By Deborah Hopkins, May 21, 2021
While it’s rare to see an individual in the Senior Executive Service (SES) receive disciplinary action, every now and then an SES breaks bad, and agencies respond accordingly. During a recent UnCivil Servant training class [Editor’s note: Don’t miss our next UnCivil Servant open enrollment class September 8-9], we received a number of questions about the process of disciplining a career SES, so I thought I’d share an overview with the FELTG Nation. As you’ll see there are some similarities between SES and non SES discipline – and a few significant differences.
An agency may take disciplinary action against a career SES member (covered by subchapter V of chapter 75 of title 5 of the U.S. Code) only for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.
Unlike unacceptable performance cases, which rather than removal provide the SES with placement rights into another position, any career SES removed for disciplinary reasons has no placement rights.
How it’s the same
Probationers. A probationary career SES member who was not covered by 5 U.S.C. 7511 immediately before SES appointment may be removed for misconduct. The employee must be notified in writing, and the action must be effective before the end of the last scheduled workday in the probationary period. For removals over conditions arising before appointment to the SES, the agency must provide advance written notice (the proposal letter) stating specific reasons for proposed removal, an opportunity to reply, and a written decision showing reasons for the action and the effective date.
Procedures. For suspensions greater than 14 days and for removals, the SES is entitled to advance written notice, at least 7 days to respond, the right to a representative, an impartial decision, and the right to appeal the action to MSPB.
How it’s different
Nexus. The “efficiency of the service” standard used for non-SES employees does not apply in SES discipline. However, if an agency wishes to take disciplinary action based on the appointee’s off-duty actions or misconduct, the agency must demonstrate a direct connection between the off-duty actions and the appointee’s ability to carry out the assigned responsibilities of his/her/their position.
No short suspensions. The law is silent on short suspensions for SES. OPM’s interpretation is that because there is no statutory authority for such action, agencies may not suspend an SES member for 14 days or fewer. However, agencies are not restricted from issuing a written reprimand for an offense that does not warrant a suspension or removal.
No demotions. By law, there are no demotions in the SES. That said, an agency is allowed to reduce the pay of a career SES appointee by up to 10 percent as disciplinary action for misconduct.
If the agency chooses this route, the SES must be:
- Provided written notice at least 15 days in advance of the effective date,
- Given at least 7 days to respond,
- Given the opportunity to have a representative,
- Given a written decision containing reasons for any pay reduction, and
- Given an opportunity to request reconsideration by the agency head within 7 days of the decision.
There is no third party review of this type of pay reduction. Sometimes, in lieu of a pay reduction, an agency will remove the SES member for misconduct, and then appoint them into a GS-15 or 14 position.
I hope this helps clarify the specifics on disciplining an SES. Next time, we’ll tackle SES performance. Hopkins@FELTG.com