I am going to this article as simple and non-legalistic as a complex and legalistic subject can get. If you have the responsibility to decide whether an employee gets a disciplinary or adverse action, it’s likely you have already been inundated by advisors telling you what you can and cannot do.
The good news is that the Agency responsible for hearing employee appeals of adverse action decisions (the Merit Systems Protection Board) has been doing so for almost thirty years. I like to think of them as the Emeril Legasse or maybe Julia Child, in some cases, of adverse actions. The Board has provided Agencies a detailed cookbook to follow, full of suggestions on which ingredients will improve or spoil the pudding. You’ll occasionally hear some whining that the Board favors Agencies because it denies employee appeals in 80 or some years 90 some percent of the cases it hears. It should come as no surprise that Agencies generally prevail. If they didn’t, with 30 years of recipes to follow on almost every conceivable issue addressed, someone should conduct an investigation to find out what ingredients they missed in the cookbook.
This article will come to you in three parts, the first on the overall process and thoughts on reviewing a proposed action; the second on conducting a reply meeting; and the third, which will focus on each aspect of your decision making.
In Federal service, disciplinary actions include a written reprimand or a suspension of fourteen days or less. An adverse action is a removal, suspension of more than fourteen days or a change to lower grade. This series of articles will only address adverse actions for misconduct and not discipline or actions taken for poor performance although the thought processes are much the same. In fact, a number of Agencies follow the practice of using the misconduct process to deal with performance problems because the system for dealing with performance is a horrendous example of red tape and obfuscation at its absolute worst.
The decision to take a disciplinary or adverse action requires compliance with law, regulation and Agency policy. If you want to read the law, you can click here.
If you want to read OPM’s regulations, click here. You can likely find your Agency’s policies on your intranet. My bet is that your Agency’s policy is the easiest to follow of the three so read it first if you’re inclined to read the others.
The actual process of taking an adverse action is pretty simple. It is, in essence, a three step process involving a notice to the employee, an opportunity for the employee to reply and a decision. Of course, the proposal, reply and decision have rules that must be followed both in terms of time and of specific requirements on the Agency or entitlements of the employee.
Terms are pretty simple also. The manager initiating the action is called the “Proposing Official”. The manager deciding is called (no kidding) the “Deciding Official”. Almost always the proposing and deciding officials will be in the employees direct line of supervision (chain of command, for you DOD folks) and the proposing official will be of a lower rank and position in the organization than the deciding official. There are exceptions but they are rare. What is important is that the deciding official may not direct or unduly influence the proposed action.
It’s the job of the proposing official to investigate allegations, direct an investigation or address the results of an investigation. In an earlier article, Proposing Discipline: A Worksheet for Managers, we suggested a process by which a proposal could be developed. It’s worth a read.
It’s the job of the deciding official to hear the reply, if one is made, and decide whether to sustain the proposal, lower the remedy or cancel the proposed action altogether.
Reviewing the Proposal
In advising managers, I’ve always sought to caution them that regardless of the advice given, the research done, the drafts written, the issues discussed or anything else, it’s their decision and their’s alone. A staff person (and I’ve been one for over 30 years) is not accountable for the decision, the manager is. As a result they should learn enough to do it right and treat the decision with the serious attention it deserves. To help with this, I have included an Adverse Action Proposal Review Checklist.
Each succeeding article will also include a worksheet, one for the reply process and the other addressing decision development.
You should get a properly prepared proposal. The law considers that the deciding official is literally the first judge to hear the matter. In fact, the Merit Systems Protection Board is charged by law not to substitute its judgment for that of the Agency deciding official absent a determination that, all things being equal, the decision was arbitrary and capricious. More on this later.
If you are going to decide a case, determining the adequacy and proper development of the proposal is the place to start. As you go through the worksheet, satisfy yourself that each question is appropriately answered before you move on to the reply and decision. Send the proposal to be reworked back if there are mistakes in it or if it fails to properly address a matter.
If you found this article helpful, keep an eye out for parts two and three.
As always, this article is my responsibility and mine alone and does not necessarily represent the views of FedSmith or anyone else I work for or with.