If You Don’t Know Where You’re Going, You’ll End Up Somewhere Else

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By William Wiley, September 18, 2019

Yogi Berra laid down an important principle of life when he delivered the quote in our headline. A less-gifted author, such as your reporter here, might have said something like, “You should know what you’re trying to accomplish before you set out to do it.” Of course, that’s why Yogi is quoted more fondly than Wiley. Yogi is so much more articulate.

This leads us to an article we published a couple of weeks ago about disciplining employees. We presented the question: “Why do supervisors discipline employees?” We thought we should try to nail down our goal if we are to understand the value of and the pathway to administering discipline. Although the article was meant mostly as a thought question for all you philosophers out there, we received a lot of really good reasons from several members of the FELTG Nation.

Historically, this particular article received the second-most FELTG Newsletter comments from you avid readers out there, being surpassed only by Deb’s “How to Dress” piece many years ago (a copy of which is still taped to the inside of my clothes closet door, for easy reference).

A number of responses focused on the statutory requirement that discipline be used for such cause as will promote the efficiency of the service. “We discipline to send a message to the employees” was a common theme. In this same line of thought, one responder said that we use discipline to “control the workplace environment.” A couple of other responses took a different approach, wondering if we should really want employees working for the government who have to be coerced into behaving acceptably. One excellent thinker referenced an article published last year by the Society for Human Resource Management (SHRM) that argues that in the modern workplace, discipline has no purpose at all.

What was absent from any of the responses was the belief that we discipline employees to punish them for their wrongdoing, the old eye-for-an-eye tooth-for-a-tooth principle that an employee who has injured the agency is to be penalized to a degree similar to the harm. Frankly, we were glad to see that punishment was not articulated as an objective of discipline.

The distillation of the responses we got is that a supervisor should discipline an errant employee to correct his behavior so that he conforms his conduct to workplace norms in the support of an efficient government. Which takes us to a very real question we should all consider:

If we are disciplining to correct behavior, not to punish behavior, then why do we ever suspend employees as discipline?

If an employee were to do something at work that really hurt the agency, just short of being harmful enough to warrant removal; and if we were intent on punishing the employee, we might well resort to a big long suspension of 90 to 120 days. The US Merit Systems Protection Board is on record as finding such lengthy suspensions to be warranted as mitigation in a few cases over the years in which it has found a removal to be excessive. However, if we were not interested in punishing the employee, and instead had a goal of getting the employee to change his behavior so that he does not engage in future misconduct, then we should look for tools that correct (not punish) behavior. With the corrective approach in mind, when we consider whether we should suspend an employee as discipline, we start to realize a few things about suspensions:

1. There’s no proof that they get employees to correct their behavior. Oh, we’ve all seen employees who were suspended who did not engage in future misconduct, but perhaps they would have refrained from future misconduct with something other than a suspension. I’ve been on the lookout for 40 years for some scientific (preferably double-blind) study out of some reputable research entity that establishes that the greater the degree of lost pay enforced as a disciplinary suspension, the less likely it is that the individual will repeat the misconduct. The closest I’ve come to the severity of punishment correlated with the rate of recidivism is in research done with criminals. And there seems to be no correlation between the length of a sentence and the likelihood that the individual will repeat the criminal act. Your gut may tell you that the greater the suspension, the less likely it is that the individual will repeat the misconduct, but there’s no science to back that up.

2. Suspensions are not free. If a supervisor suspends an employee for three days, what happens to the work the employee would have done had he been at work? Does it go undone? Does it get dumped on coworkers? Do we call in contractors to do the work, or pay overtime? We’ve been told of cases in which agencies had to spend two to three times the employee’s lost salary to get the work done during the employee’s suspension. If I was going to spend that kind of government money, I’d want to be sure I was getting something of greater value in return. Suspensions as corrective tools have not been proven to be that valuable.

3. Suspended employees often challenge the suspensions. EEO complaints are free to the employee and resource-draining for management. Grievances take up a lot of management time, with serious costs if the union invokes arbitration. If the supervisor suspends the employee for more than 10 workdays, there’s the good old MSPB appeal/discovery/hearing/petition-for-review/federal court-times-2 process to be dealt with. If the employee is a whistleblower (aren’t they all?), then there are those delightful folks over at the US Office of Special Counsel who are ready, willing, and able to investigate and prosecute the pants off of a reprising management official

If we are disciplining to control the federal workplace, to modify behavior in support of an efficient government, then we should not use tools that don’t offer the promise of accomplishing that objective. Here within the FELTG neural net, that reality began to settle in about five or six years ago. When asked for advice on the development of a disciplinary policy, we recommend using two reprimands to establish progressive discipline, then removing the non-conforming employee without using suspensions at all. The SHRM article goes so far as to argue that the word “reprimand” is out of place in a modern workplace, and suggests that instead, we use the word “Notice.” Something worth considering.

