Merit System Principles (5 USC § 2301)
- Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge and skills, after fair and open competition which assures that all receive equal opportunity.
- All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
- Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.
- All employees should maintain high standards of integrity, conduct, and concern for the public interest.
- The Federal work force should be used efficiently and effectively.
- Employees should be retained on the basis of adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
- Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
- Employees should be--
- protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and
- prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.
- Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences--
- a violation of any law, rule, or regulation, or
- mismanagement, a gross waste of funds, an absence of authority, or a substantial and specific danger to public health or safety.
What are the
Merit System Principles?
The Merit System Principles are nine basic standards governing the management of the executive branch workforce. The principles are part of the Civil Service Reform Act of 1978, and can be found at 5 U.S.C. § 2301(b).
Congress believe that the basic standards governing the management of the
executive branch workforce should be included in statute?
The Pendleton Act of 1883 replaced the political patronage system that had existed until that time with a merit-based system for filling most civil service positions. The drafters of the Civil Service Reform Act of 1978 believed that this merit-based system had broken down over the ensuing century. Thus, they codified the merit principles and created a new agency, the Merit Systems Protection Board, as the "vigorous protector of the merit system."
role does the Merit Systems Protection Board play in ensuring adherence to the Merit
The Merit Systems Protection Board (MSPB) is empowered to hear and decide complaints for corrective or disciplinary action when an agency is alleged to have committed a prohibited personnel practice. 5 U.S.C. §§ 1214, 1215. It is a prohibited personnel practice to (among other things) take an action in violation of the Merit System Principles. 5 U.S.C. § 2302(b)(12). In addition, Merit System Principles are mirrored in the list of prohibited personnel practices. For example, Merit System Principle No. 9 provides that employees "should be protected against reprisal for the lawful disclosure" of waste, fraud, and abuse, while the list of prohibited personnel practices also prohibits reprisal for such disclosures. 5 U.S.C. § 2302(b)(8). The MSPB also conducts studies of the civil service, and reports to the President and Congress on the extent to which the federal workforce is free of prohibited personnel practices. 5 U.S.C. § 1204(a)(3).
managers contact the Merit Systems Protection Board for advice on whether a
particular planned action is consistent with the Merit System Principles or
could be a prohibited personnel practice?
The Merit Systems Protection Board (MSPB) speaks primarily through its decisions and its studies. The MSPB provides information about its decisions, studies, and procedures to groups through its outreach and education program. The MSPB is not permitted to issue advisory opinions. 5 U.S.C. § 1204(h).
What other agencies are responsible for enforcing the Merit
The Civil Service Reform Act of 1978 requires the Office of Personnel Management (OPM) to "hold managers and human resources officials accountable for efficient and effective human resources management in support of agency missions in accordance with Merit System Principles." 5 U.S.C. § 1103(c)(2)(F). To carry out this responsibility OPM has established an Office of Merit System Audit & Compliance.
The Office of Special Counsel (OSC) investigates allegations that an agency has committed a prohibited personnel practice, and may seek disciplinary or corrective action for a prohibited personnel practice before the MSPB. 5 U.S.C. §§ 1214, 1215. It is a prohibited personnel practice to take a personnel action in violation of the Merit System Principles. 5 U.S.C. § 2302(b)(12). Other Merit System Principles are mirrored in the list of prohibited personnel practices within OSC's jurisdiction. For example, Merit System Principle No. 9 provides that employees "should be protected against reprisal for the lawful disclosure" of waste, fraud, and abuse, while the list of prohibited personnel practices also prohibits reprisal for such disclosures. 5 U.S.C. § 2302(b)(8).
The Equal Employment Opportunity Commission makes the final administrative decision on claims that an agency has committed unlawful employment discrimination. 5 C.F.R. Part 1614. Such discrimination is inconsistent with the first and second Merit System Principles.
the first Merit System Principle?
"Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity."
What is the intent behind the
first Merit System Principle?
The first clause, concerning recruitment, sets forth the vision of a federal workforce that is representative of the very people who fund the government through their tax dollars and whom the government exists to serve. The second clause, concerning selection and promotion, represents the core value of a merit-based employment model. Up until the latter part of the 19th century, most executive branch employees obtained their jobs through political connections. The Pendleton Act of 1883 replaced this patronage system with a merit system under which anyone, regardless of political affiliation, may receive a civil service appointment so long as he or she is the best-qualified applicant based on objective criteria. The final clause, concerning equal opportunity, echoes the purpose behind Title VII of the Civil Rights Act of 1964 and related laws barring discrimination in employment.
Are there any recent decisions from the Merit Systems
Protection Board addressing the first Merit System Principle?
The MSPB recently imposed discipline on two agency officials who gave an unauthorized preference to a job applicant. In so doing the MSPB emphasized its obligation to "faithfully uphold the Merit System Principles," and "to [put] agencies subject to the [CSRA] on notice that selections for employment must be made in accordance with law and must not be the result of personal or political favoritism." Special Counsel v. Lee, 2010 MSPB 89, ¶ 35. To take another example bearing on the first Merit System Principle, the MSPB recently found that an individual was entitled to a hearing on his claim that the qualification standards used to exclude him from consideration for a federal job were not rationally related to performance in the job. Sauser v. Department of Veterans Affairs, 2010 MSPB 50.
Has the Office of Personnel Management issued any guidance
to help agency HR offices comply with the first Merit System Principle?
The Office of Personnel Management has issued detailed rules governing hiring that are designed to ensure fair and open competition, as well as assessment and selection based strictly on merit. 5 C.F.R. Parts 300A, 330, 332.
the Equal Employment
The Equal Employment Opportunity Commission has published formal guidance, known as Management Directive 715, to assist agencies in their efforts to promote a work force that is representative of all segments of society.
What is the intent behind the second Merit System Principle?
