Department of the Interior
Departmental Manual
Effective Date: 12/22/06
Series: Personnel Management
Part 370: Departmental Personnel Program
Chapter 752: Discipline and Adverse Actions
Originating Office: Office of Human Resources
370 DM 752
1.1 Purpose. This chapter establishes the policy, procedures and
authority/responsibility for administering employee discipline within the
Department of the Interior (Department), and for taking appropriate corrective
action for disciplinary or certain non-disciplinary reasons, when it is
determined that such actions will promote the efficiency of the service. Requirements stated in this chapter are
consistent with law, regulations and other Department policy applicable at the
time of its issuance. Actions taken
through the application of this chapter must comply with the requirements of
pertinent laws, rules and regulations, as well as the lawful provisions of
applicable negotiated agreements for employees in exclusive bargaining units.
1.2 Authority. Chapter 75 of Title 5,
1.3 Coverage.
A. This chapter applies to all bureaus and
offices of the Department.
Bureaus/offices will not issue supplemental disciplinary policy, except
where otherwise prescribed in this chapter.
Employees covered by a collective bargaining agreement may be subject to
additional procedures which may supersede/supplement those described in this
chapter. Bureaus/offices may issue
supplemental implementing guidance as needed.
B. The disciplinary/adverse action procedures
described in this chapter do not apply to an Administrative Law Judge (ALJ),
whose discipline is governed by separate statutory requirements. Additionally, only the adverse action
procedures described in 1.7C of this chapter are applicable to Department
appointees in the Senior Executive Service (SES), although SES employees (and
ALJs) may be counseled/reprimanded for engaging in misconduct. Management must consult with the servicing
Human Resources Office for guidance regarding employee/action coverage.
C. Employees
(1) The following
employees are covered by the provisions of this chapter:
(a) An employee in the competitive service who
has completed a probationary or trial period, or who is serving in an
appointment that requires no probationary or trial period and who has completed
one year of current continuous employment in the same or similar positions
under other than a temporary appointment limited to one year or less;
(b) A preference eligible employee in the
excepted service who has completed one year of current continuous employment in
the same or similar positions;
(c) A non-preference eligible employee in the
excepted service who has completed two years of current continuous employment
in the same or similar positions under other than a temporary appointment
limited to two years or less;
(d) An employee with competitive status who
occupies a Schedule B position; and
(e) An employee who was in the competitive
service at the time his/her position was first listed as part of the excepted
service and still occupies that position.
(2) The
following employees are excluded from coverage:
(a) An individual
appointed by the President;
(b) An employee whose position has been
determined to be of a confidential, policy-determining, policy-making, or
policy-advocating character by the President, the agency head, or the Office of
Personnel Management (such that the position is excepted from the competitive
service – “Schedule C”);
(c) A reemployed annuitant;
(d) An employee whose appointment is made with
the advice and consent of the Senate;
(e) A non-preference eligible employee serving
a probationary or trial period under an initial appointment in the excepted
service pending conversion to the competitive service;
(f) Administrative Law Judges;
(g) An employee in the competitive service
serving a probationary or trial period; and
(h) Individuals who are otherwise excluded by
the statutory provisions of Title 5, United States Code.
D. Actions
(1) The following
actions are covered by this chapter when taken with respect to a covered
employee:
(a) Written Reprimands;
(b) Suspensions;
(c) Removals;
(d) Reductions in grade;
(e) Reductions in pay; and
(f) Furloughs
without pay for 30 days or less.
(2) The
following actions are not covered by this chapter:
(a) A
reduction-in-force action;
(b) A suspension or removal in the interest of
national security;
(c) An action taken against an Administrative
Law Judge;
(d) The reduction in grade of a supervisor or
manager who fails to successfully complete a new probationary period as a
supervisor or manager, if such reduction is to the grade held immediately
before becoming a supervisor or manager;
(e) An action which entitles an employee to
grade retention, and an action to terminate this entitlement;
(f) A voluntary action initiated by the
employee;
(g) Termination of appointment on the
expiration date specified as a basic condition of employment at the time the
appointment was made;
(h) An action which terminates a temporary or
term promotion and returns the employee to the position from which temporarily
promoted, or to a different position of equivalent grade and pay, if the
Department informed the employee that it was to be of limited duration;
(i) Cancellation of a promotion to a position
not classified prior to the promotion;
(j) Reduction of an employee's rate of pay
from a rate which is contrary to a rate allowed or permitted by law or
regulation;
(k) Placement of an employee serving on an
intermittent or seasonal basis in a temporary non-duty, non-pay status in
accordance with conditions established at the time of appointment;
(l) An action imposed by the Merit Systems
Protection Board;
(m) A reduction in grade or removal based solely
on unacceptable performance and taken under 5 U.S.C. 4303; and
(n) An action taken or directed by the Office
of Personnel Management based on a suitability determination.
(o) An action otherwise not covered by the
statutory provisions of Title 5, United States Code, and the regulatory
provisions of Title 5, Code of Federal Regulations.
1.4 Definitions.
A. Administrative Leave. An excused absence from duty without charge
to leave or loss of pay.
B. Adverse
Action. For purposes of this chapter, a
personnel action taken by management, appealable to the Merit Systems Protection
Board (MSPB), to effect an employee’s removal, suspension for more than 14
days, furlough without pay for 30 days or less, or reduction in grade or pay.
C. Day. A
calendar day (except where otherwise specified).
D. Deciding
Official. A Department supervisor or manager
who makes a decision on a proposed adverse action or disciplinary action.
E. Disciplinary
Action. For purposes of this chapter, an
action taken by management, not appealable to the MSPB (i.e., written
reprimand; suspension for 14 days or less) to address employee misconduct.
F. Furlough. The
placement of an employee in a temporary status without duties and pay
because of lack of work or funds or other non-disciplinary reasons.
G. Grade. A level of classification
under a position classification system.
H. Indefinite
Suspension. The placement of an employee in a
temporary status without duties and pay pending investigation, inquiry, or
further agency action. The indefinite
suspension continues for an indeterminate period of time and ends with the
occurrence of the pending conditions set forth in the notice of action which
may include the completion of any subsequent administrative action.
I. Pay. The rate of basic pay
fixed by law or administrative action for the position held by an employee.
J. Preponderance of the Evidence. That degree of relevant
evidence which a reasonable person, considering the record as a whole, might
accept as sufficient to find that a contested fact is more likely to be true
than untrue.
K. Proposing
Official. A Department supervisor or manager
who proposes an adverse or disciplinary action.
L. Removal. The
involuntary separation of an employee from employment with the Department and Federal
service, except when effected due to a reduction-in-force or the expiration of
an appointment.
M. Suspension. The involuntary placement of an
employee in a temporary non-duty, non-pay status for disciplinary reasons.