We think Yogi would be proud of any agency that took this progressive discipline approach: Reprimand, Final Reprimand, then Removal. That’s because we seem to all be in agreement that where we want to end up is with a more efficient federal government, not with punished individuals for the sake of punishment. Wiley@FELTG.com

Question of the Day: Why Do Agencies Discipline?

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By William Wiley, August 28, 2019

Every now and then, I’ll make a statement in a class, and some bright student will say: “Where did you get that?” If the issue has to do with something recent, often I am able to find a citation to a case decision or perhaps a regulation that resolves the question. But every now and again, I get a question about something that is so fundamental I can’t remember (nor find) where I got it.

For example, recently I was looking through some old Board decisions that made me ask the question: “Why do we discipline?” For many years, I have taught that the purpose of discipline is to correct behavior and prevent future occurrences, not to punish for the sake of retribution or extracting pain from the employee simply for the sake of extracting pain. However, when I tried to find the source of that answer, I found very little. The Merit Systems Protection Board doesn’t seem to have addressed the question. The Office of Personnel Management has some very nice regulations relative to the procedures by which discipline can be taken, with the admonition that it can only be taken for reasons that support the efficiency of the service. But that doesn’t really tell us much.

The answer to this question seems so fundamental that I am absolutely blown away that I cannot find what answer might be. And the answer is absolutely critical to assessing some of the actions taken by MSPB. For example, in 2015, the Board upheld the mitigation of a removal to a 180-day suspension (based on the mitigating circumstance of the employee’s medical condition). The employee’s misconduct was falling asleep at work. If the purpose of discipline is to correct misbehavior, does the Board really believe that a six-month suspension is necessary to motivate a sick employee not to be sick? In another decision a couple of days earlier, the Board concluded that a 30-day suspension was somehow appropriate for an individual suffering from major depressive disorder. I just cannot understand how that motivation could possibly be the right answer. See Banks v. DVA, CB-7121-15-0006-V-1 (Feb. 27, 2015)(NP), Bowman v. SBA, 2015 MSPB 18.But if that’s not the answer, what is? If we are not trying to correct behavior through negative reinforcement, then what the devil are we doing by disciplining employees? Would someone out there with a paygrade above mine (and as my pay grade is effectively GS-zero, so that includes everybody), please answer this question? If the purpose of discipline is to correct behavior, then the Board was absolutely crazy to be mitigating removals to 60-, 90-, 120-, and 180-day suspensions. There has never been a study nor is there a principle of psychology that supports discipline to correct behavior at this level of punishment. If there is another purpose for discipline, it would be terrific if we all knew what that was so that supervisors could take that into consideration when analyzing the Douglas Factors. Wiley@FELTG.com

Can an Agency Track Down a Former Employee and Discipline Him?

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By Deborah Hopkins and William Wiley, August 14, 2019

This hypothetical recently came across the FELTG Help Desk, and we thought it was a curious question that the rest of our readers might be interested in. It’s a multi-part scenario, so read carefully.

  1. Can a misconduct investigation at an employee’s old agency follow him to or otherwise impact him at a new agency where he has gotten a new job?

Answer 1. As long as the agency can find a nexus (a connection) between the previous misconduct and the current government job, then an investigation (and its ensuing findings) from another agency may follow the employee to the new job. The impact can include anything from nothing through removal, depending on how the new agency views the conduct.

The investigation stays with the employee because the employee is accused of engaging in misconduct directed against the government, which is not limited to just the former agency. Or, perhaps he’s committed a criminal act (against the American people). Either way, moving from one agency to another does not relieve him of accountability.

  1. If it is a low-level offense (far from criminal), can the old agency mandate the employee back to be interviewed, and reach them at their new agency to receive the proposal and decision letters? Or does the new agency somehow take on the case?

Answer 2. The former agency can absolutely request the employee to come back for an interview, and the new agency’s supervisor can mandate the employee comply with the interview request or else face disciplinary action. And just so you know, refusal to cooperate with an agency investigation is first-offense removal misconduct, no matter how serious or minor the misconduct allegations might be. See, e.g., Hamilton v. DHS, 2012 MSPB 19, Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Sher v. VA, 488 F.3d 489 (1st Cir. 2007).

Keep in mind, even though the employee has left, there’s this little piece of the Administrative Leave Act of 2016 (part of the 2017 NDAA) dealing with investigative leave that says if an employee quits during an investigation, the formerly employing agency should complete its investigation, then forward any adverse conclusions to the new agency for inclusion in the employee’s OPF. The former agency will have to notify the employee and then deal with any appeal, and as far as we can tell this issue has never been litigated.

When it comes to imposing discipline, however, that decision must be made by the new agency.

The employee now works at X agency, so he is controlled by X agency’s rules and regulations. And no agency regulations in the history of our great country allow some other agency to discipline employees other than its own. The former agency, call it Y, can inform agency X of its findings and recommend to management at X that the employee be disciplined. If X refuses to discipline, then the management at Y can go up the chain of command to the President and have him order X to discipline. The power to discipline employees is vested in the president (5 USC 301, et seq) and he can delegate that authority downward to his respective department heads. It’s all up to him.

