By Ann Boehm, October 16, 2019
Employee relations specialists, supervisors, and attorneys at agencies all around the country have one thing in common – they love, love, love their agency’s Table of Penalties. And I just don’t get it.
When I became Chief of Discipline Management at my former agency, I too thought the TOP should be the focus of all discipline.
What I learned instantly, though, was that the TOP is pretty much useless because of the way federal agencies have to charge employee misconduct. In order to comply with years of Merit Systems Protection Board and Federal Circuit law, agencies have to prove every word of a charge against an employee. The result is that the TOP often doesn’t match what the agency charges.
In countless disciplinary letters I reviewed, the following phrase appeared: “Although there is no offense in the TOP directly relevant to the charge in this case, the most closely related is [Enter Offense from TOP Here].” The reference to the TOP resulted in wasted words and nothing gained. So, a nothingburger, basically.
I did a Google search for Table of Penalties and, using the first one that appeared (the agency name is withheld to protect the innocent), I noticed a couple of things of interest. First, 53 offenses are listed. In 18 of them (34%), the recommended penalty for a first offense is “Written Reprimand to Removal.” Well, isn’t that helpful – NOT!
That’s the penalty range for anything and everything. So what in the world is good about the TOP in that respect? Second, when is the last time you saw someone charged with “Negligent or intentional injury to person or property of other employees”? Never. Because the MSPB would not sustain that charge and the agency would lose. That’s also one of the ever-so-helpful “written reprimand to removal” offenses. There are almost no offenses in any TOP that would actually be used as the “charge” in an appealable adverse action.
The Good News for this month is that the Office of Personnel Management (OPM) agrees with me: The TOP is not helpful and may even be harmful.
In the proposed revisions to 5 CFR part 752 issued on September 17, 2019, OPM notes that the “creation and use of a [TOP] is not required by statute, case law or OPM regulation, and OPM does not provide written guidance on this topic.” Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions, 84 Fed. Reg. 48794 (Sept. 17, 2019). Let me boil that down for you. OPM notes that because agencies are to discipline based upon the “efficiency of the service,” agencies “have the ability to address misconduct appropriately without a [TOP], and with sufficient flexibility to determine the appropriate penalty for each instance of misconduct.” 84 Fed. Reg. at 48798. OPM also states that TOPs “may create drawbacks to the viability of a particular action and to effective management.” 84 Fed. Reg. at 48798. In that regard, OPM explains that “by creating a range of penalties for an offense,” a TOP may “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.” Id.
So what’s an agency to do? Use the Douglas factors (Douglas v. VA, 5 M.S.P.R. 280 (1981)), and not the TOP.
The proposed regulations actually direct agencies to “propose and impose a penalty that is within the bounds of tolerable reasonableness” as established by the MSPB in Douglas. Notably, this will now apply to any removal, demotion, or suspension, including suspensions for 1-14 days. 84 Fed. Reg. at 48798.
As OPM directs, “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 [TOPs].” Id.
My friends, say goodbye to the beloved, if not exactly precise, TOP and start using all 12 of the Douglas factors. Once you break free of the TOP, I think you will see that you did not need it at all. OPM wants you to do it. Take their direction and believe! This is Good News!! [email protected]
