What Every Federal Manager Needs to Know Before Deciding What Action to Take for Employee Misconduct
by Bob Gilson |
While Federal law specifically addresses the removal of a career civil service employee for treason and for unacceptable performance in detail, taking discipline for other reasons isn’t so clearly spelled out. In this article, I’m trying to lay out an easy to understand path through the maze of Federal rules governing discipline for managers who don’t walk these paths every day.
As far as I know, only the Transportation Security Administration (TSA), has a law mandating removal for certain offenses. In TSA’s case, the offenses are those involving drug and alcohol use and theft. Many would agree that employees who literally have their hands in your pocket should face dire consequences for abusing such a trusted position.
For the rest of Federal career employees, the standards used to determine whether disciplinary (reprimands, suspensions of 14 days or less) or adverse (suspensions over 14 days, demotions or removals) action are decided by law in the case of adverse actions and often "just cause" for lesser offenses if reviewed by an arbitrator. It’s important to remember that a Supreme Court decision in 1985 (Cornelius v. Nutt) held that for adverse actions, arbitrators must apply the same standards as those used by the Merit System Protection Board (MSPB). Let’s look at the various standards and how they work.
Just cause is a standard or test often applied by arbitrators to determine the appropriateness of a disciplinary action. The standard is either set by the labor agreement or applied by the arbitrator in the absence of a set standard. (On that note, if I were an Agency negotiator, I might like to be the one proposing the elements of the standard.)
A wide variety of wording encompasses "just cause" but the following factors (From UMASS’ website) are pretty typical:
- Was the employee adequately warned of the consequences of his conduct? The warning may be given orally or in printed form. An exception may be made for certain conduct, such as insubordination, coming to work drunk, drinking on the job, or stealing company property, that is so serious that the employee is expected to know it will be punishable.
- Was the company’s rule or order reasonably related to efficient and safe operations?
- Did management investigate before administering the discipline? The investigation normally should be made before the decision to discipline is made.
- Was the investigation fair and objective?
- Did the investigation produce substantial evidence or proof of guilt? It is not required that the evidence be preponderant, conclusive, or "beyond reasonable doubt," except where the alleged misconduct is of such a criminal or reprehensible nature as to stigmatize the employee and seriously impair his chances for future employment.
- Were the rules, orders, and penalties applied evenhandedly and without discrimination? If enforcement has been lax in the past, management cannot suddenly reverse its course and begin to crack down without first warning employees of its intent.
- Was the penalty reasonably related to the seriousness of the offense and the past record? If employee A’s past record is significantly better than that of employee B, the company properly may give A a lighter punishment than B for the same offense.
Bottom Line for Deciding Officials in Discipline
If you can answer yes to all of the above questions, you’ll likely prevail at arbitration of lesser offenses such as reprimands or suspensions of 14 days or less. By the way, the "YES" answer needs to be more than an "Oh, Yeah!". Each yes answer needs to be able to stand a greater deal of scrutiny than the "laugh test". In other words, you must back your yesses with facts and the evidence to support those facts.
Disciplinary versus Adverse Actions
There’s little question that the Congress over the years has seen a big difference between actions termed "disciplinary" and those more serious actions called "adverse". Lesser discipline is left up to Agencies to decide or if employees have unions, to arbitrators. Congress created a Federal Agency, MSPB, to hear appeals from Agency adverse action decisions. Many of the principles that apply to discipline apply to adverse actions including the meeting of due process requirements such as those listed under "just cause" above. The application of the "Douglas Factors" and other considerations are covered in this earlier article.
Nexus is the connection or relationship between the charges brought by the agency against the employee and the efficiency of the service. Nexus must always be established in an adverse action, since 5 U.S.C., chapter 75 provides that adverse actions may be taken only "for such cause as will promote the efficiency of the service." Nexus may appear obvious in the case of on-duty misconduct and in particularly egregious off-duty misconduct. When an employee introduces evidence to rebut what we thought obvious, it is management’s burden to prove nexus. As we’ll see in a minute, it’s wise to assume nothing and be ready to explain from the beginning why what the employee did in a given case negatively impacted the efficiency of the service.
Efficiency of the Service
Since you can pull your hair out in frustration (and I have less and less hair to expend) looking for an operating definition of efficiency of the service in law, case law or regulation, I’m relying on Merriam-Webster to provide one. Merriam-Webster Online says efficiency is the effective operation as measured by a comparison of production with cost (as in energy, time, and money). All in all, that’s not only good, it’s relevant to our discussion. Of course, there may be readers who consider "effective government operation" an oxymoron. If that is you, you probably want to recuse yourself from acting as a deciding official.
