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Board for Correction Case No. 030-83

124.00 Commissioned Officer Effectiveness Report (COER)-Includes Performance Evaluation - Remove negative comments from evaluation report

Recommendation of the Board on Case No.030-83 xxxx xxxxxxxx

Xxxxxxxxxx filed a written application with the Board dated Xxxxxxxxx 1983, requesting that certain negative comments included in his performance evaluation be deleted and that all personnel actions taken on the basis of such comments be reconsidered. The merits of the request were reviewed on the basis of the documentation provided. The relevant facts and the Board?s Findings, Conclusions and Recommendation are included as Attachment 1.

After consideration of all information provided, the Board recommended that Xxxxxxxxxx request be denied.

It is certified that the foregoing recommendation is a true and complete statement of action taken by the Board, as contained in Attachment 1 to this memorandum, and that the report of the action of the Board has been reviewed by the Board's members. Further, it is certified that the documentation contained in Attachment 2 includes all information presented to the Board and that, in addition to applicable statutes, regulations and policies, it has been considered by the Board in arriving at its recommen­dation. Finally, it is certified that a quorum was present at the Board?s meeting on Xxxx xx, 1983 when Xxxxxxxxxx request was considered.

The foregoing action of the Board is submitted for your review and approval.

Ellen Wormser

Attachments:

(1) Board's Findings, Conclusions and Recommendation
(2) Case Brief and all available documenting evidence

Reviewed and Approved:

Wilford J. Forbush
Deputy Assistant Secretary for Health Operations and
Director, Office of Management

BOARD PROCEDURES

The Board for Correction of PHS Commissioned Corps Personnel Records is located in the Office of Organization and Management Systems, Office of Management, in the Office of the Assistant Secretary for Health. The Chairperson of the Board is also Director of the Office of Organization and Management Systems.

To facilitate analysis and full consideration of Xxxxxxxxxx request, the Board developed the following issues and options:

A. Issues Considered by the Board

  1. Was Xxxxxxxxxx duty at XXXX governed by the provisions of the general agreement or was he on an individual work assignment?
  2. What was the responsibility of XXXX management and PHS officials ­if any- to participate in Xxxxxxxxxx evaluation?
  3. Should the Board attach any significance to the selection and degree of involvement of XXXX management officials in the evaluations of Xxxxxxxxxx performance?
  4. Was XXXX management's exercise of its evaluation authority reasonable and in accordance with execution of its management functions?
  5. What was the basis upon which the CPOD Promotion Board evaluated Xxxxxxxxxx for promotion in 1980, 1981, and 1982? How important was the recommendation not to promote by XXXX management in 1981 and 1982 to placing Xxxxxxxxxx below the cut-off point in those years?
  6. Does the evidence and documentation submitted by Xxxxxxxxxx support his contention "that the negative comments and actions of certain XXXX officials were motivated by their attitude toward Xxxxxxxxxx candor and his questioning of local interpreta­tion of agency policy"?

B. Priority Options for Addressing Xxxxxxxxxx'x Request

  1. Take all corrective actions requested by Xxxxxxxxxx.
  2. Remove only those evaluation statements contested by Xxxxxxxxxx.
  3. Support placement of rebuttal statements in Xxxxxxxxxx personnel file.
  4. Deny Xxxxxxxxxx request.

FINDINGS AND CONCLUSIONS

One of the basic questions before the Board is whether the supervisory officials at XXXX were within the authority negotiated with them when they evaluated Xxxxxxxxxx, such that the results of those evaluations should be binding upon all concerned. Resolution of this question requires the Board to consider:

  1. Whether Xxxxxxxxxx transfer to XXXX was temporary thus making any arrangement or agreement assigning the evaluation function to XXXX questionable.
  2. Whether Xxxxxxxxxx assignment to XXXX was governed by the provisions of the general agreement between the two agencies or whether his duties were subject to the provisions of an individual­ized work assignment.
  3. Whether XXXX management was arbitrary or capricious in the use of its evaluation authority, and
  4. Whether the results of the XXXX evaluations were detrimental to Xxxxxxxxxx?x career opportunities.

Nature of Xxxxxxxxxx Detail to XXXX

Manual Circular No. 194, Part B, Details to xxxxxxxxx xxxxxx xxxxx, and Part III, A. Period of Detail? in the general agreement, define the duration of the transfer of officers to the newly created agency. The referenced section in the Circular states:

"These commissioned officers shall remain on detail to, and assigned to the performance of duties with, the xxxxxxxxx xxxxxxxx xxxx for the duration of their service or active duty in the Commissioned Corps. "

The general agreement between the two agencies includes this same provision.

