By William Wiley, June 21, 2022
In a recent, relatively unremarkable, non-precedential decision from the Merit Systems Protection Board, I ran across this line:
After reviewing … the appellant’s written reply, as well as the information provided during the oral reply, the deciding official issued a decision … mitigating the proposed removal to a 30-day suspension.
We’ve been teaching the best practices of Federal civil service law for more than 20 years. Most of these best practices were not invented by us. They grew from a careful reading of the 20-plus years of MSPB case law that preceded our founding. The above quote tells us some agencies still don’t understand these basic best practices of civil service accountability. What do we see here that sticks out like a sore thumb? What best practices appear to have been violated here?
BEST PRACTICE No. 1: Do not suspend for more than 14 days. If an agency suspends an employee for 14 days or fewer, the employee’s challenge to that action stays within the agency (except for affirmative claims that the employee will have to prove before EEOC or the US Office of Special Counsel). There are three good reasons for keeping suspensions short:
- An employee can challenge a longer suspension of more than 14 days to the MSPB. At the discretion of the employee, an appeal to MSPB will include an in-person hearing before an administrative judge (with all the related legal filings, official-time testimony, and untoward publicity), review and an opinion by the three Presidentially appointed Board members, review and a decision by at least three Federal judges on the Federal Circuit Court of Appeals, and even consideration by the nine Justices of the US Supreme Court. An employee’s challenge to a suspension of 14 days or fewer stays within agency management, usually just one step above the manager who implemented the suspension (unless the employee is in a union that agrees to hire an arbitrator to hear the grievance). You should not have to think about these two redress options to appreciate why a longer suspension is more resource-hungry and less certain of a righteous conclusion than 14 days or fewer.
- Suspending an employee adversely affects the agency. Either the employee’s work does not get done for the length of the suspension, coworkers must assume the extra burden of the employee’s workload, or the work is done by outside contractors ($$$). The longer the suspension, the greater the cost to the agency.
- Discipline should be corrective, not punitive. The government gains nothing by punishing employees unless that punishment acts to correct the employee’s misconduct. Although it may seem counterintuitive, there are no science-based studies that conclude that a longer suspension is more likely to dissuade the employee from future misconduct than is a shorter suspension. Look it up.
- Do you really want to punish employees to get them to do their darned job? There’s good reason to never suspend an employee for disciplinary reasons, but if you must, at least keep it short.
BEST PRACTICE No. 2: Do not mitigate a proposed removal to lesser discipline. Hopefully, you know how adverse actions usually work in the Federal government. First, the immediate supervisor issues a proposal notice to the employee that specifies (a) the misconduct and (b) the level of discipline that the supervisor thinks is warranted. Then, a higher-level manager, the “deciding official”, hears the employee’s defense and decides whether the proposed level of discipline or some lesser discipline is warranted. It appears from the above statement that the DO concluded that the proposed discipline was excessive, and unilaterally mitigated the proposed removal to a suspension.
That’s all perfectly legal. However, there is a better way to approach this situation. When a DO concludes that a lesser penalty is warranted, the best approach is to have someone on behalf of the DO talk with the employee and his representative to see if the employee would be willing to voluntarily accept a lesser penalty than the one proposed: “Pat, the Director has considered the proposed removal and heard your response. She thinks that what you did is wrong and that your removal is warranted. However, the Director also believes that you might have learned your lesson and might be able to follow our rules in the future. If you would be willing to admit your mistake, acknowledge responsibility for your actions, and voluntarily accept a lesser disciplinary action, she would be willing to impose a 14-day suspension instead of a removal.”
If the employee accepts the offer, you draft a nice agreement that says that the employee waives all appeal/grievance/complaint rights in exchange for the lesser discipline. If the employee says, “Heck, No! I’ll see you in court, you stinkin’ management goon!!” the DO can still mitigate the proposed removal to a suspension if that’s what’s warranted. Or even stick with the proposed removal, referencing the employee’s refusal to accept responsibility as an aggravating Douglas penalty-selection factor.
There are a lot of people in our field who provide advice to agency management officials. Some use the best practices that we teach at FELTG and do a good job. Others … well, let’s just say that for the sake of our great country, we hope they learn to do better. Wiley@FELTG.com