The Honorable Kiran Ahuja
Office of Personnel Management
1900 E St NW
Washington, DC 20415
Re: Professional Managers Association Comments on OPM Proposed Rule on Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions (RIN 3206-AN23)
Dear Director Ahuja:
On behalf of the Professional Managers Association – the non-profit professional association that has, since 1981, represented professional managers, management officials, and non-bargaining unit employees at the Internal Revenue Service (IRS) – I write to provide the Association’s comments on OPM’s proposed rule (RIN 3206-AN23) on “Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions.”
PMA’s National Board of Directors is deeply concerned by these proposals and the impact they may have across our workforce.
5 CFR part 315, subpart H — Probation on Initial Appointment to a Competitive Position
Probationary periods are a critical tool for effective employee onboarding. Countless reports from the Merit Systems Protection Board (MSPB) and Government Accountability Office (GAO) highlight the government’s inconsistent and poor use of the probationary period for new hires and for new supervisors. A core finding of those reports is that managers do not properly use the probationary period because managers are not informed when an employee’s probationary period is reaching its conclusion. When the period ends, employees are automatically deemed fit for service. The probationary period is meant to be “the last and crucial step in the examination process,” yet instead, it is largely obsolete and formalistic.
This is a particular challenge at the IRS where most of our external hiring is into seasonal roles where probationary employees are led by seasonal managers – managers who are otherwise frontline employees for much of the fiscal year. At the IRS, a probationary employee will likely have several managers before their probationary period ends making it difficult to track an employee’s date. The IRS itself restricts access to the database where probationary period end dates are housed and many of our members are unable to know these important dates.
To improve the practical usefulness of probationary periods, agencies needed to develop systems for providing multiple advance notices to supervisors that employee probationary periods are ending and require supervisors to make an affirmative determination that the employee is ready to complete their probationary period. It is critical that agencies make appropriate use of the probationary period not only for new hires, but also for new supervisors and executives. We firmly believe that these determinations should be made exclusively by permanent managers. When the probationary period is wasted, employees are not set up for success and may be entrenched in roles they cannot perform.
PMA strongly opposes OPM’s proposal to rescind these requirements at § 315.803(a). This issue is too important to leave up to agencies, who have proven themselves incapable of self-regulation and proper use of the probationary period.
5 CFR part 432 — Performance-Based Reduction in Grade And Removal Actions
Section 432.104 – Addressing Unacceptable Performance
PMA has concerns about the proposed revisions to §432.104 that would rescind OPM’s prior regulation governing opportunities for performance improvement. Congress in 5 U.S.C. 4302 and 4303, and other statues on the Civil Service, established robust rights and processes for federal employees struggling to achieve satisfactory job performance. OPM’s proposed regulation would return performance management to allow for additional processes not provided for in the plain language reading of the statute.
Rescinding the October 2020 regulations and returning to OPM’s prior regulatory process will provide employees extra-statutory protections at the expense of taxpayer accountability at a time when public trust in government remains dangerously low, regardless of political ideology. Research indicates only about one-quarter of Americans say they can trust the government in Washington to do what is right “just about always” (2%) or “most of the time” (22%). Each time administrative agencies impose additional burdens on a supervisor’s capacity to hold employees accountable, it deepens public distrust of government and cost to taxpayers.
At the IRS, our members are effectively unable to remove an employee for unacceptable performance. Instead, they find themselves hoping to identify misconduct because they know those cases are easier to adjudicate and have a clear path to removal. No federal manager should wish for employee misconduct, yet it is sometimes the only feasible option. A member of our association’s leadership team tried for four years to remove a failing frontline employee for poor performance and was not successful until that employee made a physical threat of violence in the workplace. Think of the thousands of taxpayers harmed by the incorrect and incomplete assistance they received from this one person who was unfit to serve.
Employee protections are critical to the merit system, which is why robust protections exist in federal law and in the IRS’s collective bargaining agreement. It is the imposition of excessive hurdles to successful employee performance management that discourages well-qualified candidates from joining leadership’s ranks, frustrates the effective functioning of our government, and is not in the public interest.
Section 432.108 – Settlement Agreements
PMA strenuously believes the government should maintain accurate official personnel records. When employees are removed for cause, PMA believes that it must be reflected in their permanent record and organizations do not have the flexibility, as part of any negotiated settlement, to not document the reason for removal.
PMA believes that the Declaration of Federal Employment Form 306 should be mandatory instead of optional. This form legally requires a federal job candidate to clearly disclose issues with past employment. If used in all hiring actions, including when a federal employee changes jobs from one agency to another, the form would minimize the likelihood that an employee who received a clean record from one agency would be rehired by another agency without knowing that important information. In the absence of such awareness, a hiring agency has no notice of potential problem and cannot set the office, or the employee, up for success.
In the example we shared earlier, an IRS employee was removed after making a threat of physical violence in the workplace. As part of a negotiated settlement, they separated without that noted in their record. The employee then went to work, almost immediately, for the United States Forest Service (USFS). Incidentally, the USFS facility was that region’s HSPD-12 credentialing facility which meant that the victim of the violent threat then had to, as a condition of her federal employment, visit the removed employee at his new office every two years when it was time to update or renew her federal credential. Our member had no alternative but to direct their employee to the USFS office even while fully aware of the risk. Failing to document a reason for removal leads directly to dangerous situations for federal workers who serve honorably and places our members in impossible situations.