The second principle, concerning fair and equitable treatment, sets forth the vision that Federal personnel management be free of unfair treatment and discrimination, where decisions are made solely on legitimate merit-based considerations. Requiring decision making without regard to political affiliation echoes the intent of the Pendleton Act of 1883 which replaced the patronage system with a merit system. Requiring decision making without regard to race, color, religion, national origin, sex, marital status, age, or handicapping condition echoes the purpose behind Title VII of the Civil Rights Act of 1964 and related laws barring discrimination in employment. The final clause makes clear that employees and applicants for employment are entitled to the protections of the Bill of Rights and the Privacy Act.
What is the MSPB’s role in protecting the second Merit System Principle?
As its name implies, the Merit Systems Protection Board (MSPB) protects the merit system by adjudicating appeals within its jurisdiction. The employee may engage in discovery and request a hearing. Among other things, Board review will consider whether the disciplinary action was taken based upon prohibited discrimination, retaliation, or for reasons which do not promote the efficiency of the Federal service. When an employee has proven intentional discrimination, the Board may award compensatory damages except where the discrimination was based on marital status or age. The Board may even review appeals filed by probationary employees who allege that they were terminated based on partisan political reasons or marital status discrimination. However, the MSPB’s review authority is limited to those matters Congress and the Office of Personnel Management have given it. Thus, although this merit principle seeks fair treatment “in all aspects of personnel management,” the Board may not review a claimed violation of the principle relating to a matter over which it lacks authority.
Doesn’t the EEOC also handle discrimination cases? I’m confused.
The authority of the MSPB and the Equal Employment Opportunity Commission (EEOC) overlap in “mixed cases,” those cases involving an action otherwise appealable to the MSPB (e.g., a removal) and allegations of discrimination. While the EEOC has responsibility for enforcing all Federal equal employment opportunity (EEO) laws and the duty to coordinate and lead the Federal government’s effort to eradicate workplace discrimination, the MSPB also has the responsibility to determine if the personnel actions it has authority to review were taken in accordance with law, to include the anti-discrimination laws. In certain circumstances, the employee may choose whether to file an EEO complaint or an MSPB appeal in the first instance. Regardless of that election, both agencies may ultimately review the case. If the employee files an EEO complaint first, they can appeal to the Board after receiving a Final Agency Decision on the EEO complaint, or 180 days after he filed the EEO complaint if they have not received a final decision. If the appellant files an MSPB appeal first, they may appeal the Board’s finding on the discrimination issue to the EEOC’s Office of Federal Operations.
Has the Federal government achieved the goals of this merit principle?
The MSPB recently studied workforce data and Federal employee perceptions of their treatment and issued a report to the President and Congress entitled Fair and Equitable Treatment: Progress Made and Challenges Remaining.
What is the intent behind the third Merit System Principle?
The third Merit System Principle embodies the vision that maintaining equitable salaries and rewarding excellent performance will attract and retain the most effective and efficient federal workforce through positive employee engagement.
The Classification Act requires the classification of federal civil service positions in accordance with their duties, responsibilities, and qualification requirements, and mandates that in determining the rate of basic pay which an employee will receive, “the principle of equal pay for substantially equal work will be followed.” 5 U.S.C. § 5101(1)(A). The various pay rates and systems in effect today may be found at 5 U.S.C. Chapter 53 and here.
It is the express policy of Congress that “Federal pay fixing” for employees under the General Schedule and the Prevailing Rate Systems (wage grade employees) be based on the principle that there “be equal pay for substantially equal work within each local pay area.” 5 U.S.C. §§ 5301(1), 5341(1).
What does it mean to give “appropriate consideration [to] both national and local rates paid by employers in the private sector”?
Congress has codified its policy that federal pay rates be comparable with non-federal pay rates for the same levels of work within the same local pay area, except when the President provides for an alternative level of payment due to a national emergency or other serious economic condition. 5 U.S.C. §§ 5301(3-4), 5304(a), 5341. The President establishes rates of pay within localities with the advice of his Pay Agent, designated under 5 U.S.C. § 5304(d)(1). The Pay Agent, in turn, receives salary recommendations from the President’s Federal Salary Council, established under 5 U.S.C. § 5304(e)(1), and the Federal Prevailing Rate Advisory Committee, established under 5 U.S.C. § 5347(a). The Federal Salary Council evaluates surveys conducted by the U.S. Bureau of Labor Statistics of salary data for non-federal jobs throughout the country. The Federal Prevailing Rate Advisory Committee surveys private employers, at least every two years, to determine the prevailing wage in designated regions throughout the country.
What is the MSPB’s adjudicatory role in ensuring equal pay is provided for equal work?
Although classification determinations are the purview of the Office of Personnel Management, the MSPB may review pay issues in certain circumstances. For example, the Equal Pay Act of 1963 amended the Fair Labor Standards Act to forbid employers from engaging in pay discrimination and require that employees of both sexes be paid equitably for work requiring equal skill, effort, and responsibility performed under similar working conditions. 29 U.S.C. § 206(d). An Equal Pay Act claim may be alleged as an affirmative defense in an MSPB mixed case in which the MSPB has jurisdiction over an adverse action. 5 U.S.C. §§ 2302(b)(1)(C), 7702(a)(1)(B)(ii). Issues involving pay setting may also come before the MSPB in a whistleblower reprisal case, because “a decision concerning pay” is a covered “personnel action” under 5 U.S.C. § 2302(a)(2)(A)(ix). Pay issues may also come before the MSPB in situations where the MSPB has ordered status quo ante (make whole) relief, when it has reversed or mitigated an agency action or ordered corrective action. Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984).
Has the MSPB ever studied pay equity issues?
Yes. In its recent study entitled “Fair and Equitable Treatment: Progress Made and Challenges Remaining,” the MSPB analyzed pay and status issues at pages 21-28. The MSPB concluded that while trends are improving, there remain disparities in salary levels for minority groups, principally due to their under-representation in certain higher paying occupations and managerial positions.
