According to the Office of Personnel Management (OPM), the Table of Penalties (TOP) used to charge federal employees for misconduct is essentially useless because it forces agencies to “prove every word of a charge against an employee” to comply with Merit Systems Protection Board and Federal Circuit law. As a result, the TOP rarely aligns with what the agency actually charges the employee with.
OPM recently proposed revisions to 5 CFR part 752 issued on September 17, 2019, noting that per Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions, “creation and use of a [TOP] is not required by statute, case law or OPM regulation, and OPM does not provide written guidance on this topic.”
To break this down, OPM is saying that because agencies have to issue disciplinary actions based on the “efficiency of the service, “agencies therefore “have the ability to address misconduct appropriately without a [TOP], and with sufficient flexibility to determine the appropriate penalty for each instance of misconduct.”
OPM also said that TOPs can “create drawbacks to the viability of a particular action and to effective management…by creating a range of penalties for an offense,” that ultimately “limit the scope of management’s discretion to tailor the penalty to the facts and circumstances of a particular case by excluding certain penalties along the continuum.”
As a final note on the issue of TOPs, OPM suggests that “the penalty for an instance of misconduct should be tailored to the facts and the circumstances, in lieu of the type of formulaic and rigid penalty determination that frequently results from agency publication of [TOPs].”
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