By Deborah Hopkins, September 14, 2021

Here’s the scenario: A complainant files multiple EEO complaints including complaints against an attorney in the agency’s Office of General Counsel and the agency’s EEO Director. The complainant requests the attorney and the EEO Director to recuse themselves from the case. The GC and EEO Director happen to be the employees who handle most EEO matters and litigation for the agency in this particular region.

Because of her experience, the attorney would like to be involved in defending the agency against the complaints rather than create a firewall and pass this case off to a less-experienced attorney. And the EEO Director doesn’t want to recuse because he believes there is no merit to the EEO complaint.

What should the agency do?

Ideally, the agency should have a conflict policy in place and an agreement with another region or even another agency to step in for the investigation and defense of complaints in situations like this.  The EEOC issued a report last year with guidance on these conflict policies.

If the agency doesn’t have a conflict policy in place now, the below case discusses the conflict issue and should encourage the agency to address this as soon as possible: Katharine B. v. USPS, EEOC App. No. 0120170444 (Dec. 7, 2018).

“In Monroig, the Commission held that permitting the Deputy General Counsel, one of the responding management officials, to attend the hearing and simultaneously act as agency representative would create an inherent conflict of interest and tarnish other witnesses’ testimony.

EEO Management Directive 110 (EEO MD-110) (Aug. 5, 2015) requires that there be distance between the fact-finding and defensive functions of the agency in order to enhance the credibility of the EEO office and the integrity of the EEO complaints process. EEO MD-110, Chapter 1, at § IV (Aug. 5, 2015). The Commission ruled that even if the Deputy General Counsel had testified before all other witnesses at the hearing, her presence would discourage other employees from testifying freely at the hearing.

The Commission noted that the Agency was well represented at the hearing despite the Deputy General Counsel’s absence.

Accordingly, we find that a conflict of interest existed in the Agency’s representation at [*13] the hearing and that Complainant is entitled to a new hearing, in which S1 may not be involved as an Agency representative. See Rabinowitz v. U.S. Postal Serv., EEOC Request No. 05930348 (Sept. 23, 1993) (officials involved in discrimination may not be involved in processing the complaint).” [bold added]

Bottom line: Take conflict allegations seriously. Find a way to recuse counsel or EEO officials who may have conflicts of interest. Better yet, get ahead of these situations now by putting together a conflict policy, as recommended by the EEOC. It may not be something that arises often but being prepared for a conflict will benefit the agency in the long run. Hopkins@FELTG.com

By Deborah Hopkins, August 13, 2021

Over the last four years, the VA has enjoyed a lower burden of proof in taking disciplinary actions against employees covered by the VA Accountability and Whistleblower Protection Act, 38 USC 714. Indeed, Congress passed this law in 2017 to make it easier to fire bad employees at the VA.

Between then and today, we have learned that the law is not retroactive for actions that occurred prior to its enactment (Sayers v. VA, 954 F.3d 1370 (Mar. 31, 2020); Brenner v. VA, No. 2019-2032 (Mar. 9, 2021)) and that, while MSPB has no penalty mitigation authority in actions taken under this law, agencies must show by substantial evidence that their selected penalty is reasonable. Mogil v. VA, No. 2018-1673 (Fed. Cir. May 1, 2019). Ok, fine. We can live with that.

Now, get ready.

On August 12, the Federal Circuit hit us with a big one. In this case, a Supervisory Consumer Affairs Specialist named Ariel Rodriguez yelled and used profanity at a patient in a VA facility. The confrontation escalated and the police were called. The police had to escort Rodriguez to his office because he was so agitated. After that, Rodriguez returned to the reception area, where he again confronted the patient. During the investigation that followed, Rodriguez was dishonest in his account of the events that occurred. He also attempted to influence one of his employees to alter her testimony to the investigator.

Rodriguez was removed on three charges: (1) disruptive behavior toward a veteran patient; (2) conduct unbecoming a federal supervisor, and (3) lack of candor. The facts justified an easy removal for the VA – or so we all thought. Plenty of witnesses, police activity, a patient’s wellbeing in danger, clear nexus – no question there was substantial evidence of misconduct and substantial evidence to support removal.

But wait.

The Federal Circuit saw things differently. There are two huge new takeaways that every management official at the VA must be aware of, courtesy of this case, Rodriguez v. VA, No. 2019-2025 (Fed. Cir. Aug. 12, 2021).