1.5 Responsibilities.
A. Heads of Bureaus and Offices are Responsible for:
(1) Implementing, supporting and providing oversight for the effective management of employee conduct and discipline;
(2) Communicating information to the workforce regarding conduct requirements and disciplinary parameters;
(3) Delegating appropriate authority, establishing roles/responsibilities for policy implementation within the bureau/office, and ensuring that applicable training is provided for supervisors to properly exercise their disciplinary responsibilities;
(4) Ensuring adherence to the policy and procedural requirements of this chapter, as well as the applicable provisions of established collective bargaining agreements; and
(5) Providing and implementing bureau/office-wide guidance and instructions other than those outlined in this chapter, as appropriate.
B. Director, Office of Human Resources is Responsible for:
(1) Developing and issuing Departmental policy and guidance regarding employee conduct and discipline;
(2) Monitoring and evaluating the administration of discipline throughout the Department, and revising the disciplinary policy and procedures as appropriate;
(3) Providing advice and assistance to bureaus/offices on the provisions of this chapter (as well as related laws, rules and regulations) and on managing employee conduct and discipline;
(4) Establishing and implementing reporting requirements for actions taken under this chapter, as well as complying with reporting requirements established by OPM; and
(5) Establishing overall parameters for Department-wide conduct/discipline training and coordinating the availability of related training opportunities.
C. Servicing Human Resources Offices (HRO) are Responsible for:
(1) Advising supervisors on employee conduct issues and disciplinary options (including procedural/regulatory parameters);
(2) Drafting or reviewing all disciplinary notices prior to issuance and applicable case files, to ensure reasonableness of penalty and statutory/regulatory compliance;
(3) Advising employees and supervisors of their procedural rights and responsibilities relative to this chapter (and applicable laws, regulations and negotiated agreements);
(4) Consulting for legal sufficiency with the Office of the Solicitor on adverse action proposals and decisions, and providing technical assistance to the Office of the Solicitor on actions taken under this chapter;
(5) Maintaining disciplinary and adverse action files and an information system for tracking and periodically reporting the actions effected; and
(6) Providing operational training support to ensure the workforce is sufficiently aware of the provisions of this chapter.
D. Office of the Solicitor is Responsible for:
(1) Providing reviews for legal sufficiency and overall appropriateness of adverse actions being considered, proposed, or taken under this chapter;
(2) Representing the Department during settlement negotiations, MSPB appeals, arbitrations and other activities related to the administrative and federal personnel litigation process; in accordance with established Departmental policy, coordinating settlements of actions taken under this chapter which impose a financial obligation on the Department; and
(3) Reviewing and providing input on conduct/discipline training and related instructional guidance for Department supervisors and employees.
E. Supervisors are Responsible for:
(1) Establishing and maintaining a safe, productive, supportive and well-ordered work environment;
(2) Providing a work environment free of illegal discrimination;
(3) Advising employees regarding assigned duties and conduct expectations and observing employee performance and conduct to ensure compliance with the standards of ethical conduct and other established work requirements;
(4) Promptly investigating and documenting circumstances related to incidents of employee misconduct;
(5) Consulting with the servicing HRO regarding employee misconduct
and initiating appropriate, timely and relatively consistent corrective action
as warranted; and
(6) Recognizing and complying with the requirements of this chapter and the applicable provisions of established collective bargaining agreements.
F. Employees are Responsible for:
(1) Having a familiarity with Federal and Departmental standards of ethical conduct, complying with all established conduct and performance requirements, and requesting clarification if necessary;
(2) Reporting incidents of waste, fraud, abuse, corruption and other misconduct to appropriate authorities; and
(3) Cooperating in official investigations and furnishing testimony.
1.6 Policy.
A. General. Employees
of the Department are expected to demonstrate high standards of integrity, both
on and off the job, abiding by the Department’s conduct regulations (43 CFR
Part 20) and other Federal and Departmental laws, rules and regulations. When established standards of conduct are
violated, or the rules of the workplace are disregarded, corrective action is
warranted to motivate employees to conform to acceptable behavioral standards
and prevent prohibited and/or unsafe activities. Such corrective actions, when taken under
this chapter, should comport with applicable laws and regulations, should be
administered with relative consistency and should be taken for such cause as
will promote the efficiency of the service.
B. Standard for Taking Action. Management must be able to show that the
actions taken under this chapter promote the efficiency of the service. To demonstrate this, the written notices of
proposal and decision must clearly specify the charge(s) or reason(s) upon
which the action is based, be able to prove the specific basis for its action
by a preponderance of the evidence, be able to show the connection (“nexus”)
between the charge(s) and promotion of the efficiency of the service, and be
able to establish the reasonableness of the action taken under the
circumstances. In taking a corrective
action against an appointee in the SES,
management’s options are limited to a written reprimand or an adverse action
covered by this chapter (i.e., suspension for more than 14 days; removal from
the Federal service); management may take an adverse action against an SES
employee only for misconduct, neglect of duty, malfeasance, or failure to
accept a directed reassignment or to accompany a position in a transfer of
function.
C. Use and Choice of Discipline. Discipline
should be imposed to correct improper employee conduct and to maintain order,
morale and workplace safety throughout
the workforce. After determining that
misconduct occurred and that corrective action is warranted, discipline should
be initiated as soon as practicable after the misconduct which prompted it and
effected on a progressive and equitable basis as much as possible. Progressive discipline provides that in
dealing with an instance of employee misconduct, the responsible management
official (often the first-level supervisor) should select the minimum
disciplinary/adverse action most likely to correct the specific behavioral
problem, with penalties selected at an escalating level for subsequent (but not
necessarily identical) offenses, when appropriate. Management officials must exercise reasonable
judgment and consider all relevant factors, both mitigating and aggravating (as
reflected in the guidance found at Appendix A), in determining the most
appropriate corrective action for each situation. As a guide for considering disciplinary
options, the Department’s Table of
Offenses and Penalties is included as Appendix B to this chapter. This Table
does not mandate the use of specific penalties in most disciplinary
situations. Supervisors/managers retain
full authority, except in limited circumstances (i.e., discipline prescribed by
statute or the MSPB), to set penalties as they deem appropriate, based on the
particular circumstances and specifications of the offense. Consultation and close
coordination with the servicing HRO should ensure that a particular penalty is
proportional to the offense and employees who commit similar offenses are
treated with relative consistency.
D. Delegations of Authority. Each bureau will determine the level of
supervisory authority required for taking actions covered by this
chapter. For actions that require the
issuance of a proposal and a decision (e.g., suspensions; removals; reductions
in grade/pay), ordinarily the same supervisory/management official should not
serve as both the proposing and deciding official on the action. Generally, the decision on a proposed action
should be made by a management official at a higher organizational level than
the proposing official; if there is no higher-level official within the
Bureau/Office or if it is not feasible to use the higher-level official,
another management official within the Department may be delegated the
decision-making authority (in such exceptional situations, determinations
regarding the delegation of decision-making authority must be approved by the
Bureau/Office head, with the concurrence of the Director, OHR). Bureau officials, managers and supervisors
who are delegated authority for implementing the provisions of this chapter and
managing the workforce are accountable for complying with and properly
administering all controlling laws, rules, policies, regulations and negotiated
agreements pertaining to employee conduct and discipline.
