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. Many people felt that 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 decisions from the MSPB during the last few years 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 recent years the Board has issued many decisions in Chapter 43 cases that reflect the importance of this merit principle. For example, in Adamsen v. Department of Agriculture, 2011 116 M.S.P.R 331 (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). The Board addressed the rights and obligations of the parties with respect to the so-called “roller coaster employee” in White v. Department of Veterans Affairs, 120 M.S.P.R. 405 (2013), sustaining the removal of an employee without a second opportunity to demonstrate acceptable performance after his performance once again became unacceptable within a year after he successfully completed such an opportunity.
Has the MSPB studied the issue of retention based on performance or otherwise correcting poor performance?
The MSPB recently released a report, What is Due Process in Federal Civil Service Employment? In addition to discussing the history and reasoning behind the current civil service laws for adverse actions, the report also discusses the two key components of due process: 1) the opportunity prior to removal to understand the charges and offer a defense and 2) the right to appeal a removal decision before an impartial third party.
In 2009 the MSPB issued a report titled Addressing Poor Performers and the Law. The report discusses the legal options that agencies have and the challenges they perceive in taking performance-based actions. On a similar note, the report Alternative Discipline: Creative Solutions for Agencies to Efficiently Address Employee Misconduct (2008) offers agencies ideas for implementing an alternative to traditional discipline when supervisors believe that this would produce a better outcome.
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.