  1. The standard of proof for a VA to take a disciplinary action is a PREPONDERANCE of the evidence; the substantial standard in the statute only refers to MSPB’s review of the action.
  2. The VA must complete a Douglas factors analysis for its disciplinary actions, even though the MSPB lacks authority to mitigate the agency’s penalty.

Let’s look at each in turn.

  1. Burden of Proof

For the past four years, just about everyone in this business has been under the impression that the language in 38 USC 714(d)(2)-(3) “if the decision is supported by substantial evidence” meant that the agency action also required the substantial evidence standard. It’s even in the VA’s Discipline policy.

But the Federal Circuit said otherwise:

The references to “substantial evidence” in section 714 are all explicitly directed to the standard of review to be applied by administrative judges and the Board. Those references do not address the standard of proof to be applied by the DVA in making disciplinary determinations, nor does the remaining text of section 714 explicitly address the standard of proof in proceedings before the DVA…[T]he language of section 714 implies that the proper standard is the preponderance of the evidence. Section 714 provides that an employee may be removed, demoted, or suspended “if the Secretary determines the performance or misconduct of the covered individual warrants” such action. In the case of a disciplinary action based on misconduct, the requirement that the Secretary “determine” that the misconduct in question warrants disciplinary action implies that the Secretary must find that it is likely, i.e., more likely than not, that the employee has engaged in the misconduct that justifies the proposed discipline. [bold added]

The court’s explanation included discussion that if substantial evidence was the standard used, a Deciding Official would be required to find against the employee with regard to the charged misconduct even if the Deciding Official did not personally agree with that conclusion, because when substantial evidence is applied, a reasonable person might disagree and yet the standard is still met. The court said in no uncertain terms that the VA Accountability and Whistleblower Protection Act does not contain “any language stating explicitly, or even implicitly, that the burden of proof in disciplinary actions should be substantial evidence.”

Because the agency applied the substantial evidence standard in this case, what we now know is an incorrect standard, it was remanded back to the MSPB.

  1. Douglas Factors

Because the VA Accountability and Whistleblower Protection Act explicitly states that the MSPB does not have the authority to mitigate the agency’s penalty (38 USC 714(d)(2)(B)), in the first year or two after the law’s enactment the VA was (and the rest of us were) under the impression that Douglas factors were not required. In other words, if a penalty could not be mitigated, then there was no need to justify the penalty – and penalty defense is the primary reason why agencies use the Douglas factors.

Starting in 2019, the Federal Circuit determined that there must be substantial evidence the agency’s penalty is reasonable, otherwise the MSPB could remand a case back to an agency to determine a more appropriate penalty. Mogil, above.

The court in Rodriguez takes things further and says, “this court has made clear that the absence of mitigation authority does not deprive the Board of the authority to review penalties for substantial evidence” and that mitigation authority is completely divorced from “the power to review and strike down the DVA’s imposition of penalties that are arbitrary, capricious, an abuse of discretion, or not in accordance with law.” To that end:

For a reviewing tribunal to find a decision not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, that decision must have been based “on a consideration of the relevant factors and whether there has been a clear error of judgment…” [citation omitted] Accordingly, because the Board must review the DVA’s penalty selection in a section 714 case, that review must ensure that the DVA considered the relevant factors bearing on the penalty determination.

The court emphasized this point by declaring the Deciding Official must “weigh the relevant factors bearing on the appropriateness of the penalty, including the relevant Douglas factors” in cases of misconduct. So, there it is.

There is a whole lot more to discuss from this decision, but we’ll tackle those issues another time. As for now, we are anticipating multiple years’ worth of cases will be remanded to determine whether the VA had a preponderance of the evidence, and not merely substantial evidence, in taking appealable disciplinary actions. The good news for the VA is, preponderance is not too difficult to show, and I would bet they can meet this burden in nearly every case. The bad news is there’s a whole lot more work ahead. Please let us know how we can help – and attend UnCivil Servant September 8-9 or MSPB Law Week September 13-17 for all the details on what happens now. Hopkins@FELTG.com

By Deborah Hopkins, July 21, 2021

The question in this article’s title has come up a few times over the last several weeks, particularly during our flagship UnCivil Servant training classes.

We’ll give you the short answer, and then the longer answer.

Short answer: No.