Both Part B and the general agreement limit the conditions under which the detail can be terminated. The detail to XXXX can only be terminated when:

  1. The officer is transferred to a civil service position in the Xxxxxxxxxxxxxxxx, or
  2. The officer voluntarily requests release from active duty, or
  3. The officer is retired from active service, or
  4. The officer is involuntarily separated from the Service for cause, or
  5. The officer is reassigned to the Public Health Service by mutual agreement of the Secretary of HEW and the xxxxxxxxxx, Xxxxxxxxxxxxxxxx, or their designees. "

The Board members find, based upon the provisions of Circular xxx and the general agreement, that the transfer of officers to XXXX, of which Xxxxxxxxxx is one officer, was not intended to be temporary. This finding is supportable by the fact that the transfer to XXXX was for the duration of each officer service while on active duty in the Commissioned Corps, and by the stringent conditions under which officers were able to terminate their details to that agency. Accordingly, the Board members conclude that it was appropriate under the circumstances of the transfer that the evaluation function be performed by the receiving agency and not retained by the Public Health Service.

Authority Governing Evaluation of Xxxxxxxxxx While at XXXX

Next, the members of the Board took under consideration the view of xxxxxxxxxx that his COEPR evaluations should be reviewed by PHS officers, not by management officials at the Xxxxxxxxxxxxxxxx. Xxxxxxxxxx does not question the right of his immediate supervisor to rate him initially. Xxxxxxxxxx bases his view of the need for PHS involvement on Section IX, "Performance Evaluation" of the general agreement covering his transfer to the new agency. Section IX states:

"A Commissioned Officer Efficiency and Progress Report (PHS-838) will be xxxxxxxxxx annually by the immediate superior of the officers concerned and at such other times as requested and forwarded through Agency channels to the Commissioned Personnel Operations Division, Office of Personnel Management, Office of Administrative Management, Public Health Service, DREW, in accord­ance with the Commissioned Corps Personnel Manual."

Xxxxxxxxxx references Circular No.299, dated September 1, 1981 as the implementing authority for Section IX of the General Agreement. This Circular states:

"Some officers are assigned or detailed to State, county, and local health organizations, other Federal agencies, and international organizations. The immediate supervisor in the organization to which the officer is assigned or detailed shall be the rating officer. The PHS official designated in the personnel agreement covering the detail will function as the reviewing official."

Xxxxxxxxxx contends that the provisions cited in the referenced circular were applicable to him as a Commissioned Corps officer on detail to the Xxxxxxxxxxxxxxxx. In support of his contention concerning the applicability of Circular No.299 to his situation, Xxxxxxxxxx entered the following statement into the record:

"CPOD also takes the position that this Instruction and Manual Circular-299, relied upon by Xxxxxxxxxx, relates only to individual details and not to a general transfer of function. We do not find, nor does CPOD cite, any authority for this position. Certainly, the cited regulations are not on their face inapplicable to Xxxxxxxxxxx situation. Further, there is nothing in those regulations which would make it inconsistent or inappropriate to apply them to situations such as the instant one."

Xxxxxxxxxx, therefore, concludes that the COEPR evaluations of him by his XXXX supervisors were invalid because PHS officials did not serve as reviewing officers.

Xxxxxxxxxx'x contention regarding a role for PHS officials in the COEPR process rests with the interpretation of two key phrases in the agreement between the two agencies. These are:

"...and forwarded through Agency channels to the Commissioned Personnel Operations Division..." and

"...in accordance with the Commissioned Corps Personnel Manual."

The Board members understand that the reference to agency processing of COEPRs was included in the agreement to make certain that XXXX'x internal performance review mechanism was recognized and complied with (meaning that COEPR reviews were to be carried out by second level supervisors at that agency, with the final results forwarded to the Public Health Service). Under this interpretation of the provi­sion, no need existed to designate PHS officials to serve as reviewing officers.

The second phrase makes reference to a CCPM. The members of the Board understand that this reference in the agreement was to CC25.1-Instruc­tion 1 which detailed the process followed by the PHS agencies in initiating and processing its COEPRs. Section F, "Annual COEPRs", detailed the responsibilities of the officer, the rating and reviewing officials in this evaluation process. It is the understanding of the members of the Board that those signatory to the agreement agreed to use the same process as followed by the PHS agencies in handling COEPR evaluations within the Xxxxxxxxxxxxxxxx. This is the second reason why there was no provision in the agreement designating PHS officials to serve as reviewing officers.

