPPs in the following ways: (1) the IG’s report will increase the agency leader’s knowledge about what is happening in that agency; (2) evidence gathered can be used to support any necessary adverse actions; and (3) requesting an impartial investigation communicates to employees that the agency leader is serious about ensuring a workplace free from PPPs. However, the IG is not the only avenue available for an agency to conduct an investigation. What matters most is that the investigation is conducted properly and has the necessary credibility.
There are many ways in which agency leaders can create a culture that reduces the likelihood of officials committing PPPs. These methods for preventing PPPs include—
1. Acting ethically and communicating that ethics matters.
2. Providing for an impartial internal review of personnel actions that may pose an elevated risk of a PPP.
3. Holding direct reports accountable if they commit a PPP or behave unethically.
4. Ensuring direct reports hold their own subordinates accountable for PPPs and ethical conduct (which may mean taking action against a direct report for negligent supervision—such as willful blindness to, or tolerance of, a subordinate’s misconduct). The Kirkpatrick Act will even require that the agency head personally propose discipline under certain conditions.37
5. Initiating an investigation when there are warning signs, particularly if they indicate a broader problem in the organizational culture.
6. Educating employees on the PPPs, which includes educating supervisors on their obligations to avoid PPPs and to address PPP-related misconduct when it occurs in their workforce.
7. Communicating to the workforce that PPPs will not be tolerated and acting to ensure those words are not hollow.