Explanation: According to OPM, “The law and regulations specifically exclude probationary/trial employees from the procedures that require the use of an opportunity to improve. This exclusion is because the entire probationary period is similar to an opportunity period. These employees should receive closer supervision, instruction, and training as needed during the first year of their employment.” The same principle is true when it comes to discipline. The agency doesn’t have to justify its penalty in removing a probationer, so even minor misconduct that wouldn’t justify removal of a career employee can warrant a probationer’s removal.

As soon as there’s a performance or conduct issue, the law allows to the agency to remove the probationer, even if the offense is minor.

Here is why removing a probationer without a Demonstration Period or progressive discipline makes sense:

  • The proof necessary to remove a probationer is very low.
  • The action can be taken and effected in one day.
  • If the probationer is ALREADY having performance or conduct issues, just imagine how they might behave once their due process rights attach.
  • It expedites the process to get the position posted again.

Now, read the headline again and then check out the next piece of discussion.

Longer answer: Maybe, probably not, but if you do then you’d better realize WHY you’re doing it.

Explanation: If a probationary employee is already having performance or conduct issues, the supervisor needs to think very hard about whether the additional time and effort spent to coach, train, work closely with, mentor, and help the probationer along is worthwhile. Because once that probationer hits their one-year mark (in most jobs, anyway), they become a fully vested career employee where civil service protections attach. It’s still possible for the agency to take an action against a career employee, as FELTG readers well know, but the simplicity of a probationer’s removal cannot be overstated.

The below situations might be reasons why a supervisor decides to keep a probationer around:

  • The position is difficult to recruit for or the job is located in a remote place.
  • The benefit to the government of working with the employee outweighs the drawback to the supervisor.
  • The employee has a unique skillset that it is worth the extra oversight to keep that person employed by the agency.
  • The employee’s attitude shows willingness to learn and improve.
  • The misconduct cannot be forgiven, but the supervisor doesn’t think it requires the probationer’s removal.

Surely, there are multiple other reasons why supervisors might keep probationers around. And let me be clear: I am not advocating pro- or con- removal, one way or the other. I just think it is important to point out that probationers have very few rights to their jobs while in the probationary period. If an agency is having a problem with a probationer, that supervisor should think very hard about making life easier and handling the problem now. However, if the supervisor thinks there’s hope for the employee, I can absolutely understand and support that position as well. Regardless of your stance on this issue, best of luck with all your probationary employees.  Hopkins@FELTG.com

By Deborah Hopkins, July 12, 2021

A few weeks ago, my colleague and FELTG Founding Father Bill Wiley drew my attention to a Federal Circuit decision that gave the Federal employment law world an important distinction in legal definitions. The case involved an IRS agent who disclosed confidential taxpayer information, including personally identifiable information (PII), to an unauthorized person for her own benefit. The unauthorized person was her attorney, and the information was disclosed as the attorney was preparing a response to a proposed suspension for “displaying discourteous and unprofessional conduct and for failing to follow managerial directives.”

The IRS removed the employee for “intentionally disclosing taxpayer information to an unauthorized person” and the MSPB AJ upheld her removal, agreeing with the agency that the misconduct was severe because “taxpayer privacy is ‘sacrosanct.’” In addition, the employee had received training on the importance of keeping taxpayer PII private, did not redact any PII before sending the information to her attorney, and did not receive permission from the agency to disclose the information.

She appealed her removal to the Federal Circuit. While acknowledging the disclosure of taxpayer PII was improper, she argued on appeal that removal was too harsh because “[t]he penalty imposed was that for willful disclosure, rather than negligent disclosure.”

Keep in mind, the charge was “intentionally disclosing taxpayer information to an unauthorized person.”

The Federal Circuit did not agree with her argument, but rather agreed with the MSPB that her “removal was properly predicated on her intention to disclose the information to her attorney and did not depend on whether she knew that the disclosure was wrong.” Therefore, it was not improper for the IRS “to consider such intentionality as aggravating.”

Now the fun part – the discussion on the use of the words willful and intentional. The court said that in the petition for review, the employee improperly referred to being charged with “willful disclosure” when her actions were actually charged as intentional. The court said these two words are sometimes used interchangeably but shouldn’t be. And then they told us why:

  • An intentional action is one that an employee commits on purpose, not negligently. It is not a requirement that the employee know the action is illegal, if the agency can show the employee’s intent was to commit the action at issue.
  • A willful action is different; it is an action an employee commits on purpose with knowledge that the act is prohibited. If there is no evidence the employee knew the action was prohibited, the misconduct is not willful, but may be intentional.

