Crime and Punishment

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isciplining employees is a fact of life for federal managers. In this time of enhanced missions and smaller staffs, agencies can ill afford to carry employees whose unacceptable behavior eats up their bosses' time, distracts their co-workers and hinders accomplishment of the agency's goals. Incidents of espionage, bribery and homicide are thankfully rare, but offenses such as viewing pornography on the office computer, misusing agency vehicles, abusing sick leave, using government charge cards to buy personal items and insubordination are everyday occurrences.

First-line supervisors and mid-level managers, rather than senior executives, are most involved in disciplinary actions. They primarily serve as the proposing and deciding officials in imposing discipline, and they bear the brunt of an agency's failure to deal with problem employees. Assisted by personnel specialists and, sometimes, agency attorneys, managers draw up the charges, weigh the evidence and select penalties.

If an agency decides to remove or de-mote an employee or to suspend him for more than 14 days, the employee has the right to appeal to the Merit Systems Protection Board. Bargaining-unit employees have the same appeal rights, or they can take any formal disciplinary action to arbitration as long as the union agrees to do so.

Judges and arbitrators have the power to mitigate an agency's penalty if they find it unreasonably harsh. To assist agencies in selecting a reasonable penalty, the MSPB has crafted the Douglas Factors, which are used to weigh issues such as the employee's duties, disciplinary and work records, and similar cases in the decision-making process. The 12 criteria are named after the 1981 case, Douglas v. Veterans Administration (5 MSPR 280).

One of the Douglas Factors directs managers to consult "any applicable agency table of penalties" to determine the consistency of a penalty. About 75 percent of agencies use these tables, which detail the range of punishments deemed appropriate for a given offense. Agency personnel offices developed the tables to help managers decide penalties and to avoid wildly different punishments for the same misdeeds. But these tables can produce the opposite effect and prompt the Merit Systems Protection Board to throw out a penalty.

At one end of the spectrum is a congressionally mandated punishment such as going on strike against the government (mandatory removal) and willful misuse of a government vehicle (at minimum a 30-day suspension and a maximum of removal). Sometimes Congress prescribes penalties for specific agencies such as the IRS with its infamous 10 deadly sins. When Congress selects a penalty or a range of penalties, neither a deciding official nor a judge or arbitrator can deviate from it. As a result, agencies sometimes are forced to reimpose harsher penalties when managers attempt to show mercy.

At the other extreme is a manager who chooses mandatory removal for a first offense in support of an agency's zero-tolerance policy. In such cases, deciding officials, like lambs to the slaughter, blithely testify at MSPB hearings that they considered no penalty but removal, because it was mandated by the agency's table. The board's reaction may be to void the penalty and formulate its own decision. Why? Failure to consider the Douglas Factors.

Although using "any applicable agency table of penalties" is, in fact, one of the Douglas factors, many others carry equal or greater weight-such as the seriousness of the offense, prior disciplinary actions, job performance, notoriety and potential for rehabilitation. Even if the MSPB agrees with an agency's penalty selection, it doesn't condone blind adherence to the penalty found in the table. At a minimum, the board will re-examine the agency's penalty and possibly substitute its own judgment.

In a recent case, a Postal Service employee, during an argument with her boss, threw a can of soda, which hit the wall a foot away from him. Although the woman had 20 years of service and an impeccable conduct and performance record, she was fired. On appeal, the MSPB said it "will modify an agency-imposed penalty only when it finds the agency failed to weigh the relevant factors [i.e., the Douglas Factors] or the agency's judgment clearly exceeded the bounds of reasonableness." The deciding official told the board he interpreted the Postal Service's zero tolerance policy on "violence, threats, harassment, intimidation or bullying" to mean automatic dismissal. For this sin against Douglas, the board changed the removal to a 45-day suspension.

On the other hand, what if a disciplined employee says the agency failed to abide by its table? An Interior Department employee demoted for writing a sexually explicit parody, identifying co-workers as lesbians and adulterers, claimed just that. The Federal Circuit Court of Appeals rejected his plea, noting that the table was considered a guide, was far from comprehensive, contained no mandatory language and specifically stated that a penalty may vary from that contained in the table.

An agency that fails to characterize its table as a nonmandatory guideline could find its hands tied, particularly in an egregious case of misconduct. In one case, for example, an agency's table prohibited managers from exceeding the maximum penalty shown, except in unusual circumstances. In such a case, the MSPB says an agency must specify the unusual circumstances.

The most pernicious problem with penalty tables is an agency's tendency to force every disciplinary action into one of the offenses enumerated in its table. No agency's table of offenses is all-inclusive. The Supreme Court itself has said it "is not feasible or necessary for the government to spell out in detail all that conduct which will result in [disciplinary action]." Attempts to pigeonhole all misconduct into the offenses listed in the tables are in part a result of the MSPB's hypertechnical approach to penalty selection.

In one example, the Federal Circuit Court of Appeals reversed a prison guard's removal for theft because she had returned the money in question before she was caught. Thus the agency was unable to show intent to keep the item, a required legal requisite for theft. Perhaps she should have been charged with illegal borrowing. On the other hand, a Customs agent compromised an investigation by leaking sensitive information. In upholding a 60-day suspension, the MSPB said the agency didn't have to prove the agent violated a specific statute or an offense listed in its table. The agency properly described the employee's misconduct, proved it and established that the adverse action would promote the efficiency of Customs, the board said.

The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. Deciding officials should do a Douglas analysis in every case, except when Congress has mandated a specific penalty, even if their agency has a zero-tolerance policy. They should check to see whether the table clearly states it is binding, contains mandatory language or permits deviations. If the misconduct does not fit perfectly into the legal definition of an offense listed in the table, officials should not pick a penalty that fits closest. Instead, they should describe the misbehavior in general terms and back it up with the detail required in all proposals of discipline. With these three points in mind, the table can be a helpful guide instead of a minefield.


William N. Rudman is an attorney who specializes in federal employment law. With 26 years of federal service, he retired in 1993 as deputy undersecretary of Defense and director of the Defense Technology Security Administration

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