A View of the Future (Some Might Say a Dark View)

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By William Wiley, June 20, 2017

It has begun. Congress and the White House (and a large group of our fellow citizens) seem to think that it is too hard to fire a bad federal employee. From the pages of this newsletter over the years, you’ve heard us shouting from the rooftops that it really isn’t that hard, if you know what you’re doing. And here at the Federal Employment Law Training Group, we’ve done everything we can, short of compulsory servitude, to help you guys know what to do.

Unfortunately, our efforts fell short. Even though the Civil Service Reform Act of 1978 gave agencies terrific tools to hold bad employees accountable while honoring civil servant rights and protections, Congress has felt the need to change those tools, at least at one agency. And it has been widely reported by those inside Capitol Hill that if Congress comes to conclude that these changes actually make accountability easier, Congress will be acting to make these new rules apply to everybody – at least everybody currently a civil servant appointed under Title V.

Last week, the President signed into law the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. That piece of legislation in large part grew out of Congress’s frustration with the apparent inability of the Secretary of Veterans Affairs to remove and otherwise punish DVA employees who allegedly caused veterans to suffer because of poor management within the veteran’s health care system. The law is supposed to “fix” some of the systemic problems in the oversight of discipline in DVA, based in part on a belief by Congress that MSPB has done a poor job of defending our veterans and neglecting to uphold the disciplining of certain senior executives.

Here at good old FELTG, we don’t agree with this premise, but our opinions are worth exactly what you pay for them.

Everybody in our business, or even interested in our business, needs to know the changes that this legislation has created. Even though most of us do not work at DVA and will not be directly affected by the new law, what we see in this act might very well soon be applicable to the entire federal service. So, never send to know for whom the bell tolls; it tolls for thee (that’s John Donne, in case you were wondering).

There are new requirements that will apply to DVA besides the ones we identify below. For example, DVA will have to establish its own internal whistleblower protection unit with a Presidential appointee running it, independent of OGC. But in this article, we’re comparing the procedural changes that apply for those of us down here in the weeds trying to hold employees accountable. If you need more details than we are providing, make yourself delirious reading the new law, found at https://www.congress.gov/bill/115th-congress/senate-bill/1094/text.

Before we get into the details, we have to point out an amazing bit of word-twisting in this legislation (thanks to an astute participant in our MSPB Law Week seminar we just finished in San Francisco). Whereas nearly every other piece of legislation ever written relative to the civil service speaks of “days” (by common understanding to mean “calendar days”), this act sometimes specifies “business days” (b-days) and at other times simply specifies “days” (for purposes of this article, to be known as c-days.) In the charts below, we’re going to harmonize days for comparison purposes, so that we’re comparing apples to apples. You purists out there can do you own conversions from c-days to b-days, if that makes you happier.

So why the added confusing of specifying b-days sometimes and c-days at other times? Ah, my little Pollyannas. Welcome to the world of politically-created reality. If I say that something has been reduced from 30 days to 15 days, that sounds like a lot of reduction. However, if I say that something has been reduced from 22 days to 15 days (30 c-days are 22 b-days), not so much. It appears to this writer that someone wanted it to look like a greater change was being made by this new law than is really being made. We leave it up to you to come up with a better theory.

Procedures for Removing Bad Federal Employees; a Comparison

  Current Procedures DVA SES DVA GS
Notice of proposed removal All evidence and a right to representation Same Same
Minimum response to proposal period 5 b-days 7 b-days 7 b-days
Minimum time to implement removal 22 b-days 15 b-days 15 b-days
Maximum period to decide to remove None 15 b-days 15 b-days
Appeal MSPB DVA grievance MSPB
Time to file appeal 22 b-days [not specified] 10 b-days
Evidence burden Preponderance (51%) [not specified] Substantial (±40%)
Time to decide appeal 120 c-days (goal) 21 c-days 180 c-days (firm)
Mitigation authority? Yes [not specified] No
Challenge to appeal Fed Circuit Court Fed District Court Fed Circuit Court

There are some amazing little nuggets tucked away in here, if you know what to look for. As an example, by using the confusing b-day language, the law actually increases the minimum response time for a removal (and also for a short suspension). Dollars to donuts that was not the intent of the drafters. Separately, the language placing a time limit on MSPB’s review of an appeal by a GS employee refers to the decision by the “administrative judge.” Well, what about the time required for the three Board members to consider the petition for review of the AJ’s decision? Or, does the law’s language that the 180 c-day time limit applies to “a final and complete decision” of the AJ mean that there is no AJ decision review by the Board members?

From an employment law position, one of the most significant changes here is the reduction of the agency’s burden of proof in a misconduct removal from a preponderance of the evidence to the lower substantial evidence standard. Yet even if legally significant, a quick review of the reversed DVA cases that got Congress all riled up does not reveal a problem with the preponderance standard of proof. For example, in Graves v. DVA, CH-0707016-0180-J-1 (2016), an SES demotion case, the judge believed DVA’s evidence and upheld the charge. However, she found the penalty to be unreasonable because a superior to the appellant did the same thing that the appellant did, and he was not disciplined. I’m running stupid as to how lowering the evidence standard from preponderance to substantial would have caused the judge to reach a different conclusion. The judge agreed with the facts, but did not agree with DVA’s judgment about what to do with the facts.

By far, the most significant change for those of us on the front line is the no-mitigation of the penalty change. Probably half of the effort that goes into a removal case these days is defending the penalty. The stupid disparate-penalty Terrible Trilogy philosophy that the Board members dreamed up in 2010 has scared us all so much that agencies have become afraid to fire people because some other employee somewhere else in the agency did the same thing and was only suspended. Apparently, the Douglas Factors will no longer apply. Or, will they? Since the Board can no longer mitigate a penalty, will it just start setting aside the removal altogether if it disagrees with the seriousness of the charge? Or, will it uphold a removal for a five-minute tardy, outstanding performer, 20-year clean record, if DVA concludes that removal is the proper penalty? So many questions to be answered as the case law develops.

And that won’t be happening anytime soon because the Board decision-making machinery has been inoperable since the first week of the year. If we have usable precedent by this time next year, I’ll be amazed.

Finally, there are some statutory “fixes” in here that make no sense. For example, the act says that, “A covered individual so demoted may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the covered individual reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave.” Well, gee willikers, we never placed employees on administrative leave in that situation anyway. Might as well pass a law that says, “Things that fall must fall down, not up.”

It appears to us here at FELTG that the drafters of this legislation do not understand our system. I mean no disrespect by that statement as ours is a complicated statute. However, if we’re going to see any new big across-government legislative fixes to federal employment laws, for the good of our country, let’s all hope that the staffers on Capitol Hill who draft legislation like this take the time to figure out what changes will really make a difference. This is not something to gut-out and do what feels good. This is something crying out for professional thought and deep experience.