The IRS employee acted intentionally when she provided taxpayer information to her attorney. The agency did not charge her with willful disclosure and, therefore, was not required to prove that she specifically knew the act was prohibited by law. The employment law nerd in me just loves this kind of stuff. If you’d like to read the case yourself, it’s Vestal v. Treasury, Fed. Cir. No. 2020-1771 (Jun. 14, 2021). And for more fun discussions on disciplinary charges, join FELTG for the virtual training program Understanding Misconduct: Disciplinary Charges and Penalties, held on July 26 as part of our weeklong program The Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. Hopkins@FELTG.com

By Deborah Hopkins, June 22, 2021

It’s now been five months since President Biden issued Executive Orders 13985 and 13988 – what we at FELTG are now referring to as the Diversity, Equity, Inclusion and Accessibility (DEIA) Executive Orders. If you paid close attention to the requirements in the EO, you’ve probably realized that there are some agency deadlines that have passed, or will be approaching very soon. Below is a review of some of the most important takeaways and tasks from these DEIA EOs.

Executive Order 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

As the title of this EO suggests, the focus of this EO is on preventing and combating discrimination on the basis of gender identity or sexual orientation, including overlapping forms of discrimination. The following tasks and deadlines were assigned on the day the President took office:

Sec. 2. Enforcing Prohibitions on Sex Discrimination on the Basis of Gender Identity or Sexual Orientation. 

Task (a): Review all existing orders, regulations, guidance documents, policies, programs, or other agency actions that:

(i) were promulgated or are administered by the agency under Title VII or any other statute or regulation that prohibits sex discrimination, including any that relate to the agency’s own compliance with such statutes or regulations; and

(ii) are or may be inconsistent with the policy set forth in section 1 of this order.

Deadline: As soon as practicable, and in consultation with the Attorney General.

Task (b): Consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination and the policy set forth in section 1 of this order.

Deadline: As soon as practicable, and in consultation with the Attorney General.

Task (c): Consider whether there are additional actions that the agency should take to ensure that it is fully implementing the policy set forth in section 1 of this order. If an agency takes an action described in this subsection or subsection (b) of this section, it shall seek to ensure that it is accounting for, and taking appropriate steps to combat, overlapping forms of discrimination, such as discrimination on the basis of race or disability.

Deadline: As soon as practicable, and in consultation with the Attorney General.

Task (d): Develop, as appropriate, a plan to carry out actions that the agency has identified pursuant to subsections (b) and (c) of this section, as appropriate and consistent with applicable law.

Deadline: In consultation with the Attorney General, 100 days: May 1, 2021.

Examples of impacted areas:

  • Health care providers
  • Restroom/locker room use in Federal buildings and on Federal land
  • Public postings
  • Harassment
  • Education
  • Immigration
  • Law enforcement
  • Employment

Hurry – register for the June 23 class Honoring Diversity: Ensuring Equity and Inclusion for LGBTQ Individuals.

Executive Order 13985: Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government

This EO focuses on what agencies can do to include all segments of the population in having access to the services that the Federal government provides, with an emphasis on communities that have traditionally had challenges in receiving equal access. Below are the tasks and deadlines, also issued January 20:

Sec. 4. Identifying Methods to Assess Equity. 

Task: Agency heads shall study methods for assessing whether agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals.

The study should aim to identify the best methods, consistent with applicable law, to assist agencies in assessing equity with respect to race, ethnicity, religion, income, geography, gender identity, sexual orientation, and disability.

Examples:

  • Vaccine distribution
  • Housing
  • Healthcare
  • Food security

Deadline: Within 6 months of the date of this order (July 21, 2021), the Director of OMB shall deliver a report to the President describing the best practices identified by the study and, as appropriate, recommending approaches to expand use of those methods across the Federal Government.

Sec. 5. Conducting an Equity Assessment in Federal Agencies.  

Task: Select certain agency programs and policies for a review that will assess whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs:

(a) Potential barriers that underserved communities and individuals may face to enrollment in and access to benefits and services in Federal programs;

(b) Potential barriers that underserved communities and individuals may face in taking advantage of agency procurement and contracting opportunities;

(c) Whether new policies, regulations, or guidance documents may be necessary to advance equity in agency actions and programs; and

(d) The operational status and level of institutional resources available to offices or divisions within the agency that are responsible for advancing civil rights or whose mandates specifically include serving underrepresented or disadvantaged communities.

