By William Wiley

Our FELTG team of instructors presents seminars throughout government, interfacing with many agencies each year. One of the things we’ve come to notice is that agencies often tell us that they add layers of extra steps to labor/employee relations processes beyond what is required by law. Although the statutory minimum process required to fire a bad civil servant for misconduct involves a single supervisor and 30 days of pay, a large number of agencies greatly exceed these minimums; e.g.:

  • According to MSPB reports, 80% of agencies take more than 45 days to remove a bad employee.
  • Most agencies use at least two levels of supervision to terminate a misconduct-ing employee.
  • Some agencies use a multi-member board to propose or decide a tentative removal, plus all the layers of unofficial review that go on before the matter ever gets to the Board.
  • Lawyers are brought into the procedures at various levels and given the authority to block the tentative removal (denial authority is rarely official, but exercised anyway).
  • According to MSPB surveys, 97% (ninety-seven frigging percent!) of front-line supervisors mistakenly believe that it takes more proof to fire someone than the law has required for nearly 40 years.

Our civil service is routinely (and justifiably) criticized for our inability to promptly deal with misbehaving employees, both by Congress, and also by the hard-working employees who see that bad employees do not get fired and receive the same salary and benefits as they do. Yet rather than deal with these nasty realities, agencies continue to come up with convoluted, unnecessary, and inefficient ways to hold bad employees accountable for bad conduct.

Fortunately, we here at FELTG have come up with a challenge for you readers that just might fix this dismal situation. To see if you’re eligible to accept our challenge, consider the FELTG philosophy regarding civil service accountability:

  1. Managers – not lawyers nor human resources specialists – should make decisions regarding employee discipline. Most all formal agency policies, instituted by agency heads, say that line managers make discipline decisions based on the advice and counsel of HR and legal. However, the reality is far from this, in our experience. Routinely in our supervisor training classes, participants say things like, “That’s great, but HR won’t let us do that.” Or, “My draft proposal has been sitting in legal for six months waiting on them to approve the removal.” Well, that’s just terrible. It is a rare HR specialist or reviewing attorney who has been trained in how to manage an organization. We may know the law, but we have little actual real experience being held accountable for the functioning of an organization. Although we can advise, it is the front-line manager who most fully appreciates the harm caused by the non-performing employee and who has to suffer the loss of productivity and unnecessary salary expenditures that result from delayed removal actions. Therefore, the line manager should be making those decisions, not us.
  1. Supervisors should be trained, then held accountable for how well they discipline. Instead, what we’ve found is that upper management and staff advisors often think that because of their respective exalted positions, they are in the better position to make discipline decisions, that the front line supervisor should not be allowed to act because, darn it, they just aren’t as smart as we are.

You aren’t going to like this, but here’s the deal. If you have front line supervisors who do not know how to administer discipline, then it is YOUR FREAKING FAULT. You either hired the wrong person, failed to train that person, or declined to hold that person accountable when he did not properly discipline his workforce. We all learned this in the 80s when we were studying Japanese total quality management styles. Instead of checking production at each step of a process, you train individuals to do their job properly in the first place, then hold them accountable at the end of the process for quality and efficiency. By doing away with all those intermediate check points, things can get done much faster.

  1. The statutory legal minimums are fair to the employee. Yet we see agencies provide much more than is required when it comes to holding employees accountable, for reasons we cannot fathom. For example,
  • Before initiating a Performance Improvement Plan to assist a poor performer to improve, some agency policies mandate that the supervisor should place the employee into a pre-PIP mini-PIP, and then formally PIP her only after she fails the pre-period. Why? If the employee has already demonstrated unacceptable performance, why add the additional time to the improvement process? You sure don’t see the private sector doing something like this. Agencies were created to provide government services, not government employment.
  • If an employee presents a medical certificate from his physician that concludes he cannot do his job, if the employee cannot be accommodated, then the direct approach is to remove the employee based on a charge of Medical Inability to Perform. The employee’s medical certificate is preponderant proof that the removal is warranted. Yet, at least one large agency we know will instead delay the process and incur additional costs by sending the employee for a Fitness for Duty medical examination. Again, why? The employee’s doctor says he can’t do the job. You’re not helping the employee when he applies for disability retirement by sending him to a FFD (the fact of the medical inability removal does that by itself). Using the employee’s own self-generated medical documentation is just about the best medical evidence you can have on appeal.
  • Once a removal is proposed, the employee cannot be removed for 30 days. During this time, she has the right to defend herself by responding to the proposal. The minimum response period is seven days, but there’s no real problem if the agency extends the response period to 10 or 20 days, to accommodate the needs of the employee. Yet, way too many agencies cavalierly extend the response period beyond 30 days, many times to 60 days or more, at the request of the employee or his representative. “I’m a very busy and important employee-representing lawyer. I don’t have time in my tight schedule to prepare a response in less than 90 days.” Or, “As the employee’s union representative, we exercise our right to file for information related to the removal, and demand that you extend the proposal period to allow us to receive that information and analyze it.”