Operators are standing by: 1-888-at-FELTG. The first six minutes of consultation are free. [email protected].

More Regarding Dangerous Employees in the Workplace

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By William Wiley, June 6, 2017

Questions; we get thoughtful and important questions. The one below came about because of our recent newsletter article that provided guidance as to what to do when a supervisor is confronted with an employee who threatens suicide.

Good Morning – and thanks for your May 17, 2017 newsletter. 

Mr. Wiley’s article provided some clear guidance for those scenarios in which a supervisor has been able to conclude that it is more likely than not that the employee is a danger to herself or to others in the workplace.  The question that often comes up, however, is how to make that initial assessment.  Is it enough for an employee to break down crying and talk about suicide for us to decide that it is more likely than not that the employee is a danger to herself or others in the workplace?  What if the employee simply has an emotional meltdown that s/he states is due to being stressed about increased workload and acts out (crying, yelling, kicking office furniture) but does not mention suicide?  In short, does the employee need to mention suicide before these options kick in?

If you can provide some guidance on this issue, it would be most appreciated. 

And our super-responsive FELTG answer is as follows:

Dear Reader-

Thanks for your question. This is serious stuff and I’m glad that you’re working on it.

The standard for preventing someone from coming to work is the frustratingly vague standard of “reasonableness.” Would an objective person viewing the facts as they exist at the moment conclude that it is more likely than not (preponderance) that the employee is a danger to himself or others?

Here’s the good news. The supervisor’s judgment that it is unsafe to allow the employee to remain in the workplace is not easily subjected to challenge. That’s because by keeping the employee in a pay status immediately and during the notice period of a proposed indefinite suspension, you have not constructively suspended the employee. Therefore, no MSPB right to appeal and hopefully no grievance rights, either (depends on your CBA and agency grievance policy).

Once the decision to implement the indefinite suspension is issued, the employee can appeal to MSPB. However, by then you should have the employee’s response to the proposal, additional evidence to bolster your conclusion that it was reasonable to exclude him from the workplace.

There is the possibility that the employee could mount a failure-to-accommodate EEO complaint. However, that would be tricky for him to frame, with an answer coming down perhaps years in the future as to whether the supervisor acted reasonably. By then the thing is done and any remedy will most likely be limited.

In addition, employees can always claim that actions like this are whistleblower reprisal, unfair labor practices, or even mistreatment because of veteran’s status. However, those claims place the burden on the employee to prove, and again will be adjudicated far into the future after the immediate danger has been resolved.

Bottom line:  These are life and death situations. In the FELTG world, we always err on the side of saving lives of civil servants. With that in mind, we believe the bar for what is reasonable should be set exceedingly low. If this is a topic of interest to you, attend our training workshop Handling Behavioral Health Issues and Instances of Violence in the Federal Workplace July 26, 2017 in Washington, DC.

By the way, if I were in a policy position in an agency, every attorney, HR specialist, and maybe even front line supervisor would have a prefabricated template that proposes an indefinite suspension and demands medical documentation in cases like this. These are emergency situations that require immediate action. We don’t have time to start from scratch when they occur. The template should require only that the employee’s name and the date be inserted. Then, the proposal should be issued post haste. [email protected]

The End of Times

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By William Wiley, May 23, 2017

It seems as if I spend most of my waking hours in an airplane flying somewhere. Giving all the wait time, the no-computers time, and the just-plain-tired time involved in those odysseys, I have lots of time to think. Lately, I’ve been thinking about why we have civil service protections. As both Capitol Hill and the White House seem intent on modifying or doing away with some or all of those protections, I thought it might be helpful to get some of those 35,000 feet high thoughts out there, should anyone care to consider them.

Since 1912 in our great country, we’ve had laws that protect civil servants from arbitrary or just plain evil mistreatment. Prior to that date, a civil service job was purely patronage. You work for some guy to get elected, that guy will work for you to get a good government job. I’ve even seen ads in old newspapers from the late 1800s in which individuals were advertising that they would be willing to pay hard cash for a good government position. Once employed, you could be fired for any reason: politics, misconduct, or a bad haircut. It didn’t really matter.

Congress eventually decided it didn’t like this approach to government employment. Therefore, it passed the Lloyd-La Follette Act early in the last century, from that point forward guaranteeing that federal employees could be fired only for such cause as supported an efficient government. That’s where we got the rule requiring nexus between misconduct and a government function, and the right of federal employees to have bad hair (unless their haircut is somehow related to the work they perform as a government worker, of course).

The theory of our civil service embodied in the Lloyd-La Follette Act is this: our country needs a cadre of meritorious employees who work for the people, not necessarily for any political party. Therefore, federal workers need some sort of protection from mistreatment (e.g., firing) by the political appointees who are brought into government to temporarily run it during any particular administration. The trade-off for federal workers is that they can no longer get a government job just because of their political connections, their political activities are restricted by the Hatch Act, and they cannot buy jobs off of Craig’s list. Those of us who have taken the oath and become civil servants have accepted this as a fair deal.

With this theory in mind, consider a hypothetical scenario for a moment. Let’s say that you are an Evil Political Overlord (EPO) appointed by the President to run some part of a federal agency. Then, pretend that you are intent on infusing your own personal political agenda into your agency, regardless of the civil service protections and in contravention of the principle embedded in the Lloyd-La Follette Act. Which of the following groups of employees would you most want to be able to fire without having to explain yourself outside of your agency?

  1. Senior executives who run the place, or
  2. Rank and file employees who do the grunt work

Well, if you’re like most EPOs, I have to believe that you would want the unreviewable right to fire your top bosses, the senior executives who supervise everyone else and who tell them what to do. Why bother with trying to get the hundreds of janitors and the file clerks to do your evil bidding when you can simply get one of your subordinate executives to do it for you.

The Sith Emperor in Star Wars had to control only his senior executive Darth Vader to rule large parts of the Empire. Boy, oh, boy … did those guys have a tough performance appraisal program.

Now that we’ve played with our hypothetical, may I be among the first to welcome you to the bold new world of the federal civil service. Recently, eight well-meaning senators introduced a bill entitled the “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017.” If enacted, that legislation would set aside a fundamental principle of our civil service, that federal employees who are fired have a basic right to have someone outside of their employing agency review the reasons for that firing, and determine if the employee has been treated fairly. For the last 40 years, that outside review has been conducted by the independent US Merit Systems Protection Board. Here at FELTG, we are among the first to criticize MSPB when we think they have missed something. At the same time, we are Number One in defending the concept of Board overview of removals and other serious discipline as a vital component of a protected core federal workforce. We think that MSPB is trying to do what Senator Robert La Follette wanted back in 1912 when he drafted legislation to de-politicize the federal civil service.

