Agencies Must Follow Statutory and Regulatory Procedures When Taking Adverse Actions for Employee Misconduct Under Chapter 75 of Title 5

Most agencies are required to adhere to formal, statutorily established  guidelines under chapter 75 when taking adverse actions against an  employee for misconduct. These regulations also specify the procedural and appeal rights  to which employees facing adverse actions are entitled. Employees may grieve these actions depending on the  agency’s administrative or negotiated grievance processes. The process agencies use to identify and address  employee misconduct is illustrated in figure 2. Alternative Disciplines Can Help Agencies in Determining the Appropriate Response to Misconduct but Several Factors Affect How Agencies Respond

Alternative discipline is an approach to address misconduct that is  available to agencies in lieu of traditional penalties (e.g., letters of  reprimand and suspensions of 14 days or less). As an alternative discipline approach, it is recommended by MSPB that  agencies may consider entering into an agreement with an employee. Better Data on Employee Misconduct Could Strengthen OPM’s Oversight and Provide Clarity to Agencies Regarding How to Address Misconduct

OPM collects data on personnel actions reported by most agencies and  stores this information in the EHRI database, but these data could be  improved to provide OPM with better information to help agencies  address misconduct. We used NOA codes  provided by OPM officials to analyze employee misconduct data in the  executive branch. Key Steps Agencies Can Take to Better Prevent and Address Employee Misconduct

On the basis of our literature review, as well as interviews with CHCOs  and subject-matter experts, we identified key promising practices and  lessons learned that can help agencies better prevent and address  employee misconduct. Tables of Penalties Can Help Guide Responses to Misconduct

We found that tables of penalties—a list of recommended disciplinary  actions for various types of misconduct—though not required by statute,  case law, or OPM regulations, nor used by all agencies, can help ensure  the appropriateness and consistency of a penalty in relation to an  infraction. Agency officials and subject-matter experts also told us that supervisory  training varies by agency. The subject-matter experts we  interviewed said this collaboration can sometimes include general  counsel staff, if necessary. Of our three recommendations, OPM partially concurred with  two recommendations, and did not concur with one recommendation. As indicated in this report, OPM believes a table of penalties creates  additional conditions and restrictions on an agency’s ability to address  misconduct and does not improve the agency’s ability to address  misconduct effectively. For example,  agencies will need to report out on  (i)  the number of civilian employees in a probationary period or otherwise  employed for a specific term who were removed by the agency;  (ii)  the number of adverse personnel actions taken against civilian  employees by the agency, broken down by type of adverse personnel  action, including reduction in grade or pay (or equivalent), suspension,  and removal; and  (iii) the number of decisions on proposed removals by the agency taken  under chapter 75 of title 5, United States Code, not issued within 15  business days of the end of the employee reply period. However, OPM notes that it is not responsible under current statute for  providing training to the federal workforce. Our  objectives were to (1) describe the process that agencies are generally  required to follow in responding to employee misconduct in the federal  service; (2) identify alternative approaches to the formal legal process  that agencies can use to respond to misconduct, and assess what factors  affect agencies’ responses; (3) describe trends in removals and other  adverse actions resulting from misconduct; and (4) identify key steps  agencies can take to help them better prevent and address misconduct. To describe and assess the factors that can affect an agency’s response  to employee misconduct, we interviewed:
OPM officials and representatives from Employee Services, Human  Resources Solutions, Planning and Policy Analysis, and the Office of  the Chief Information Officer
MSPB officials from the Office of the acting Chairman & Vice  Chairman, Office of Information Resources Management, and the  Office of Policy & Evaluation;
Panel of Chief Human Capital Officers (CHCO)
National Treasury Employees Union officials;
American Federation of Government Employees officials;
Federal Managers Association officials;  Individual members of the Federal Employees Lawyers Group;
Partnership for Public Service officials;
Senior Executives Association officials; and
Selected individuals with expertise in human capital management,  specifically focused on employee misconduct, from academia and the  private sector. 5 U.S.C.
Why GAO Did This Study

Misconduct is generally considered an action by an employee that impedes the efficiency of the agency's service or mission. Misconduct incidents can affect other aspects of employee morale and performance and impede an agency's efforts to achieve its mission.
GAO was asked to examine how executive branch agencies address employee misconduct. This report (1) describes the process agencies are required to follow in responding to employee misconduct; (2) identifies alternative approaches to the formal process that agencies can use and assesses what factors affect agencies' responses to misconduct; (3) describes trends in removals and other adverse actions resulting from misconduct; and (4) identifies key practices agencies can use to help them better prevent and address misconduct. To address these objectives, GAO reviewed relevant sections of title 5 of the U.S.C; analyzed MSPB and OPM data, and interviewed, among others, agency officials and subject-matter experts.

What GAO Found

Chapter 75 of title 5 of the U.S. Code specifies the formal legal process that most agencies must follow when taking adverse actions, i.e., suspensions, demotions, reductions in pay or grade, and removals, for acts of employee misconduct. Chapter 75 details the built-in procedural rights certain federal employees are entitled to when faced with adverse actions.
Depending on the nature of misconduct, an agency may use utilize alternative discipline approaches traditionally used in government to correct behavior. Alternative discipline is an approach to address misconduct that is available to agencies in lieu of traditional penalties (e.g., letters of reprimand and suspensions of 14 days or less). An example is a last chance agreement, whereby an employee recognizes the agency's right to terminate him or her should another act of misconduct occur.
Based on the data collected by the Office of Personnel Management (OPM), agencies formally discipline an estimated 17,000 employees annually under Chapter 75, or less than 1 percent of the federal workforce, for misconduct. Based on OPM data, in 2016, agencies made 10,249 suspensions, 7,411 removals, and 114 demotions for misconduct. However, because of weaknesses in OPM's data on employee misconduct, which is provided by the agencies, OPM is unable to accurately target supervisory training to address misconduct, and decision-makers do not know the full extent or nature of this misconduct.
Key lessons learned can help agencies better prevent and respond to misconduct. For example, tables of penalties provide a list of the infractions committed most frequently by agency employees, along with a suggested range of penalties for each to ensure consistent treatment for similar offenses. However, not all agencies have a table of penalties, including OPM, nor are agencies required by statute, case law or OPM regulations. Subject-matter experts we contacted identified additional promising practices that agencies can use to respond employee misconduct. Some of these are presented below.
Agencies are accountable for providing required training to their managers. However, agency officials and subject-matter experts we interviewed said federal managers may not address misconduct because they are unfamiliar with the disciplinary process, have inadequate training, or receive insufficient support from their human resources offices.

What GAO Recommends

GAO recommends that OPM, working with the Chief Human Capital Officers Council, (1) take steps to improve the quality of data collected on misconduct; (2) leverage lessons learned to help agencies address misconduct; and (3) improve guidance on training supervisors and human resources staff on addressing misconduct. OPM partially concurred with two recommendations, and disagreed with the first, stating that its guidance has been successfully relied upon by agencies. GAO maintains the action is needed to help strengthen oversight.