In summary, the authority to discipline is vested in the employing agency, not the formerly employing agency. The old agency can recommend, but that’s about it, UNLESS…

If agency Y doesn’t mind taking political heat, they can report the matter to the IG of agency X, just like anybody can, by dropping a dime on employee misconduct.

[Wiley Note:  Several years ago, while riding with a chatty Uber driver, he asked me what I did for a living. I told him that I helped government agencies fire people who do bad things. He paused a second, and then asked, “Do these agencies contact you for help, or do you just go around DC looking for bad government employees you can fire?” There are a lot of days, my friends, that I wish that the second option had been the right answer.]

Hope this helps. Hopkins@FELTG.com

Where Does It Say I Can Reprimand?

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By William Wiley, originally published November 14, 2015; posted July 10, 2015

Questions, we get questions. And here’s one that goes to the fundamental nature of an agency’s authority to do anything:

Dear Genius-Level Brains at FELTG-

What is the Statutory or CFR basis that gives Management the authority to issue written reprimands? I’ve reviewed USC Chapter 5 and 5 CFR 752 as well as more OPM webpages than I thought could exist. I see lots on suspensions (<14 days and >14 days) but nothing that seems to give Agency Management the right or authority to issue written reprimands. Do you know of any CFR reg that addresses an Agency Head’s authority to issue written reprimands for the efficiency of the service?

And our sparkly little FELTG answer:

There’s no specific statutory or regulatory authority to issue reprimands. Rather, the authority comes from the statutory delegation of the authority for the general administration of personnel within an agency to the head of the agency, 5 USC 302(b). Issuing a reprimand is part of the “general administration of personnel.” Therefore, it is delegated to the head of your agency.

It is a common misunderstanding to look for the authority to do something specific in government. Rather, this broad delegation of general administration authority effectively allows you to do anything related to personnel administration that you deem necessary, unless there is a prohibition against it. The better way to approach the issue is to ask, “Where does it say I cannot issue a reprimand?” As it does not say that anywhere, then you can.

An analogy would be, “Where does it say in law or regulation you have the right to breathe?” It does not. That right is embedded in the right to “the pursuit of happiness” that is found in our Constitution.

As for the content of a reprimand, generally the belief is that a reprimand was first defined for the practical purposes of progressive discipline in Bolling v. Air Force, 9 MSPR 335 (1981). Subsequently, buckets of Board decisions have relied on the fact of a reprimand being in the record to support progressive discipline. Black’s Law Dictionary defines a reprimand as “to censure formally, especially with authority.” The head of your agency has the authority to administer personnel. Therefore, you can reprimand.

By the way, nothing requires that a reprimand be for “the efficiency of the service.” That is a requirement set forth in statute only for 5 USC 7513(a) actions: suspensions, demotions, and removals. Rather, we are bound to take a personnel action (e.g. reprimand) only on the basis of conduct that adversely affects the performance of the employee or others, 5 USC 2302(b)(1). A reprimand is based on misconduct. Therefore, this standard is satisfied.

Hope this helps. Best of luck-

Bill

 

Wiley@FELTG.com

Barr and Mueller Should Come to FELTG Training

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By William Wiley, June 12, 2019

Yeah, they each messed up. And if they had participated in the FELTG Conducting Workplace Investigations program (next offered August 5-9 in Denver), they would have not. In case you’ve been adrift at sea without social contact for the past several weeks, here’s what happened.

As provided for in both law and regulation, Robert Mueller was appointed by the Attorney General (AG) of the United States as the Special Counsel (SC) assigned to conduct an investigation into questionable dealings between members of President Trump’s campaign team and representatives of the Russian government. After two years of investigation, Mueller issued a 448-page report containing a bunch of fascinating facts, but no legal conclusion as to whether those facts amounted to criminal activity on the part of the President. When asked why he did not draw a legal conclusion relative to criminal activity, Mueller noted a Department of Justice policy that stated that a sitting President cannot be criminally indicted for federal crimes prevented him from doing so.

Subsequently, when Attorney General William Barr was asked whether Mueller should have drawn a legal conclusion, the AG offered that he should have. Barr said that even though there is a DoJ policy that a President cannot be indicted, the policy did not prevent the SC from drawing a legal conclusion as to Presidential criminality without issuing an indictment.

Each of these honorable gentlemen made a mistake, mistakes that are not made by participants in FELTG investigations courses. As we have taught for nearly 20 years, an investigation begins with a “customer,” someone who needs the benefit of an investigation. That customer appoints another individual to be the investigator, with certain powers, objectives, and limitations; i.e., defines the scope of the investigation. The goal of an investigation is for the investigator to provide the information needed by the customer to do whatever it is the customer wants done. In a workplace investigations situation, that’s usually whether some poor federal employee should be fired. In the AG/SC situation just described, it’s whether the President of the United States should be impeached, thrown in jail, or at a minimum, should be re-elected.

