PERSONNEL BULLETIN NO. 751-3
SUBJECT: Alternative Discipline
This Bulletin revises the Department's policy on Alternative Discipline.
This Bulletin does not substantially change
the current policy. The criteria for entering into alternative discipline
remains the same. This revision simplifies some of the procedures for implementing
alternative discipline, provides more examples based on actual cases, establishes
a monitoring and certification system as part of the agreement, and requires
that employees be notified in writing of the reason(s) they failed to fulfill
the terms and conditions of the agreement.
This Bulletin supercedes Department Personnel
Manual 751, Subchapter 4, dated March 10, 1993.
/s/
Roger L. Bensey
Director
Office of Human Resources Management
Attachments
INQUIRIES: Employee Relations and Development Division,
Linda Browdy, (202) 690-3420, Room 47-W,
Jamie L. Whitten Building
DISTRIBUTION: All DPM Holders
BULLETIN EXPIRES: December 31, 2000
AUTHORITY AND POLICY
This Bulletin provides criteria and procedures for the use of alternative
discipline as an option to formal disciplinary actions as described in
Department Personnel Manual (DPM) Chapter 751, Subchapter 1.
Mission areas, the Chief Information Officer, the General Counsel and
the Inspector General are delegated authority to enter into alternative
discipline agreements. Accordingly, mission areas are reminded that authority
for alternative discipline is subject to the limits on grade level and
type of position described in
DPM 751, Subchapter 1 and Personnel Bulletin 751-1. This authority may be revoked if a mission area improperly applies the criteria or violates the procedures of this Bulletin.
It is the policy of the Department that disciplinary action be limited
to the minimum action necessary to correct employee misconduct and to maintain
discipline and morale among other employees. In appropriate circumstances,
employees may be offered a choice of negotiating an alternative discipline
agreement in lieu of traditional discipline suggested in the Department's
Table of Disciplinary Penalties (DPM 751, Appendix A). In cases where the
appropriate penalty is removal, alternative discipline may not be used.
Alternative discipline is not appropriate when the employee's continued
presence in the workplace may pose a threat to the employee or others,
or for misconduct that requires by statute a particular penalty or range
of penalties (e.g., willful misuse of a government-owned vehicle).
The Department strongly encourages mission areas
to use alternative discipline. It is an excellent tool for reducing administrative
costs and burdens associated with traditional discipline. Additionally,
it encourages managers and supervisors to take a more active role in managing
their employees, and provides employees an opportunity to demonstrate accountability
for their actions and subsequent rehabilitation for productive Government
service.
Effective alternative discipline reflects the combined
capabilities of management and employees (and employees' representative,
if applicable) to reach voluntary agreement on the type of discipline that
accomplishes the objectives of both parties.
Mission areas may offer alternative discipline as
a settlement to employee grievances or EEO complaints resulting from traditional
disciplinary actions provided that the criteria stated in this Bulletin
are met.
When considering whether to enter into an alternative
discipline agreement, mission areas/agencies must ensure the agreement
will promote the efficiency of the service. Decisions on the part of an
agency to enter into alternative discipline agreements in any particular
case must take into consideration the impact on other employees. Identical
offenses committed by different employees may result in different forms
of alternative or traditional discipline. Mission areas/agencies may not
use alternative discipline as a vehicle to inflate a proposed penalty under
traditional discipline to pressure employees to agree to alternative discipline.
In implementing the alternative discipline program, mission areas are reminded to be aware of their rights and obligations under the Federal Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., and Executive Order 12871, Labor-Management Partnerships, October 1, 1993, and applicable mission area or agency collective bargaining agreements.
Alternative discipline is offered solely at the discretion
of management and its use is voluntary. The supervisor and the employee
must agree upon the use of alternative discipline. The supervisor or servicing
human resources office cannot decide unilaterally to impose alternative
discipline. Under no circumstances is alternative discipline required to
be used but, if used, the requirements of this Bulletin must be met.