1.7 Procedures.
A. General. Taking a corrective action against an
employee is appropriate only when the employee has engaged in identifiable
misconduct adversely affecting the efficiency of the service. Before initiating such action, management
should conduct a thorough inquiry into any apparent offense (collecting
information to the greatest extent practicable directly from the subject
employee) to ensure the objective consideration of all relevant facts and
aspects of the situation. Ordinarily,
this inquiry will be conducted by the appropriate line supervisor, with
guidance from the servicing HRO. However,
certain situations (particularly those involving possible criminal
activity) warrant an investigation by the Office of Inspector General and/or
internal Bureau law enforcement/criminal investigation offices. Once it is established that an employee
engaged in misconduct necessitating corrective action, a supervisor or other
management official (using the guidance at Appendices A and B, and in
consultation with the servicing HRO) must determine the action/penalty required
to deter the recurrence of the unacceptable behavior.
Minor misconduct may be corrected
if the supervisor informally counsels the employee about the problem promptly
after the first instance. The supervisor
also may rely on notices of warning/admonishment to convince the employee to
change the undesirable behavior. These
actions are less severe than the disciplinary and adverse actions described
below, are less subject to review by third parties, and do not become part of
the employee’s permanent official employment record. Notices of warning/admonishment document the
employee’s misconduct, place the employee on notice regarding the behavior
expected by management, and advise the employee that more serious corrective
action (e.g., reprimand; suspension; removal) will result if the unacceptable
behavior is not corrected. The use of
such corrective actions does not constitute a “prior penalty” for disciplinary
purposes, as alluded to in Appendix B, to enhance the severity of penalty for a
subsequent offense; however, such corrective actions may be viewed as “prior
notice” (in consideration of factor 9, Appendix A).
B. Disciplinary Action.
(1) Written
Reprimand
(a) This is a written notice issued to an
employee by an authorized management official (usually the immediate or
higher-level supervisor) when the employee’s conduct warrants a corrective
action more serious than a counseling or warning but without involving a loss
of pay. Unlike a notice of counseling,
warning or admonishment, a written reprimand is a formal penalty for
disciplinary purposes (under Appendix B).
(b) The servicing HRO will assist management in
the preparation and issuance of the reprimand, which should specify: the reason(s) prompting the action; the
period of time a copy of the reprimand will be maintained in the employee’s
Official Personnel Folder (OPF); for progressive disciplinary purposes, the
possibility of taking more serious action for any subsequent offenses(s); and,
the employee’s right to file a grievance in accordance with the applicable
administrative/negotiated grievance procedures.
(c) A copy of the reprimand will be filed on
the temporary side of the employee’s OPF for a period not-to-exceed two years or where applicable, the time
specified by an established negotiated agreement; the time period will be
appropriately recorded and tracked by the servicing HRO. The employee’s supervisor may elect to
withdraw the reprimand from the OPF earlier than the period specified, in which
case the supervisor will inform the employee, after consulting with the
servicing HRO.
(2) Suspension (14 days or less)
(a) A disciplinary suspension is a management
directed absence from work for an employee (excluding all SES appointees), with
forfeiture of pay for the time specified.
Since suspensions result in a loss of productivity and represent a
financial loss to employees, they should be imposed only after lesser
corrective actions have proven ineffective in improving employee behavior or
when an employee has engaged in serious misconduct.
(b) An employee against whom a suspension of 14
days or less is initiated is entitled to receive a written proposal stating the
specific reason(s) for the proposed action (including aggravating/mitigating
factors referenced in Appendix A) in sufficient detail to enable the employee
to answer the charge(s). The notice of
proposed suspension (issued by the immediate supervisor or other management
official, with the advice and assistance of the servicing HRO), shall
state the proposed length of the suspension, as well as the employee’s entitlement to: review the material relied
upon by management in proposing the suspension (upon request); 7 days to answer
orally and/or in writing the proposal (and furnish affidavits and other
documentary evidence) before a decision is made; representation by an attorney
or other representative; and a written decision (explaining the specific
reasons for that decision) at the earliest practicable date. The notice also shall identify the name of
the deciding official (generally, a higher-level manager) and, if different,
the name of the official designated to receive the oral and/or written answer
(if such an official is designated, that individual may provide a
recommendation to the deciding official regarding the disposition of the
proposed action). After issuing the
notice of proposed suspension, management can amend the proposal notice (or
cancel and reissue it at a later date) to allow for the consideration of any
additional misconduct which becomes known to management prior to the issuance
of a decision.
(c) The employee’s representative must be
designated, in writing, to the deciding official prior to any oral and/or
written answer. Employees serving in a
legal capacity within the Department (e.g., attorneys with the Office of the
Solicitor and Office of Hearings and Appeals) may not represent another Department employee with regard to
actions taken under this chapter.
Additionally, Department
management may disallow, as an employee’s representative, an individual whose
activities as a representative could cause a conflict of interest or of
position, or an employee of the Department whose release from his/her official
position would result in unreasonable costs or whose priority work assignments
preclude his/her release for representational duties.
(d) The employee’s answer(s) to the proposed
suspension should be provided to the deciding official (or designee) within 7
days following the date the employee receives the proposal notice. The employee is entitled to a reasonable
amount of official time (normally a matter of hours, not days) to prepare and
present an oral and/or written answer.
If the employee wishes additional time to answer, the employee (or
designated representative) must submit an extension request, in writing, to the
deciding official (or designee) before the expiration of the answer period,
stating the reason for the request and the amount of additional time needed. The deciding official shall respond to the
employee, in writing, either granting or denying (fully or partially) the time extension request.
(e) The right to answer orally does not include
the right to a formal hearing and the appearance of witnesses will not be
permitted. Although oral replies are
generally conducted in a face-to-face meeting, when this is impractical, audio
or video conferencing may be used. When
practicable, a representative from the servicing HRO should be present during
the presentation of the oral answer, to assist and provide procedural guidance
to the deciding official (or designee) and employee (or representative). If the employee makes an oral answer, the
deciding official (or designee), shall prepare a written summary for the record
(no verbatim transcript of the oral answer is required). A draft of the summary should be provided to
the employee (or representative) for the opportunity to comment before it is
made part of the record. The final
summary of the oral answer and any comment made by the employee (or
representative) regarding the summary shall become part of the official
disciplinary case file maintained by the servicing HRO.
