Senior Executives Association Comments on OPM Proposed Rule

Tuesday, February 8, 2022   (0 Comments)
Posted by: Alana Reyes

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February 3, 2022

The Honorable Kiran Ahuja Director

c/o Mr. Timothy Curry

Office of Personnel Management 1900 E Street, NW

Washington, DC 20415

Re: Senior Executives Association Comments on OPM Proposed Rule on Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions (RIN 3206-AN23)

Dear Director Ahuja,

On behalf of the Senior Executives Association (SEA) – which represents the interests of career federal executives in the Senior Executive Service (SES), those in Senior Level (SL), Scientific and Professional (ST) and equivalent positions and other senior career federal leaders, including our OPM’s proposed rule (RIN 3206-AN23) on “Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions.”

Overall, SEA is extremely concerned by and confused about these proposed changes to current regulations.

5 CFR part 315, subpart H—Probation on Initial Appointment to a Competitive Position Probationary periods are a critical tool for effective employee onboarding. Countless reports from the Merit Systems Protection Board (MSPB) and Government Accountability Office (GAO) highlight the government’s inconsistent and poor use of the probationary period for new hires and for new supervisors. A core finding of those reports is that managers do not properly use the probationary period because managers are not reminded when an employee’s probationary period is reaching its conclusion. When the period ends, employees are automatically deemed fit for service. The probationary period is meant to be “the last and

crucial step in the examination process,” yet instead, it is largely obsolete and formalistic.

To improve the practical usefulness of probationary periods, agencies needed to develop systems for providing multiple advance notices to supervisors that employee probationary periods are ending and require supervisors to make an affirmative determination that the employee is ready to complete their probationary period. It is critical that agencies make appropriate use of the probationary period not only for new hires, but also for new supervisor and executives. When the probationary period is wasted, employees are not set up for success and may be entrenched in roles they cannot perform.

SEA strongly opposes OPM’s proposal to rescind these requirements at § 315.803(a). This issue is too important to leave up to agencies, who have proven themselves incapable of self- regulation and proper use of the probationary period.

5 CFR part 432—Performance-Based Reduction In Grade And Removal Actions

Section 432.104 Addressing Unacceptable Performance

SEA has concerns about the proposed revisions to §432.104 that would rescind OPM’s prior regulation governing the process for addressing unacceptable performance. Congress in 5 U.S.C. 4302 and 4303, and other statues on the civil service, established robust rights and processes for federal employees struggling to achieve satisfactory job performance. OPM’s proposed regulation would return performance management to allow for additional processes not provided for in the plain language reading of the statute.

Rescinding the October 2020 regulations and returning to OPM’s prior regulatory process will allow for extra-statutory protections to employees at the expense of taxpayer accountability at a time when public trust in government remains dangerously low, regardless of political ideology. Research indicates only about one-quarter of Americans say they can trust the government in Washington to do what is right “just about always” (2%) or “most of the time” (22%). Each time administrative agencies impose additional burdens on a supervisor’s capacity to hold employees accountable, it deepens public distrust of government and cost to taxpayers.

Employee protections are critical to the merit system, which is why robust protections exist in federal law. It is the imposition of excessive hurdles to successful employee performance management that frustrates the effective functioning of our government and is not in the public interest.

Section 432.108 Settlement Agreements

SEA strongly believes the government should maintain accurate official personnel records. When employees are removed for cause, SEA believes that it must be reflected in their permanent record, and organizations should not have the flexibility, as part of any negotiated settlement, to not document a legally correct reason for removal.

SEA has advocated for several years that the OPM make the Declaration of Federal Employment Form 306 mandatory instead of optional. This Form legally requires a federal job candidate to clearly disclose issues with past employment. If used in all hiring actions, including when a federal employee changes jobs from one agency to another, the form would minimize the likelihood that an employee who received a clean record from one agency would be rehired by another agency without knowing that important information. In the absence of such  awareness, a hiring agency has no notice of a potential problem and cannot set the office, or the employee, up for success.

SEA has concerns about the proposed revisions to §432.104 that would rescind OPM’s prior regulation governing the process for addressing unacceptable performance. Congress in 5 U.S.C. 4302 and 4303, and other statues on the civil service, established robust rights and processes for federal employees struggling to achieve satisfactory job performance. OPM’s proposed regulation would return performance management to allow for additional processes not provided for in the plain language reading of the statute.

Rescinding the October 2020 regulations and returning to OPM’s prior regulatory process will allow for extra-statutory protections to employees at the expense of taxpayer accountability at a time when public trust in government remains dangerously low, regardless of political ideology. Research indicates only about one-quarter of Americans say they can trust the government in Washington to do what is right “just about always” (2%) or “most of the time” (22%). Each time administrative agencies impose additional burdens on a supervisor’s capacity to hold employees accountable, it deepens public distrust of government and cost to taxpayers.