Why is it important to recognize excellent performance?
During debate on the Civil Service Reform Act of 1978, then-Senator Joe Biden stated that “the most important part of civil service reform must be to motivate good employee performance.” S. Rep. No. 969, at 1718 (1978). Indeed, in the MSPB’s recent study entitled “Managing for Engagement– Communication, Connection, and Courage,” the MSPB concluded at pages 43-58 that recognition of employees’ performance contributions is one of the key “drivers” of positive employee engagement and retention.
In what ways do federal agencies reward excellent performance?
Agencies must construct performance appraisal systems for their employees through which performance may be recognized by granting within-grade salary increases, career ladder promotions, or other awards. See 5 U.S.C. § 4302. Agencies must maintain an incentive awards program which recognizes and provides various types of awards to individual civil service employees whose significant contributions improve government performance. 5 U.S.C. Chapter 45; 5 C.F.R. Part 451. These types of awards include performance-based cash and time-off awards, special act awards, awards for beneficial suggestions, and recommendations for Presidential awards.
What is the MSPB’s adjudicatory role in the performance recognition process?
The MSPB does not generally have jurisdiction over performance recognition questions. However, the failure of an agency to grant a within-grade salary increase or its decision to demote or remove an employee for poor performance may be appealed to the MSPB. 5 U.S.C. § 4303(e); 5 C.F.R. §§ 432.106(a); 531.410(d); 752.405(a).
Additionally, issues involving awards and promotions may come before the MSPB in a whistleblower reprisal case, because “a promotion” and “a decision concerning awards” are covered “personnel actions” under 5 U.S.C. § 2302(a)(2)(A)(ii),(ix). These issues could also come before the MSPB as “conditions of employment” in a military status discrimination case brought under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA). Finally, such issues may come before the MSPB in situations where the MSPB has ordered status quo ante (make whole) relief, when it has reversed an agency action or ordered corrective action. See Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984).
Merit System #4: High Standards -- "All employees should maintain high standards of integrity, conduct, and concern for the public interest." What does this mean and why is it important?
This merit system principle serves as the foundation for the standards of ethical conduct applied to all Federal employees. It recognizes that public service is a public trust and that employees are obligated to honor that trust by respect for and adherence to the Constitution, laws, and ethical principles of Government service. In order for an agency to accomplish its mission, its employees’ conduct must command the respect and confidence of the public.
What role does it play in the Merit Systems Protection Board’s decision-making process?
One of the Merit Systems Protection Board’s (MSPB) primary roles is to adjudicate appeals from individuals against whom certain disciplinary actions have been taken by their agency. Some employees are disciplined specifically for a violation of the agency’s standards of conduct or for conduct unbecoming a Federal employee. Some examples are found in Todd v. Department of Justice, 71 M.S.P.R. 326 (1996), and Sullivan v. U.S. Postal Service, 56 M.S.P.R. 196 (1993). Others may be charged with specific misconduct, such as absence without leave, falsification of documents, criminal activity, and misuse of Government resources. A charge of unacceptable conduct of any nature will generally implicate this merit system principle.
The MSPB’s consideration of any disciplinary action that is being appealed requires a determination of whether the action promotes the efficiency of the service and the penalty is within the tolerable bounds of reasonableness. One of the Board’s seminal cases, Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), sets out a list of factors that, when applicable to the particular case, should be considered by the agency in assessing the penalty. Among those factors that specifically recognize the import of the fourth merit system principle are: (1) the seriousness of the offense; (2) the effect of the offense on the employee’s ability to perform at a satisfactory level and its effect upon the supervisors’ confidence in the employee’s ability to perform assigned duties; (3) the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; (4) the notoriety of the offense or its impact upon the reputation of the agency; (5) whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; and (6) the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.
Through its decisions, the Board has held that all Federal employees are expected to be trustworthy and to maintain high standards of integrity, Parsons v. Department of the Air Force, 21 M.S.P.R. 438 (1984), but that certain employees, because of the nature of their position, may be held to an even higher standard of conduct. For example, law enforcement officers and supervisory personnel, who set an example for the type of conduct expected not only for Federal employees, but the public as well, are held to a higher standard of conduct. See Martin v. Department of Transportation, 103 M.S.P.R. 153 (2006); Merino v. Department of Justice, 94 M.S.P.R. 632 (2003).
Does the fourth merit system principle implicate any other MSPB role?
The MSPB has been charged with conducting special studies relating to merit systems in the executive branch. That function resides in MSPB’s Office of Policy and Evaluation (OPE). Several of the reports issued through OPE address specifically the conduct of Federal employees and the general expectation that they should maintain high standards of integrity, conduct, and concern for the public interest. Examples of the studies conducted by OPE, and which may be accessed from this website, include “Whistleblower Protections for Federal Employees,” “Prohibited Personnel Practices,” and “Reference Checking in Federal Hiring: Making the Call.”
How is this principle communicated to Federal employees?
The standards of ethical conduct applicable to all public employees may be found at 5 C.F.R. Part 2635. This Part of 5 C.F.R. identifies the basic obligations of public service, their applicability, and any exceptions. In addition, most Federal agencies have published supplemental standards of conduct for their employees which are generally disseminated to them during initial orientation sessions. They are also often posted on agency bulletin boards and printed in agency orders, directives, and newsletters. Some agencies have established a table of penalties to put employees on notice of offenses they deem particularly worthy of discipline.
The concern about employee conduct is expressed through specific statutory provisions as well as the regulations of the Office of Personnel Management. An example is the “crime” provision which allows an agency to take an appropriate adverse action on shortened notice when there is cause to believe the employee has committed a crime for which imprisonment may be imposed. See 5 U.S.C. § 7513(b)(1) and 5 C.F.R. § 752.604(d).