Whether XXXX was Arbitrary or Capricious in the Exercise of its Evaluation Authority

Xxxxxxxxxx contends that the XXXX management officials evaluating him, whose comments he would like to have removed from his personnel records, based their comments on considerations other than the quality of his work and his professional ability. Specifically, Xxxxxxxxxx alleges that the supervisors at XXXX, cited in his brief, were motivated by a desire to punish him because of his unwillingness to acquiesce blindly to policies he considered unsupportable, and because he eviden­ced a questioning attitude towards management'x decisions. These assertions carry with them the implication that the identified XXXX officials were abusing their supervisory authority, as these related to COEPR evaluations, and were generally engaged in practices which were detrimental to Xxxxxxxxxx and to the Commissioned Corps. Further, there is the implication that Xxxxxxxxxx was totally without recourse to solutions to the performance and evaluation problems he described, and that a more favorable response by XXXX management was not achievable through actions under his control.

The members of the Board recognize the difficulties supervisors face in drawing a line between the interests of employees as individuals and the requirements of the organization as a functional, operational entity. The Board members are aware that reconciling these interests is a basic responsibility of management. However, there is also the realization that the exercise of this responsibility requires a "give and take" attitude on the part of all concerned, and that this effort is made more difficult when an employee is affected by the personnel policies of more than one agency. Such is the situation involving Xxxxxxxxxx.

The Board members have reviewed the materials submitted by Xxxxxxxxxx, but can find no convincing documentation to support the contention that the desires of his supervisors were to punish him, and generally to inflict upon him their hostility resulting from his candor and outspokenness. Such--documentation would, if available, constitute evidence of a serious breach of the general agreement between XXXX and the Department of Health and Human Services and would support a conclusion that the actions of Xxxxxxxxxx supervisors were indeed arbitrary and capricious. The Board members can accept a supervisor conclusion that an employee's attitude is detrimental to the mission of the organization, and can also accept a decision not to promote as being the result of an objective evaluation of the employee?s perform­ance.

Impact of XXXX'x Evaluation on Xxxxxxxxxx'x Career Opportunities

The members of the Board understand that one objective of

Xxxxxxxxxx request is to obtain relief which, in his opinion, will enhance his career as an officer in the Commissioned Corps, including his promotional opportunities. The inference of Xxxxxxxxxx request is that the noncomplimentary comments included in his COEPR evaluations were an obstacle to his career advancement and indeed may have been a consideration in the recent deliberations of the CPOD Promotion Board.

Documentation available to the Board indicates that Xxxxxxxxxx was promoted to Senior grade (pay grade 0-5) on Xxxxxx, 1972 after his transfer to XXXX in 1970. The members of the Board are aware that Xxxxxxxxxx qualified for promotion to Director grade (pay grade 0-6) in 1979 and has been considered for promotion each year since then. He was not recommended for promotion by the CPOD Promotion Board in 1979, but was recommended in 1980, 1981, and 1982. The recommendations to promote in 1981 and 1982 were made in spite of negative comments in Xxxxxxxxxx personnel record. Of the 18 officers recommended for promotion in 1983, the Board understands that half were promoted. Officers on detail to XXXX were included in the group of nine who were promoted and in the remaining nine who were not promoted. CPOD states that the evaluation information they received from XXXX was not ques­tioned by the Promotion Board. The members of the Board noted the negative comments entered concerning xxxxxxxxxx attitude, but considered them within the authority of XXXX management to make. Xxxxxxxxxx was ranked No.16 in the list of 18 officers recommended by the Board.

The members of the Board are aware that the relative ranking of Xxxxxxxxxx in the list of officers considered for promotion was the result of many factors considered by the Promotion Board, not just the comments included in the COEPR; that Promotion Boards consider an officer's entire official personnel record in making its recommenda­tions. All officers under consideration for promotions were rated on a scale of 1-100 based upon all information in the personnel file and other data. The documentation available to the members of the Board did not permit them to determine what weight the Promotion Board gave to the comments contained in Xxxxxxxxxx COEPR especially those comments he would like to have deleted.

V. RECOMMENDATION

After consideration of all information presented, it is the recommenda­tion of the Board that Xxxxxxxxxx request be denied.

I certify that each of the Board members has read this report and that its content is a true and complete statement of the deliberations of the Board.

Ellen Wormser
Chairperson
Board for Correction of PHS Commissioned Corps Personnel Records

Wilford J. Forbush
Deputy Assistant Secretary for Health Operations and
Director, Office of Management

Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.