(f) The deciding official will obtain (from
the servicing HRO) and review a copy of the entire case file, which should
contain all the evidence relied upon by the proposing official (including the
proposal notice and all supporting documents), before making a decision on the
proposed suspension. Upon request, the
employee also may review this file, which should contain only the material
relied upon to support the action; information that cannot be disclosed to the
employee shall not be used as a basis for taking any action.
(g) The deciding official shall issue a written
decision at the earliest practicable date after receipt of the employee's
answer(s), or following expiration of the answer period. The notice of decision must be delivered to
the employee (or representative) at or before the time any action is to be
effected (or in accordance with applicable provisions of any negotiated
agreement). The servicing HRO will
assist the deciding official in making the appropriate decision and preparing
and issuing the decision notice. In
arriving at a decision, the deciding official should consider only the
information, evidence and communication available to the employee for comment
or answer throughout the disciplinary process, as well as the employee’s
answer(s), and use only the reasons which were included in the proposal notice
to support the decision. The deciding
official may seek additional information to corroborate/refute any information
previously obtained during the process; if considered, the deciding official
should make such additional information available to the employee for comment
prior to making a decision.
(h) The notice of decision should
indicate: the specific action decided
upon (and applicable effective dates); the charge(s) and specification(s) in
the proposal notice which were/were not sustained; the consideration given to
the employee's answer(s), if any, and to any mitigating and aggravating
factors; for progressive disciplinary purposes, the possibility of taking more
serious action for any subsequent offenses(s); and, the employee’s right to
file a grievance in accordance with
the applicable administrative/negotiated grievance procedures.
C. Adverse Action.
(1) Most adverse
actions taken under this chapter (i.e., removal for cause; suspension for
indefinite period/more than 14 days;
reduction in grade or pay) are based on instances of egregious and/or repeated
employee misconduct (exceptions include furlough for 30 days or less and
removal for medical inability to perform the duties of the position). Employees are entitled to receive advance
written notice of at least 30 days before an action covered by this chapter may
be effected, except for the following situations:
(a) Emergency
furlough. The requirements for both
an advance written notice and an employee opportunity to answer are waived for
furloughs due to unforeseeable circumstances, such as sudden breakdowns in
equipment, a lapse of appropriations, acts of God, or sudden emergencies
requiring immediate curtailment of activities.
Circumstances must be truly unforeseen, and of such a nature that they
do not reasonably allow for time to prepare a proposal to take action or to
receive an employee’s answer.
(b) Crime
provision. Management may shorten
the advance notice period when there is reasonable cause to believe an employee
has committed a crime (either on or off the job) for which a sentence of
imprisonment may be imposed. The
shortened notice period must still be at least 7 days. When circumstances require that the employee
be kept away from the worksite during this shortened notice period, management
may place the employee in an administrative leave status for such time as is
necessary to decide and effect the adverse action. Generally, evidence that meets the
requirements for a shortened notice period also will support an adverse action
to indefinitely suspend an employee
pending resolution of the criminal charges or completion of a subsequent
administrative action. An employee who
has been arrested with or without a warrant and held for further legal action
by a magistrate court or indicted by a grand jury for a serious crime should be
indefinitely suspended without pay pending the outcome of the judicial
process. The consideration of any
adverse action prompted by an employee’s alleged criminal conduct must be
closely coordinated with the Office of the Solicitor.
(2) An employee against whom an adverse action
is initiated is entitled to receive a written proposal (normally with 30-days advance
notice), stating the specific action proposed and the reason(s) for the
proposed action (including any aggravating and/or mitigating factors referenced in Appendix A) in
sufficient detail to enable the employee to answer the charge(s). The notice of proposed adverse action (issued
by the immediate supervisor or other management official, with the advice and
assistance of the servicing HRO, and after a legal sufficiency review by the Office
of the Solicitor), additionally shall reference that
the employee may: review the material relied upon by management in proposing
the suspension; have 14 days (and a reasonable amount of official time) to answer orally and/or in writing the
proposal (and furnish affidavits and other documentary evidence) for consideration
before a decision is made; be represented by an attorney or other
representative; and receive a written decision (explaining the specific reasons
for that decision) at the earliest practicable date. The notice also shall identify the name of
the deciding official (generally, a higher-level manager) and, if different,
the name of the official designated to receive the oral and/or written answer
(if such an official is designated, that individual may provide a
recommendation to the deciding official regarding the disposition of the
proposed action). After issuing the notice of proposed adverse action,
management can amend the proposal notice (or cancel and reissue it at a later
date) to allow for the consideration of any additional misconduct which becomes
known to management prior to the issuance of a decision.
(a) When some but not all employees in a given
competitive level are being furloughed, the notice of proposal shall state the
basis for selecting a particular employee for furlough, as well as the reasons
for the furlough.
(b) Ordinarily, the employee shall remain in an
active duty status during the advance notice period, and the proposal notice
should so state. However, in rare
instances, the proposing official may determine that the employee’s presence at
the workplace may be injurious to the employee or to others, may result in loss
of or damage to Government property, or may otherwise jeopardize legitimate
Government interests. In such cases,
management (in consultation with the servicing HRO and the Office of the
Solicitor) may assign the employee to other duties, allow the employee to take
leave (or place the employee in an appropriate leave status if the employee is
absent from the workplace), curtail the notice period (using the crime
provision), or place the employee in an administrative leave status for such
time as is necessary to make a decision and effect an action. The placement of an employee on
administrative leave does not constitute an adverse action, but should only be
done in the most exceptional situations (i.e., cases involving proposed
removals or indefinite suspensions),
when all other options are considered imprudent. Only bureau/office heads, their deputies, or
the Director, OHR, may authorize the placement of an employee on administrative
leave for an extended period of time (i.e., beyond 45 days); this authority may
not be re-delegated. Bureau/Office heads (or their deputies) must
coordinate decisions regarding
the placement/continuation of an employee in an administrative leave
status for more than 45 days with the
Director, OHR, who will review such decisions for the Department and may
rescind them if considered inappropriate.
(c) Management must make a reasonable and
diligent effort to ensure that the employee receives the notice of proposed
adverse action in a timely basis.
Personal delivery of the advance notice to the employee, allowing for
the employee’s signed acknowledgment of receipt, is the most desirable method
of delivery. If the notice cannot be
personally delivered to the employee, the servicing HRO will determine the
appropriate alternative delivery method.
(3) The employee’s representative must be
designated, in writing, to the deciding official prior to any oral and/or
written answer. Employees serving in a
legal capacity within the Department (e.g.,
attorneys with the Office of the Solicitor and Office of Hearings and Appeals) may not represent another Department
employee with regard to actions taken under this chapter. Additionally, Department management may disallow, as an employee’s
representative, an individual whose activities as a representative could cause
a conflict of interest or of position, or an employee of the Department whose
release from his/her official position would result in unreasonable costs or
whose priority work assignments preclude his/her release.
