OPM and GAO Fight Over Tables of Penalties

View this article online at https://www.fedsmith.com/2018/08/29/opm-gao-fight-tables-penalties/ and visit FedSmith.com to sign up for free news updates
By on August 29, 2018 in Human Resources with 0 Comments

Two binders on a desk against a wooden backdrop labeled 'policies' and 'procedures' next to a notepad and pen depicting human resources/workplace disciplinary procedures

The Government Accountability Office reports that, in a given year, less than one percent of federal employees are formally disciplined for misconduct. This is the result of lax management – not faultless employees – according to federal employee surveys.

In a recent report, the GAO suggests that wider use of “tables of penalties,” pairing misconduct with an appropriate range of punishments, could improve workplace discipline. While many agencies use such tables, they have serious unintended consequences that make it even more difficult to hold federal employees accountable.

According to the GAO, “Tables of penalties could provide agencies with reasonable assurance that similar cases of misconduct are addressed with similar penalties as appropriate.” This assurance may give federal supervisors confidence to take action and a higher probability of withstanding an appeal to the MSPB. 

One of the “Douglas Factors” (laid out originally in the MSPB’s decision in Douglas v. Veterans Administration) the MSPB uses to determine the appropriateness of an adverse action is the consistency of the penalty with other similar cases. Even if the MSPB agrees that an employee’s poor performance or misconduct might otherwise warrant the adverse action an agency has meted out, if the agency has been more lenient with others in the past, the MSPB may well rule in favor of the appellant. By giving managers objective and clear-cut guidelines to rely upon, a table of penalties would make these missteps less likely according to the GAO. 

In a fairly fiery response to the GAO’s report, the Office of Personnel Management (OPM) argued these tables of penalties would actually make it more difficult to take appropriate disciplinary steps. OPM noted “it is vital for effective workforce management…that supervisors use independent judgment, take appropriate steps in gathering facts, and conduct a thorough analysis to decide the appropriate penalty in individual cases.”

OPM’s concern that a table of penalties may make it more difficult to discipline federal employees is well founded. As OPM notes, “the MSPB will sometimes invoke an agency’s own table of penalties against it to support the MSPB’s decision to mitigate a penalty…while treating a table as merely advisory if it supports the agency’s decision.” 

Depending on all sorts of contextual factors, the same type of misconduct might deserve much different punishment. Take, for instance, falling asleep on the job. The appropriate punishment is going to vary a lot depending on whether an employee is buried deep in the bowels of the Library of Congress or perched atop an air traffic control tower, whether he nodded off for a moment or has a George Costanza-esque nap station set up under his desk. Unless a table of penalties is so broad that it provides little practical guidance (which many are), the appropriate penalty may fall below or above the brackets established on paper.

Further, consulting an agency’s tables of penalties does not alleviate a supervisor’s obligation to look back at past cases to determine how their agency has handled similar situations. In fact, consistency of a punishment with past punishments for similar offenses and consistency with an agency’s table of penalties are wholly distinct considerations according to the Douglas Factors. Thus, a table of penalties simply becomes another trip wire in an already heavily booby trapped jungle.

With the exception of paid union representatives, almost every federal employee who has not been fired agrees that it is too difficult and time consuming to discipline or fire federal employees. The temptation to impose top-down remedies is clear.

There is nothing wrong, of course, with attempting to standardize processes across government or intervening when agency practices are out-of-step with merit system principles. But what sounds like a pragmatic solution in theory often manifests as another box to check, another bureaucratic layer, or another form to fill out. 

John W. York, Ph.D., is a policy analyst in the B. Kenneth Simon Center for Principles and Politics at The Heritage Foundation. He served as an Officer in the United States Coast Guard where he supervised both military personnel and civilian employees.

Want to see more articles like this one? Sign up for FedSmith's free email lists!

© 2019 John W. York. All rights reserved. This article may not be reproduced without express written consent from John W. York.

Tags:

About the Author

Ian Smith is one of the co-founders of FedSmith.com. He enjoys writing about current topics that affect the federal workforce.

Top