Issue Briefs

Following are the key sections of OPM’s proposed rules to change the standards on which disciplinary decisions would be taken, for both performance and conduct based reasons.

Performance-Based Actions
Part 432 applies to reduction in grade and removal of covered employees based on performance at the unacceptable level. Congress enacted chapter 43, in part, to create a simple, dedicated, though not exclusive, process for agencies to use in taking adverse actions based on unacceptable performance. Since that time however, chapter 43 has not worked as well as Congress intended. In particular, interpretations of chapter 43 have made it difficult for agencies to take actions against unacceptable performers and to have those actions upheld.

The proposed rule at § 432.104 clarifies that, other than those requirements listed, there is no specific requirement regarding the nature of any assistance provided during an opportunity period, and is not determinative of the ultimate outcome with respect to reduction in grade or pay, or a removal.

The proposed rule also states that no additional performance improvement period or similar informal period to demonstrate acceptable performance to meet the required performance standards shall be provided prior to or in addition to the opportunity period under this part. This change supports the stated principles of E.O. 13839 which provide that removing unacceptable performers should be a straightforward process furthering effective stewardship of taxpayer money. Establishing limits on the opportunity to demonstrate acceptable performance by precluding additional opportunity periods beyond what is required by law encourages efficient use of the procedures under chapter 43 and furthers effective delivery of agency mission while still providing employees sufficient opportunity to demonstrate acceptable performance as required by law.

The proposed rule is intended to clarify the requirements in chapter 43 of title 5 of the United States Code. The goal of these amendments, consistent with E.O. 13839, is to streamline civil service removal procedures related to unacceptable performance. Nothing in the proposed amendments to 5 CFR part 432 should be construed to relieve agencies of their continuing obligations under Federal law, e.g., 5 U.S.C. 6384 and 29 U.S.C. 791(g).

Finally, we note that 5 U.S.C. 2301(b)(2) provides that employees should receive fair and equitable treatment without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, and handicapping condition, and with proper regard for their privacy and rights. All personnel actions must meet this statutory requirement.

5 U.S.C. 4302(c)(5) provides for “assisting employees in improving unacceptable performance;” and 5 U.S.C. 4302(c)(6) provides for “reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.” The proposed rule de-links 5 U.S.C. 4302(c)(5) and (6) by clarifying in § 432.105 that the opportunity to demonstrate acceptable performance required prior to initiating an action pursuant to 5 U.S.C. 4303 may include any and all performance assistance measures taken during the performance appraisal period to assist employees pursuant to 5 U.S.C. 4302(c)(5), not just those taken during the formal opportunity period.

Conduct-Based Actions
While the standard for action under this subpart remains unchanged, the proposed rule makes clear that an agency is not required to use progressive discipline under this subpart. Further, OPM has decided to adopt formally by regulation in this section the standard applied by MSPB in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) to removals, suspensions and demotions, including suspensions of fewer than 15 days.

Specifically, the proposed rule adopts the requirement to propose and impose a penalty that is within the bounds of tolerable reasonableness. This is a principle that is embedded deeply in Federal civil-service law. Arbitrators are required to defer to an agency decision, and may not mitigate a penalty unless it is beyond the bounds of tolerable While the standard for action under this subpart remains unchanged, the proposed rule makes clear that an agency is not required to use progressive discipline under this subpart. Further, OPM has decided to adopt formally by regulation in this section the standard applied by MSPB in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) to removals, suspensions and demotions, including suspensions of fewer than 15 days.
Specifically, the proposed rule adopts the requirement to propose and impose a penalty that is within the bounds of tolerable reasonableness. This is a principle that is embedded deeply in Federal civil-service law. Arbitrators are required to defer to an agency decision, and may not mitigate a penalty unless it is beyond the bounds of tolerable including all prior misconduct, when taking an action under this subpart. These guidelines reflect established principles, but stress management discretion to promote efficient Government while protecting the interests of all involved.
With respect to penalty determination, it is also noteworthy that some agencies develop and use tables of penalties to assist supervisors in identifying the level of discipline that may be appropriate to an individual case. The creation and use of a table of penalties is not required by statute, case law or OPM regulation, and OPM does not provide written guidance on this topic. The applicable standard, “to promote the efficiency of the service,” is broad and supple enough to encompass all occurrences that may occasion an adverse action. Thus, agencies have the ability to address misconduct appropriately without a table of penalties, and with sufficient flexibility to determine the appropriate penalty for each instance of misconduct. Tables of penalties may create significant drawbacks to the viability of a particular action and to effective management.

Specifically, tables of penalties, by creating a range of penalties for an offense, limit the scope of management’s discretion to tailor the penalty to the facts and circumstances of a particular case by excluding certain penalties along the continuum. Agencies that specify a range of penalties should expect that adjudicators may be, and have been, impervious to agency pleas that someone who holds a particular position may not be restored to the workplace. Although the law permits the agency to impose the maximum reasonable penalty, some adjudicators have responded that the existence of an agency promulgated range of penalties belies this claim. Although such adjudications are contrary to and undermine settled legal principles, they resist further administrative or judicial review of penalty decisions.

Further, OPM encourages managers to think carefully and coherently about when and how to impose discipline in a way that fosters an effective and efficient workplace, in the best interests of all employees and the agency’s mission. By contrast, tables of penalties can foster a “by-the-numbers” approach in which managers may hide behind a chart imposed from above rather than take direct responsibility for their workplace.

A further risk of having an agency table of penalties is that a supervisor may apply it so inflexibly as to impair consideration of other factors relevant to an individual case. This type of rigid application of a table of penalties runs counter to the overall directive of Douglas to consider all of the criteria that may apply to an individual set of factual circumstances. A table of penalties does not, and should not, replace supervisory judgment. It is vital that supervisors use independent judgment, take appropriate steps in gathering facts, and conduct a thorough analysis to decide the appropriate penalty.

However, once an agency establishes a table of penalties, it will be held accountable for striking a balance between ensuring that supervisors use their best judgment in applying the full spectrum of Douglas factors, with accountability for ensuring a level of consistency with the range of penalties described for a particular charge within the agency’s table. For that reason, the proposed amendments to this section emphasize that an agency is not required to use progressive discipline and that the penalty for an instance of misconduct should be tailored to the facts and the circumstances, in lieu of the type of formulaic and rigid penalty determination that frequently results from agency publication of tables of penalties.