Ah, I can just hear all you smarty-pants practitioners out there, snickering among yourselves that Old Bill is once again crying wolf, stirring up concerns where concern is not warranted. This bill applies ONLY to Title 38 employees and ONLY to SES-level individuals at the Department of Veterans Affairs. Since that is a miniscule part of the two hundred million-plus federal workforce, why sound the alarm now? Congress would never take away the rights of other civil servants to challenge their dismissals outside of their employing agency.

Well, my friends, think of it this way. If you’re the Secretary of – say – Defense (or Homeland Security or Whatever), and you’re playing golf with your buddy who happens to be the Secretary of Veterans Affairs, how are you going to take it when he regales you with stories of how easy it is for him to fire executives while you’re over at DoD suffering through layers of MSPB appeals/discovery/hearings just to get rid of one of those little devils? Are you going to say, “Gee, Dave, I’m so happy for you. Clearly, it’s more important for you to have greater control of your executive service than it is for me. I couldn’t possibly go to my oversight committee and ask for a similar arrangement. Why, I almost look forward to the administrative hurdles awaiting me when I need to fire somebody.”

And if you are the Secretary of Veterans Affairs, how long will it take you to realize that if it’s good enough for your senior executives, why wouldn’t it be good enough for your other employees? Heck, just think of all the money you can save if you don’t have to subscribe to cyberFEDS© any more.

Here at FELTG, we are GS-zeros. We have no clout and we make no decisions for the government. If the Big Guys who do make big decisions decide that the civil service has had a good run and we should move on to agency-limited review rights, so be it. Maybe that’s a better way to run America than we have had the past hundred years or so. We just hope that the decision-makers understand fully the path they are opening up, and the slipperiness of taking away the external appeal rights of even a small group of career federal employees. If this legislation becomes law, the endtime for our civil service will be a step closer than it is today. To quote Lord Vader, “I sense something; a presence I have not felt since …” Perhaps he was sensing the end. [email protected]

A Potentially Devastating Impending Change

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By William Wiley, May 9, 2017

Forever, it has been black letter law in the federal workplace that an employee has to do what his supervisor tells him to do. With exceedingly rare exception (involving safety, Constitutional rights, and illegality), if a supervisor tells an employee to do something, the employee has to do it. If he doesn’t, he can be disciplined for Insubordination, perhaps even be fired.

This concept is embodied in a term often heard in a unionized workplace, “Work now; grieve later.” If an employee is confronted with an order that she believes to be improper – perhaps the order requires her to forego a break that she believes she is entitled to under the collective bargaining agreement – the employee is supposed to obey the order, then challenge the order after the fact by filing a grievance. In that balanced approach, the supervisor still gets done what needs to be done, and the employee still gets redress to correct any harm that might have occurred because of the order if it is found to have been improper after the fact.

Think what it would be like otherwise. What if an employee could disobey an order he felt was wrong? The supervisor orders the employee to do something. If the employee believed that the order violated the union-management collective bargaining agreement or some other rule, the employee could refuse to obey the order without fear of discipline. Perhaps the order would have to be subjected to oversight in the grievance procedure, and once adjudicated as consistent with the CBA, the employee would then have to obey it. Can you imagine the disruption that this would cause in the federal workplace, if supervisory orders had to be adjudicated as proper before they could be enforced?

Add to this the reality that CBAs and regulations are subject to various interpretations, that one person’s honest belief in what the rule means is different from what another person believes in good faith the rule means. If a supervisor gives an order, in my experience the supervisor believes that it is a proper order. If the employee concludes that based on his own interpretation the order violates some policy, should we really delay obedience to the order until the disagreement is resolved by an arbitrator or a judge? Holy-moly. And the public thinks that the government is inefficient as it is. Just wait until they see all those civil servants waiting around until their boss’s orders are litigated as proper before they will be obeyed.

Well, buckle up. Congress is on a path to make this hellscape scenario a reality in the federal government. Recently, the House passed HR 657, the “Follow the Rules Act,” amending 5 USC 2302(b)(9). That legislation would make it illegal for an agency to discipline a disobedient employee who was insubordinate because the employee refused to obey an order that violated a “rule or regulation.”  Let’s think this change through for a minute, from the perspective of those of us with significant experience in the federal civil service:

  • The media buzz around the passage of this bill was that it would increase protections for whistleblowers. Wrong. Whistleblower rights are embedded in 2302(b)(8). This legislation would amend 2302(b)(9). If enacted, it will apply to EVERYONE, not just those federal employees who blow the whistle.
  • If an employee reads this amendment (if the Senate and the President make this bill into a law), she would be comfortable believing that she could refuse to obey an order that she believes violates a “rule or regulation.” Well, what if it turns out she is wrong? What if her honest belief about what the order meant was simply mistaken? If she is fired for insubordination, if on appeal her argument that the order violated a rule is not affirmed, she has effectively bet her job that her interpretation was correct at the moment she chose to be insubordinate. Why in the world would we want to entice federal employees into this high-risk gamble with their livelihood when there are other ways to protect them from abuse?
  • The amendment is silent about the definition of the words “rule” and “regulation.” As we have something called the “Code of Federal Regulations,” it’s relatively easy to recognize “regulation” as referring to that body of guidance. But what is a “rule” exactly? Fortunately, the word “rule” has been in law since 1978. It can be found in the paragraph immediately above (b)(9), the paragraph that defines a whistleblower as someone who, among other things, discloses a violation of “law, rule, or regulation.” MSPB recently defined the word “rule” for this purpose as “established or authoritative standards for conduct or behavior.” In one case, it found that a simple agency memorandum could constitute a rule. See Chavez v. DVA, 120 MSPR 285 (2013); see also Raiszadeh v. DHS, DC-0752-12-0648-I-2 (2015)(NP).
  • If the Board were to use that same interpretation of “rule” for the purpose of enforcing the HR 657 amendment, just think of all the potential that an employee has for believing that a supervisor’s order violates a “rule.” Double holy-moly.
  • Again, looking to whistleblower protection law for guidance about how to interpret the proposed amendment to (b)(9), an employee is protected as a whistleblower if he discloses a violation of “law, rule, or regulation” even if he is mistaken as to whether there actually has been a violation of law, rule, or regulation! All the whistleblower needs is a “good-faith belief” that there has been a violation. See Herman v. DoJ, 115 MSPR 386 (2011). What if we were to apply that same principle to cases that arise under the proposed amendment? Do we really want to allow civil servants to disobey supervisory orders that conform with law, rule, and regulation simply because the employee has a good-faith belief that the order is improper?

Here at FELTG, we try our best not to do too much of that “The sky is falling!” stuff, raising concerns where there really are none to be raised. We hesitate to sound the alarm too many time. But this is one that might be worth your attention. Know any Senators? If so, please let them know that this thing is coming and that it has repercussions that are not being recognized. Buddies with The Big Guy? Next time you’re on the links, maybe mention that this might be a good one to veto. Because if this bill becomes law, it will legitimize and protect every federal employee who thinks his supervisor is an idiot.

