Federal Employee Conduct and Discipline – A Suggested Fix

View this article online at http://www.fedsmith.com/2016/12/22/federal-employee-conduct-and-discipline-a-suggested-fix/
By on December 22, 2016 in Human Resources with 0 Comments

Image depicting a manager disciplining an employee by holding up a piece of paper and making an upward pointing gesture

“No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we’ll ever see on this earth!”
– Ronald Reagan

The possibility of wrongdoing on the part of a Federal Agency manager has spawned an incredible number of protections for Federal employees and offices full of folks to protect them. There are somewhat more than twenty-five different employee appeals processes administered by who knows how many offices, boards, commissions, Agencies, and Departments.

My own experience in and around government as an employee, advocate, negotiator, and consultant since 1973 is that supervisors and managers often seek to avoid addressing employee problems at almost any cost because of the perfect storm of hassle involved in doing so.

Federal unions thrive on claiming that every management decision is unfair, illegal, biased, discriminatory, or violates law, regulation, or a collective bargaining agreement, but they are not alone in this. There are entire Agency staff offices whose continued existence, funding and staff size relies on encouraging allegations of various kinds. Some even vote their preference for appointees who support their world views in surveys about their quality of life at their Agency. There are Federal Agencies who see their role as expanding the statute that created them to address any possible error a supervisor could make in administering discipline for misconduct or any number of other personnel decisions.

What few recognize is that when misconduct becomes absolutely intolerable, government managers adjust to the requirements of all of the above. They spend the time, follow the procedures, and work through the various appeal systems. The reward has often been statements by people like those currently running the Merit Systems Protection Board (MSPB) that when Agencies win more than 90% of the cases, the system must be unfair to employees. Really?

The Federal Courts have said, over the years, that employees must only be disciplined for a just cause. Congress in 1912 decided that just cause meant that employees could only be removed “for such cause as promotes the efficiency of the service”. If anyone out there knows what that means, please enlighten us. To get to that point, an Agency must be able to show that “the preponderance of the evidence” establishes that. Again, please help us all understand what that means. I once praised MSPB for providing advocates a cookbook for taking an action correctly. In recent years, the recipes, like Mario Batali’s, became too hard for the home cook to make.

What is Needed to Protect Employees from the Wicked Manager?

I think the courts would agree that any system should provide “due process” and not permit “arbitrary or capricious” taking of disciplinary action. Also, any Federal employee who swears the oath should be entitled to consistent treatment by the government. So, what’s that mean and am I suggesting a vast departure from the status quo? Not at all.

The Supreme Court has found that Agencies with the authority to issue security clearances or to determine the sensitivity of a position, may take actions to suspend or remove a clearance and to decide that an employee may not remain in a sensitive position for good reason. In such cases, the Agency must establish a system providing due process for the employee and appeals from a final Agency determination. Appeals outside the Agency are limited. The Court found that the Agency Head had been authorized to make such determinations and that the only appeal right involved proving that due process was denied. My suggestion for a change will mirror that system.

So, What’s the Fix?

The fix is actually fairly simple. Decide that authority to discipline employees should rest within an Agency, encourage an internal review, and leave an outside review to only the most serious claims. A system that incorporates the following would be fair and satisfy the courts that employees are treated properly:

  1. Every employee is entitled to be told the action to be taken.
  2. Every employee is entitled to be advised why the action is being taken.
  3. Every employee is entitled to respond to the proposed action within a reasonable time to the Agency official with the delegated authority to take the action.
  4. Every employee is entitled to a representative.
  5. Every employee is entitled to a written decision.
  6. The manager delegated authority to issue the action must find that a reasonable person would agree that the employee committed the behavior for which the action is taken and that taking the action was for good cause.
  7. Any such decision may be appealed to a body within the Agency with authority to review the decision; determine its appropriateness based on the record; and, if inappropriate, take corrective action.
  8. The Agency decision-making body must determine whether the employee was provided the due process discussed above and whether the action taken was arbitrary or capricious.
  9. There is no appeal outside the Agency unless the individual can establish that the action was taken solely for a specifically prohibited reason or as reprisal for whistleblowing.
  10. In other words, if the employee did the deed on which the action is based, there should be a high bar to reverse it.

To keep any evildoing manager at bay, perhaps the Agency Inspector General might be required to periodically review the system and the decisions it produces in a report to the Agency Head and/or the Hill, as appropriate.

The Congress has passed many laws that impact the ability to manage government often layering inconsistent or even opposing rules atop existing processes either without realizing it (I hope) or because it seemed like a good thing to do at the time. It is time to look at the system and make it problem solving rather than problem creating.

To sum up, let’s try authorizing Agencies to solve their people problems themselves while insuring due process using a reasonableness standard; supporting managers who tale actions unless arbitrary or capricious; and, providing an employee an appeal process within the Agency.

The above is certainly not what is done now but it surpasses any private sector system in its protection of the worker. It should be hard to discipline a Federal employee for the wrong reason but doing it for the right reason should not be the trial it is now.

I know I won’t be invited to the DC holiday parties at FLRA, MSPB, Federal union home offices or employee advocacy law firms for sure but maybe Dr. Seuss was right when he wrote “Maybe Christmas, the Grinch thought, doesn’t come from a store. “

As always, I am responsible for the content and any opinion you might believe is able to be discerned from the above.

© 2017 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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