Not all agencies have tables of penalties; approximately half do. For those not familiar with the concept, a table of penalties contains a list of misconduct charges, and a range of potential discipline for a first, second, and third offense. (See example of a penalty table below.)
It’s not mandatory that an agency use its penalty table; it merely serves as a guide. There may be a good reason for an agency to go outside the range of discipline suggested, which is absolutely permitted. See, e.g., Farrell v. Interior, 314 F.3d 584 (Fed. Cir. 2002).
In fact, the deciding official (DO) in a recent, memorable nonprecedential decision from the MSPB did just that. An IRS employee called in to the Howard Stern radio show while he was at work, was placed on hold, began working, and was taken off hold while he was on the phone with a taxpayer. He unknowingly revealed that taxpayer’s personally identifiable information (PII) to the Howard Stern audience live.
Publicly revealing the taxpayer’s PII was the appellant’s first offense of misconduct. However, the severity of the harm and the bad publicity, among other Douglas factors, caused the agency to impose a severe penalty — removal.
The appellant challenged his removal as too harsh. He referred to the penalty table, which set a range of “written reprimand to a 14-day suspension” for the careless, reckless, or negligent disclosure of PII. The Board found that, “in light of the egregiousness of the appellant’s misconduct, the deciding official did not abuse her discretion in deciding to exceed the table of penalties and remove the appellant.” Forsyth v. Treasury, NY-0752-16-0246-I-1 (Mar. 15, 2023)(NP).
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