Employee protections are critical to the merit system, which is why robust protections exist in federal law. It is the imposition of excessive hurdles to successful employee performance management that frustrates the effective functioning of our government and is not in the public interest.

Section 432.108 Settlement Agreements

SEA strongly believes the government should maintain accurate official personnel records. When employees are removed for cause, SEA believes that it must be reflected in their permanent record, and organizations should not have the flexibility, as part of any negotiated settlement, to not document a legally correct reason for removal.

SEA has advocated for several years that the OPM make the Declaration of Federal Employment Form 306 mandatory instead of optional. This Form legally requires a federal job candidate to clearly disclose issues with past employment. If used in all hiring actions, including when abalance does not exist in the proposal presented. In the regulations published October 16, 2020, clean records settlements were permitted when information contained in the record was “not accurate or records an action taken by the agency illegally or in error.” The October 16, 2020 regulations also permitted agencies to clean a record when persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action “casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation.” When an agency is wrong about an action, the employee record should honestly reflect that. When an agency is correct about an action, the employee record should honestly reflect that as well. The proposed regulations do not create balance, they would revoke the existing balance.

OPM emphasizes allowing agencies “flexibility” to resolve disputes, but what the regulations really do is enable agencies to pass problematic employees between one another. The robust system for adjudicating employee performance issues may not be as flexible as OPM prefers, but it is in alignment with the statutory scheme and merit principles designed to serve the taxpayer, as well as protect the employee. The proposed change overvalues the agencies “ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency,” while undervaluing the process provided by the merit system. American taxpayers are entitled to accurate record keeping of employee performance. Taxpayers should not suffer the consequences of inadequate employee job performance or employees committing the same offenses over and over across government. Flexibility should not be the code word for diminished accountability.

Even OPM’s efficiency argument fails. OPM offers no data or evidence that agencies were impeded in their ability to adjudicate employee complaints and disputes, merely that it heard continued objections from agencies that were forced to enforce the law and follow procedures established by Congress and effectuated through OPM regulations. Again, American trust in government fell to near-record lows in 2021. Now is not the time to further cloud the access to accurate records regarding employee’s conduct and performance. Now is the time to restore trust, integrity, and accountability.

Discipline of Supervisors Based on Retaliation Against Whistleblowers

OPM’s proposal only makes a change in a very narrow section of Part 752 focused on whistleblower retaliation – an egregious type of conduct. It does not amend the 15-day requirement elsewhere, such as in § 752.404 (g)(3) as applied to employees generally or §752.604(g)(3) as applied to the SES. It is entirely unclear why OPM only wants to rescind expedited timelines against retaliators. Creating different, seemingly arbitrary timelines across government appears contrary to the policy of the United States government, per E.O. 14003.

More broadly, SEA is concerned by OPM’s lifting of the timeline requirement without offering any guidance on a minimum or maximum acceptable timeline. This action, if effectuated, simply means agencies have no guidance at all. Absent this guidance, agencies may continue practices that include abuse of administrative leave and failing to make timely decisions. Agencies will be enabled in doing so because OPM has still not issued final regulations on the Administrative Leave Act of 2016. Taxpayers, and not the employee, are ultimately paying for the delayed decision.

Standard for Action and Penalty Determination

SEA is extremely concerned about OPM’s proposed amendments to § 752.202. The proposed changes result in guidance to agencies and supervisors that is far less clear and actionable. Does OPM really think that a working level HR Specialist clearly understands the Miskill test, and that they would apply it in the same way as peers in other agencies? OPM is responsible for providing government-wide guidance on a robust statutory scheme which Congress has amended repeatedly over 40 years, with thousands of pages of accompanying regulations, and 40 years of accompanying case law. Absent additional, specific guidance by OPM, the system is not clear at all and will continue to provoke confusion in the employing agencies. In the name of ‘flexibility’ OPM simply continues its history of abdicating its own responsibility of providing coherent and useful guidance to manage the federal workforce.

Conclusion

It is disconcerting that OPM’s proposed changes to these regulations are entirely based on a shift in policy direction rather than on well-founded data and evidence. Indeed, OPM states it either discontinued or does not collect basic data from agencies on performance-based actions, adverse actions, settlement agreements, and that “OPM has virtually no data on the extent to which the adverse actions were pursued under the regulations proposed for rescission here.” This is simply not the way to run the largest employer in the nation. OPM should take an evidence-based policy approach rather than a politically-based one.

SEA has significant concerns about many components of OPM’s proposed rule. Where clarity had been provided, it has been replaced with bureaucratic doublespeak.

SEA appreciates the opportunity to share its views on these proposed regulations. If you wish to further discuss SEA’s views, please contact Jason Briefel, Director of Policy and Outreach, at [email protected].

Sincerely,

Robert E. Corsi, Jr.

President

Senior Executives Association