And I hear that there are a lot of those around. [email protected]

Answering OMB’s April 2017 Directive

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By Barbara Haga, May 2, 2017

I am chalking this column up to doing my patriotic duty.  OMB Directive M-17-22, Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce, dated April 12, establishes a number of initiatives for changing what work is done and how work is done within the Federal government.  Agencies have a deadline of June 30, 2017 to prepare a plan to maximize employee performance.  Paragraph D.iii.1 requires that agencies review their procedures for dealing with poor performance and conduct and to “… specifically review whether their policies create unnecessary barriers for addressing poor performance.”  OMB is requiring agencies to remove steps not required in statute/regulation to streamline processes for dealing with poor performance and to establish clear guidance on the use of PIPs.

I have seen many of these “unnecessary barriers” that are included in agency performance plans and union contracts in the past ten years, so I am making a list of what needs to be eliminated.  Of course, for some of you this will mean bargaining your way out of things that someone agreed to in the past.

Barbara’s Top Four

Being in this top four list is not a good thing.  These are things that either drag out the process, allow employees to get away with doing less, create extra hoops for managers, or give employees more things to challenge through the grievance process.  We don’t need any of that.

  1. Setting a time frame for a PIP. There is nothing in 5 USC 43 or 5 CFR 432 that establishes a minimum time frame for a PIP.  Why would an agency do so?  Should it not be what is reasonable for the position?  One agency I have worked with has established a five month improvement process – a 30-day pre-PIP and then 120 days of an actual opportunity period.

If it is a GS-6 Accounting Technician who is performing hundreds of transactions in a month is 30 days not enough?  If is a GS-14 Aerospace Engineer at NASA working on design of a new spacecraft, maybe we need 90 days to get enough results to be able to make a determination whether the level of performance has improved.  It depends on the complexity of the work.

What difference does it make if we HR practitioners are just overly cautious and make a PIP extra long?  The longer the PIP the more burdensome it is on the manager who is supervising the employee.  Believe me, I know.  I have done two of these actions on employees who worked for me.  Remember what a PIP is – the employee is performing normal work assignments in as normal a work situation as the manager can provide.  However, the manager has to review the work on the elements under which the employee is on notice, determine what is correct and what isn’t, document all of that, and burn up the copy machine keeping copies of all of that work – all while doing everything she would normally be doing, meeting frequently with the employee on the PIP and keeping notes about that, and not being obvious to the other subordinates about what is going on.  It takes its toll.  The employee is, and has been, paid to perform this work and he should be able to perform it.  The managers are not the bad guys in this process, so we shouldn’t put a more onerous requirement on them than what is necessary.

Recommendation:  Revise your performance plan to say what 5 CFR 432.104 says about the length of the PIP:  For each critical element in which the employee’s performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.

  1. Mandating extensive amounts of assistance. We should also remember that the PIP is not intended to train an employee on the work their position requires – they are supposed to have the ability to do the work already.  It is an opportunity for them to show that they can perform at an acceptable level with assistance.  Some agency PIP requirements include reviewing every single piece of work the employee performed, even when it is a higher grade position. I don’t view that as assistance; it essentially is taking on the employee’s responsibilities.  In other words, the work requirements are watered down so much that even if the employee meets the PIP requirements she isn’t performing at grade.

Other agencies include assignment of mentors to the employee in the PIP.  If the employee is already qualified to do the work of the position, why would he or she need a mentor?  If, because of the span of supervision, the manager is stretched too thin to be accessible to the employee and someone is covering that management capacity to give guidance and review results of work, I am not sure the term “mentor” is accurate – work leader sounds more like it.  Mentors aren’t usually supposed to judge – they offer guidance and suggestions.

Recommendation:  Make sure that the performance system does not require anything further than “The employee will be provided assistance, which will include regular feedback from the rater on the elements in question during the PIP period.”  Anything beyond that which the agency chooses to give is just whipped cream on top!

  1. Requiring that an Unacceptable rating be assigned. There is no requirement in law or regulation that an Unacceptable rating be assigned in order to take an unacceptable performance action.  In order to propose a downgrade or removal based on unacceptable performance 5 CFR 432.105(a)(4) requires that the notice contain “both the specific instances of unacceptable performance by the employee on which the proposed action is based and the critical element(s) of the employee’s position involved in each instance of unacceptable performance.”  Requiring assignment of a rating does a couple of things.  The worst is that it creates another grievable action (or at least a request for reconsideration depending on your appraisal system) that will be running at the same time that the adverse action is being proposed and decided, using the same evidence that will be reviewed in the 432 action.  No practitioner in his or her right mind should want that to happen.

To assign a rating, you must also meet the minimum appraisal period established in your performance plan.  That is typically 90 or 120 days.  If you were beginning an action near the beginning of a cycle, your PIP would have to be at least that long.

Recommendation:  Eliminate any requirement to assign of a rating of record of Unacceptable at the end of a PIP or in order to proceed to a performance-action.

  1. Using Minimally Successful ratings. If your agency includes a Minimally Successful level (Level 2) on the element (summary ratings don’t matter here), then it is time for it to go.   If you have Level 2 then the maximum amount of improvement you can require an employee to reach during a PIP is Level 2 (try reading these cases if you don’t believe me: Jackson-Francis v. OGE, 107 FMSR 73 (2006); Henderson v. NASA, 111 FMSR 173 (2011); and Van Pritchard v. DOD, 112 FMSR 27 (2011).  Your friends at agencies that don’t have a Level 2 rating on a critical element can demand that their employees reach Fully Successful (Level 3) performance to successfully complete their PIPs.

At a minimum, Federal agencies should be able to hold employees to Level 3.  Allowing an employee to hang out at Level 2, potentially for years, and losing just their within-grades and some of their retreat rights in RIF, is crazy. But if you have a Level 2, that’s all you can require.

Recommendation:  Change your element rating scheme to eliminate Level 2 on a critical element.  Level 2 in the summary rating scheme also needs to go if you don’t have non-critical elements.

I wish I had more space.  I could have put together a longer list!

Attend a special program on this topic: Maximizing Accountability in Performance Management, July 25 in Washington, DC.

We Should Stop PIPing Bad Performers

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By William Wiley, April 25, 2017

Any of you readers who have been to any of our training sessions probably fell off of your bar stool when you read the title to this article. That’s because here at FELTG, we have sung the praises of Chapter 43 removals ever since we started presenting training sessions two decades ago. They are easy to do if you know what you’re doing and darned near bullet proof on appeal given the low standard of proof necessary to establish that removal is warranted.

