Most agencies lack consistent disciplinary guidelines, oversight chairman finds

Agencies largely don’t have consistent guidelines for responding to instances of employee misbehavior and if they do, many lack sufficient policies for dealing with sexual misconduct, according to a new congressional report.

The report comes from House Oversight and Government Reform Committee Chairman Trey Gowdy (R-S.C.) and his majority staff, which spent the past year reviewing disciplinary policies at 26 agencies. Specifically, the committee evaluated whether agencies had a “table of penalty,” which lists recommended disciplinary actions for a variety of examples of employee misconduct.

“The review showed no standardized definition of sexual misconduct and no requirement agencies have standardized recommended penalties,” Gowdy wrote. “This could lead to inconsistent responses, to unlawful or noxious behavior and disparate treatment of the conduct and offenders depending on the agency.”

The disciplinary actions described in these tables aren’t mandatory; supervisors use these penalties in tandem with their agencies’ own criteria to make disciplinary decisions.

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Yet Gowdy and his majority colleagues say these tables are important, because they ensure that agency supervisors respond appropriately to an incident of employee misconduct in the same way they might respond to a similar situation.

The committee cited a 2017 report from the Justice Department’s Office of Inspector General, which found the department’s Civil Division didn’t respond consistently to allegations of sexual misconduct. Penalties for high-performing employees differed from punishments given to others, the IG found.

Eight agencies, including the Office of Personnel Management and the departments of Labor, Transportation and Treasury, have no penalty table, according to the committee’s review.

Some agencies, like the Environmental Protection Agency and departments of the Army and Commerce haven’t updated these tables in decades. EPA, for example, hasn’t updated its penalties since 1985. The Army hasn’t provided an update since 1981, the committee said.

Other situations are more complicated. The Homeland Security Department, for example, has an agency-wide policy for addressing misconduct, but many of its 22 components also have their own tables of penalties.

“Without a Table of Penalties, agencies run the risk of inconsistent, arbitrary and inadequate responses to findings of misconduct,” Gowdy’s report said.

In addition, seven agencies have tables of penalties but don’t explicitly mention sexual misconduct.

Many of the suggested disciplinary actions included in agencies’ penalty tables are too vague or give supervisors too much leeway in making decisions about a disciplinary action, the committee said.

For example, an Education Department table describes disciplinary actions that range from a reprimand to a removal for “inappropriate behavior of a sexual nature,” the report said.

Other agencies like the Energy Department take pains to describe “inappropriate teasing, remarks, jokes, gestures, communications and touching including, but not limited to, those of a sexual nature,” but penalty tables again give supervisors broad discretion for how they should respond.

In other cases, agencies hold supervisors to different standards than lower-ranking employees. The punishment for alleged sexual misconduct for first-offense, front-line employees at the Interior Department can range from a simple reprimand to a removal. Supervisors at Interior who commit similar offenses should receive at a minimum a five-day suspension, the report said.

Gowdy acknowledged that the vast majority of federal employees don’t engage in misbehavior. But a few instances can create a toxic and damaging workplace, he added.

“The federal government should be encouraging the best and brightest to enter public service, providing federal employees with a protected working environment is paramount to doing so,” Gowdy wrote. “The current system of tables of penalties across the federal government is inadequate to help provide this environment.”

Gowdy offered a variety of recommendations for agencies to improve consistency.

Agencies that don’t have tables of penalties should create them, Gowdy said, and departments should regularly update those policies.

Gowdy also suggested OPM work with the Chief Human Capital Officers Council to develop guidance on these tables and start the process of standardizing them across the government. He also suggested OPM detail a range of recommended punishments for specific disciplinary cases.

“OPM, in coordination with the CHCO Council, should create a nature of offenses list for sexual misconduct that is detailed and comprehensive to the extent practical,” the report said. “The nature of offenses list should break up offenses and refrain from packing too many punishable actions in one offense.”