Deadline: Within 200 days of the date of this order (August 9, 2021) provide a report to the Assistant to the President for Domestic Policy (APDP) reflecting findings on a-d, above.

Sec. 6. Allocating Federal Resources to Advance Fairness and Opportunity.

Task: Allocate resources to address the historic failure to invest sufficiently, justly, and equally in underserved communities.

Deadline: None identified, though a mention of the President’s budget submission to Congress indicates sooner rather than later.

Sec. 7. Promoting Equitable Delivery of Government Benefits and Equitable Opportunities.

Task: Consult with the APDP and the Director of OMB to produce a plan for addressing:

(i) any barriers to full and equal participation in programs identified pursuant to section 5(a) of this order; and

(ii) any barriers to full and equal participation in agency procurement and contracting opportunities identified pursuant to section 5(b) of this order.

Deadline: 1 year; January 20, 2022.

Sec. 8. Engagement with Members of Underserved Communities.  

Task: In carrying out this order, agencies shall consult with members of communities that have been historically underrepresented in the Federal Government and underserved by, or subject to discrimination in, Federal policies and programs. The head of each agency shall evaluate opportunities, consistent with applicable law, to increase coordination, communication, and engagement with community-based organizations and civil rights organizations.

Examples:

  • Surveys
  • Phone calls
  • Comment cards
  • Public outreach
  • Focus groups
  • Social media campaigns

Deadline: None identified; commensurate with deadlines above

It is certainly no small feat, and this is the starting point, rather than the end point. But these tasks all reflect the goals of this Administration, to promote DEIA in the Federal government, and in the services the government provides to Americans (and non-Americans) as well. Hopkins@FELTG.com 

By Deborah J. Hopkins, June 16, 2021

Just when we thought Schedule F was gone forever, a recent report Increasing Accountability in the Civil Service (from some of the same minds behind Schedule F) is once again pushing for Federal employment to be at-will. The good news for Feds is this push is coming from outside the administration. The bad news for Feds is, the whole reason this idea is still out there is because Federal supervisors underutilize the accountability systems that are already in place, and that leads the taxpayers to believe the system doesn’t work and it’s impossible to fire the Federal employees who deserve to be removed.

If I may opine, as I occasionally do in this space, this report highlights a few egregious instances of Federal employees behaving badly, and does not take into account all the agencies who follow the procedures and successfully hold employees accountable, thousands of times each year.

Because the successful removals, my friends, don’t get your attention. But people remember things like the HUD employee who used his agency email to arrange a lap dance, or the USPS employee who bought cocaine on her lunch break and brought it in to the postal facility. If it bleeds, it leads, as I learned in broadcasting school. The sensationalism of the few bad cases on the front page is just another permutation of the question we ask in our UnCivil Servant training classes: What’s more scary – a shark or a cow? (Hint: the cow should scare you more.)

[Editor’s note: Would you like bring UnCivil Servant training to your supervisors?  Contact FELTG Training Director Dan Gephart at Gephart@FELTG.com.]

We don’t need civil service reform. I’ll say it again: We don’t need civil service reform. In fact, I wrote about this a couple of years back in a three-part series where I detailed that holding people accountable is not as difficult as you might think, doesn’t take as much time as you might think, and doesn’t require as much evidence as you might think. And I stand by it today.

At FELTG, we have been teaching on accountability for more than 20 years. And in too many classes, we come across agencies where the supervisors, L/ER Specialists, or attorneys admit (or won’t admit the truth) that they are risk-averse and don’t like taking disciplinary or performance-based actions because they don’t want to lose at litigation. So too often, they look the other way when employees have behavioral or performance issues.

For example, look at these statistics from a 2019 research brief the Merit Systems Protection Board:

Top Three Reasons Supervisors Don’t Fire More Bad Performers

  1. Agency’s culture is to not remove: 83 percent
  2. Lack of upper management support: 78 percent
  3. Lack of quality HR support: 75 percent

Remedying Unacceptable Performance in the Federal Workplace (MSPB, June 2019).