Well, we are not abandoning that theme. We still believe that removals using the procedures found at 5 CFR 432 are preferable to starting a 5 CFR 752 misconduct action. What we are writing about today is the concept of a PIP. Perhaps it’s time for a change.

As we always do in our training, we begin with the law. Here’s what the statute has said since 1978 about firing poor performers from the civil service:

Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for … removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. 5 USC 4302(b).

A PIP as it is used in most every federal agency is an action that notifies the employee of prior unacceptable performance, then establishes a period into the future during which the employee has to perform acceptably or be fired. Observe that the law says nothing specific about a “performance improvement plan.” If you think about it, an agency could give an employee the statutory “opportunity to demonstrate acceptable performance” simply by giving the employee performance standards, an adequate amount of time subsequently to demonstrate whether she can do the job, then remove her if she failed to perform acceptably. The law does not say you can fire a poor performer “only after notice and a subsequent opportunity to demonstrate acceptable performance.” One could argue, if one were into statutory construction, that had Congress intended that there be notice, Congress would have called for notice in the law.

Unfortunately, that’s not how OPM interpreted the law back in the day. Given its statutory authority to issue implementing regulations, OPM came up with the requirement for notice to proceed an “improvement period” prior to an agency being allowed to fire the poor performer. That’s where we got the acronym “PIP.” The first set of regulations that OPM issued to interpret this part of the Civil Service Reform Act called for a formal “performance improvement period” to proceed any removal for failure to perform acceptably. Subsequently, OPM spruced up its regs a bit and changed (without explanation) the name of this period into a “performance improvement plan” thereby retaining the acronym PIP. Today, OPM’s regulations use no term that fits the acronym PIP, and instead revert to the original statutory language that refers to “a reasonable opportunity to demonstrate acceptable performance.” 5 CFR 432.104. Although the regulatory language now tracks the law, the concept of notice – arguably not mandated by the law – remains in effect.

Even with all these regulatory name changes, most supervisors we work with here at FELTG still use the old acronym “PIP.” It’s short, sounds nice, and is reminiscent of the backup singers for Gladys Knight. 😉 In fact, in our FELTG seminars, we sometimes exhort supervisors who have a non-performing employee to “PIP ‘em early, PIP ‘em often” just like they vote in Chicago. Well, maybe it’s time for a change.

The acronym PIP, implies an “improvement” opportunity. However, the law calls for a “demonstration” opportunity. Think how these implications are importantly different. If you were to say to me, “Demonstrate whether you can play the piano,” I would sit at a keyboard, move my fingers, and demonstrate very quickly that I cannot play anything at all. However, if you were to say to me, “Improve your ability to play the piano,” I would sit at a keyboard, do some initial finger moving, and then do more finger moving in an attempt to improve my playing ability. In other words, the fact that initially I cannot play the piano is irrelevant to whether I can improve my playing with time.

We don’t get to make the laws here at FELTG, but we do see it as our responsibility to try to understand the law so we can help those of you who attend our seminars do your jobs better and more efficiently. This statute does not mandate that an agency provide prior notice nor does it require an improvement period. It calls for an “opportunity to demonstrate” acceptable performance. We think that the terms in use today – “PIP” and even “opportunity period” – attach the wrong focus to the obligations that come into play when the civil service has a poor performer. The law seems clear to us that the requirement is on the employee to demonstrate acceptable performance with the agency providing assistance.

If it were up to us, we would wave our magic regulatory wand and decree that if indeed we are going to require notice and a subsequent evaluation period, we should drop the acronym “PIP” and instead used the term “Demonstration Period,” maybe “DP” for short. That approach places the emphasis where the Reform Act intended it to be; on the individual employee to show us whether he can perform the job he is being paid to perform.

Here at FELTG, we obviously are not too good at creating pronounceable acronyms (res ips). We have to use a little creative pronunciation to tell people orally who we are. So for the sake of being able to orally reference this new DP, I think it would be OK if we pronounced it similar to a PIP. When speaking we can call it a “DiP,” thereby allowing us to continue our admonishment to supervisors of poor performers, “DiP ‘em early; DiP ‘em often.”

And if you think the urban term “dipwad” seems appropriate, who are we to judge? [email protected]

Taking Advantage of the New Notice Leave Opportunity

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By William Wiley, April 12, 2017

We got a number of good questions following our famous FELTG Case Law Update webinar last week. A couple of them were about the new right that agencies have to avoid administrative leave and to place employees on Notice Leave once a removal is proposed. This is a terrific change, one we’ve campaigned for here at FELTG for nearly 20 years, and a flexibility that could save your life.

Seriously, it could save your life.

The new law empowers an agency to place an employee on paid Notice Leave for the duration of the notice period once a removal is proposed. Here are some related questions:

Hello FELTG Team:

Thank you very much for a wonderful training session this morning! I am very interested in the changes that are coming through the Administrative Leave Act of 2016 and have a few questions for you regarding the information presented.

Extension of Notice Period Beyond 30 Days

In the training, you addressed Notice Leave and indicated that the duration could be extend beyond 30 days. When I read the law, I interpreted it to be much more narrowly construed. The law defines notice period as “a period beginning on the date on which an employee is provided notice required under law of a proposed adverse action against the employee and ending on the date on which an agency may take the adverse action.” Generally, the first point at which an agency may take action under 5 CFR Sec. 752 is at the expiration of the 30 day notice period, which would indicate that the notice leave would expire at the 30 day mark. The interpretation seems to hinge on how “may” is defined. Is it defined as the earliest point when the action may legally be taken or is it defined as once the agency is ready to take action? I much prefer your interpretation that the notice period may be extended beyond 30 days and am interested to hear how you arrived at that conclusion.

Initial 10 Days of Investigative Leave

In the training, you spoke about the first 10 days of Investigative Leave. My understanding is that the first 10 days are considered administrative leave under Sec. 6329a(b)(1) and then the subsequent 30 day periods are Investigative Leave; is this in line with your interpretation of the law?

Employee Quits While on Investigative Leave

Do you have any insight into whether an investigation needs to be completed after an employee quits? The law seems to indicate that the employee has appeal rights if there is an eventual adverse finding. I’m unclear whether the investigation needs to be completed after the employee quits to determine whether there would have been an adverse finding or if you can cease efforts to determine if there was misconduct.

Any insights you can provide are much appreciated and thank you again for a great training session.