Finally, as the Board stated in Coons v. Department of the Navy, 15 M.S.P.R. 1 (1983), the standards of conduct are largely a matter of common sense and cover an area which employees are presumed to know. There is no legal requirement upon an agency to describe in detail all potentially proscribed employee conduct and related discipline. See Brown v. Federal Aviation Administration, 15 M.S.P.R. 224 (1983), aff’d in part, rev’d in part on other grounds, 735 F.2d 543 (Fed. Cir. 1984).
Do any other agencies provide guidance concerning the conduct of Federal employees?
The Office of Special Counsel (OSC) is an independent Federal investigative and prosecutorial agency whose primary mission is to safeguard the merit system by protecting Federal employees from prohibited personnel practices. In furtherance of the mission, OSC provides guidance to Federal employees concerning conduct that directly conflicts with merit system principles, such as retaliation for whistleblowing or illegal political activity. See www.osc.gov.
The Office of Government Ethics (OGE) was established to prevent conflicts of interest on the part of Government employees, and to resolve those conflicts of interest that do occur. As described on its website, “in partnership with executive branch agencies and departments, the Office of Government Ethics fosters high ethical standards for employees and strengthens the public's confidence that the Government's business is conducted with impartiality and integrity.” See www.oge.gov.
What is the intent behind the fifth Merit System Principle?
To understand this principle’s intent, one ought to consider the balance that must be struck between a Federal employee’s right to be hired and fired solely on the basis of his abilities vis-a-vis the public’s expectation of a Government that is impartially administered and flexibly managed. Simply put, the public has a right to an efficient and effective Government which is responsive to their needs as perceived by elected officials. S. Rep. No. 95-969, at 4 (1978), as reprinted in Committee on Post Office and Civil Service House of Representatives, 96th Cong., Legislative History of the Civil Service Reform Act of 1978 (CSRA), at 1468 (1978). In fact, the idea embodied in this Merit System Principle has been referred to as “the fundamental policy” of the CSRA. See National Treasury Employees Union v. Merit Systems Protection Board, 743 F.2d 895, 912 (D.C. Cir. 1984).
What effect does this principle have upon the Federal Government?
This principle can impact the Federal workforce on a grand scale. For example, during a furlough, whereas 5 U.S.C. 7513(b) requires Federal agencies to give employees 30 days’ advance written notice with an opportunity to reply before being furloughed, 5 C.F.R. § 752.404(d)(2) authorizes immediate furloughs under emergency situations, such as when Government funding is about to lapse, just like what happened in April 2011 when a government shutdown seemed imminent. In situations such as these, the public’s expectations of efficiency and effectiveness triumph, although the courts have found that “precipitous action which deprives [Federal employees] of their livelihood must be restricted to very narrow circumstances.” Horner v. Andrzjewski, 811 F.2d 571, 577 (Fed. Cir. 1987). One additional such circumstance involves seasonal employees. Since they are appointed during periods of increased workloads and are considered temporary workers, they may be placed in a nonduty, nonpay status without the 30-day advance written notice as long as doing so is in accordance with the terms of their employment. National Treasury Employees Union v. Devine, 10 M.S.P.R. 194, 198 (1982). The Merit Systems Protection Board (MSPB) reasoned that requiring agencies to adhere to the adverse action procedures under 5 U.S.C. § 7513, especially the advance notice provision, “would be unreasonable because it would frustrate the desired flexibility of this effective and efficient employment concept.” Id.
What is the MSPB’s role in protecting employee rights as to the fifth Merit System Principle?
Set forth as a separate requirement, but consistent with the fifth Merit System Principle, 5 U.S.C. § 7513(a) requires that an agency take an adverse action against an employee “only for such cause as will promote the efficiency of the service.” That is the standard against which every adverse action is tested by the MSPB. Further, pursuant to 5 U.S.C. § 1204(a)(2), the Board has the authority to order agencies to comply with Board decisions and to restore an employee as nearly as possible to the situation he would have been in but for an agency action the Board has found unjustified or unwarranted. Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984). Thus, the Board will require an agency to place an aggrieved employee into whatever position would be the same as or the most similar to the position from which he was separated. For instance, in Holtgrewe v. Federal Deposit Insurance Corp., 57 M.S.P.R. 307, 312 (1993), the Board found that the agency’s failure to reinstate an employee at the office from which he was removed, allegedly due to overstaffing there, was not in compliance with its order to reinstate him into a similar but lower-graded position. The Board was not persuaded by the agency’s argument that placing the employee into a new location would satisfy the fifth principle since the agency failed to provide evidence as to when the office to which he should have been assigned had become overstaffed. See id. On the other hand, the Board has held that to accommodate a disciplinary demotion, agencies are not required to create jobs for which there is no need since doing so would be inconsistent with the fifth Merit System Principle. Jackson v. Veterans Administration, 31 M.S.P.R. 135, 136 (1986). Rather, in such circumstances, the employee is entitled only to a position for which he qualifies, after which he could be considered for reassignment, if warranted.
Among the issues that have repeatedly arisen in MSPB appeals is whether an employee’s reporting of Government inefficiencies played a role in an adverse action against the employee. The Whistleblower Protection Act prohibits any employee with the authority to take, direct others to take, recommend, or approve any personnel action from taking, failing to take, or threatening to take or fail to take, any personnel action because of the disclosure of information by an employee or applicant for employment that the employee or applicant reasonably believes evidences, among other things, gross mismanagement or gross waste of funds. 5 U.S.C. § 2302(b)(8).
In January 2011, the Board issued a decision reversing the placement of the Chief of the U.S. Park Police on administrative leave and her subsequent removal for statements she made to the press pertaining to safety and other issues. Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 71 (2011). The Board concluded that the motive to retaliate against the Chief was strong because her statements to the media could potentially embarrass the agency before Congress and imply that Congress was not properly funding the agency. Although this is an example that most closely illustrates the ninth Merit System Principle, it also strongly relates to the requirement of the fifth Merit System Principle that the workforce be used effectively and efficiently.
