My colleague and incredibly prolific fellow FedSmith.com
author Bob Gilson recently wrote a provocative article titled “Is MSPB
Encouraging Firing Squads?” Bob is an
unquestioned expert on conduct and performance issues, and I carry with me—and recommend to supervisors and Human Resources (HR) specialists—copies of
his extremely helpful articles on sick leave and medical issues. In this case, however, I disagree with Bob’s
proposal, while fully supporting his objective of helping agencies sustain
disciplinary actions which are appealed to the Merit Systems Protection Board
(MSPB/Board).
I have just spent two years “in the trenches,” drafting
disciplinary actions for a Federal agency, including proposal and decision
letters ranging from short suspensions to removals, as well as Douglas Factors
analyses, so my current perspective on appealable actions is recent, first-hand, and based on numerous situations involving alleged misconduct.
I do agree with Bob’s idea of using a team approach to
disciplinary procedures. We did the same
thing, with a similar structure to the one Bob proposed for his “firing squad,”
but with several important differences. Like Bob, we had an employee/labor relations advisor and an employment
law attorney on the team. But instead of
having a trained administrative investigator on our team, we typically found
that the involved supervisor could conduct an adequate administrative
inquiry/fact-finding review, so we would use a trained administrative investigator
only on an ad hoc basis.
The biggest difference between our team and Bob’s firing
squad was that his would feature a permanent proposing official and a permanent
deciding official. In our case, the
proposing and deciding officials were always from the area/function in which
the alleged misconduct occurred except where a division chief was the proposing
official, in which case the deciding official would be from the director’s
office. My belief is that it is very
important to involve the first-and second-level supervisors in the whole
disciplinary process whenever possible, which we found was almost always.
At least one agency—Customs and Border Protection—has
tried at least a partial version of Bob’s firing squad. In Customs’ case, the agency created a
Disciplinary Review Board (DRB), with high-level managers serving on a rotating
basis, to help insure consistency of disciplinary actions throughout the
agency. One member of the DRB would
serve as the proposing official on an action, with the deciding official often
being a top manager in the area/function where the alleged misconduct
occurred. The first-line supervisor
typically gathered information on the alleged misconduct and provided it to the
appropriate office. That was often the last
the first-line supervisor heard of the case until she/he was advised of the
outcome by management—or by the employee.
I feel that the latter situation is inexcusable; except in
very unusual situations, the first-line supervisor should always be kept
apprised of the status of the action and certainly of the decision. Another major complaint about the DRB was
that it took too long to act, which has sometimes cost the agency a case on
appeal.
I have had no first-hand experience with a Disciplinary Review
Board system such as the one Customs uses, but I have conducted a fair amount
of employee relations and conduct training for that agency in recent years, and
I got the sense that a number of first- and second-line supervisors were not
comfortable with it, since they played such a limited role and felt they were
kept in the dark about the status of the case.
I got the same feeling about some of the HR specialists, who were
concerned about the length of time it often took between the alleged misconduct
and a decision on the case, among other things.
In our team approach, the supervisor would contact us in
employee/labor relations for assistance with an alleged misconduct incident. We usually asked the supervisor to conduct an
administrative inquiry and to provide us with the facts of the case, which could
include witness statements. We would
then draft the proposal—in this case we’ll assume the proposed suspension was
for 15 days and a decision to sustain that proposal would thus have been appealable
to MSPB—and a Douglas Factors analysis, for the proposing official’s
signature, first sending those documents to the employment law attorney for
review and comments. After incorporating
any suggestions from the attorney, we would send the drafts on to the proposing
official for her/him to provide any input and/or ask any questions. Once the proposing official was completely
comfortable with the documents, we would have him/her sign and date the
documents and provide them to the employee.
After the proposed suspension was issued, we would set up a
complete “evidence file” and provide it to the deciding official, along with a
draft decision and a draft Douglas Factors analysis, again running those
documents by the employment law attorney.
When the deciding official found that the documents accurately reflected
her/his thought process, conclusions and decision, she/he would sign and issue
them to the employee.
We were blessed with a spectacularly competent and
responsive cadre of employment law attorneys with the Department of
Interior. We were only required to have
them determine legal sufficiency on actions which were appealable to MSPB, but we
also asked them to provide comments on suspensions of 14 days or less and even
letters of reprimand, since we had great confidence in their advice and it was
possible that the employee could be subject to appealable disciplinary action
in the future under the agency’s progressive discipline process. If so, the attorney who was serving as the
agency’s designated representative would have already been familiar with the
case. We could see no down side to
requesting their advice even when we didn’t have to do so.
Our team approach—featuring the proposing and deciding
officials, the employee/labor relations specialist and the employment law
attorney—worked extremely well. And I
would argue that the first- and second-line supervisors don’t have to become
experts on the disciplinary process. They
simply have to be willing to address the misconduct, to conduct an
administrative inquiry (except where that official would be uncomfortable doing
so, for such reasons as inexperience or having a perceived conflict of
interest, such as a friendship with the alleged offender or a witness), and to
follow the advice of the HR advisor and the agency attorney. I do think it is critically important for the
team members to have a relationship that emphasizes cooperation and trust.
As Bob pointed out, supervisors do have a job, with many of
them also having technical responsibilities.
But taking disciplinary action when necessary is an unavoidable aspect
of being a supervisor (I know – I tried).
We have coached numerous supervisors through the disciplinary process
and have typically found that they were ready, willing and able to do what we
asked of them and that they felt good about having involvement in and control
over the process. They also clearly
gained confidence in their ability to take disciplinary actions as necessary in
the future.