CRITERIA FOR USE OF ALTERNATIVE DISCIPLINE
Mission areas should establish an alternative discipline
program that fits organizational climate and needs. The Department does
not require mission areas/agencies to establish or use alternative discipline,
however, if used, the minimum requirements as outlined in this subchapter
must be met. The following criteria are established to assure consistent
application of alternative discipline Departmentwide. These criteria apply
to all types of offenses and employees, regardless of position or grade
level, unless otherwise exempted:
PROCEDURES
Alternative discipline may be initiated instead of
traditional discipline or at any stage of the traditional process.
Instead of Traditional Discipline: Before
entering into an alternative discipline agreement, the servicing human
resources office, in consultation with the supervisor, must prepare a written
analysis that identifies:
discipline agreement as the consequence for the employee's
failure to satisfy the terms and conditions of the alternative discipline
agreement. Or, the mission area may issue a decision letter and then enter
into an alternative discipline agreement. For example, a mission area may
impose a fraction of the decided upon suspension and hold the remainder
in abeyance pending successful completion of the alternative discipline
agreement. If the employee fails to satisfy the agreement, the remaining
suspension could be immediately imposed. (See Exhibit 2).
Regardless of the method used to enter into alternative
discipline, the employee may consult with a representative prior to voluntarily
choosing alternative discipline.
The terms and conditions of an agreement must be
clear, and they are considered fulfilled when the supervisor, in consultation
with the servicing human resources office, determines that the employee
has satisfied the terms of the agreement.
When the terms and conditions of the alternative
discipline agreement are satisfied, the supervisor or servicing human resources
office must certify such in writing to the employee. See "Final Disposition"
section of the sample alternative discipline agreements.
If the employee is unable to fulfill the terms and
conditions of the alternative discipline agreement due to circumstances
beyond his or her control, the supervisor or servicing human resources
office should revise the agreement. For example, an employee would be unable
to meet the terms of the agreement if it required the employee to perform
200 hours of community service within a six-month period, but the employee
became incapacitated for five of the six months due to an automobile accident.
If the employee fails to satisfy the terms and conditions
of the agreement, the supervisor or servicing human resources office will
immediately issue a violation notice to the employee. The notice will inform
the employee that the agreement has been breached and the penalty specified
in the agreement will be effected immediately. (See Exhibit 3).
Mission areas should allow for third-party review
of a "factual, nonfrivolous" claim by the employee that the agreement was
not violated.
ALTERNATIVE DISCIPLINE AGREEMENTS
All agreements must include the following:
1. A description of the misconduct and a statement
that the agency's analysis resulted in a determination that a specified
"traditional" penalty is warranted under formal disciplinary procedures.
If applicable, attach copies of the proposal and decision letters to the
agreement.
2. A statement that the employee admits he or she
engaged in the improper conduct, recognizes the misconduct was unacceptable,
and promises that these acts will not occur in the future.
3. A description of the terms and conditions that
must be met for the employee to satisfactorily fulfill the agreement. The
terms must include the timeframe(s) within which the employee must satisfy
the agreement.
4. An acknowledgment that the case file and agreement will be retained in the employee relations office for a period to be determined by the mission area/agency, but not to exceed 4 years.
5. A statement that if the employee fails to satisfy
the terms and conditions of the agreement, the penalty specified in the
agreement will be effected immediately.
6. A statement that the agreement was voluntarily
entered into and that the employee waives all grievance, appeal, and/or
complaint rights.
7. If applicable, an acknowledgment that no salary
or wage compensation can be requested for any off-duty volunteer service
and that such service is not covered by Workers' Compensation.
8. A statement that the misconduct addressed through
the alternative discipline agreement and admitted to by the employee constitutes
an offense and may be used to support any future progressive disciplinary
action(s), alternative or traditional.
9. A statement that the terms and conditions of
the agreement are not confidential and may be discussed with parties with
a need to know.
10. A statement that the terms and conditions of
the agreement are nonprecedential, meaning they are specific to the employee,
and they cannot be cited, for any reason, including comparison, in another
employee's alternative discipline agreement or traditional disciplinary
documents.
11. The signatures of the parties to the agreement.
Normally this will include the employee, the employee's representative,
the supervisor or other management official authorized to enter into such
an agreement, and if desired, any other interested party, such as the mission
area/agency human resource specialist.
Agencies will be responsible for establishing a
monitoring and certification system to ensure fulfillment of terms and
conditions of these agreements. The completion of the Final Disposition
section on the agreement will meet this requirement.