I don’t need to tell you that these are not good numbers. This all adds to the problem of perception. When bad employees are not held accountable, the good employees see that nothing happens, those bad employees get the same pay and benefits as your hardest workers, and it negatively impacts morale. Over the years, we have seen an increase in positive morale when supervisors hold employees accountable, and we encourage you to do the same.

In our classes, we show you the hard evidence that if you follow the law, the chances of your disciplinary or performance action being upheld are really, really good. Don’t let the shark scare you. Most people get through life without getting eaten by a shark.

Show America that we don’t need civil service reform. Show your good employees that their hard work means a lot to you and to your agency. Use the accountability system the way it’s intended – to remove employees, when you have cause. We promise, it’s possible. We help agencies do it every day. Hopkins@FELTG.com

By Deborah J. Hopkins, June 16, 2021

Last month, we looked at some of the unique aspects to disciplining a member of the Senior Executive Service (SES). This month, we will cover your agency’s options in the rare event a non-probationary member of the career SES has a performance issue.

Unlike GS employees who can be removed for unacceptable performance entirely unrelated to an annual performance rating, a performance-based removal for an SES member must be based on that employee’s final rating(s) – typically the rating given as part of the annual performance appraisal.

If an SES member is performing unacceptably, however, agencies do not have to wait until the end of the appraisal year. There is flexibility to end an SES member’s appraisal period at any time (after the minimum appraisal period, which is 90 days in most agencies) if there is an adequate basis to prepare a final rating. According to OPM, this rating may “serve as the basis, or part of the basis, for a performance-based action.”

However, the word removal in this context does not mean removal from Federal service (also known as firing); it is removal from the SES, and in cases of unacceptable performance, the SES member has a guaranteed placement right to a non-SES career civil service position. This right to placement does not exist if the SES member is removed for misconduct.

If an SES member is performing unacceptably, the process generally follows these steps:

1 – The agency issues final rating of unsatisfactory or its equivalent (Level 1 in most agencies), at annual rating time or sooner, if the agency has an adequate basis to rate the employee, as detailed above.

2 – The agency notifies the SES member, in writing, of the impending “removal” from the SES, at least 30 days in advance of the removal date. The notice must contain:

  • The reason(s) for the action.
  • The effective date of the action.
  • The employee’s placement rights and information on the position to which the employee will be moved. The placement may be:
    1. A reassignment or transfer to another position within the SES, or
    2. Removal from the SES and placement into a GS-15 or equivalent position, with SES saved pay.

According to OPM, SES saved pay is set at the highest of three alternative rates –

  1. Rate of pay for the position in which the employee is placed;
  2. Rate of pay for the position from which the employee was appointed to the SES; or
  3. Rate of pay earned immediately before removal from the SES
  • Notice of the right to request an informal hearing from the MSPB at least 15 days before the removal is effective (although such an opinion is advisory only and is not binding on the agency). If applicable, the notice must also include the employee’s eligibility for immediate retirement under 5 U.S.C. 8336(h) or 8414(a).

3 – The SES member is placed into the new position on the effective date. Those SES members who held a career or career conditional appointment immediately before entering the SES are entitled to an appointment of equivalent tenure. Those who did not hold such an appointment before SES (for example, they were hired from the private sector) may be appointed using Schedule B authority under 5 CFR 213.3202(m).

There is no traditional MSPB appeal right for a performance-based “removal” from the SES. If the SES member is placed into a GS-15 position and then performs unacceptably, chapter 43 performance procedures would apply.

But wait! We’re not done yet.

Here are a few other odds and ends:

Marginal performance won’t cut it. The SES member receives two final ratings of unsatisfactory within 5 consecutive years, or two final ratings of less than fully successful (a Level 2 rating) within 3 consecutive years, that employee must be removed from the SES and placed in a GS position – they may not be reassigned or transferred to another SES position.

Moratoriums exist. A career SES member may not be reassigned or removed from the SES within 120 days after appointment of a new agency head or of a new noncareer who is the initial rater for the career appointee, unless the reassignment or removal is based upon a final rating of unsatisfactory completed before the moratorium began. This is to protect the SES members from political motivations.