PMA is extremely concerned by OPM’s proposal to delete § 432.108, 752.104, 752.407, and 752.607. By its own admission, OPM says in the January 4, 2022, proposed regulatory change that it “balances the needs of the agency and fairness to the employee.” This proposal contains no balance by PMA’s reading. In the regulations published October 16, 2020, clean record settlements were permitted when information contained in the record was “not accurate or records an action taken by the agency illegally or in error.” The October 16, 2020, regulations also permitted agencies to clean a record when persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action “casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation.” When an agency is wrong about an action, the employee record should honestly reflect that. When an agency is correct about an action, the employee record should honestly reflect that as well. The proposed regulations do not create balance, they would revoke the existing balance.
OPM emphasizes allowing agencies “flexibility” to resolve disputes, but what the regulations really do is encourage agencies to pass problematic employees off to one another. The robust system for adjudicating employee performance issues may not be as flexible as OPM prefers, but it is in alignment with merit principles designed to serve the taxpayer foremost, as well as protect the employee. The proposed change overvalues the agencies “ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency” while undervaluing the merit system. American taxpayers are entitled to accurate recordkeeping of employee performance. Taxpayers should not suffer the consequences of employees committing the same offenses over and over across government. Flexibility should not be the code word for diminished accountability.
Even OPM’s efficiency argument fails. OPM offers no data or evidence that agencies were impeded in their ability to adjudicate employee complaints and disputes, merely that it heard continued objections from agencies that were forced to enforce the law and follow procedures established by Congress and effectuated through OPM regulation. Again, American trust in government fell to near-record lows in 2021. Now is not the time to further cloud the access to accurate records regarding employee’s conduct and performance. Now is the time to restore trust, integrity, and accountability.
Discipline of Supervisors Based on Retaliation Against Whistleblowers
OPM’s proposal only makes a change in a very narrow section of Part 752 focused on whistleblower retaliation – an egregious type of misconduct. It does not amend the 15-day requirement elsewhere, such as in § 752.404(g)(3) as applied to employees generally or §752.604(g)(3) as applied to senior executives. It is entirely unclear why OPM only wants to rescind expedited timelines against retaliators. Creating different, seemingly arbitrary timelines across government does appears contrary to the policy of the United States government, per E.O. 14003.
More broadly, PMA is concerned by OPM’s lifting of the timeline requirement without offering any guidance on a minimum or maximum acceptable timeline. This action, if effectuated, simply means agencies have no guidance at all. Absent this guidance, agencies may continue practices that include abuse of administrative leave and failing to make timely decisions. Agencies will be enabled in doing so because OPM has still not issued final regulations on the Administrative Leave Act of 2016. Taxpayers and not the employee are ultimately paying for the delayed decision.
Standard for Action and Penalty Determination
PMA is extremely concerned about OPM’s proposed amendments to § 752.202. The proposed changes result in guidance to agencies and supervisors that is far less clear and actionable. Does OPM really think that a frontline HR Specialist clearly understands the Miskill test, and that they would apply it in the same way as peers in other agencies? OPM is responsible for providing government-wide guidance on a robust statutory scheme amended by Congress repeatedly over 40 years, with thousands of pages of accompanying regulations and 40 years of accompanying case law. Absent additional, specific guidance by OPM, the system is not clear at all and will continue to provoke confusion in the employing agencies. In the name of “flexibility” OPM simply continues its history of abdicating its own responsibility of providing coherent guidance to manage the federal workforce.
Within the IRS and across our membership this is a crisis. Our association is currently working with Treasury and the IRS to bring in a third-party, outside contractor to help them make sense of the hodgepodge of regulations, guidance, interim guidance, case law, etc. so that managers can effectively manage. We find it tragic to be in the position of seeking out educational/informational resources so that IRS managers can understand the Civil Service. OPM must provide this information in a clear, centralized fashion.
We also find it necessary to remind you that the IRS has more than 7,300 leaders across the nation and around the world – some of them work at the GS-5-equivalent level and a good many work below the GS-11-equivalent. We beg OPM to keep front of mind these managers. They are responsible for wordsmithing complex memos and navigating these interminably complex legal tests. Our members cannot effectively lead through what they do not understand. OPM should not rely on associations like ours to fill in the vast knowledge gaps that it and agencies are leaving.
Conclusion
It is disconcerting that OPM’s proposed changes to these regulations are entirely based on a shift in policy direction rather than on well-founded evidence or any direct engagement with actual, career federal managers who are eager to share the operational realities of their work. Indeed, OPM states it either discontinued or does not collect basic data from agencies on performance-based actions, adverse actions, settlement agreements, and that “OPM has virtually no data on the extent to which the adverse actions were pursued under the regulations proposed for rescission here.” This is simply not the way to run the largest employer in the nation. OPM should take an evidence-based policy approach rather than one so obviously based in politics.
PMA has significant concerns about many components of OPM’s proposed rule. Where clarity had been provided, it has been replaced with opacity and confusion.
PMA appreciates the opportunity to share its views on these proposed regulations. If you wish to further discuss PMA’s views, please contact Natalia Castro, our Washington Representative, at ncastro@shawbransford.com.
Sincerely,
Chad Hooper
Executive Director
