Official data show serious discipline for feds is rare, but secret settlements obscure true figures.
One in four federal employees suspended by federal agencies in 2016 had been suspended before, according to a new review, which suggested an array of best practices for agencies to reduce misconduct in the workplace.
About 60 percent of serious disciplinary actions—including suspensions of more than 14 days, firings and demotions—in a given year are suspensions, the Government Accountability Office found in a new report. Overall, such actions are rare. Fewer than 1 percent of federal employees face such punishments on an annual basis.
GAO’s suggestions, which it based on a two-year review of laws, regulations and interviews with human resources officials and experts both inside and outside of government, are designed to prevent repeat offenders. GAO stressed the importance of progressive discipline, meaning each infraction should draw a bigger punishment than the last.
The review examined misconduct issues rather than poor performance. GAO cited as examples of misconduct “time and attendance infractions; intoxication; workplace violence; physical aggression toward an employee; improper use of a government-issued credit card; misuse of government equipment (such as viewing pornography or gambling); use of public position for private gain; and behavior that affects national security.”
The federal government’s true discipline rate for misconduct is not actually known, GAO conceded. Agencies “frequently” make use of settlements after employees challenge adverse actions, but those agreements are not recorded as disciplinary actions in government data.
Once disciplinary actions make it to the Merit Systems Protection Board, they can be costly to the agency. The first stage, before a regional administrative judge, typically takes between 63 and 152 days. If the agency or employee appeals further to the central board, it takes an additional 99 to 251 days, GAO said. Settlements are by far the most frequent outcome when cases are challenged to MSPB, which GAO said the board itself encourages due to its case backlog. Those settlements can ignore the cases agencies have built against employees for wrongdoing, GAO said, which acts as a deterrent for employees to properly deal with misconduct in the first place.
Employees also avoid more serious punishments through “alternative discipline,” which can include more training, counseling, community service or require employees to conduct training for other employees to learn from their mistakes. Employees can also strike “clean slate” agreements, enabling them to voluntarily leave their agency without any blemishes on their records. HR officials told GAO those agreements, or others that include buyouts or community service, create the perception that employees are avoiding accountability.
The Office of Personnel Management emphasized that such alternative measures are not appropriate when the misconduct was egregious or employees demonstrate no remorse for their actions. HR officials noted, however, that the options can shorten an otherwise lengthy timeline and avoid litigation costs.
Cases before MSPB are rarely reversed, GAO found. When they are, it is typically because an agency failed to follow its own procedures, it included a charge it could not prove or a deciding official considered facts not included in the initial proposal for discipline.
GAO encouraged agencies to use a “table of penalties,” which provides a range of punishments applicable for specific misconduct. Agencies are not required to use the tables, and OPM actually discourages their adoption. Still, GAO said if used properly, they can provide guidance to managers and lead to less arbitrary decision making. The auditors also said agency managers should set clear expectations for employees and make clear they will be punished for misconduct. They stressed the value of probationary periods, saying they should be thought of as an extension of the hiring process.
Agency supervisors, HR officials and general counsels should all collaborate to set a strategy and policy for enforcing discipline when misconduct arises, GAO said. The watchdog also suggested more training for dealing with bad behavior, saying OPM should lead the charge in creating guidance for such training. OPM said in response it would assist as it is required but would not train anyone itself.
“Without sufficient training, supervisors and managers may not be addressing misconduct appropriately, if at all,” GAO said.
The auditors also said OPM should improve the management of misconduct data, noting that and poor performance data currently improperly overlap. Additionally, more minor disciplinary actions for misconduct are not recorded at all.
“Better data could help OPM and agencies identify systemic misconduct issues, such as misuse of government property or physical aggression toward a co-worker, as well as emerging problems that benefit from early detection and/or more comprehensive approaches,” GAO said.
OPM disagreed, saying it was collecting data as required. GAO still concluded that the HR agency should be doing more.
“Though OPM already provides a variety of tools, guidance, and training to help agencies address issues related to misconduct,” GAO said, “we found opportunities to do more to identify the nature of employee misconduct, improve training tools for managers, and make tools and guidance available for agencies when and where they need it.”