And, our FELTG response:

Thanks for your questions, oh wise and inquisitive participant. Of course, here at FELTG we do not claim to know the answers any better than you do as we are all working from the same cold language of the law. But here are my thoughts:

Extension of Notice Period Beyond 30 Days:  To me, the term “may take action” is ambiguous enough for me to interpret it to my benefit until I’m told otherwise. For example, although in most situations an agency “may” be able to take an action at the end of the 30-day notice period, in other situations it may not. For example, if the deciding official has conducted an independent investigation into the charges and plans to use the results of that investigation in making a decision, he may not make that decision until the employee has been given at least seven days to respond to the new information. Or, perhaps the CBA says that the employee will be given 45 days to respond instead of the 30-day statutory minimum. Depending on circumstances, then, the notice period might run beyond 30 days, and the DO may not make a decision until a response is made or waived. Separately, if Congress had intended that Notice Leave be only for 30 days because that is the minimum statutory period, it easily could have specifically limited Notice Leave to 30 days instead of leaving it open to the interpretation of “may.” Since it is to my benefit as the agency representative to have the employee on Notice Leave longer than 30 days in some situations, since the employee has no way to challenge the placement on Notice Leave, and since the employee is not procedurally harmed if I am wrong in using Notice Leave beyond 30 days, I interpret the law to allow me to use Notice Leave beyond 30 days until someone bigger than I am tells me to stop.

Initial 10 Days of Investigative Leave: I have no problem with your interpretation. Close enough for FELTG work.

Employee Quits While on Investigative Leave:  Nothing in this law nor any other law of which I’m aware requires an agency to continue an investigation beyond the separation of the employee. I’m not sure whether it came across in the webinar, but I think this whole record-annotation thing is misplaced effort and does little to improve our civil service while costing us the potential expense of a full blown MSPB appeal. The Latin term I am looking for is “stupid.” Therefore, unless a proverbial gun was placed to my head, I would do whatever is necessary to avoid any of this wasted effort, including discontinuing an investigation short of an adverse finding. Goodness knows we all have better things to do to help run the government.

And, another Notice leave related question:

Dear FELTG-Folk-

During the webinar when discussing Notice Leave, Mr. Wiley made a comment that only 2 sentences would need to be added to a proposal notice.  Unfortunately none of us attending the webinar caught what the 2 sentences were.  Would it be possible to get that information?

Our FELTG best-guess response:

It’s always risky interpreting a law before we’ve had any interpretative guidance from the courts, but here’s what I think we need to say in the proposal letter:

“Effective immediately, I am placing you in a paid leave status during the notice period of this proposed removal. I have considered reassigning you to other duties and allowing you to take other leave, but it is my determination that these alternatives would jeopardize legitimate government interests.”

Since the employee cannot directly challenge being placed on Notice Leave, and since there would be no harmful error even if this language is subsequently found not to be correct, I’m standing by these two sentences until I hear differently.

Hope this helps.  [email protected]

From Confusion, Enlightenment

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By William Wiley, April 4, 2017

OK, so I messed up. Last month, some of you might have read an article we distributed that spoke highly of the value of Last Rites agreements, deals that supervisors can cut with employees so that the employee leaves voluntarily rather than getting fired. Unfortunately, when I drafted that piece, I was just coming off a high fever and a near-death medical experience, and my brain wasn’t working too good. Given that even when I’m healthy, my brain doesn’t work too good, I was in bad shape.

The Confusion

Although I intended for the entire article to be about a Last Rites agreement, I inadvertently used the term “Last Chance” agreement once or twice. Please reread the article, mentally substitute “Last Rites” for “Last Chance,” and you’ll get the meaning I was after.

The Enlightenment

A couple of readers who caught the gaffe noted that they could use an explanation of the two different agreements. Had I not made the mistake, I would not have gotten that feedback nor would I have realized a need for greater clarity. So here comes the enlightenment from my confusing article.

Usually, a Last Rites agreement is negotiated at that point that the supervisor has reached the conclusion that the employee needs to no longer be employed in his position. Many times, the supervisor has already collected enough evidence to propose a removal based on either misconduct or unacceptable performance. Here’s how it works in most cases:

  1. The supervisor or someone on her behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that he has a removal facing him soon, and is offered the chance to resign voluntarily rather than be fired. Some employees see a resignation to be an advantage to being fired because the employee’s Official Personnel File will record a voluntary quit rather than a forced removal.
  2. Supervisors see voluntary quits as an advantage to firing the employee because the quit is effective immediately at getting the employee out of the workplace, and the employee has waived appeal/grievance/complaint rights in a well-worded Last Rites agreement (sample in the back of your copy of the FELTG textbook UnCivil Servant).
  3. The employee has the choice between being fired and exercising appeal rights, or quitting and forgoing appeal rights in exchange for a “clean record.” Sometimes agencies will incorporate a little time off or attorney fees as an extra incentive to resign. MSPB has a perfect record at upholding agreements like these as long as the agency does not mislead the employee.

A Last Chance agreement, as its name suggests, is negotiated between management and the employee at the time that a decision has been made to fire the employee. Usually, it happens like this:

  1. The supervisor proposes the employee’s removal based on some specific act of misconduct or unacceptable performance.
  2. The employee responds and defends herself or asks for mercy from the deciding official.
  3. Then, the deciding official or someone on his behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that the decision to remove her has been made, but that the deciding official is willing to hold the implementation of that decision in abeyance for some specific period of time: often one or two years. In exchange for not being fired immediately, the employee agrees to whatever the agency can get: promises to perform acceptably, to refrain from future misconduct, attend anger management training, apologize, etc. In addition, he agrees to waive rights to appeal/grieve/complain anything related to the removal action being held in abeyance.
  4. If during the abeyance period the employee violates the Last Chance agreement, the agency is free to remove him immediately based on the previous misconduct that was the basis for the agreement (not based on the misconduct that is the breach). The advantage to the agency if this happens is that.
    • The employee can appeal, but he has the burden of proving he did not breach the agreement. The agency does not have the burden of proving the charged misconduct nor does it have to prove that the agreement was breached.
    • The Douglas Factors are immaterial. The employee has effectively accepted the reasonableness of a removal penalty by entering into the agreement.
    • The Board loves these things. It hardly ever sets them aside based on fraud, mutual mistake, or bad faith. Although these are traditional bases for finding contracts to be void, we can count on one hand the number of times these agreements have been found by MSPB to be invalid.

In one of my favorite Last Chance Agreement removals, the Board upheld the termination of an employee who was on an LCA when the employee breached the no-misconduct part of the agreement by sending a single email referring to a coworker as a “kiss ass.” If you draft an LCA tight and broad, you can characterize almost any act of future misconduct as a breach, acts that would not have to independently warrant removal.

Don’t forget: If you’re dealing with a collective bargaining unit employee, you need to invite the union to any formal discussions you have when negotiating agreements like these. In my practice, I have found it useful to explain Last Rites and Last Chance agreements to union officials before I ever need to use them. A good union rep will do a little research and see the significant advantage for an employee to have these options to a removal. In fact, I’ve even had union officials do a little arm twisting on their own to try to get the CBU employee to understand the advantages of these sorts of deals.