(4) The employee’s answer(s) to the proposed
adverse action should be provided to the deciding official (or designee) within
14 days following the date the employee receives the proposal notice. An employee in an active duty status is entitled to a reasonable amount of
official time (normally a matter of hours, not days) to review the material
relied on to support the proposed action and to prepare and present an oral
and/or written answer; the employee must request and obtain supervisory
approval for the use of official time, in advance. If the employee wishes additional time to
answer, the employee (or designated representative) must submit an extension
request, in writing, to the deciding official (or designee) before the
expiration of the answer period, stating the reason for the request and the
amount of additional time needed. The
deciding official shall respond to the employee, in writing, either granting or
denying (fully or partially) the
time extension request.
(5) The right to answer orally does not include
the right to a formal hearing and the appearance of witnesses will not be
permitted. Although oral replies are
generally conducted in a face-to-face meeting, when this is impractical, audio
or video conferencing may be used. When
practicable, a representative from the servicing HRO should be present during
the presentation of the oral answer, to assist and provide procedural guidance
to the deciding official (or designee) and employee (or representative). If the employee makes an oral answer, the
deciding official (or designee), shall prepare a written summary for the record
(no verbatim transcript of the oral answer meeting is required). A draft of the summary should be provided to
the employee (or representative) for the opportunity to comment before it is
made part of the record. The final
summary of the oral answer and any comment made by the employee (or
representative) regarding the summary shall become part of the official adverse
action case file maintained by the servicing HRO.
(6) The deciding official will obtain (from the
servicing HRO) and review a copy of the entire case file, which should contain
all the evidence relied upon by the proposing official (including the proposal
notice and all supporting documents) before making a decision on the proposed
adverse action. Upon request, the
employee also may review this file, which should contain only the material
relied upon to support the action; information that cannot be disclosed to the
employee shall not be used as a basis for taking any action.
(7) The deciding official shall issue a written
decision at the earliest practicable date after receipt of the employee's answer(s),
or following expiration of the 14-day answer
period. The notice of decision must be
delivered to the employee (or representative) at or before the time any action
is to be effected (or in accordance with applicable provisions of any
negotiated agreement). The servicing HRO
will assist the deciding official in making the appropriate decision and
preparing and issuing the decision notice.
In arriving at a decision, the deciding official should consider only
the information, evidence and communication available to the employee for
comment or answer throughout the adverse action process, as well as the
employee’s answer(s), and use only the reasons which were included in the
proposal notice to support the decision. The deciding official may seek additional
information to corroborate/refute any information previously obtained during
the process.
(8) The notice of decision should
indicate: the specific action decided
upon (and applicable effective dates); the charge(s) and specification(s) in
the proposal notice which were/were not sustained; the consideration given to
the employee's answer(s), if any, and to any mitigating and aggravating
factors; for progressive disciplinary purposes, the possibility of taking more
serious action for any subsequent offenses(s); and, the employee’s right to
either file an appeal to MSPB (include a copy of the Board’s appeal
form/regulations and the address of the appropriate Board office) or file a
grievance in accordance with any applicable negotiated agreement.
1.8 Records. The servicing HRO shall maintain confidential disciplinary/adverse action case files; each file shall contain copies of the notice of proposed action, any written answer, a summary of any oral answer, the notice of decision (including the reasons for it), any order effecting the action, and any supporting material (e.g., witness statements; affidavits; documents; investigative reports). Disciplinary/adverse action files must be provided to various parties (e.g., the MSPB; the affected employee and/or designated representative; a grievance examiner), but need only be furnished in response to a specific request.
APPENDIX
A
PENALTY DETERMINATION
After establishing a sufficient basis for taking action
(i.e., a preponderance of the evidence to support the charge(s); a nexus
between the offense(s) and the employee’s job or the agency’s mission), the
supervisor/manager, in consultation with the servicing HRO, must determine the appropriate penalty for the employee's
misconduct. At this point, whether
proposing or deciding an action, it is prudent to consider all remedies
(disciplinary or non-disciplinary; formal or informal) that may effectively
resolve the identified problem.
In selecting an appropriate penalty for a specific offense, responsible
judgment must be exercised so that an employee will not be penalized out of
proportion to the offense. Management should take into account all of the specific
circumstances of the case and should ensure, to the extent possible, that
employees who commit similar offenses are treated consistently. However, while equitable and uniform
treatment of employees who commit similar offenses (under “like” circumstances)
is preferable when possible, mechanistic consistency is not recommended or
required. In Douglas v. Veterans Administration, 5
M.S.P.R. 280 (1981), the MSPB identified a number of factors -- generally
referred to as the "Douglas Factors" -- which it specified
were not exhaustive, but were generally recognized as relevant in determining
the appropriateness of a penalty. A
reasonable and conscientious application of these factors (listed below, with
guidance based on MSPB case-law) could result in employees receiving different
penalties, even though they may have committed similar offenses.
(1) Nature and Seriousness of Offense – the nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.
(2) Employee's Job – the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
(3) Disciplinary Record – the employee's past disciplinary record.
(4) Work Record – the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.
(5) Effect on Future Performance – the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon the supervisor's confidence in the employee's ability to perform assigned duties.
(6) Consistency with Other Penalties – consistency of the penalty with those imposed upon other employees for the same or similar offenses.
(7) Consistency with Table of Penalties – consistency of the penalty with any applicable agency table of penalties.
(8) Notoriety and Impact – the notoriety of the offense or its impact upon the reputation of the Agency.
(9) Clarity of Notice – 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.
(10) Potential for Rehabilitation – potential for the employee's rehabilitation.
(11) Mitigating Circumstances – mitigating circumstances surrounding the offense, such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.
(12) Availability of Alternative Sanctions – the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
Not all of these factors will be pertinent in every case. Frequently, some of the pertinent factors will weigh in the employee’s favor while others may not (or even constitute aggravating factors). Selection of an appropriate penalty must involve a responsible balancing of the relevant factors in the specific case, and in reviewing penalty selection, a third party will determine whether management considered all the relevant factors and exercised its discretion within tolerable limits of reasonableness.
Management need not demonstrate
that it considered all potential mitigating or aggravating factors
before selecting a penalty, nor is it required to specifically show how each Douglas factor applies to each
case. Even though there is no absolute
requirement to do so, it is advisable for management to specifically state in
proposal/decision notices what factors it considered in setting the penalty, to
avoid concerns that relevant issues were not addressed. Therefore, both proposing and deciding
officials should address the Douglas
factors, as well as any mitigating factors, in terms of their particular
relevance to penalty selection.
As a general rule, aggravating
factors used by management in its penalty determination (e.g., an employee's
poor work record), should be included in the proposal notice so that the
employee has a chance to respond to them in the oral and/or written
replies. In the notice of decision, the
deciding official should reference his/her consideration of the proposing
official’s Douglas factor analysis
and the employee’s related response(s), before explaining his/her judgment
regarding how the relevant factors serve to support or mitigate the proposed
penalty.
