Merit System Principles 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?
What role does it play in the Merit Systems Protection Board’s decision-making process?
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).
How is this principle communicated to Federal employees?
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).
Has the MSPB studied issues relating to conduct?
The hiring aspect of this MSP is relevant to the 2005 report Reference Checking in Federal Hiring: Making the Call which advised hiring officials to conduct careful reference checks prior to making each selection decision. Similarly, Clean Record Settlement Agreements and the Law (2013) discussed the implications of entering into clean record settlement agreements, which may require an agency to withhold negative information from prospective employers who are attempting to obtain a reference.
Fortunately, even when agencies hire new employees from outside the Federal workforce, they usually have a defined period of time to assess the employees and decide whether or not to retain them. The Probationary Period: A Critical Assessment Opportunity (2005) and Navigating the Probationary Period After Van Wersch and McCormick (2007) address the need for supervisors to be attentive to this time frame and take appropriate action in a timely manner when the employees should not attain full career status (and the rights that accompany the successful completion of the probationary period).
Do any other agencies provide guidance concerning the conduct of Federal employees?
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.