Efficiency & Effectiveness in Today’s Federal Workforce
In light of today’s high unemployment rate and due to recent and proposed budget cuts, the effectiveness and efficiency of the Federal workforce is under scrutiny. Just recently, the President signed Congressionally-approved legislation, entitled the Government Performance and Results Act (GPRA) Modernization Act of 2010, which requires all Federal agencies to set high-priority goals pertaining to performance, along with specific plans as to how each of the goals will be accomplished. The Act also requires that the plans be regularly adjusted to ensure that the goals are likely to be met. Considering all of the bills contemplated for passage, including bills to freeze hiring Government-wide, as well as the Federal Workforce Reduction Act of 2011, which would reduce the size of the Federal workforce by attrition, i.e., only one person hired for every two who leave or retire, it remains to be seen what will become of the workforce as we know it. Certainly, though, in such times, the need to adhere to the fifth Merit System Principle is even more important.
What is the intent behind the sixth Merit System Principle?
One of the problems the Civil Service Reform Act of 1978 (Reform Act) was designed to address was the difficulty of discharging employees for poor performance. The patchwork of statutes, regulations, rules, and judicial restrictions built up over time had conspired, in effect, to tie the hands of the personnel managers. The existing system was described as the “refuge of the incompetent employee,” and when “incompetent and inefficient employees are allowed to stay on the rolls, it is the dedicated and competent employee who must increase his workload so that the public may be benefited.” Remarks of Senator Abraham A. Ribicoff, II House Committee on Post Office and Civil Service, 95th Cong. 1st Sess., Legislative History of the Civil Service Reform Act of 1978 at 1607 (1979). The Reform Act codified the nine merit system principles, including number six on performance, and made other changes, to create “a civil service that is worthy of the public and its confidence: One in which hiring, promotion, and pay are truly based on merit and one in which those who cannot or will not perform their jobs well will not perform at all for the Federal Government.” Id., at 1606.
What is the Merit Systems Protection Board’s (MSPB) adjudicatory role in unacceptable performance matters?
The Reform Act added a new chapter 43 to Title 5, United States Code, titled “Performance Appraisal.” New standards were authorized for evaluating performance with sanctions of removal or demotion for unacceptable performance. 5 U.S.C. Secs. 4301-4308. An agency can reduce in grade or remove an employee for receiving a rating of “unacceptable” with respect to even a single “critical element” if it has: (1) Set up an approved performance appraisal system; (2) timely communicated the written performance standards and “critical elements” of an employee's position to the employee; (3) warned the employee of inadequacies in “critical elements” during the appraisal period; and (4) counseled the employee and afforded a reasonable opportunity for improvement after proper notice. See Lovshin v. Department of the Navy, 767 F.2d 826, 833 (Fed. Cir. 1985). While the authority of managers was strengthened, the Reform Act was careful to protect employees with due process procedures including notice, charges, the opportunity to respond orally and in writing, representation by counsel or other representative, and a written appealable decision. 5 U.S.C. Sec. 4303. An employee may appeal to the MSPB an agency decision to demote or remove the employee based on unacceptable performance and the decision of the agency shall be sustained if supported by substantial evidence. However, it may not be sustained if the employee shows harmful error in the application of the agency's procedures in arriving at its decision, shows that the decision was based on a prohibited personnel practice, or establishes that it was not in accordance with law. Id., at Sec. 7701. Additionally, the Board may review the denial of a within‑grade increase based on a finding that an employee failed to perform at an acceptable level of competence under a Chapter 43 performance appraisal system. See 5 C.F.R. §§ 531.410(d), 531.409(b).
Are there recent decisions from the MSPB relating to the sixth Merit System Principle?
In order to take a removal action under Title 5, chapter 43, the agency must show Office of Personnel Management (OPM) approval of the applicable performance appraisal system, including any significant changes made to a previously approved system. In Adamsen v. Department of Agriculture, 2011 MSPB 49 (April 5, 2011), the Board found the agency failed to establish by substantial evidence that it obtained OPM approval for the significant changes it made to its performance appraisal system, and it reversed the employee’s removal. In Henderson v. National Aeronautics and Space Administration, 116 M.S.P.R. 96, ¶ 26 (2011), the Board found the agency performance standards for the employee's position did not inform him of what he needed to do to achieve the various levels of performance under the agency's five-tier appraisal system and were therefore invalid. It affirmed the administrative judge’s reversal of the employee’s removal. On the other hand, where the agency has complied with the requirements of chapter 43 and proven its charges by substantial evidence, the Board has affirmed the demotion or removal of employees who perform unsatisfactorily. See Lee v. Environmental Protection Agency, 115 M.S.P.R. 533 (2010).
Has the MSPB studied the issue of poor performers?
Pursuant to 5 U.S.C. Sec.1204(a)(3), the MSPB conducts studies relating to the civil service and reports to the President and Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected. In September 2009, the MSPB issued a report titled Addressing Poor Performance and the Law.The report discusses the “limited ability of the law to address the underlying challenges of a performance-based action.” Chapter 43 of Title 5 was intended to make it easier for agencies to demote and remove poor performers by providing a lower burden of proof - substantial evidence - than the preponderance of the evidence standard used for actions taken under chapter 75. But the intended result was not fully realized, as agencies continue to use chapter 75 in a majority of cases. However, even with both sections of the law being used, agencies still encounter difficulties taking performance-based actions because the underlying problem does not originate in the law, but in performance management. Survey respondents tell MSPB that supervisors have difficulty creating standards of performance and documenting how well employees are meeting those standards. The report contains recommendations for Congress, agencies, human resources staff, and supervisors.
Has OPM issued any guidance to help agencies comply with the sixth Merit System Principle?