Well, isn’t that just absolutely unfortunate. In other words, these representatives are asking me, the agency representative, to donate good government money to pay the employee’s salary because the employee’s lawyer is too busy or the employee’s union wants to exercise a right to information. In my world, as agency counsel, I’m busy, as well. And by law we’ve already given the employee access to all the material relied upon in making the decision to propose removal. You’re requesting an extension beyond 30 days? Denied. If you don’t like that, take it up with MSPB (I say this knowing that MSPB has NEVER reversed a removal based on an agency’s refusal to extend the notice period).

On the rare occasion that I am feeling magnanimous or I’m working with a deciding official who took his nice-guy pills that day, I’d be willing to extend the notice period beyond 30 days, but only if the employee is willing to request LWOP for that extra time. You need more time than Congress said is necessary? You pay for it.

The Cure

Now that we’re clear regarding the problem, here’s our FELTG challenge to you.

Try something different.

And here’s the Different Something to try:

  • Establish a group of employees. Select a part of your organization that is relatively representative of the type of work you do. Best to start out with a non-union group to simplify implementation. The bigger, the better.
  • Divide the group in half so that you have a test group and a control group. Make the division as random as possible while maintaining the goal of having two similar groups.

For the control group, retain your current procedures. For the test group, establish new discipline policies as follows:

  1. Recognize only three types of discipline: reprimands, suspensions, and removals.
  2. Delegate discipline authority to first level supervisors. The first line supervisor would issue reprimands, and propose and decide suspensions and removals independently.
  3. HR specialists and legal counsel could be requested to advise at the request of the supervisor, but would have no authority to prevent or delay the supervisor from taking disciplinary action.
  4. The notice period for suspensions of up to 14 days would be 24 hours. For proposed removals, the notice period would be 30 days with no paid extensions granted. Suspensions beyond 14 days would not be allowed. Demotions would not be proposed, but could be implemented as settlement of a removal if the employee and supervisor agreed.

As for unacceptable performance procedures, the test group would implement the following:

  1. Although no proof is required to initiate a PIP, the immediate supervisor will make a list of all mistakes the unacceptable performer has made prior to being PIPed, related to each failed critical element.
  2. PIPs will be for 30 days.
  3. The supervisor will meet weekly with the PIPee to provide feedback on the week’s work.
  4. HR or legal will provide weekly feedback to the supervisor as to the quality of the PIP counseling sessions.
  5. Should the PIPee fail irretrievably prior to the end of the 30 days, the PIP will be terminated and the supervisor will propose the PIPee’s removal immediately. The decision regarding the proposed removal will be made by the second-level supervisor.

For both misconduct and unacceptable performance:

  1. The supervisor will place each employee for whom removal is proposed on administrative leave and deny the PIPee access to the workplace and to the agency’s intranet.
  2. Decisions regarding proposed removals normally will be made no later than the 31st day after the proposal.
  3. HR and/or legal would receive copies of all proposals and have the responsibility to notify the supervisor and higher-level management of any problems that are identified. Notice periods normally would not be extended to provide time for HR or legal notification.
  4. Higher-level management would provide monthly feedback to every supervisor as to that supervisor’s effectiveness regarding employee accountability through discipline and performance improvement.

“Oh, my goodness. Those folks at FELTG must have been smoking some funny tobacco if they think this makes any sense.” Well, don’t give us a hard time. What you see here is EXACTLY what was envisioned by the authors of the Civil Service Reform Act of 1978. The only tweak we’ve added is the mistake list for unacceptable performance. We had to do that because of the way the discrimination and whistleblower laws have developed over the years. Otherwise, you’re looking at a plan and approach envisioned by Jimmy Carter way back when the Bee Gees’s “Stayin’ Alive” was the number one song for the year.

Not a bad anthem for the project, now that I think about it.

Before you implement the project, engage an outside group to develop program indicators and to evaluate the success or failure of the Different Something as time progresses; maybe MSPB or OPM would be willing to provide an evaluation as they have an interest in an efficient government. Oversight by a neutral party would add legitimacy and reduce bias compared to internal evaluation.

FELTG’s No-Catch All-In Offer

For the first agency who is willing to give this approach a try, FELTG will donate at no cost to the agency initial training and on-going support for all of your supervisors who will be participating in the test group. Yes, we’ll have our expert trainers on-site and on-line to get your supervisors up to speed so that they can handle the responsibility of disciplining fairly and effectively. We believe that education is key to using effective government accountability procedures, and we’re willing to put our money where our mouth is. If your supervisors succeed, we succeed. If they screw up, we’ve wasted our time and tarnished our otherwise-sterling reputation.

So put on your big girl or big boy pants, realize that there just might be a better way to do things, and give the old school way a try. FELTG will be right there with you, for better or for worse. If you’re self-important and stubborn, set in your ways, and think that your supervisors are too stupid to handle discipline, then we don’t want to work with you. However, if you believe that employee accountability was always intended to be a front-line responsibility and that people can be educated to do something as straightforward as administering employee discipline, then give us a call: 844-at-FELTG.  Together, we can make the civil service great again. [email protected]

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