The law that governed the appointment of Mueller states specifically that the report of the investigation is to be provided to the AG. It could have said that the report was to go to Congress, or to the public. But it did not. The law made the “customer” of the report the Attorney General of the United States. Therefore, according to basic constructs of investigation, it is up to the AG to define the scope of the investigation, so that the SC investigator knows what to look for and what to produce as an outcome.

In our FELTG classes, we recommend that this critical scope definition be memorialized in an “appointment” memo. Preferably, that memo is provided by the customer to the investigator and lays out the expectations the customer has. For example, part of the appointment memo might say something like, “I am appointing you to investigate the theft of laptop numbered 123 from the director’s office that occurred around June 3, 2019. Based on the information you collect, I will make a determination as to who most likely took the laptop and whether discipline is warranted.” Sometimes a different result might be desired by the customer. If so, it should be stated clearly in the appointment memo: “If possible, you are to identify who you believe took the laptop without authorization, and the degree of proof you believe that you have regarding that determination.” Perhaps the customer wants the investigator to go even further: “In addition to identifying the probable perpetrator, you are to consider the facts that contribute to the relevant Douglas Factors and suggest a range of penalty.”

There’s no right or wrong when it comes to the scope of an investigation. It’s up to the customer to decide what the expectations are to be, to define the scope, and then to empower the investigator to collect all the evidence that’s required. In our investigations classes, we’ve found that some agency customers just want the investigator to collect facts without any consideration of the penalty factors, and other agency customers want the whole enchilada: facts, perpetrator, and penalty. That’s why it’s so critical that the scope be understood mutually from the very beginning. Otherwise, the investigator may not be satisfying the needs and expectations of the customer.

We teach the potential investigators who participate in our classes that they should protect themselves by clarifying the scope of the work with the customer. If the customer does not draft an appointment memo, we suggest that the investigator draft a memo to the customer before the investigation is initiated that describes what the investigator believes his responsibilities; e.g., “It is my understanding that I am to collect facts surrounding the disappearance of the laptop from the director’s office, but not recommend a penalty nor identify specifically who I would conclude took the property.” That allows the customer to clarify any misunderstandings from the beginning, in case the investigator misunderstands his role.

This simple, basic step would have saved both Barr and Mueller a lot of confusion. When the SC decided early on that DoJ policy prevented him from reaching a legal conclusion as to Presidential criminality, he should have notified his customer (the AG) of this limitation early on in the investigation. Since the DoJ policy is open to interpretation (as evidenced by two really smart people disagreeing as to its meaning), and since there is no automatic right or wrong, a question presented by the SC to the AG for clarification two years ago when the investigation began would have saved a lot of disagreement and confusion at this stage now that the SC office has been dissolved. On the other hand, there’s not necessarily any fault to be assigned when it comes to being confused. When you order your eggs over easy for breakfast, and the waiter brings you (the customer) eggs that are scrambled, you simply say, “Excuse me, but I ordered eggs over easy.” It doesn’t matter if you misspoke or the waiter misheard. Your eggs were not served the way you want them, and any waiter interested in a tip will remedy the situation without hesitation. That’s how life works. There are no bonus points for assigning blame.

And that was the AG’s mistake. When Mueller submitted his report, and it was clear that he did not reach the legal conclusion that Barr expected, the AG simply should have returned the report to the SC and clarified the expectation. No harm, no foul. When you get scrambled eggs instead of over easy, you don’t jump up, run to the kitchen, and start frying eggs. You just ask them to do it over. That’s what Barr should have said to Mueller, and would have if he had attended the FELTG investigations seminar. The goal is to get an acceptable report (or an acceptable breakfast) in spite of any confusion as to expectations.

Here at FELTG, we exist to help you ladies and gentlemen do a better job of running the government. We do that by offering seminars and consulting services at a reasonable fee. Operators are standing by. Discounts offered for political appointees nominated by the President and confirmed by the Senate. We may be just a small  training group, but apparently we know more about federal investigations than do some very important people. Wiley@FELTG.com

Sorting Things Out: Defining Adverse Actions

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By William Wiley, May 21, 2019

In a previous article, I laid out the distinction between the general concept of “discipline” and what constitutes “discipline” relative to the application of “progressive discipline” in the federal workplace. In this piece, we take on an even more complex concept: adverse actions. Consider these interrelated (and somewhat confusing) truths:

  • Not all discipline is an adverse action, but most of it is.
  • All suspensions are adverse actions.
  • Most adverse actions are appealable, but not all of them are.
  • Not all adverse actions are discipline.

Unlike discipline, the term “adverse actions” has a nice legal definition. Turn to Chapter 75 of Title V of the United States code and you will see the title “Adverse Actions.” Within that chapter, you will find two subchapters: Subchapter I for suspensions of 14 days or fewer and Subchapter II for suspensions of more than 14 days, demotions, and removals. So right away, we know that suspensions, demotions, and removals enforced for disciplinary purposes are by statutory definition, “adverse actions.” In comparison, a reprimand, though disciplinary, is not an adverse action.