The OPM maintains a Resource Center for Addressing and Resolving Poor Performance on its website. It contains sample documents and frequently asked questions. The Federal Workforce Flexibility Act of 2004 requires agencies to establish a comprehensive management succession program that includes training to develop managers. The OPM published final regulations in 2009 that incorporate the requirements of the Act. Specifically, the regulations, found at 5 C.F.R. Part 412, require supervisory training within one year of a new supervisor’s appointment and retraining at least once every three years on options and strategies to mentor employees, improve employees’ performance and productivity, conduct performance appraisals, and identify and assist employees in addressing unacceptable performance.
What is the intent behind the seventh Merit System Principle?
The Civil Service Reform Act of 1978 (Reform Act) which codified the nine Merit System Principles, including this training imperative, was enacted to create “a civil service that is worthy of the public and its confidence: One in which hiring, promotion, and pay are truly based on merit and one in which those who cannot or will not perform their jobs well will not perform at all for the Federal Government.” Remarks of Senator Abraham A. Ribicoff, II House Committee on Post Office and Civil Service, 95th Cong. 1st Sess., Legislative History of the Civil Service Reform Act of 1978 at 1606 (1979). In furtherance of the accountability inherent in this vision, this training imperative is designed to ensure that employees receive the training they need to perform their jobs; that training plans are integrated into organizations’ overall strategic plans; and that funds are available to accomplish necessary training. As jobs evolve, agencies should invest in the training necessary to assure their employees possess the skills to adapt and excel—even, and perhaps especially, in hard budgetary times. By including training as a Merit System Principle, Congress sought to better assure that employees, who are to be held more strictly accountable for their performance than in the past, are properly trained to achieve successful performance.
What is the Merit Systems Protection Board’s (MSPB) adjudicatory role in training matters?
When adjudicating an employee’s removal or demotion for performance deficiencies, the Board may be called upon to determine a claim that the action violated this Merit System Principle.
Are there decisions from the MSPB relating to the seventh Merit System Principle?
The Board set forth the analytical framework for determining whether an agency has violated the seventh Merit System Principle in Wright v. FAA, 40 MSPR 355, 360-62 (1989), a decision involving a developmental air traffic controller in an established “up or out” training course:
A literal reading of 5 USC 2301(b)(7) suggests that “effective training” is designed to advance two interests: the overall performance of the organization and the employee’s individual performance. While an agency’s training program should ideally promote both interests to the maximum extent, it would be a rare case in which an employee could not show that additional or different training might have led to some improvement in her performance, even though at a prohibited cost to the agency, considering the benefit derived. To allow employees to determine the extent and nature of the training to which they are entitled would ignore the paramount interest of agencies in setting goals and priorities and in allocating funds accordingly. Yet this is essentially what the AJ did in this case, by reversing the appellant’s removal based on his finding that the agency failed to provide her with training that “would have helped [her] to improve her performance.” In doing so, he failed to consider whether providing appellant with such training would have also served the agency’s interest in promoting better organizational performance.
We hold that, in order to establish a 2301(b)(7) violation, an employee must show that she did not receive at least the minimum training reasonably calculated to give her the skills and knowledge required to do the job; that additional or different training would have provided those skills; and that such training could have been provided in a cost-effective manner in light of the agency’s mission and its need to apportion limited resources among its numerous programs and objectives. Agencies must have the freedom to establish their priorities within the confines of budgetary restrictions, and the Board must give maximum deference to such managerial decisions. Thus the Board will find a violation of 2301(b)(7) only when an appellant can show that, with respect to her training, the agency’s action amounted to an abuse of discretion.
Subsequent Board decisions have referenced Wright and this abuse of discretion standard, though Wright itself was reversed because of the Board’s misapplication of the burdens of proof to the specific facts in that case. 900 F.2d 1541.
Has MSPB studied the issue of training?
Pursuant to 5 USC 1204(a)(3), MSPB conducts studies relating to the civil service and reports to the President and Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected. Most recently, in February 2011, MSPB issued a report titled: Making the Right Connections: Targeting the Best Competencies for Training. The report discusses the Board’s strategic view of training and its search to identify Government-wide patterns to inform agency decisions about training. By identifying the full range of highly trainable, moderately trainable, and less trainable competencies, the study seeks to encourage agencies to use their training resources in maximally efficient manners.
Has the Office of Personnel Management (OPM) issued any guidance to help agencies comply with the seventh Merit System Principle?
The OPM maintains a Training and Development Policy website replete with training information and resources. It contains guidance, fact sheets, and relevant regulations.
What is the intent behind Merit System Principle Number 8?
This principle has two parts, each with its own intent and meaning. Subsection (A) first embodies the long-standing legal tenet that Federal agencies cannot treat Federal employees arbitrarily. See Bush v. Lucas, 462 U.S. 367, 385 (1983); Buggie v. Department of Health & Human Services, 27 M.S.P.R. 109, 115 (1985) (Johnson, V.C., concurring). Subsection (A) then incorporates the precept, first established in the Pendleton Act of 1883, that Federal civil servants should not be subject to the impulses of the patronage or “spoils” system, under which political appointees would sometimes coerce the political support of rank-and-file employees in exchange for continued employment or would allow their personal affinity to govern employment decisions. See Lucas, 462 U.S. at 381-82 & n.18; S. Rep. No. 95-969, at 2 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2724-26, 2740.
Subsection (B) bars Federal employees from using their authority or office to influence nominations and elections.
What is the Merit Systems Protection Board’s (MSPB) role with regard to this Merit System Principle?
As with all the Merit System Principles, Merit System Principle 8 is not self-executing, Pollard v. Office of Personnel Management, 52 M.S.P.R. 566, 569-570 (1992). This means that MSPB protects and implements this principle by applying other laws and regulations that put the Merit System Principles into operation as it adjudicates cases within its jurisdiction.
The protections provided Federal employees in Subsection (A) are found in several statutes and regulations. For example, a Federal employee’s right to be free from political coercion is important enough that it is extended even to probationary employees who do not have the same appeal rights that tenured employees have. Under 5 C.F.R. § 315.806(b), probationary employees may appeal the termination of their employment to MSPB if they contend it was “based on partisan political reasons.” See Sweeting v. Department of Justice, 6 M.S.P.R. 715 (1981).
