Merit board touts nontraditional approaches to discipline

Federal agencies should give managers more information on alternatives to traditional disciplinary measures, and the flexibility to use them, according to a new report by the Merit Systems Protection Board.

The report, released on Wednesday, found that few agencies have a formal policy on alternative discipline.

"The merit principles encourage agencies to be effective and efficient in how they use the federal workforce," MSPB Chairman Neil McPhie said in the report. "This includes the responsibility to address misconduct in a manner that has the greatest potential to prevent further harm to the efficiency of the service."

Alternative discipline policies encourage managers to consider unique circumstances accompanying employee misconduct, the report stated. For example, a person who misuses a government travel card to buy life-saving medicine for a sick child is not necessarily similar to one who uses the card to pay for gambling or adult entertainment, MSPB said.

"Any employee who uses the travel card for a reason unrelated to official travel has acted wrongly," the report stated, "but the reasons behind the conduct can differ greatly, and therefore the best means to prevent a reoccurrence may also differ."

The board encouraged agencies to look beyond traditional punishments, which often include a reprimand, suspension, demotion or removal. Alternative discipline arrangements require contracts, meaning they are legally enforceable.

In compiling the report, MSPB asked 22 agencies for information on their use of alternative discipline. The board received responses from 46 subcomponents of various agencies, and found that only seven had a formal agencywide policy. But 80 percent of respondents without a policy said they were permitted to use alternative discipline on an ad hoc basis.

The board also found that most agencies did not offer training on alternative discipline. Of the 37 organizations permitted to use the approach, only two reported that their agency provided specific training on the concept. Additionally, while alternative discipline was addressed in collective bargaining agreements, it tended to be optional, MSPB said.

The report also found that few agencies tracked the use of alternative discipline. Seven of the 37 organizations that used the tool said they kept records; only three reported that they kept tabs on how often alternative measures successfully modified conduct.

MSPB recommended that managers and human resources personnel consult with legal counsel when implementing an alternative discipline agreement that requires the employee's consent. Managers also should be trained on alternative discipline to help them carry out an early intervention before the conduct worsens, the report stated.

In addition, the Office of Personnel Management should consider requesting data from agencies on their use of alternative discipline, MSPB said, noting that many agencies do not have sufficient data to complete separate analyses. "If OPM were to serve as a central repository, OPM might be better able to advise agencies on more effectively managing conduct issues within the federal government," the report stated.

MSPB's support for alternative discipline dates back to its creation in the 1978 Civil Service Reform Act. In a landmark 1981 case, Douglas v. Veterans Administration, the board held that one important factor for agencies to consider when determining the correct penalty is "the adequacy and effectiveness of alternative sanctions to deter such conduct in the future."