And here is where we find one of the common misconceptions in our business. Prior to the Civil Service Reform Act of 1978 (CSRA), the term “adverse action” was defined as applying to appealable (to the Civil Service Commission) long suspensions, demotions, and removals whereas the term “disciplinary action” was defined as applying to non-appealable short suspensions. Subsequent to the CSRA, shorter suspensions still are not appealable and longer suspensions/demotions/removals are (to MSPB). Unfortunately, post-CSRA there is a tendency among the uninformed to continue to use the old concept of “adverse action” as applying to “appealable” actions only.

That’s simply not what the law says. If you’re taking away an employee’s salary for disciplinary purposes by a suspension, demotion, or removal, that’s an adverse action and has been since October 13, 1978. The proper way to think of the distinction between Subchapter I and Subchapter II of Chapter 75 is to refer to “non-appealable adverse actions” (Subchapter I, short suspensions up to a pay period in length) and “appealable adverse actions” (Subchapter II, longer suspensions/demotions/removals).

So now we know why not all discipline is an adverse action (remember reprimands), all suspensions are adverse actions (the title of Chapter 75 of Title V of the USC), and not all adverse actions are appealable (the distinction between Subchapter I and Subchapter II). But what about the claim that not all adverse actions are discipline? There are two places that line is drawn for us:

Statutory: The full title of Subchapter II of Chapter 75 includes an additional personnel action within the definition of an appealable adverse action: furloughs for 30 days or less. I know, I know; the proper phrasing would be “thirty days or fewer,” but we’re stuck with what those folks in Congress have written, at least until they hire an eighth-grade English teacher to do a little editing for them. At any rate, as way too many agencies were forced to remember in the wake of government shutdowns, furlough an employee for 30 days or fewer and you have to use the adverse action procedures of Title II of Chapter 75 (30-day notice period, right to respond and representation, appealable to MSPB). However, a furlough is based on lack of funds, not misconduct. It does not meet the definition of “discipline.” And that’s an important distinction as you will see in a moment.

Case Law: Appealable adverse action removals based on the employee’s misconduct are disciplinary, by definition. However, adverse action removals based on the employee’s medical inability to perform are not disciplinary as there is no misconduct involved, again relying on the definition of discipline. You won’t find this in the law, but you will find it developed as a concept in MSPB decisions over the years.

So we have adverse actions that are “disciplinary” and adverse actions that are “non-disciplinary.” The distinction is important because the Board’s case law related to disciplinary adverse actions does not necessarily apply to non-disciplinary adverse actions. The main precedent relevant to the day-to-day practice of our business and this disciplinary/non-disciplinary distinction is Douglas v. Veterans Administration, 5 MSPR 280 (1981). As every practitioner learns in the first week of employment, if an agency takes an appealable adverse action based on misconduct against an employee, it will live or die by its documentation and defense of its analysis of the famous 12 Douglas factors. However, if the appealable adverse action is not based on misconduct (e.g., a removal for the medical inability to perform), then the Douglas factors need not be analyzed in defense of the penalty. The MSPB will not mitigate a medical-inability removal or a furlough to a lesser level, so there’s no requirement to fire up the old Douglas Factor Worksheet to defend your penalty selection.

Now, if there is anything you need to sort out, join me and FELTG President Deborah Hopkins for MSPB Law Week in Dallas June 3-7, 2019. Wiley@FELTG.com.

They Don’t Call Me ‘Backwards Bill’ for Nothing

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By William Wiley, May 15, 2019

Civil service law is a narrow field, we have to admit. A person could be the best litigator or Constitutional lawyer in history, and still trip over some of the intricacies of the law that those of us in the FELTG Nation are supposed to know.

Recently, I was reminded about one of the potential areas of misunderstanding in our field. I had helped a supervisor draft a performance standard for a critical element to place a poorly performing employee into a performance Demonstration Period (aka PIP), and it read something like this:

Two or more incidents of unacceptable performance during the demonstration period will constitute a Level 1, Unacceptable rating.

This is an example of a classically easy to prove performance standard. We make sure that the employee knows what constitutes a mistake under the problematic critical element, count mistakes as they are made during the Demonstration Period, and then voilà! He either passes or fails based on the number of maximum mistakes we tell him we will allow. MSPB has accepted this approach as valid for decades.

After the employee failed to perform acceptably during the Demonstration Period by making too many mistakes, as is the practice at the supervisor’s agency, she ran the proposed removal memo through legal for review. Here is the advice she got from the general counsel’s office.

Legal Comment: The critical element will not be upheld by MSPB because it sets forth a backwards performance standard in that it tells the employee what not to do, rather than informs the employee of what must be done to achieve the minimum level of performance to avoid removal. Standards that only describe what an employee should not do, MSPB and the courts have found to be invalid “backwards” standards.

Wow. That advice is just breathtakingly wrong.