Additionally, in an adverse action appeal, MSPB may determine whether the action should be reversed because it constitutes a prohibited personnel practice (PPP) listed under 5 U.S.C. § 2302(b). Section 2302(b) provides that “[a]ny employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority” engage in certain actions including the following: (1)(E) discriminate for or against any employee or applicant for employment on the basis of political affiliation; (3) coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity; or (12) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the Merit System Principles including Merit System Principle 8. Examples of cases where the Board addressed Merit System Principle 8 include Kauffman v. Office of Personnel Management, 93 M.S.P.R. 334, ¶¶ 3-4 (2003) and Roane v. Department of Health & Human Services, 8 M.S.P.R. 339, 342 (1981). Furthermore, the Office of Special Counsel (OSC) may file a complaint with the Board seeking to impose a disciplinary action on an employee who is alleged to have committed a PPP. 5 U.S.C. § 1215.
The prohibition of Subsection (B) is enforced primarily through the 1939 Act to Prevent Pernicious Political Activity, as amended, which is more commonly known as the “Hatch Act.” Named after Senator Carl Hatch of New Mexico, the Hatch Act, in general, prohibits Federal employees from engaging in certain partisan political activities. 5 U.S.C. §§ 7323, 7324. For example, employees may not engage in political activity while on duty or in government buildings, while wearing a uniform or official insignia identifying the office or position, or while using a government vehicle. 5 U.S.C. § 7324(a). The Hatch Act, like Merit System Principle 8, expressly prohibits Federal employees from using their “official authority or influence for the purpose of interfering with or affecting the result of an election.” 5 U.S.C. § 7323(a)(1). Furthermore, Federal employees are prohibited from seeking nomination or running as a candidate for partisan political office. 5 U.S.C. § 7323(a)(3). The Hatch Act also has certain “enhanced” provisions that place additional restrictions on employees of certain agencies, including MSPB. 5 U.S.C. § 7323(b); 5 C.F.R. § 734.401.
The OSC has primary responsibility for enforcing the Hatch Act. It may exercise this responsibility by filing a complaint with the Board that charges a Federal civil service employee with violating the Act. The OSC acts as a prosecutor in this context. The Board then decides whether OSC has proven that the employee violated the Hatch Act or its implementing regulations, and if so, what penalty to impose for the violation. The Board must impose removal for an employee’s violation of the Hatch Act unless the Board members find “by unanimous vote” that a lesser penalty, but no less than a 30-day suspension, is warranted. 5 U.S.C. § 7326. Some examples of Hatch Act prosecutions before the Board are found in Special Counsel v. Mark, 114 M.S.P.R. 516, ¶2 (2010), and Special Counsel v. Briggs, 110 M.S.P.R. 1, ¶6 (2008). More detailed information on the Hatch Act’s provisions and OSC’s role in enforcing it may be found at OSC’s website.
Does the MSPB have any other role in protecting this Merit System Principle?
Yes. Congress has tasked the Board with reviewing regulations issued by the Office of Personnel Management (OPM). 5 U.S.C. § 1204(f). The Board will invalidate an OPM regulation where the provision requires any employee to commit a PPP. As mentioned earlier, certain actions concerning the Merit System Principles can constitute PPPs. The Board has heard challenges to OPM regulations where individuals have alleged that the regulation would result in a violation of Merit System Principle 8. Examples include Vergara v. Office of Personnel Management, 104 M.S.P.R. 616, ¶4 (2007) (the appellant contended that an OPM regulation was invalid because it would result in an arbitrary action) and Senior Executives Association v. Office of Personnel Management, 67 M.S.P.R. 643, 651-52 (1995) (assertion that OPM regulations affecting an organization’s members violated the protections against arbitrary action, personal favoritism, or coercion for partisan political purposes found in section 2301(b)(8)).
In addition to adjudicating cases, MSPB also conducts studies of the Federal workforce and merit systems through its Office of Policy and Evaluation. As published in the December 2009 report, Fair and Equitable Treatment: Progress Made and Challenges Remaining, a substantial percentage of Federal employees harbor concerns about the impact on favoritism on management decisions. To further examine when favoritism is perceived to occur and how to improve the likelihood that managers will make (and be viewed as making) merit-based decisions, MSPB is currently conducting a survey of Federal Government employees and will publish results in an upcoming report. Similarly, in its June 2010 Study Retrospective: Prohibited Personnel Practices, the Board reviewed its prior research on the prevalence of employees’ perceptions that they had been subject to discrimination based on their political affiliation. Results showed that, government wide, 1.4% of employees felt they had been subject to such discrimination.
As set forth in its 2011-2013 Research Agenda, the Board plans to soon examine the intersection of politics and the Federal civil service by examining issues such as: How can new political leaders most effectively transition into agency leadership roles; what do political leaders and careerists need to know about working together; and, how can leaders achieve an effective balance between a new administration’s goals and the need for continuity in programs and services to their stakeholders? The MSPB will also initiate programs to educate managers, human resources professionals, and employees on the Merit System Principles.
What is the intent behind the 9th Merit System Principle?
The intent of this principle is to protect whistleblowers against reprisal when they disclose wrongful conduct in an attempt to create a more effective civil service. Whistleblowers help to create an effective civil service because they often are in the best position to witness agency wrongdoing. Without their disclosures, wrongdoing might go unchecked. One of the first pieces of legislation to recognize the value of whistleblowers was the False Claims Act of 1863, which sought to protect the U.S. Government against rampant fraud from unscrupulous suppliers during the Civil War by offering a percentage of the recovered damages to people who disclosed such fraud. Nevertheless, nothing in the False Claims Act specifically protected Federal employees from whistleblower reprisal.