Not demotions, but pay decreases. If an SES member receives a less than fully successful rating or otherwise fails to meet requirements of a critical element and remains in the SES, the agency may reduce the employee’s pay by up to 10 percent, subject to the 12-month restriction on pay adjustments. 5 CFR 534.404(j). Hopkins@FELTG.com

By Deborah Hopkins, June 7, 2021

Last week, the MSPB released a research brief Agency Leader Responsibilities Related to Prohibited Personnel Practices. Since the MSPB still doesn’t have a quorum (1,613 days and over 3,400 Petitions For Review – and counting), publishing research briefs is one function the Board is still able to complete.

This brief looks at specifics in the Dr. Chris Kirkpatrick Whistleblower Protection Act (Kirkpatrick Act), 5 U.S.C. § 7515, which was passed unanimously by the Senate in 2017. The Kirkpatrick Act was named after a VA doctor who reported patient abuse and issues with patient medications (opioids) at the VA Medical Center where he was newly employed. Dr. Kirkpatrick made allegations that he was reprised against for being a whistleblower, and died by suicide shortly after he was removed from his position.

In case you’re not familiar, the Kirkpatrick Act sets out specific requirements for discipline against management officials who reprise against whistleblowers and other employees, specifically limited to the 5 U.S.C. § 2302(b) Prohibited Personnel Practices (PPP) 8, 9, and 14:

  • PPP 8 addresses retaliating or threatening to retaliate against a whistleblower.
  • PPP 9 addresses retaliating or threatening to retaliate against a person who exercises his/her/their right to participate in an appeal, complaint, or grievance (including as a witness), and retaliating or threatening to retaliate against an employee who refuses to obey an order that would require an individual to violate a law, rule, or regulation.
  • PPP 14 involves accessing the medical record of an employee or applicant as part of the commission of any other PPP.

If there is a finding of what MSPB in its brief refers to as a “Kirkpatrick PPP,” then specific requirements must be met in proposing discipline. We’ll discuss those below.

But first, according to the report, while “[t]he Kirkpatrick Act does not state what constitutes a determination that a Kirkpatrick PPP was committed or how to determine who committed the PPP in question,” the finding of a Kirkpatrick PPP can only be made by:

  • The head of the agency employing the supervisor;
  • An administrative law judge;
  • The MSPB;
  • The U.S. Office of Special Counsel (OSC);
  • A judge of the United States;
  • The Inspector General (IG) of the agency.

This seems to exclude the findings of a standard misconduct investigation unless, of course, the agency head reads the ROI and decides reprisal has occurred. Once the reprisal finding is made, the Kirkpatrick Act details the following process:

The head of the agency shall:

  1. Propose a suspension of at least three days (for a first offense), or propose removal (for a second offense by the same supervisor).
  2. Provide the employee 14 days to respond to the proposal, and allow the employee to be represented and to review the material relied upon; and
  3. Exercise judgment when considering the employee’s response and deciding to implement the proposed action, with the decision due by the end of the 15th business day (5 CFR § 752.103; this timeline may be amended in the future as a result of Executive Order 14003.)

There’s another interesting caveat to the Kirkpatrick Act. It only applies to actions taken against supervisors, as defined by 5 U.S.C. § 7103(a). If you have a few minutes to look it over, the brief can be found here. It includes a nice side-by-side chart comparing Traditional Discipline with Kirkpatrick Discipline. The brief also details various training on PPPs that agencies must require (including supervisor training on Kirkpatrick discipline), so please let us know if you’d like us to help you out there. After all, it’s what we do. Hopkins@FELTG.com.

By Deborah Hopkins, May 24, 2021

The 2020 FEVS was released a few days ago. Thanks to COVID-19, it looks somewhat different than past FEVS. But, as always, it is full of interesting and helpful information about how employees view their agencies, their supervisors, their coworkers, and more. Below are three key takeaways.

1. Agencies still have a long way to go on performance accountability.

In the 2020 FEVS, one of the worst scores out of all the topics covered came as a result of this item: In my work unit, steps are taken to deal with a poor performer who cannot or will not improve. (Q. 10). Only 42 percent of employees agreed with this statement, which means 58 percent of employees think that supervisors don’t do enough to hold unacceptable performers accountable. Not great.

While this number is trending better than it has in recent years (it was 36 percent in 2019 and 28 percent in 2018), we can all agree that 42 percent is not the target any agency aims for. That’s a failing grade no matter how you look at it.

FELTG has been working with a few agencies on a targeted approach to increase performance accountability through a structured set of training on topics, including writing effective performance standards, providing feedback that makes a difference, and holding employees accountable. These agencies have seen their individual FEVS scores on this item increase significantly, which tells us that the good employees really appreciate when supervisors focus time and effort on employee performance matters.