As we have taught at FELTG for many years, we have to worry about a standard being impermissibly backwards if and only if we are dealing with a MINIMALLY ACCEPTABLE, Level 2 standard that doesn’t leave any room under it for Level 1 Unacceptable performance. Take a look at the Minimally Successful standard in one of the lead backwards-standard cases (Jackson-Francis v. OGE, 103 MSPR 183 (2006)):

  • Critical Element: Develops courses for agency officials and employees
  • Minimally Successful:
    • Does not identify training needs of the targeted audiences.
    • Fails to use principles of course design to develop performance-based training.
    • Fails to develop training designed to enable agency officials to determine whether rule violations occurred and employees to determine if they violated any of the rule prohibitions.

If Jackson-Francis utterly fails to complete the tasks identified in this critical element, using this standard, the agency would have to rate her as Minimally Successful and cannot fire her EVEN THOUGH SHE FAILED TO DO ANYTHING! Obviously, the agency intended for this to be the Unacceptable level of performance.

However, by mislabeling it as the Minimally Successful level, the agency has misled the employee and cost itself a bunch of back pay and attorney fees.

I will concede that the Board chose an awkward phrase when labeling this type of problematic (and illegal) performance standard as “backwards.” It would have been clearer if it had simply said that a standard at the Minimal level is improper if it defines performance at the Unacceptable level. However, it did not choose the simpler route, so we are stuck with having to understand this term in a more conceptual way.

Folks, we have to know this stuff. It’s OK to not know it if it’s not your job, but it’s not OK to be the supposed go-to person for legal advice and not know the case law. This little episode is a great example of being almost too smart.

The attorney-adviser knew a bit about Board law: that backwards standards are illegal and they have something to do with telling an employee what not to do. However, he was missing a vital piece of deduction.

It makes sense that a standard that describes only failure at the Minimally Successful level cannot be used to fire someone, but it does not make sense that a standard that describes failure at the Unacceptable level could not be used. Legal advice that does not make sense practically is almost always bad legal advice.

Read the cases. Ask questions of practitioners who know what they are doing. Come to the FELTG MSPB Law training (held next in Dallas June 3-7).

If we don’t do a good job, not only do we let down the line managers who need us, but we also let down the citizens who rely on government for services. And last time I looked, that’s just about everybody. Wiley@FELTG.com

Sorting Things Out: Defining Discipline

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By William Wiley, April 30, 2019

Here in the United States, when trying to understand a complex problem with many parts, we say we are trying to “figure out” what to do. In Britain, the phrase that is more likely to be used is to “sort out” a problem. Well, it’s time for some “sorting out” of several terms that are routinely misunderstood by a number of people in our business.

Discipline: Not finding a definition of this word in statute or regulation, I resorted to good old Google. Discipline is defined as “using punishment to correct disobedience.” That aligns with what you often hear in human resources, that we use discipline to “correct behavior,” not to punish. Without getting into the niceties of whether we embrace or reject the word “punishment” as being related to discipline, I think it’s fair to say that we take a disciplinary action in the civil service in the hopes that the employee on the receiving end learns a lesson and does not engage in future misconduct.

With a definition this broad, we could call just about any action taken by a manager toward an employee with the intent to preclude future misconduct “discipline.” We could require the employee to wear a dunce cap or stand in the corner with his nose against the wall, or, perhaps, we could use medieval stocks or the rack. Yes, the mind boggles with options for delivering negative reinforcement (fancy psychology talk for “punishment”).

In federal employment law, we have to be very careful what we identify as “discipline.” That’s because an important tool for federal supervisors is the concept of “progressive discipline.” In broad terms, progressive discipline says that when it comes to correcting behavior, we often start out with a low level of discipline. If that works to correct behavior, everybody wins. However, if the employee engages in subsequent misconduct following a low level of discipline, the supervisor is justified in moving to a more severe disciplinary tool because the low-level discipline obviously did not work. In other words, the supervisor “progresses” up the levels of discipline trying to find something that works to correct behavior, or eventually the employee can be removed for failing to respond appropriately to discipline. As the Court of Claims said years ago, the government does not have to retain as an employee an individual who does not respond to discipline. The application of progressive discipline weeds out those who can be rehabilitated from those who cannot.

Although many actions can be defined as “discipline” using the broad definition above, it’s only a narrow selection of those actions that count as discipline for the purpose of using the concept of progressive discipline. For a supervisor to be able to use prior discipline as a basis for enhancing a penalty for subsequent misconduct without having to re-litigate the prior action, the disciplinary action must meet three criteria, see Bolling v. Department of Air Force, 9 MSPR 335 (1981):

1. The action must be given to the employee in writing;

2. It must be recorded in the Official Personnel Folder; and

3. It must be grievable to a higher-level supervisor.

There are only two government-wide disciplinary actions that meet these criteria: reprimands and suspensions. (Demotions and removals also are disciplinary actions, but not a part of the concept of “progressive” as they are not intended to correct behavior.) Therefore, when applying the concept of “progressive discipline” to justify an enhanced penalty, these are the only prior actions that are relevant in supporting that justification.