Applying These Concepts
I believe it’s smart to always establish nexus in an adverse action decision whether MSPB thinks we need to do so or not. Why? Well, if you’re willing to hand the matter to the judge without a convincing record or clear rationale, more power to you. The Board’s case law, for example, indicates a presumption of nexus in unauthorized absence cases. The idea being that an absent employee, by definition, adversely affects the efficiency of the service. All of this is wonderful lawyer-speak, but I think you’re crazy not make it clear in the decision letter exactly how the misconduct harmed the Agency.
There are several ways in which to do this.
First, show that the charged misconduct is directly related to the employee’s performance of his\her specific duties. Most disciplinary/adverse actions taken are based on acts of misconduct that directly affect the person’s and/or fellow workers’ performance of duties and responsibilities. These actions may include an employee’s physical or mental inability to perform the duties of his/her position; failure to follow instructions; leave abuse; fighting on the job; or dishonesty in providing official information.
Second, demonstrate that the conduct is so egregious that nexus is obvious. Certain types of misconduct (on or off duty) may be so serious that they cast doubt on the employee’s reliability and trustworthiness, diminish public respect for the Service, create compelling safety and/or security concerns, and/or adversely affect the employee’s ability to work with other employees.
Consequently, they establish a connection between the acts of misconduct and the efficiency of the Service, even though there may not be a readily apparent or direct impact on the satisfactory performance of the employee’s job duties and responsibilities. Varieties of misconduct that may raise this type of presumption include shootings, killings, assaults, serious and believable threats, illegal drug offenses, sexual misconduct (particularly child molestation or abuse), falsification of employment forms and documents, and major incidents of fraud or theft. Even when a presumed nexus is established in these cases, the employee may be able to rebut the presumption presenting further information or evidence that shows, for example, a lack of public awareness of the offense, that fellow employees were not concerned, that supervisors continued to trust him or her, or that he or she has continued to do the job satisfactorily despite the misconduct at issue.
Third, make it clear that the employee’s behavior directly affected mission accomplishment. Some misconduct, by its very nature, is so inconsistent with or opposed to an agency’s basic mission, goals, or objectives that it results in a serious diminishing of public trust, confidence, or respect for the agency, and establishes the requisite nexus even though it may not directly affect the individual’s performance of assigned duties and responsibilities. Examples of such misconduct might include a Forest Service employee engaging in arson, an Internal Revenue Agent evading taxes or VA hospital employee taking drugs from Agency stores.
The harmful-error rule of 5 U.S.C. 7701(c)(2)(A) provides that an agency’s decision that is appealable to the Board may not be sustained if the employee "shows harmful error in the application of the agency’s procedures in arriving at such decision." While the law doesn’t define "harmful error", MSPB does. 5 CFR 1201.56(c)(3) says it is "Error by the agency in the application of its procedures which, in the absence or cure of the error, might have caused the agency to reach a conclusion different than the one reached. The burden is upon the appellant to show that based upon the record as a whole the error was harmful, i.e., caused substantial harm or prejudice to his/her rights." Got it? If so, you’re ahead of me.
Simply, in practice, it means that whatever procedures apply to the taking of an adverse action must be followed whether those procedures are established by law, OPM rule, Agency rule or the labor agreement. If a rule is not followed and the employee appeals that fact or claim, the Agency must show that its failure was not "harmful" to the employee. It’s often easy to show an error was made if it’s so. Much harder to show harm. For example, an agency must provide an employee a certain number of days to answer its proposed action both orally and in writing. Let’s say the Agency gave the employee two less days to answer than required but the employee and his lawyer met with the Agency deciding official and provided a written reply. Easy to prove error, hard to prove harm.
On the other hand, let’s say an employee was advised in the notice that a specific individual witnessed the misconduct but at hearing that employee doesn’t show and another claims to have seen the incident. Bingo. A likely harmful error.
Bottom Lines for Deciding Officials in Adverse Actions
- Make sure the action is procedurally correct.
- Know the standard (just cause or efficiency of the service) you must apply.
- Be able to explain the connection (nexus) between the misconduct and the standard involved.
- Get some experienced help.
- Do the right thing
As always, any opinions are mine and mine alone.
© 2013 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.