APPENDIX B
TABLE OF
OFFENSES AND PENALTIES
This Table provides a list of common infractions, along
with a suggested range of penalties for each; it does not presume to cover all
possible offenses, nor does it mandate the use of specific penalties in most
disciplinary situations. The range of
penalties described in the Table is intended to serve as a guide to discipline,
not a rigid standard, and deviations are allowable for a variety of reasons.
Greater or lesser penalties than suggested may be imposed as circumstances
warrant, and based on a consideration of mitigating and aggravating factors. Management officials must exercise reasonable
judgment and consider all relevant factors (as reflected in the guidance found
at Appendix A) in determining the most appropriate corrective action for each
situation. Any penalty determination
outside the suggested range should be based upon a reasonable consideration of
the factors described in Appendix A, and the rationale documented in the
decision notice.
The use of this Table as a guide will help to
ensure appropriateness of penalty in relation to the charge(s), as well as
relative consistency in discipline throughout the Department. The fact that a particular offense is not
listed in the Table does not mean that the employee cannot be charged with that
offense. In such instances, a reasonable
penalty can be determined (with the assistance of the servicing HRO) by a
comparison to those offenses listed in the Table.
The Table lists only disciplinary and adverse
actions which become a matter of record in the employee’s Official Personnel
Folder; it does not mention oral warnings, counseling notices, and other
corrective actions which may be more appropriate for correcting minor
offenses. The First Offense column, therefore, refers to the first offense for
which a disciplinary/adverse action is taken, although it may not be the first
time the employee engaged in misconduct.
Progressively stronger corrective actions should
be taken if an employee repeatedly engages in misconduct. When an employee receives corrective action
for an offense which falls under one range of penalties, and later commits a
different offense under the same or another category of offense, the latter is
considered a second offense for progressive disciplinary purposes. For example, if an employee is charged with
absence without leave (AWOL) and is issued an official reprimand (first
offense), then is later charged with insubordination for subsequent misconduct,
the appropriate penalty range for the insubordination charge is a 30-day
suspension to removal (as a second offense).
In addition to a management-initiated corrective
action, a Department employee also may be subject to criminal prosecution when
there is evidence of a possible statutory violation; such evidence should be
provided to the Office of Inspector General, which then may refer the matter to
the Department of Justice for further consideration and possible
prosecution. If the Department of
Justice declines to prosecute, the employee involved in the alleged wrongdoing
will then be subject to an appropriate administrative action consistent with
the penalties contained in this Table.
An employee who has been arrested and held for further legal action by a
magistrate court, or indicted by a grand jury for an imprisonable offense,
should be indefinitely suspended without pay pending the outcome of the
judicial process so as not to prejudice the employee's right to due process in
the criminal case. If the employee
pleads guilty or is convicted, the Department may then proceed with a removal
or other appropriate action; in the
absence of a conviction, the indefinite suspension should end, although other
administrative action may be taken.
The servicing HRO must be consulted regarding the procedural requirements to
follow when taking corrective action.
This consultation requirement includes securing advice on the merits of
the charge(s) and the appropriateness and Departmental-consistency of the
penalty being proposed. In situations involving possible violations
of the Department’s Standards of Ethical Conduct, supervisors/managers should
also consult with a bureau Ethics Counselor and/or an ethics official from the Office of the Solicitor, Office of
Ethics.
Nature of
Offense (General Misconduct) |
Penalty for First Offense |
Penalty for Second Offense |
Penalty for Third Offense |
Remarks |
1.
Attendance-related offenses. a. Absence without leave (AWOL). This
includes tardiness and unauthorized delay in returning from lunch and break periods,
or in returning after leaving work station on official business; unauthorized
departure or absence from duty station. c. Excessive unauthorized absences (e.g.,
more than 5 consecutive workdays). |
Written
Reprimand to 5-day suspension Written Reprimand
to 5-day suspension 5-day suspension to removal |
5-
to 30-day 5-
to 30-day 14-day
suspension to removal |
30-day
suspension 30-day
suspension Removal |
Refer
to 370 DM 630 for leave requirements and guidance. Penalty
depends primarily on length and frequency of unacceptable absences. Removal may be appropriate for a first or
second offense if the absence is prolonged, the failure to adhere to leave
procedures is flagrant, or the circumstances are otherwise particularly
burdensome. |
2.
Improper or unauthorized release of sensitive and administratively-controlled
information or employee records; failure to safeguard classified material. a. Information is not compromised and
release is unintentional. b. Information is compromised and release
is unintentional. c. Release of restricted information is
deliberate. |
Written
Reprimand to 5-day suspension Written
Reprimand to 30-day suspension 30-day
suspension to removal |
5-
to 30-day 30-day
suspension to removal Removal |
30-day
suspension Removal |
Refer
to 5 USC 552a and 43 CFR 2.52 for Privacy Act provisions regarding the misuse
of personal information; also refer to 18 USC 798 and 18 USC 1905. Deliberate
disclosures of Privacy Act information must be referred to OIG. |
3.
Offenses related to substance abuse. a. Alcohol-related (1)
Reporting to or being on duty while “under the influence” of alcohol. (2)
Unauthorized use and/or possession of
alcoholic beverages while on Government premises (or vehicle). (3)
Operating a Government vehicle/aircraft while “under the influence” of
alcohol. b. Drug-related (1)
Administratively confirmed positive finding under the testing portion of the
Drug-Free Workplace Program. (2)
Unlawful use, being under the influence or unauthorized possession of drugs,
drug paraphernalia or controlled substance while on Government premises or in
a duty status. (3)
Sale or transfer of an illegal drug or controlled substance while on
Government premises (or vehicle). (4)
Refusal or failure to provide a required specimen for drug-testing; tampering
with a drug-test specimen; refusal to obtain counseling or rehabilitation
(after finding of illegal drug use). |
Written
Reprimand to 5-day suspension Written
Reprimand to 30-day 30-day
suspension Written
Reprimand to removal Written
Reprimand to removal Removal 14-day
suspension to removal |
5-
to 30-day 30-day
suspension Removal Removal 30-day
suspension 30-day
suspension to removal |
30-day
suspension Removal Removal Removal |
Refer to 43 CFR 20.505, 370 DM 792, Drug-Free Workplace
(Zero Tolerance) Policy, DOI Handbook on the Department of Transportation
Alcohol and Drug Testing Program, and DOI Federal Railroad Administration
Supplement for specific guidance. Actions involving these offenses must assure that
counseling or rehabilitative assistance is offered; however, referral to an
employee assistance program (EAP) does not preclude the initiation of
corrective action. The illegal drugs currently tested for (as defined
in 370 DM 792, Subchapters 9 & 10) include: marijuana, cocaine, opiates,
amphetamines and phencyclidine (PCP).