An agency has the authority to characterize other actions as “disciplinary,” either through agency policy or negotiations with a union. For example, I’ve seen collective bargaining agreements that state that an “admonishment” is a disciplinary action (also letters of caution, warning, and expectation). However, if that admonishment is not retained in the OPF or is not grievable, then it does not meet the Bolling criteria and should not be counted as prior discipline for the purpose of using progressive discipline. If you try to count one of these things as “discipline” for the purpose of an enhanced penalty, you have created a significant unnecessary burden for the agency, likely resulting in mitigation of the penalty.

Out there in the big wide world, “discipline” can take many forms, including an ice hockey player being stuck in a box or a basketball player being kicked out of a game for committing a couple of stupid technical violations. However, in our more limited world of federal employment law, the better practice is to use the term “disciplinary action” to refer only to those actions that meet the Bolling criteria as actions that can count toward progressive discipline. To do otherwise confuses and frustrates unnecessarily, and creates a potential pitfall for the unwary. Wiley@FELTG.com

How I Became a Zen Master of Civil Service Law

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By William Wiley, March 13, 2019

Way back in the early ’80s, when I was just a GS-12 ER puppy working for Navy, a brand new MSPB board member named Dennis Devaney spoke at a conference I had helped pull together. In his speech, he announced that the Board was about to issue a decision that would hold that if an employee was having performance problems, the relatively new Civil Service Reform Act of 1978 required that they be dealt with through the relatively new Chapter 43-PIP procedures rather than through the old school adverse action procedures. This issue had been hanging out there since 1978, with OPM providing advice that it was mandatory that agencies use the Chapter 43 procedures and avoid the Chapter 75 adverse action procedures when confronted with bad performance.

Even at that limited-experience point in my career, I already knew that was going to be a bad decision. I recently had been advising a supervisor about a pediatric nurse who was engaging in such bad performance that she was perhaps on the road to killing patients. She failed to give medications if the patient didn’t want to take it. She did not keep an eye on IV needles, thereby ignoring any that had perforated the vein and were infusing fluid into the surrounding tissue. When I asked OPM for advice, the response was that I had to PIP her and could not fire her using adverse action procedures. When I asked how many dead babies I should consider to be an indicator of unacceptable performance, they told me to assign one of my spare nurses to follow her around all day to make sure that didn’t happen. Like I got a closet full of spare RNs. Geez Louise.

Member Devaney and I happened to run into each other the evening after his speech (in the hotel’s bar, of course; I LIKE BEER!). Failing to have the good graces vested in a frog, I confronted Member Devaney about the idiocy of his pending decision, the one that would require that poor performers be given 30 PIP days or so to commit even greater harm to the government. Mr. Devaney graciously ignored my youthful arrogance, thanked me for my opinion, and that was that.

Several weeks later, I got a letter from Mr. Devaney. This is before email, children, a time when adults communicated using paper, ink and stamps. In his note, Dennis described how the more he thought about our discussion, the more he appreciated the problem that would be caused by mandating Chapter 43-PIP procedures for all performance problems. When he returned to his office from the conference, he discussed the issue with the other two Board members, and they decided NOT to limit agencies to using just PIPs when dealing with a poor performer. The decision recognized that since the beginning of our civil service, agencies had been able to use adverse action procedures to fire poor performers, and nothing in the Civil Service Reform Act did away with that option. That principle is still good law. When confronted with a poor performer, supervisors are not limited to Chapter 43 procedures and are free to use discipline/adverse action procedures whenever they see fit. In fact, the Board’s case law is chock-full of removal actions taken under Chapter 75 that are based on bad performance.

Unfortunately, that word didn’t get around very well. For example, maybe a dozen years after that decision, I was dealing with an OSC investigator/attorney. The agency I was representing had reassigned a poor performer to another position in which it thought the employee might succeed. The attorney from OSC argued with me that such a reassignment was illegal, that the employee was entitled to be PIPed instead. Holy moly. Am I the only one who has read the Board’s decisions? And has a smidgen of common sense?

That brings us to today; 35 years deep into Board case law. So, what do I see coming out of EEOC and echoed by some others who opine in this field? This:

“Work product errors and untimely completion of work assignments are not matters of misconduct; they are matters of performance.” EEOC reasoned that “measures designed to address performance problems, such as appraisals, remedial training, non-disciplinary counseling, and Performance Improvement Plans (PIPs)” be used. Marx H., Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency, Equal Employment Opportunity Commission-OFO Appeal No. 0120162333, Agency No. 14-00259-03453 (June 19, 2018)

EEOC appears to be saying that using adverse action procedures for bad performance is somehow “improper.” Well, that was an issue back in the early 80s. But it was resolved back then, and is just as wrong today as when OPM advised me to assign backup nurses to keep a PIPed coworker from harming babies and small children. When it comes to dealing with a poor performer, there are a number of tools available to the supervisor. With all due respect, EEOC should be making decisions based on the answers provided by case law, not what they think the answer should be. In any particular case, using a disciplinary or Chapter  75-type approach vs. using a “performance improvement” type of approach may be the more reasonable way to go, but both approaches remain available.