2. The grade on diversity hiring and representation is a solid C+.

In response to this item: My supervisor is committed to a workforce representative of all segments of society (Q. 20), 79% of employees agreed.

With President Biden’s numerous Executive Orders highlighting the government’s role in promoting diversity, especially among traditionally underserved populations, we can anticipate that agencies will work on bringing this number up in 2021. In many agencies, leadership is especially focused on nondiscriminatory hiring, reasonable accommodation for employees with disabilities, raising awareness about LGBTQ issues, and training on types of microaggressions and bias that often lead to hostile work environment allegations.

3. COVID-19 definitely impacted agency performance, but not as much as you might think.

One of the new sections in the FEVS dealt with the impacts of COVID-19 on agencies’ ability to meet customer needs and focus on mission results while the world was turned upside down from the pandemic. The graphic below shows that while there have been some struggles, Federal employees have found ways to contribute to agency mission and customer service despite unprecedented working conditions, whether that was transitioning to work 100% from home, spending 12 hour shifts in PPE, working around the clock to develop tests, treatments, or vaccines, and much more.

If you haven’t yet read the FEVS, you can find it on OPM’s website here. It’s worth a look, and when you’re ready to talk to FELTG about how we can help you improve your agency’s scores (because after all, higher scores mean your employees are happier, and if your employees are happier they are more productive), we’ll be here. Hopkins@FELTG.com

 

By Deborah Hopkins, May 21, 2021

While it’s rare to see an individual in the Senior Executive Service (SES) receive disciplinary action, every now and then an SES breaks bad, and agencies respond accordingly. During a recent UnCivil Servant training class [Editor’s note: Don’t miss our next UnCivil Servant open enrollment class September 8-9], we received a number of questions about the process of disciplining a career SES, so I thought I’d share an overview with the FELTG Nation. As you’ll see there are some similarities between SES and non SES discipline – and a few significant differences.

An agency may take disciplinary action against a career SES member (covered by subchapter V of chapter 75 of title 5 of the U.S. Code) only for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.

Unlike unacceptable performance cases, which rather than removal provide the SES with placement rights into another position, any career SES removed for disciplinary reasons has no placement rights.

How it’s the same 

Probationers. A probationary career SES member who was not covered by 5 U.S.C. 7511 immediately before SES appointment may be removed for misconduct. The employee must be notified in writing, and the action must be effective before the end of the last scheduled workday in the probationary period. For removals over conditions arising before appointment to the SES, the agency must provide advance written notice (the proposal letter) stating specific reasons for proposed removal, an opportunity to reply, and a written decision showing reasons for the action and the effective date.

Procedures. For suspensions greater than 14 days and for removals, the SES is entitled to advance written notice, at least 7 days to respond, the right to a representative, an impartial decision, and the right to appeal the action to MSPB.

How it’s different

Nexus. The “efficiency of the service” standard used for non-SES employees does not apply in SES discipline. However, if an agency wishes to take disciplinary action based on the appointee’s off-duty actions or misconduct, the agency must demonstrate a direct connection between the off-duty actions and the appointee’s ability to carry out the assigned responsibilities of his/her/their position.

No short suspensions. The law is silent on short suspensions for SES. OPM’s interpretation is that because there is no statutory authority for such action, agencies may not suspend an SES member for 14 days or fewer. However, agencies are not restricted from issuing a written reprimand for an offense that does not warrant a suspension or removal.

No demotions. By law, there are no demotions in the SES. That said, an agency is allowed to reduce the pay of a career SES appointee by up to 10 percent as disciplinary action for misconduct.

If the agency chooses this route, the SES must be:

  • Provided written notice at least 15 days in advance of the effective date,
  • Given at least 7 days to respond,
  • Given the opportunity to have a representative,
  • Given a written decision containing reasons for any pay reduction, and
  • Given an opportunity to request reconsideration by the agency head within 7 days of the decision.

There is no third party review of this type of pay reduction. Sometimes, in lieu of a pay reduction, an agency will remove the SES member for misconduct, and then appoint them into a GS-15 or 14 position.

I hope this helps clarify the specifics on disciplining an SES. Next time, we’ll tackle SES performance. Hopkins@FELTG.com