If you need more details on tactics to use and language to employ in agreements like these, be sure to sign up for our next class in the art of the deal (civil service edition – otherwise known as Settlement Week) October 30-November 3 in Washington, DC. [email protected]

EEO Complaints and Last Rites Agreements

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By William Wiley, March 28, 2017

Oh, boy. Another great issue raised by a regular-reader who’s just trying to do the right thing:

Dear FELTG-

I am an L/ER specialist who provides advice and guidance to managers on disciplinary and adverse actions, including removals.  It seems like we put forth a lot of time and effort into removing federal employees who then file MSPB appeals. Then, management ends up settling for a few thousand dollars and a voluntary resignation with the employee.  There is also a misconception, in my opinion, that employees who are behaving badly cannot be touched if they file a claim of discrimination.  Managers seem to be gun shy once an employee claims discrimination.  There has got to be a better way!

And here’s our FELTG response to this excellent issue:

Dear Loyal Reader,

You have raised an issue that highlights a significant change in the business of federal employment law. In our early days under the Civil Service Reform Act of 1978, a successful practitioner was seen as someone who built a good case, then litigated the devil out of it by representing the agency (or union) in deposition, hearing, and appeal, never giving an inch and fighting to the bitter end to establish not only victory, but righteousness. Some went so far as to bully and threaten their opposite party, all while strictly following procedure, with the ultimate goal of eventually being declared the “winner.”

You would have thought we were trying to get a bill through Congress, or something. 🙂

Today, for the serious practitioner in federal employment law, whether Human Resources professional, union official, or attorney, we have come to figure out that we are all better off, and the country the stronger for it, when we resolve workplace disputes without going through litigation. When you consider the resource expenditure that is necessary to defend a management action through EEOC, MSPB, OSC, FLRA, or in arbitration (into six figures for a successful management defense before MSPB), you must admit that something that achieves the same result but costs you less is a better deal for America.

And as every seasoned attorney and Human Resources professional knows, that magical cheap tool, the one that guarantees success every time without the inherent risk of litigation, is called a “Last Chance Agreement” (LCA). I cut my first one in 1979 and helped set another one last fall. In between, I’ve seen hundreds, either personally or in cases on appeal to MSPB where I was Chief Counsel to the Chairman during the ’90s. Here’s how they work:

Step 1.  The supervisor initiates the removal process. Perhaps it’s placing the employee on a Performance Improvement Plan (PIP). Or, maybe it’s a proposed removal for serious or repeated misconduct. MSPB recently reported that only about one in five removals that are initiated ever work their way to a decision by MSPB on appeal. Over at EEOC, maybe 1 in 50 formal complaints ever sees a judge. That’s because smart agency practitioners have learned the benefit of cutting a deal, with the ultimate deal being a Last Rites Agreement.

Step 2.  The practitioner, acting on behalf of the agency, offers the employee something in exchange for the employee’s promise to leave voluntarily. You see, the reason we initiate PIPs and propose removals is to get bad employees out of the workplace. If we can accomplish that goal without litigation, the citizens and their government are the beneficiaries.

Step 3.  If the employee accepts the offer, or through negotiation develops an offer that is acceptable although different from the original offer, the parties draft and sign an agreement. Those of you with the greatest and most amazing textbook in our field, UnCivil Servant, will find a sample format in the back entitled “Agency Supported Job Search Agreement.” The agency wants to be sure that it gives something to the employee in exchange for the employee agreeing to leave voluntarily without an appeal. That exchange of consideration is how a contract is made. Agencies that do not give anything have a void contract, according to both EEOC and MSPB. A common ironclad consideration in a Last Chance Agreement is for the agency to place the employee on administrative leave for some period of time in exchange for the employee quitting.

And that’s it. Effective immediately, reversible only if the employee was confused (or lied to) about some underlying fact…an enforceable contract with low cost and immediate results. Unfortunately, I’ve run into some attendees in our FELTG seminars who never heard of this wonderful accountability tool. I once had an attorney tell me that administrative leave was not adequate consideration to form a binding contract. Grrrr. Apparently that individual did not pay attention in his Contracts class in law school.

Another time, a Human Resources specialist asked why such an agreement was not a “constructive discharge.” I was forgiving of the questioner as she had been in the business only a few months and had not had the opportunity to read the case law or be trained before she came to our seminar. A similar question from someone who claimed to be experienced in our work would give me serious pause. We’ve had case law since the ’60s (originally from the old Claims Court) that finds that it is perfectly legal to give a federal employee a difficult choice to make among distasteful options. A constructive discharge occurs only when the employee is given incorrect information, or no option but to resign at the time the agreement is signed.

Finally, on occasion I have run into an uninformed inexperienced practitioner who for some reason thinks that the only way to deal with a problem employee is through the standard regulations found in 5 CFR 752 or 432. “We’ve always done it that way. Why break with tradition? The old processes have worked before.” When I hear that, I picture the person wearing hundred-year-old clothing, standing on the street corner, grumbling to anyone who will listen about “those newfangled horseless carriages. What’s wrong with a horse and buggy? I don’t really mind how slow they are, or how expensive they are to care for – and stepping around all that horse poop is not as much of a problem as people say it is.”

Bonus inside scoop: EEOC and MSPB LOVE these sorts of agreements. Legally speaking, they will say in public how these resolutions support mutual dealing with each side realizing the value in giving and taking without litigation. Practically speaking, and perhaps not-so-in-public, the good folks at the oversight agencies realize that a complaint or appeal settled without adjudication is one less hearing they have to hold and at least one less decision they have to produce; in other words, one additional chance for them to get home in time to have dinner with the kids or watch The World Series of Cage Fighting. You will not find a case decision in any oversight forum that holds that the offer of a bona fide last chance agreement – one based on fact and with consideration – has been held to be reprisal.

And, Lordy, I hope I never see an email from an agency attorney or Human Resources professional that recommends that a bona fide Last Rites Agreement NOT be offered out of fear that the EEO-complaining-employee will file a reprisal complaint. Legally, that would be what we agency lawyers like to call “per se retaliation.” Euphemistically, that would be what our colleagues who work the other side of the table, the folks who represent employees, like to call “the smoking gun.”

In my experience, after they call “the smoking gun,” they next call the Tesla dealer and say, “I’ll be ordering the upgrade model with ludicrous speed.”

If you are not utilizing Last Rites Agreements in your practice, you are failing to deploy one of the most versatile, valuable and efficient tools we have in the field of federal employment law. If you do not know enough to appreciate their value, read the case law. Attend our seminars. Talk with others who have used them successfully. Buy the UnCivil Servant textbook that walks you through the process. There is no excuse for not understanding how to avoid the death-march of EEO litigation with this alternative.

Besides, eventually you’re going to get awfully tired of stepping around all those smelly old horse droppings.