EXAMPLES OF ALTERNATIVES TO TRADITIONAL DISCIPLINE
To determine an appropriate alternative discipline,
mission areas, supervisors, and employees are encouraged to take a creative
and flexible approach, assuring reasonableness, fairness, equity, and promotion
of the efficiency of the Service are exercised. Alternatives generally
are limited only by the supervisor's and employee's creativity. Because
each incident of misconduct can be unique, numerous examples are not listed.
Mission areas are encouraged to exercise creativity in developing an alternative
discipline agreement, and not to view these examples as limiting.
Some examples of alternative discipline that mission
areas have successfully used include:
Based on the above, the AGENCY concluded that issuance of a proposal to suspend me from duty without pay for 14 calendar days is warranted. I understand that formal suspension procedures include the issuance of a letter of proposed suspension; my opportunity to reply orally and in writing to the charges set forth in the letter of proposed suspension; issuance of a decision based on the evidence and my answers to the charges, including mitigating factors raised by me; and, the right to appeal or grieve the AGENCY's action.
However, I agree to the following terms and conditions
as an alternative to the AGENCY initiating formal suspension procedures.
I freely and voluntarily agree to these conditions. I have had sufficient
time to consider the terms and conditions and to seek advice from an attorney.
I fully understand I could have elected to proceed with the imposition
of the full 14-day suspension with formal grievance rights rather than
elect to use this alternative.
I admit that I committed the misconduct cited above.
I regret my actions and agree that, in the future, I will not repeat this
misconduct or any other misconduct.
I agree to donate 40 hours of annual leave to the
AGENCY's leave transfer program within 30 days from the date of this Agreement.
I will initiate contact with my servicing human resources office and complete
all necessary paperwork. I will provide a copy of the paperwork to my supervisor
showing my donation of 40 hours of annual leave.
I agree to make financial restitution in the amount
of $1,750 to the U.S. Treasury to repay taxpayers for my salary for the
hours I spent working on my personal business instead
of Government business within 60 days from the date of this Agreement.
I agree to provide a copy of the cancelled personal check to my supervisor.
I agree to prepare on my own time a briefing to
my state office's employees on the proper use of government equipment.
I agree to deliver this briefing after it is approved by my servicing employee
relations/ethics office, no later than 6 months from the date of this Agreement.
I understand that if I violate the terms of this Agreement, the AGENCY will issue me a written notice of violation and immediately impose the 14-day suspension.
I understand this agreement does not preclude the
AGENCY from taking appropriate action regarding any other misconduct not
covered by this agreement.
I knowingly and voluntarily agree to waive any and
all rights to appeal, grieve, complain, or otherwise contest actions relating
to the conditions of this Agreement, even if, after execution of this Agreement,
traditional discipline is imposed because of my failure to satisfy the
terms and conditions of the Agreement. I also understand that waiving of
EEO rights does not bar me from citing this incident and/or punishment
as background in a later complaint.
I understand that if I fully comply with the terms
of this Agreement, the 14-day suspension will be canceled and I will be
notified of such in writing.
I understand that my admitted misconduct and the
14-day penalty can be considered by the agency in any future progressive
disciplinary action for a period of up to 3 years from the date of the
Agreement, even if I fulfill the terms and conditions of this Agreement.
I understand this Agreement will be actively maintained
with the disciplinary files in the AGENCY's servicing human resources office
(or employee relations office) for a period of 3 years from the effective
date of the agreement.
I understand that the terms and conditions of this
agreement are not confidential and may be discussed with parties with a
need to know.
The PARTIES understand that this agreement is nonprecedential
and may not be cited for any reason, including comparison to similar misconduct
committed by other employees, in any other proceeding in any forum.
The PARTIES understand the terms of this Agreement
and willingly enter into it.
The Agreement becomes effective upon the date of
the last signature by the PARTIES involved.