However, the Department is authorized to test for any illegal drugs as
deemed necessary. When there is possession of illegal drugs - call law
enforcement and notify OIG. When the substance is prescribed by an appropriate
medical authority and used accordingly, it would not be an offense. 370
DM 792, 10.12 requires mandatory initiation of removal from service for a
second offense of failing to refrain from illegal drug use. |
4. Discourteous conduct (e.g., rude, insolent, disgraceful acts or remarks) toward supervisors, co-workers, or the public. |
Written
Reprimand to 5-day suspension |
5- to 30-day suspension |
30-day suspension to removal |
5 USC
7503(a) permits suspension of 14 days or less of any employee with four
documented instances of discourteous conduct toward the public within a
one-year period as confirmed by an immediate supervisor, or any other pattern
of discourteous conduct. |
5. Boisterous or disruptive/disorderly conduct; use of insulting, intimidating, abusive or offensive language to or about another employee or supervisor. |
Written
Reprimand to 5-day suspension |
5- to 30-day suspension |
30-day suspension to removal |
|
6. Deliberately making known false, malicious, or unfounded statements against co-workers, supervisors, subordinates, or Government officials which could undermine the authority or damage the reputation of those concerned. |
Written Reprimand to removal |
14-day
suspension |
30-day
suspension |
Refer
to 5 USC 2302(b)(8) and (9), prohibiting actions against employees for
engaging in protected activities. |
7. Threatening statements or behavior (of a physical nature). |
14-day
suspension |
Removal |
|
Charge
involving “threat” must consider the listener's reactions, the listener's
apprehension of harm, the speaker's intent, any conditional nature of the
statements, and the attendant circumstances – refer to Metz v. Dept. of Treasury, 780
F.2d 1001 (Fed. Cir. 1986). |
8.
Fighting and offenses related to fighting. a. Engaging in potentially dangerous
“horseplay.” b. Hitting, pushing, or other acts
against another without causing injury. c. Hitting, pushing, or other acts
against another causing injury. |
Written
Reprimand to 14-day suspension 5-
to 30-day 30-day
suspension |
14-day
suspension 30-day
suspension Removal |
30-day
suspension Removal |
Penalty
depends on such factors as provocation, extent of injuries, and whether
actions were defensive or offensive in nature. |
9. Misconduct of a sexual nature that includes, but is
not limited to, unwelcome sexual remarks, indecent comments/jokes, offensive
sexual banter, unwanted sexual advances, or unwelcome physical touching. |
Written Reprimand to removal |
14- day
suspension to removal |
Removal |
Refer to the Department’s Zero Tolerance Policy;
penalty may include mandatory
training. More severe discipline is appropriate for egregious
misconduct. |
10.
Failure to provide equal opportunity regardless of race, color, religion, gender,
national origin, age, marital status, political affiliation, sexual
orientation or handicapping condition. |
Written
Reprimand to removal |
14-day
suspension to removal |
Removal |
Refer
to 5 CFR 2635.101(13). |
11.
Unauthorized possession/sale (actual
or attempted) of Government property or property of others; improper
acceptance of Government funds/reimbursement. |
Written Reprimand to removal |
14-day suspension to removal |
30-day
suspension |
Referral
to OIG may be appropriate. |
12. Loss, misuse of, damage to or failure to safeguard Government property, records, or information (e.g., willful or negligent damage to Government resources; carelessness in performance of duty resulting in waste of public funds). |
Written Reprimand to 14-day suspension |
14-
to 30-day |
30-day
suspension |
Refer to 5 CFR
2635.101(9). For misuse of Government
vehicles, see item 5 under Violations of Statute. Referral to OIG may be appropriate. |
13.
Failure to comply with safety regulations, instructions or prescribed safe
practices; failure to use proper safety
equipment; failure to report accident or injury. |
Written
Reprimand to 14-day suspension |
14-
to 30-day |
30-day
suspension |
|
14. Sleeping or loafing while on duty; inattention to duty; willful idleness while on duty. |
Written Reprimand to 5-day suspension |
5-
to 14-day |
14-day
suspension |
Seriousness
of offense is greater if persons/property endangered. |
15. Failure or delay in carrying out instructions; failure or carelessness in performing assigned work; failure to take/complete officially-directed training. |
Written Reprimand to 14-day suspension |
14-
to 30-day |
30-day
suspension |
Refer
to 370 DM 430 to deal with unacceptable performance and performance-based
actions. |
16.
Insubordination; disregard of directive; refusal to |
5-day
suspension |
30-day
suspension |
Removal |
Refer
to 43 CFR 20.502. An “insubordination”
charge requires a showing that the employee deliberately disregarded
supervisory directives. In some
instances (e.g., refusal to report for an ordered reassignment) removal may
be appropriate. |
17. Falsification/misrepresentation of official Government records or documents including, but not limited to, time and attendance records, travel vouchers, job applications, performance appraisals, claims for benefits, and other employment-related documents. |
Written Reprimand to removal |
30-day
suspension |
Removal |
Refer
to 43 CFR 20.510. Referral
to OIG may be appropriate. |
18. Misrepresentation, falsification, exaggeration, concealment or withholding of material fact in connection with an official Government investigation, inquiry or other administrative proceeding. |
14-day
suspension |
30-day
suspension |
Removal |
Refer
to 43 CFR 20.510. Referral
to OIG may be appropriate. |
19. Refusal to testify or cooperate in connection with any administrative investigation, inquiry, or other proper proceeding (when criminal charges are not anticipated). |
5-day
suspension |
14-day
suspension |
30-day
suspension |
|
20.
Prohibited/improper use of Government property (e.g., office equipment;
supplies; facilities; credentials; records; communication resources; cellular
phones; official time); misuse of the Internet/electronic mail; using the
Internet/electronic mail for unauthorized purposes. |
Written
Reprimand to 14-day suspension More severe discipline (including removal) may be appropriate for first/second offense if misconduct involves using the Department’s Internet/electronic mail system for prohibited reasons, including gambling, accessing/sending prohibited sexually-related material, or other egregious acts of misuse. |
14-
to 30-day More severe discipline (including removal) may be appropriate for first/second offense if misconduct involves using the Department’s Internet/electronic mail system for prohibited reasons, including gambling, accessing/sending prohibited sexually-related material, or other egregious acts of misuse. |
30-day
suspension |
Refer
to 5 CFR 2635.704 and 705(a); 410 DM 2 (Limited Personal Use of Government
Personal Property). Consider issue of
employee notice regarding agency policy. |
21.
Offenses related to gambling. a. Participating in a gambling activity
while on Government premises or in a duty status (e.g., office pools). b. Operating, assisting, or promoting a gambling activity while on Government premises or in a duty status or while others involved are in a duty status. |
Written
Reprimand to 14-day suspension 5-
to 30-day |
14-
to 30-day 30-day
suspension |
30-day
suspension Removal |
Refer
to 5 CFR 735.201. |
22. Indebtedness; failure to meet financial obligations in a proper and timely manner. |
Written Reprimand to 5-day suspension |
5-
to 14-day |
14-day
suspension |
Refer to 5 CFR 2635.809.