What does that have to do with my personal career? At the end of Mr. Devaney’s note, he told me that if I ever wanted to move to DC, he could use someone with front-line practical experience as an advisor on his staff.

I was loading the U-Haul before the week was out, heading off to a career that gave me a chance to see civil service law from the inside out. And, what’s the professional-development lesson in here for all you youngsters out there?

Drink beer. Wiley@FELTG.com

Three Best Practices for a Douglas Factors Analysis

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By William Wiley, February 6, 2019

Most members of FELTG Nation know that the Douglas Factors are the 12 employee-specific situational factors that agencies use to determine and defend a penalty selection in a misconduct removal appeal. Fail to evaluate the 12 factors the way that MSPB thinks they should be evaluated, and the Board will lower (mitigate) your removal to something less. When that happens, the employee gets her job back and you get sent to the dog house for not foreseeing how MSPB will consider the penalty.

When I was Chief Counsel to the MSPB Chairman, I reviewed thousands and thousands of Douglas Factor assessments. Without a scintilla of hesitation or doubt, I can assure you that the following three graduate-level principles will help you do a better job of defending your penalty section in a removal appeal:

1. Judges think in linear terms. Few people outside of MSPB know this, but when an individual is hired to be a Board administrative judge, that lawyer has to undergo a surgical procedure. In that procedure, 12 groves are made in the acolyte’s brain, one for each Douglas Factor. In assessing an appeal or listening to testimony at hearing, the judge likes to fill each grove with information about just that Douglas Factor, in the order that the factors are listed in the original Douglas decision. So, what does this mean for you as a practitioner?

  • Don’t go discussing the penalty factors in some sort of smashed-together paragraph.No matter how elegant and insightful your narrative discussion might be, you’re going to cause the judge to have to dissect what you’ve said and try to sort it all out into those little groves in his brain. You do not want the judge to have to do that. You do not want a judge to work any harder than necessary to understand the theory of your case and your evidence to support that theory.
  • Address all 12 factors, in order. Even if a factor carries no weight because there’s nothing there, note that the proposing official considered it and found nothing. A simple “Not Applicable” will do the trick. The mistake you are avoiding by doing this is a claim by the employee that you skipped a factor and didn’t even think about it, when the truth is that you thought about it and found it to be irrelevant.
  • Carefully segregate your factual description and limit your discussion of a factor to just that factor. For example, when discussing Factor One, Seriousness, don’t talk about how the misconduct is serious because the employee is a supervisor. You’ll be able to discuss the employee’s supervisory status in Factor Two, Job Level. You get negative points for repeating yourself in a Douglas analysis.

2. Some factors have subcomponents. Factors One, Two, and Four have evolved separate and somewhat distinct subcomponents over the years that the Board has been analyzing penalties. For example, Factor Four, Past Work Record, includes the subcomponents of a) Length of Service and b) Performance Rating. In fact, the Length of Service subcomponent has three subcomponents to it. Be sure to address all subcomponents or the Board will find fault in your analysis and perhaps substitute its penalty determination for yours. You don’t want MSPB doing that. Either come to one of our always-elucidating seminars (next offered in Washington, DC March 11-15) and we’ll teach you all the subcomponents or figure them out for yourself.

3. A Douglas Factor worksheet should be attached to the proposal notice. I’m not sure why this has been such a controversial matter for some agencies. On occasion, I’ve been confronted by more than one practitioner who argued passionately that the proposal notice should NOT contain a Douglas Factor analysis. I never really understood that argument because the Douglas decision itself says:

Moreover, aggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors before the agency’s deciding official, and the decision notice should explain what weight was given to those factors in reaching the agency’s final decision. Douglas v. VA, 5 MSPR 280 (1981)
I guess you could split hairs and say that only aggravating, not mitigating, Douglas Factors have to be in the proposal notice. Well, do you REALLY want to bet your case on defending the evaluation of whether a specific factor is aggravating or mitigating? Length of Service can be either aggravating or mitigating, depending on how long the employee has been a civil servant. We have to consider both aggravating and mitigating factors in the final decision. Why would we not put them all in the proposal so that the employee knows what we’re doing and why? Maybe we’ve forgotten something (e.g., military service) that is required to be considered. She should have the opportunity to know this stuff so she can respond and defend herself completely.

In addition, as we’ve taught here at FELTG for nearly 20 years, the Board holds agencies to different burdens of proof when a fact is asserted in the penalty analysis as compared to when a fact is asserted in the charge section of a proposal notice. By analyzing the penalty in a separate document, the Douglas Factor Worksheet, we make it exceedingly clear to the judge exactly what is going where, and thereby which of the two proof burdens he is supposed to use when evaluating our case.

In a recent case I was working with an agency legal counsel, during the prehearing conference the appellant began to argue to the judge that the selection of removal as the penalty was unfair. The judge cut her off right away by saying, “Madam, it is not my job to assess the fairness of the penalty. It is my job to assess whether your supervisors properly assessed all the factors relevant to penalty selection.” That judge understands how Douglas works, and so should you. Wiley@FELTG.com