EMPLOYEE SIGNATURE
(DATE)
EMPLOYEE'S REPRESENTATIVE
(DATE)
FOR THE AGENCY
(DATE)
FINAL DISPOSITION:
Terms of Agreement were: Met / Not Met (see attached
violation notice)
Supervisor/Human Resource Official's
Date
Signature
Based on the above, the AGENCY completed formal disciplinary procedures to suspend me from duty without pay for 30-calendar days. These procedures included the issuance of a letter of proposed suspension; my opportunity to reply orally and in writing to the charges set forth in the letter of proposed suspension; issuance of a decision based on the evidence and my answers to the charges, including mitigating factors raised by me; and, the right to appeal or grieve the AGENCY's action.
However, I agree to the following terms and conditions
as an alternative to the AGENCY's decision to suspend me from duty without
pay for 30-calendar days. I freely and voluntarily agree to these conditions.
I have had sufficient time to consider the terms and conditions and to
seek advice from an attorney, a bargaining unit representative, or other
counsel of choice. I fully understand I could have elected to proceed with
the imposition of the full 30-day suspension with formal appeal/grievance
rights rather than elect to use this alternative.
I admit that I committed the misconduct cited above.
I regret my actions and agree that, in the future, I will not repeat this
misconduct or any other misconduct.
I agree to accept a 5-day suspension from duty without
pay based on my admitted misconduct.
I agree to volunteer 80 hours of my off-duty time
to the local community's Shelter for Abused Spouses and Children. This
will be completed within 10 months of the date of this Agreement. When
completed, I will obtain from the Shelter a statement certifying that I
volunteered 80 hours and performed in a satisfactory manner. I will provide
this documentation to my supervisor.
I agree to attend the one-day seminar on anger management
offered at the local community college on my own time and at my own expense,
within 3 months of the date of this agreement. I will provide a copy of
my registration form, personal check, and course completion certificate
to my supervisor.
I understand that I am not covered by overtime pay
provisions of the Fair Labor Standards Act or Title 5 during the off-duty
volunteer work and agree not to request any compensation. I understand
and agree that this off-duty work will not be covered by Workers' Compensation.
I understand that if I violate the terms of this
Agreement, the AGENCY will issue me a written notice of violation and immediately
impose the remaining 25 days of my 30-day suspension.
I understand that a second offense of this nature
will result in a proposal to remove me from the AGENCY and the Federal
Service [or, EMPLOYEE agrees to resign if he/she commits a second offense
of this nature].
I understand this agreement does not preclude the
AGENCY from taking appropriate action regarding any other misconduct not
covered by this agreement.
I knowingly and voluntarily agree to waive any and
all rights to appeal, grieve, complain, or otherwise contest actions relating
to the conditions of this Agreement, even if, after execution of this Agreement,
traditional discipline is imposed because of my failure to satisfy the
terms and conditions of the Agreement. I also understand that waiving my
EEO rights does not bar me from citing this incident and/or punishment
as background in a later complaint.
I understand that if I fully comply with the terms
of this Agreement, the remaining 25-day suspension will be canceled and
I will be notified of such in writing.
I understand that my admitted misconduct and the
30-day penalty can be considered by the agency in any future progressive
disciplinary action for a period of up to 4 years from the date of the
Agreement, even if I fulfill the terms and conditions of this Agreement.
I understand this Agreement will be actively maintained
with the disciplinary files in the AGENCY's servicing human resources office
(or employee relations office) for a period of 4 years from the effective
date of the Agreement.
I understand that the terms and conditions of this
Agreement are not confidential and may be discussed with parties with a
need to know.
The PARTIES understand that this agreement is nonprecedential
and may not be cited for any reason, including comparison to similar misconduct
committed by other employees, in any other proceeding in any forum.
The PARTIES understand the terms of this Agreement
and willingly enter into it.
The Agreement becomes effective upon the date of
the last signature by the PARTIES involved.
EMPLOYEE SIGNATURE
(DATE)
EMPLOYEE'S REPRESENTATIVE
(DATE)
FOR THE AGENCY
(DATE)
FINAL DISPOSITION:
Terms of the Agreement were: Met / Not Met (see
attached violation notice)
Supervisor's/Human Resources Official's
Date
Signature
In accordance with USDA Department Personnel Bulletin 751-3, you will be suspended from duty, from Sunday, August 7 through Saturday, August 13. You will be returned to duty effective Sunday, August 14. The personnel documents reflecting this action will follow.