Working effectively as a team was critical to our success,
but I think there were some other things we did which enhanced our chances of
prevailing before an MSPB Administrative Judge (AJ) if an employee appealed a
suspension of more than 14 calendar days, a downgrade or a removal.
For example, we had both the proposing official and the
deciding official conduct Douglas Factors analyses, with significant assistance
from the ER/LR specialist. We would then
attach the analyses to the proposal and decision letters, respectively. That was part of our “total transparency/full
disclosure” approach, which was based on the premise that we did not want an AJ
to have to guess at what the agency meant in its proposal and/or decision, and
in the supporting Douglas Factors analyses.
In other words, the AJ could take issue with our analysis, conclusion,
etc., but would have no reason to substitute her/his judgment for that of the
agency based on a perceived lack of clarity.
We were very thorough in both our proposal and decision
letters. In the proposal letter, we
would focus heavily on the charge(s), which could sometimes be taken directly
from the agency’s table of penalties but other times had to be “constructed”—and the supporting specification(s) and on the impact of the misconduct. The supervisor would get the alleged offender’s
side of the story at the end of the administrative inquiry via an
“investigatory interview,” which could involve a union representative if the
employee were a member of a bargaining unit and invoked his/her “Weingarten
Rights.” Whatever the employee said in
that meeting would be captured and addressed in the proposal letter.
If an employee replied to the proposal, which happened
roughly 99.9% of the time, we would address in the decision letter every single
issue that the employee raised, rather than using generic language such as “I
have carefully considered your reply(ies) to the proposed suspension but find
that the charge(s) is supported by the preponderance of evidence.”
For as long as MSPB has been in existence—it was created
by the Civil Service Reform Act of 1978—and members have been appointed by
the President, it has alternately been considered more “agency-friendly” or
more “employee-friendly,” depending largely on the backgrounds of the members
and the Board’s record of sustaining, mitigating or overturning agency
actions. But my best recollection is
that agency actions have historically been sustained by MSPB between two-thirds
and three-fourths of the time since the Board’s inception.
I looked at the most recent MSPB statistics, which showed
that in FY-2011 98% of the Board’s decisions were unchanged on review by the
U.S. Court of Appeals for the Federal Circuit.
I thought that demonstrated very impressive performance by MSPB. The most recent adjudication statistics I
could find were for FY-2010. In that
fiscal year, the Board adjudicated a total of 1,024 actions in the Federal
Government. The agency’s action was
sustained 76.7% of the time, overturned 20.7% of the time, and mitigated 1.8%
of the time, leaving .9% under the category “Other,” for which I did not find a
definition. Those percentages tell me
that the current Board sustains agency actions at the same or higher rate than
many of its predecessors.
Among the major agencies, the highest percentage of actions
sustained by MSPB were in Treasury (95.5%), Justice (95.2%), Social Security
(93.3%), Navy (89.5%), Air Force (87.2%), Homeland Security (84.5%), Veterans
Affairs (83.7%), Agriculture (83.3%), and Defense (82.1%). At the other end of the spectrum were Transportation
at 55.0% and Interior at 66.7%. I don’t
know anything about Transportation’s situation but I’m guessing that most of
Interior’s losses were in the performance arena, where the agency has
encountered problems in front of MSPB AJ’s.
I talked to Laura Albornoz, Chief Administrative Judge for
MSPB’s Denver Field Office, after her excellent presentation at an FPMI
conference in Tucson last summer. Ms.
Albornoz stressed how carefully MSPB’s AJs review the agency’s documentation,
particularly the proposal letter, and endorsed the idea of having both the
proposing and the deciding official conduct Douglas Factors analyses. I have read a number of Chief AJ Albornoz’
own decisions and have found them to be very well-written, with her analysis of
the case laid out clearly and concisely.
To summarize, our approach to appealable disciplinary
actions involved teamwork, trust, thoroughness, transparency, and the
willingness to rework the documents again and again until they were as “bullet-proof”
as we could make them.
By having a “permanent” proposing and deciding official, as
Bob suggests, an agency might gain a small advantage in terms of the quality
and consistency of its actions, but I think that “pro” would be more than
offset by the “con” of removing from so much of the disciplinary process the
supervisors over the employee accused of misconduct. I would much rather have those proposing and
deciding officials “own” the action, which I think is very often the case when
they are so integrally involved from start to finish.
Bob’s thought-provoking article highlighted a major problem—the loss of experienced HR specialists and employment law attorneys – that
could certainly have a negative effect on the ability of an agency to sustain
disciplinary actions which are appealed to the MSPB, particularly when such
positions go unfilled, or, I would add, are filled by less-experienced
employees.
An agency’s success in taking
and successfully defending conduct- or performance-based actions is, I believe,
going to be heavily dependent on the knowledge of the employee/labor relations
specialist and the employment law attorney who are providing advice on the case. So, if agencies let such vacancies go
unfilled, or such actions take place in the early stages of a new incumbent’s
learning curve, without a more seasoned employee to rely on, their success
rates on actions appealed to MSPB could reasonably be expected to drop.
I’m not as concerned as Bob is about line managers making
bad decisions or being ignorant “of correct substantive or procedural
obligations.” We asked supervisors to
contact employee/labor relations at the first signs of trouble in conduct or
performance, so we could guide them through the relevant processes from the
beginning; they did so with very few exceptions.
The MSPB statistics quoted above show that many agencies are
doing very well in appeals to the Board using what I believe to be the
“traditional” disciplinary process, meaning that proposing and deciding
officials are typically from the part of the organization where the misconduct
occurs, and are often the first- and second-line supervisors, respectively. Accordingly, I see an MSPB “firing squad” as
a solution in search of a problem for most agencies.
