Removal of Federal Employees for Misconduct or Performance

The Merit Act of 2017 would make it much easier to fire a federal employee. Here are the details of this recently introduced legislation and what it would mean for the federal workforce.

A bill in the House of Representatives has 8 co-sponsors. It is called the Merit Act of 2017. The subject is “Removal for misconduct or performance.” It is “an alternative removal for performance or misconduct for Federal employees.” The bill has been referred to the House Committee for Oversight and Government Reform.

The purpose of the bill is to make it easier to fire a federal employee for misconduct or performance. If passed, it would accomplish that purpose.

What the bill does demonstrate is a belief in Congress that substantial changes are required to bring the federal bureaucracy under control instead of existing as a separate power center.

Some, perhaps many, elected representatives believe the civil service workforce is too entrenched and removal of a federal employee is too difficult. The existing process is time consuming and inefficient. Relatively few federal employees are removed. According to one report, federal employees are infrequently fired. 0.5% of federal employees are fired in a year, including for poor performance and misconduct. That is one-sixth of the private-sector firing rate. (See Average Total Federal Employee Compensation: $123,160)

Removal of Federal Employees for Misconduct or Performance

Here is what the bill would provide to enable faster removal of a federal employee for misconduct or poor performance.

  • The head of an agency may remove an employee if it is determined the performance or misconduct warrants removal.
  • There would be a more expeditious process for these types of removals.

To take an action based on misconduct or performance, an agency would provide advance notice of at least 7 days and not more than 21 days before taking this personnel action, with—

  1. Notice in writing of the proposed personnel action, including the reasons for the action and the forecasted final date of employment; and
  2. An opportunity to respond to the proposed personnel action within the remaining employment period beginning on the date the written notice is received.

The employee would have a right of appeal to the Merit Systems Protection Board (MSPB). An appeal could only be made if the appeal is made not later than 7 days after the removal date.

Current procedures outlined in 5 USC 7513(b) would not apply to removal under this procedure. This bill would eliminate the current requirements for:

  •  30 days’ advance written notice;
  •  a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence;
  • representation  by an attorney or other representative;
  • a written decision detailing the specific reasons for the action at the earliest practicable date.

Appeal to the MSPB

The bill would provide for expedited appeal to the MSPB. The MSPB would be required to issue a decision within 30 days after the appeal is filed. It would be required to uphold the decision to remove an employee if the decision is supported by substantial evidence.

If the Merit Systems Protection Board judge cannot issue a decision within the 30-day requirement, the employee’s removal would be final.

Beginning on the date on which an appeal is filed and ending on the date the MSPB issues a final decision, the employee would not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits.

The current process for removing a federal employee is time consuming. Some agency managers would rather retain an incompetent employee on the payroll than take the extended time and effort of removing an unproductive or incompetent employee.

It is likely the existing process will be seriously considered in Congress to address this issue. This bill could be a starting point for the discussion.

Obvious Problems

There are some obvious problems with this bill. These problems are likely to prevent passage or require substantial modification for the bill to pass in Congress.

The time limits in the bill are short. While the times limits are compressed from the current process and would speed up the removal process, a reasonable argument can be made that more time should be allowed for removal and the appeal process.

Cutting off pay and benefits of an employee who files an appeal would be effective in cutting down on the number of appeals. While there may be good arguments for such a provision, it will be difficult to gain the support in Congress to pass this provision into law.

Regarding the time limits for the MSPB to issue an initial decision, more administrative judges may be required. A reasonable guess would be that few appeals would be processed within the 30 day time limit.

Federal Employees as a Political Power Center

There is little doubt changes are coming to the federal workplace. Firing a federal employee is time consuming and requires substantial time, effort and expense. Multiple appeals can delay a final decision for months or years.

The inability to take action against a federal employee helps in creating the federal bureaucracy as a political power center. That power, and the ability of federal employee unions to help Democrats in national elections, will likely lead to changes.

Provisions for removing employees engaging in misconduct or who are not receiving acceptable performance ratings will not impact most people.

There is a good chance provisions will be made to eliminate the multiple appeals processes. It is also likely there will be serious discussion and likely passage in Congress of some pay-for-performance provisions that will financially benefit some hard working federal employees. Some of the changes proposed by this bill are unlikely to pass in Congress.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47