Best of luck. [email protected]

We Need a Theory of Discipline in the Civil Service

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By William Wiley, March 7, 2017

A “theory” is a contemplative and rationalized type of thinking, based on observations, deductions, and conclusions. In other words, it’s a reasoned explanation of the way that things happen and is predictive about how they will happen in the future.

That’s exactly what we need in the world of federal employee accountability, and I think we should be embarrassed that we don’t have one already. Probably every reader of this newsletter is involved in some way in holding civil servants accountable for their misconduct. Yet we as a professional group have no official formal theory to guide us on the best approaches to take when disciplining an employee, an analysis of why we bother to discipline at all, and an integration of that contemplative type of thinking into the laws and regulations that limit how discipline will be administered in federal agencies.

And this is a big deal. For example, do we discipline someone to punish him for an act of misconduct, or do we discipline him to correct his behavior? Depending on your theory of discipline, your answers will be different:

  • Punitive: If the goal is to punish the employee, to take “an eye for an eye,” then we select a discipline option in rough value to the harm caused by the misconduct. Back from lunch 10 minutes late, thereby delaying a coworker’s lunch by 10 minutes? You get a reprimand. Do it again in six months, another reprimand (because the harm is the same each time). For each act of discipline, we weigh the harm, then try to find a punishment of about that value to be administered. Our criminal justice system in general selects punishments in this manner. Each act of criminal behavior stands relatively independent of the others that might have occurred previously in a particular criminal’s life.
  • Corrective: If the goal is to correct behavior, when selecting a penalty option, we would consider the harm caused by the current act of misconduct PLUS the history of prior instances of discipline and their success or failure in dissuading the employee from engaging in future misconduct. The workplace theory of progressive discipline is based on this approach. If two employees come back from lunch 30 minutes late, and one of them has previously been disciplined, then that employee might receive a stronger punishment than the employee who we’ve never had to correct before. In comparison, if the goal were to punish and seek retribution, then both would receive the same penalty regardless of previous attempts to correct behavior.

The reason this is so important is that MSPB seems to confuse these two approaches to a general theory of discipline when deciding appropriate penalties. In most cases, the Board appears to adhere to the corrective approach to discipline, and does so when analyzing the Douglas Factor penalty selection factors. If the employee has prior discipline, then the agency’s decision makers are empowered to administer more severe discipline than they would otherwise. But in other cases, the Board will mitigate a removal to a suspension even though the employee has previously been suspended; e.g., Suggs v. DVA, 2010 MSPB 99. The Board has even been known to mitigate a removal to a suspension of shorter duration than one administered previously. If the goal were to correct behavior, if a 10-day suspension did not do it, why on Earth would you think that a 5-day suspension would be a better subsequent action?

In a related manner, the Board recently has moved away from a theory of discipline founded firmly in progressive discipline. The old Civil Service Commission used to teach that the federal service has a three-strike discipline philosophy:

  • First offense: Reprimand
  • Second offense: Suspension
  • Third Offense: Removal

I remember my Commission instructor in 1977 explaining the three-strike approach by saying that a federal agency does not have to continue to employ an individual who does not respond to discipline; e.g., that responding to discipline by correcting one’s behavior is an important characteristic of being a civil servant.

In comparison, MSPB has moved over the past decade toward discounting prior discipline UNLESS the discipline was administered for misconduct similar to the current act of misconduct. Taken to the extreme, this approach would mean that an agency that has 50 charges in its table of penalties would be expected to try to correct the employee’s behavior RELATIVE TO EACH OF THE 50 CHARGES prior to removing him using progressive discipline. The absurdity of this outcome highlights the fallacy of this approach.

And finally, as we’ve whined about in this here newsletter before, some of the Board’s mitigations of removals to lesser punishments make no sense if our discipline theory is to correct behavior, and make perfect sense if our discipline theory is to punish behavior. We’ve seen cases in which MSPB mitigates a removal to a 30, 60, or 90-day suspension WITHOUT ANY CONSIDERATION ABOUT WHETHER A LONGER SUSPENSION IS MORE LIKELY TO CORRECT BEHAVIOR THAN A SHORTER SUSPENSION. In other cases, we’ve seen the Board mitigate removals to a demotion WITHOUT ANY CONSIDERATION ABOUT WHETHER THAT PENALTY WILL CORRECT BEHAVIOR OR EVEN IF THE AGENCY HAS LOWER-LEVEL WORK FOR THE DEMOTED EMPLOYEE TO DO. The mitigation of removals to demotions and long suspensions is based more on the Punitive theory of discipline than the Corrective theory of discipline.

With all due respect, MSPB should not be in the business of deciding the discipline theory for the federal service. Our leadership components should do that: OPM, senior agency managers, the President himself, perhaps. MSPB should apply the law and enforce that theory, but not make it up, certainly not on the fly and as inconsistently as it has been doing recently. A discipline theory should be borne of line management concerns, not legal concerns.

So what would be the components of a good theory of discipline? Well, aren’t you lucky. Here at FELTG, we have more opinions than the new administration has vacancies in senior positions. If you are at a policy level and are considering developing a theory of discipline for your agency or perhaps for the entire federal government (yes, I’m talking to you, new OPM Director, wherever you are), here are some essential elements of a good discipline policy:

  1. Discipline should be corrective, not punitive. If a discipline option does not have the potential to correct behavior, it should not be used.
  2. There are three (and only three) actions that should be used to correct bad behavior: Reprimands, Suspensions, and Removals. No more Letters of Caution, Admonishments, Counselings, Warnings, Expectations, or singing freaking Kumbaya to the employee to try to get her to do what you want her to do. She either does it or she gets disciplined for not doing it (or you choose to do nothing, if you’re that kind of supervisor).
  3. Suspensions should be avoided. There is no evidence that a suspension is an effective negative reinforcement that acts to dissuade future misconduct. In addition, the agency pays a price when it denies itself the services of the employee via a suspension. It either gets by without the contribution the employee would have made on the days of suspension, or it has to punish coworkers by requiring them to do the bad hombre’s work while he is home watching Fox & Friends. Remember, we’re trying to be corrective, not punitive.
  4. There should be three steps in progressive discipline: 1) Reprimand, 2) Final Reprimand, then 3) Removal if acts of misconduct continue to occur. And for the purposes of progressive discipline, it is immaterial that the prior discipline was for a different type of misconduct. We’re trying to get the employee to obey ALL of the agency’s rules, not just one at a time.
  5. If you have need for the employee’s services in a lower-graded position, you can offer that position to him as an alternative to being removed. If he declines the voluntary demotion, he gets removed. If he accepts the voluntary demotion, he waives any rights he might have to challenge the action.

Get organized. Take control. Develop a theory of discipline, put it into your official discipline policy statement, and go out there and hold employees accountable. Leave the singing of Kumbaya to the lovely and talented Joan Baez. [email protected]