By William Wiley, August 21, 2018

GAO recent released what could have been a Breaking News report entitled “Federal Employee Misconduct: Actions Needed to Ensure Agencies Have Tools to Effectively Address Misconduct (July 2018).” Given the recent kerfuffle about increasing employee accountability through Executive Order and redesigning the civil service through legislation, one would have hoped for some data and recommendations from a neutral outside body as to what can be done to make things better. Unfortunately, although in many ways comprehensive, the report doesn’t really set any pants on fire with its recommendations.

First, a short look at some of the report’s findings that parallel what we’ve been screaming from the FELTG mountaintop for about 20 years:

  • Supervisors should receive initial and ongoing training in discipline and performance procedures.
  • Supervisors should be held accountable for addressing misconduct in a timely manner.
  • Human resources and legal staff should work together with the supervisor to help put together the necessary adverse or performance action.

In addition to these recommendations (which we heartily support, but are nothing particularly ground-shaking) GAO unearthed some helpful statistics when it comes to the current health of our civil service accountability measures:

  1. Less than 1% of the federal workforce receives a suspension, demotion, or termination in any given year.
  2. 25% of employees who are suspended have been suspended before.
  3. Of the group of actions known as “appealable adverse actions” (long suspensions, demotions, and firings), 60% are suspensions.

The thing that’s missing from the report that would be immensely helpful is for SOMEBODY to address this data and make a determination as to whether this indicates a well-functioning civil service discipline program, a mediocre program, or a program that we could not trade for a bucket of warm spit. The White House tells us that it wants the government to be run like a business. Well, wouldn’t it have been helpful to have some comparative statistics from private businesses? How about other countries that have what we would consider to be well-functioning civil services? Does France discipline its “fonctionnaires” at a rate similar to ours? How about the Crown employees in the UK? How often does the Queen act as a Deciding Official in a removal case?

Somebody needs to take this data and turn it into policy. As usual, since nobody else is picking up this responsibility, we here at FELTG jump into the driver’s seat because this bus isn’t going anywhere until policies get crafted and implemented. So here we go. The FELTG take on what to do with the data above:

Less than 1% of the federal workforce receives a suspension, demotion, or termination in any given year. This number seems low by about 80% of what it should be. Several years ago, the MSPB Chairman said that the percent of the federal workforce that was not doing its job is around 5%. That number matches up nicely with what studies of large organizations have shown us is true in the private sector and academic institutions: About 5-7% of the workforce needs to get better or get fired. Given that we appear to be exceedingly low in the number of disciplinary actions taken each year, our FELTG recommendation would be:

  • Mandatory training for all supervisors, HR staff, and attorneys in how to take these actions fairly and efficiently.
  • Performance standards for all supervisors that rate them on their accountability efforts.
  • Targets for HR offices and agency counsel that set the number of employees that should be fired based on a percent of the workforce; e.g., agencies would be expected to hold HR and legal offices responsible for supporting supervisors in disciplining or removing 3% of the workforce each year.

25% of employees who are suspended have been suspended before. If discipline is supposed to be corrective rather than punitive, it makes no sense to impose a second suspension if the first suspension did not correct the bad behavior. Albert Einstein is broadly credited with exclaiming, “The definition of insanity is doing the same thing over and over again but expecting different results.” Our FELTG recommendation would be that agencies who choose to use suspensions in their accountability programs state in their discipline policy instructions that supervisors can suspend employees once, but no more than once, absent exceedingly rare circumstances, and then only with the approval of the agency’s CHCO.

Of the group of actions known as “appealable adverse actions” (long suspensions, demotions, and firings), 60% are suspensions. Long suspensions hurt the agency often more than they hurt the employee. Who is going to do the work of the suspended employee for the three or more weeks he’s not at work? Will the agency hire temporary contractors? Pay for overtime? Or, simply not cause the work to get done? As for demotions, they hardly ever make sense. If you demote an employee, you now have to accept work at the lower grade. If an employee has done something bad enough to warrant a demotion, 95 out of 100 times, removal is also warranted. Executive Order 13839 states that a “suspension should not be a substitute for a removal.” The same could be said for demotions. Our FELTG policy suggestion is for agencies to state in their discipline policy instructions that supervisors are not to use long suspensions to discipline employees. In addition, voluntary demotions can be offered to employees in lieu of a proposed removal, but otherwise should be avoided.

The GAO report also raises a couple of Deep Thought policy issues beyond those we’ve discussed above. We’ll save an analysis of those for another article. Wiley@FELTG.com

 

 

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