Actionable if there is a nexus between the failure to pay and the
efficiency of the service. Since a
suspension may reduce an employee's ability to pay overdue financial
obligations, a reprimand may be more appropriate for a first offense (more
severe discipline may be appropriate for subsequent offenses). Special care is called for in dealing with
this type of offense, as it may involve mitigating circumstances. |
23.
Offenses related to Government travel charge card and/or purchase card. a. Misuse of travel card (i.e., personal/unauthorized
purchases) or delinquent in
payment. b. Misuse of travel card (i.e.,
personal/unauthorized purchases) and
delinquent in payment. c.
Unauthorized use of or failure to appropriately monitor use of Government
purchase card; “micro-purchasing” violations. |
Written Reprimand
to 30-day suspension 5-
to 30-day suspension Written
Reprimand to 30-day suspension
|
5-day
suspension to removal 14-day
suspension 14-day suspension to removal |
30-day
suspension Removal Removal |
Refer
to Financial Administration Memorandum (FAM) 2000-010 for further information
and instructions on Resolving Delinquencies on Individually-billed Travel
Card Accounts, and the Department’s Integrated Charge Card Program Guide
(revised 4/2004). |
24. Carrying a firearm or other weapon on Government property (or in Government vehicle) unless specifically authorized/required in the performance of duties. |
30-day
suspension |
Removal |
|
Refer
to 43 CFR 20.511. |
25. Using public office for private gain. |
5-day
suspension |
Removal |
|
Refer
to 5 CFR 2635.702. |
26.
Engaging in unauthorized/prohibited selling, soliciting or fundraising
activities. |
Written Reprimand to 5-day suspension |
5-
to 14-day |
14-day
suspension |
Refer
to 5 CFR 2635.808. |
27. Engaging in prohibited outside employment or private business activities. |
Written Reprimand to removal |
Removal |
|
Refer
to 5 CFR 3501.105. |
28. Participating in particular matters while having a conflicting financial interest. |
5-day
suspension |
Removal |
|
Refer
to 5 CFR 2635.401. Consult
Ethics Office and may require referral to OIG. See 18 USC 208. |
29. Participating in matters affecting financial interests of an entity where employment is being sought. |
5-day
suspension |
Removal |
|
Refer
to 5 CFR 2635.601. Consult
Ethics Office and may require referral to OIG. See 18 USC 208. |
30. Violating the Department’s Code of Scientific
Conduct (or other professional code of conduct that applies to employees
required to maintain a professional license or membership). |
Written Reprimand to 30-day suspension |
30-day suspension to removal |
Removal |
Refer
to 305 DM 3. |
31. Violating the Standards of Ethical Conduct not
covered elsewhere in this Table. |
Written Reprimand to removal |
14-day suspension to removal |
Removal |
Refer
to 5 CFR 2635. |
32. Unauthorized use of nonpublic information. |
Written Reprimand to removal |
Removal |
|
Refer
to 5 CFR 2635.703. |
33. Engaging (on-duty or off-duty) in criminal,
infamous, dishonest, or notoriously disgraceful conduct prejudicial to the
Government. |
5-day
suspension |
30-day
suspension |
Removal |
Refer
to 43 CFR 20.501. |
Nature
of Offense (Supervisory
Misconduct) |
Penalty
for First Offense |
Penalty
for Second Offense |
Penalty for Third Offense |
Remarks |
1. Taking, directing others to take, recommending or approving any action which may be considered a “prohibited personnel practice” (e.g., reprisal against an employee for engaging in protected activities; discrimination based on race, color, gender, age, religion, national origin, marital status, political affiliation, sexual orientation or handicapping condition). |
5-day suspension to removal |
14-day
suspension |
Removal |
Refer
to 5 USC 2302, 5 CFR 2635.101(13), and related Department policies. Action may be taken regardless of whether
there was an official “finding” of discrimination (or other prohibited
personnel practice). |
2. Taking reprisal action against an employee for exercising rights provided by the Federal Service Labor-Management Relations Statute. |
5-
to 30-day |
14-day
suspension |
Removal |
Refer
to 5 USC, Chapter 71. |
3. Neglecting to recommend/take corrective action upon receipt of information regarding the job-related misconduct of a subordinate employee. |
Written Reprimand to 30-day suspension |
14-day
suspension |
Removal |
|
4.
Failure to appropriately monitor employee use of Government purchase/travel
charge card. |
Written Reprimand to 14-day suspension |
14-day
suspension |
Removal |
|
5. Misconduct of a sexual nature that includes, but
is not limited to, unwelcome sexual remarks, indecent comments/jokes,
offensive sexual banter, unwanted sexual advances, or unwelcome physical
touching. |
5-day suspension to removal |
14-day suspension to removal |
Removal |
Refer to the Department’s Zero Tolerance Policy;
penalty may include mandatory
training. More severe discipline is appropriate for egregious
misconduct. |
6.
Influencing or attempting to influence the DOI employment of a relative. |
5-
to 30-day |
14-day
suspension |
Removal |
Refer
to 5 USC 3110. |
7. Violating, or inducing a subordinate to violate,
the Department’s Code of Scientific Conduct (or other profession’s Code of
Ethical Conduct). |
5-day suspension to removal |
Removal |
Removal |
Refer
to 305 DM 3. |
8. Using Government employees in duty status for other than official purposes. |
Written Reprimand to removal |
14-day
suspension |
30-day
suspension |
Refer
to 5 CFR 2635.705(b). |
Nature
of Offense (Violations
of Statute) |
Penalty for First Offense |
Penalty
for Second Offense |
Penalty for Third Offense |
Remarks |
1. Engaging in prohibited partisan political activity (e.g., partisan campaigning; soliciting/receiving political contributions). |
30-day suspension to removal |
Removal |
|
Refer to 5 USC, Sections 7321-7326. |
2. Participating in a strike, work stoppage, work slowdown, sick-out, or other similar job action. |
30-day
suspension |
Removal |
|
Refer to 5 USC 7311. |
3. Misappropriating/misapplying Government funds; directing, expecting, or rendering services not covered by appropriations. |
1-
to 30-day |
30-day
suspension |
Removal |
Refer
to 31 USC 1301, 1341 and 1349. |
4. Willfully mutilating or destroying a public record. |
Removal |
|
|
Refer
to 18 USC 2071. |
5. Willfully using or authorizing the use of a Government vehicle/aircraft for other than official purposes. |
30-day
suspension |
Removal |
|
Refer to 31 USC 1344 and 1349. |
6.
Engaging in actions against national security. |
30-day
suspension to removal |
Removal |
|
Refer to 5 USC 7532. |