In 1912, Congress enacted the Lloyd-LaFollette Act, which gave Federal employees certain statutorily defined minimum rights in the event that their employing agencies sought to remove them from the civil service. This legislation can now be seen as a forerunner to laws that Congress later passed because it was the first to protect whistleblowers. During a Congressional debate regarding this legislation, Senator LaFollette noted an example of the type of abuse the law sought to correct: the Government had removed a Federal employee from the civil service after he had disclosed to the press the unsanitary and “simply horrible” conditions at the Chicago Post Office.
In its next significant legislation affecting Federal whistleblowers, Congress passed the Civil Service Reform Act of 1978, which, among other things, attempted to protect Federal whistleblowers by giving them an appeal right to the Merit Systems Protection Board (MSPB) when they suffered reprisal for disclosing specific types of wrongdoing. This was the first time that Congress expressly recognized the need of Federal employees to be protected against reprisal for disclosing the wrongdoing of their employers. Nevertheless, various studies showed that Federal employees were still reluctant to bring their employer’s wrongdoing to light due to fear of reprisal.For example, findings from one of these studies showed that 45% of all surveyed Federal employees knew of at least one incident of illegal or wasteful activity within the past 12 months, that 70% of them chose not to report it, and that about one-fifth of that number cited fear of reprisal as their reason for remaining silent.
Congress thereafter revisited the issue and passed the Whistleblower Protection Act of 1989 (WPA), which – unlike the broader Civil Service Reform Act – was specifically tailored to help Federal employees who jeopardized their careers by making whistleblower disclosures in the public interest. The purpose of the WPA is to:
[S]trengthen and improve protections for the rights of federal employees, to prevent reprisals, and to help eliminate wrongdoing within the government by (1) mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices; and (2) establishing . . . that while disciplining those who commit prohibited personnel practices may be used as a means by which to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration.
Whistleblower Protection Act § 2(b).
Congress found that protecting employees in this way would be a “major step” toward a more effective civil service and would serve the public interest by assisting in the elimination of fraud, waste, abuse, corruption, illegality, and unnecessary Government expenditures. Whistleblower Protection Act § 2(a). Together with the provisions of the Civil Service Reform Act, the WPA makes it possible for MSPB to hear and take corrective action over a broad range of whistleblower appeals.
What is whistleblowing?
Whistleblowing occurs when an employee makes a specific and detailed allegation of instances of wrongdoing. Under the WPA, employees are protected when they make allegations of wrongdoing by disclosing a violation of law, gross mismanagement, a gross waste of funds, an abuse of authority, or a “substantial and specific danger” to public health or safety.
How does MSPB protect whistleblowers?
Unlike many of the Merit System Principles, for which there is no specific law or regulation that allows an affected employee to appeal a violation, MSPB can order an agency to take corrective action for whistleblower retaliation. This would require an agency to place the whistleblower, as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred. The MSPB can even award the whistleblower back pay and certain reasonable and foreseeable consequential damages such as medical costs and travel expenses. In some cases, it may also award attorney fees.
However, only whistleblowers who legally fall within MSPB’s jurisdiction may seek such relief. The WPA allows a whistleblower who has suffered reprisal to appeal a personnel action that is not normally appealable if he or she first files a complaint with the Office of Special Counsel (OSC) and exhausts his or her administrative remedy with OSC. An individual who is challenging an action that is already directly appealable to MSPB (e.g., a removal or suspension for more than 14 days) may raise his or her whistleblowing activity as an affirmative defense to that action.
Are there any recent decisions of note by the courts or MSPB that address the ninth Merit System Principle?
Although the Board’s case law states that disclosure of information that is publicly known is not a disclosure under the WPA, the Board qualified this requirement when it held that if an employee’s disclosure adds “additional information necessary to recognize” the nature or seriousness of a publicly known problem, and this is information the public would not have otherwise had, then the disclosure is protected under the WPA. Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 9 (2009).
For many years, the Board and the courts found the WPA did not protect disclosures regarding policy disputes where “reasonable people” might disagree over the merits of a given policy. See, e.g., White v. Department of the Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004). In effect, a policy disagreement can serve as the basis for a protected disclosure only if the legitimacy of a particular policy is not debatable among reasonable people. Nevertheless, the U.S. Court of Appeals for the Federal Circuit has refined and clarified this legal principle to the effect that the WPA’s protection now covers disclosures about policy, even where reasonable people might disagree on the merits of that policy, when the policy concerns a substantial and specific danger to public health or safety. Chambers v. Department of the Interior, 515 F.3d 1362, 1368-1370 (Fed. Cir. 2008); see also Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶¶ 16-24 (2011).
Has MSPB ever studied whistleblower protection issues?
Since 1981, MSPB has published several studies tracing the effectiveness, challenges, and successes of whistleblowers in the Federal service. See, e.g., Do Federal Employees Face Reprisal for Reporting Fraud, Waste, or Mismanagement? (1981). The MSPB’s most recent study focused on the challenges that a whistleblower must face in order to prevail on his or her claim. This study cautioned that it is critical for a whistleblower to know precisely what must be proven in order to prevail on his or her claim, as any criteria found lacking will strip MSPB of jurisdiction over the appeal. The report describes these criteria and explains what constitutes wrongdoing, how disclosures must be reported, what qualifies as reprisal or retaliation, and what other important issues must be considered in a whistleblower claim. Whistleblower Protections for Federal Employees (2010). These studies and others are available online on MSPB’s website at http://www.mspb.gov/studies/viewallstudies.htm.
Where can I go to learn more about whistleblowing and the MSPB?
In addition to the MSPB studies, we have other helpful information, such as
“Questions and Answers About Whistleblower Appeals,” available online at http://www.mspb.gov/appeals/whistleblower.htm. It describes the appeal process for whistleblowing cases in an easy-to-follow format. Also, from time to time, MSPB addresses current developments in whistleblower law in its newsletter, Issues of Merit, an archive of which is available on MSPB’s website at http://www.mspb.gov/studies/newsletters.htm.