Promoting Accountability and Streamlining Removal Procedures Consistent With Merit System Principles, 25343-25347 [2018-11939]

Agencies

• Executive Office of the President

[Federal Register Volume 83, Number 106 (Friday, June 1, 2018)]
[Presidential Documents]
[Pages 25343-25347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11939]




                        Presidential Documents 



Federal Register / Vol. 83 , No. 106 / Friday, June 1, 2018 / 
Presidential Documents

[[Page 25343]]


                Executive Order 13839 of May 25, 2018

                
Promoting Accountability and Streamlining Removal 
                Procedures Consistent With Merit System Principles

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, including sections 1104(a)(1), 3301, and 7301 
                of title 5, United States Code, and section 301 of 
                title 3, United States Code, and to ensure the 
                effective functioning of the executive branch, it is 
                hereby ordered as follows:

                Section 1. Purpose. Merit system principles call for 
                holding Federal employees accountable for performance 
                and conduct. They state that employees should maintain 
                high standards of integrity, conduct, and concern for 
                the public interest, and that the Federal workforce 
                should be used efficiently and effectively. They 
                further state that employees should be retained based 
                on the adequacy of their performance, inadequate 
                performance should be corrected, and employees should 
                be separated who cannot or will not improve their 
                performance to meet required standards. Unfortunately, 
                implementation of America's civil service laws has 
                fallen far short of these ideals. The Federal Employee 
                Viewpoint Survey has consistently found that less than 
                one-third of Federal employees believe that the 
                Government deals with poor performers effectively. 
                Failure to address unacceptable performance and 
                misconduct undermines morale, burdens good performers 
                with subpar colleagues, and inhibits the ability of 
                executive agencies (as defined in section 105 of title 
                5, United States Code, but excluding the Government 
                Accountability Office) (agencies) to accomplish their 
                missions. This order advances the ability of 
                supervisors in agencies to promote civil servant 
                accountability consistent with merit system principles 
                while simultaneously recognizing employees' procedural 
                rights and protections.

                Sec. 2. Principles for Accountability in the Federal 
                Workforce. (a) Removing unacceptable performers should 
                be a straightforward process that minimizes the burden 
                on supervisors. Agencies should limit opportunity 
                periods to demonstrate acceptable performance under 
                section 4302(c)(6) of title 5, United States Code, to 
                the amount of time that provides sufficient opportunity 
                to demonstrate acceptable performance.

                    (b) Supervisors and deciding officials should not 
                be required to use progressive discipline. The penalty 
                for an instance of misconduct should be tailored to the 
                facts and circumstances.
                    (c) Each employee's work performance and 
                disciplinary history is unique, and disciplinary action 
                should be calibrated to the specific facts and 
                circumstances of each individual employee's situation. 
                Conduct that justifies discipline of one employee at 
                one time does not necessarily justify similar 
                discipline of a different employee at a different time 
                -- particularly where the employees are in different 
                work units or chains of supervision -- and agencies are 
                not prohibited from removing an employee simply because 
                they did not remove a different employee for comparable 
                conduct. Nonetheless, employees should be treated 
                equitably, so agencies should consider appropriate 
                comparators as they evaluate potential disciplinary 
                actions.
                    (d) Suspension should not be a substitute for 
                removal in circumstances in which removal would be 
                appropriate. Agencies should not require suspension of 
                an employee before proposing to remove that employee, 
                except as may be appropriate under applicable facts.

[[Page 25344]]

                    (e) When taking disciplinary action, agencies 
                should have discretion to take into account an 
                employee's disciplinary record and past work record, 
                including all past misconduct -- not only similar past 
                misconduct. Agencies should provide an employee with 
                appropriate notice when taking a disciplinary action.
                    (f) To the extent practicable, agencies should 
                issue decisions on proposed removals taken under 
                chapter 75 of title 5, United States Code, within 15 
                business days of the end of the employee reply period 
                following a notice of proposed removal.
                    (g) To the extent practicable, agencies should 
                limit the written notice of adverse action to the 30 
                days prescribed in section 7513(b)(1) of title 5, 
                United States Code.
                    (h) The removal procedures set forth in chapter 75 
                of title 5, United States Code (Chapter 75 procedures), 
                should be used in appropriate cases to address 
                instances of unacceptable performance.
                    (i) A probationary period should be used as the 
                final step in the hiring process of a new employee. 
                Supervisors should use that period to assess how well 
                an employee can perform the duties of a job. A 
                probationary period can be a highly effective tool to 
                evaluate a candidate's potential to be an asset to an 
                agency before the candidate's appointment becomes 
                final.
                    (j) Following issuance of regulations under section 
                7 of this order, agencies should prioritize performance 
                over length of service when determining which employees 
                will be retained following a reduction in force.

                Sec. 3. Standard for Negotiating Grievance Procedures. 
                Whenever reasonable in view of the particular 
                circumstances, agency heads shall endeavor to exclude 
                from the application of any grievance procedures 
                negotiated under section 7121 of title 5, United States 
                Code, any dispute concerning decisions to remove any 
                employee from Federal service for misconduct or 
                unacceptable performance. Each agency shall commit the 
                time and resources necessary to achieve this goal and 
                to fulfill its obligation to bargain in good faith. If 
                an agreement cannot be reached, the agency shall, to 
                the extent permitted by law, promptly request the 
                assistance of the Federal Mediation and Conciliation 
                Service and, as necessary, the Federal Service Impasses 
                Panel in the resolution of the disagreement. Within 30 
                days after the adoption of any collective bargaining 
                agreement that fails to achieve this goal, the agency 
                head shall provide an explanation to the President, 
                through the Director of the Office of Personnel 
                Management (OPM Director).

                Sec. 4. Managing the Federal Workforce. To promote good 
                morale in the Federal workforce, employee 
                accountability, and high performance, and to ensure the 
                effective and efficient accomplishment of agency 
                missions and the efficiency of the Federal service, to 
                the extent consistent with law, no agency shall:

                    (a) subject to grievance procedures or binding 
                arbitration disputes concerning:

(i) the assignment of ratings of record; or

(ii) the award of any form of incentive pay, including cash awards; quality 
step increases; or recruitment, retention, or relocation payments;

                    (b) make any agreement, including a collective 
                bargaining agreement:

(i) that limits the agency's discretion to employ Chapter 75 procedures to 
address unacceptable performance of an employee;

(ii) that requires the use of procedures under chapter 43 of title 5, 
United States Code (including any performance assistance period or similar 
informal period to demonstrate improved performance prior to the initiation 
of an opportunity period under section 4302(c)(6) of title 5, United States 
Code), before removing an employee for unacceptable performance; or

(iii) that limits the agency's discretion to remove an employee from 
Federal service without first engaging in progressive discipline; or

[[Page 25345]]

                    (c) generally afford an employee more than a 30-day 
                period to demonstrate acceptable performance under 
                section 4302(c)(6) of title 5, United States Code, 
                except when the agency determines in its sole and 
                exclusive discretion that a longer period is necessary 
                to provide sufficient time to evaluate an employee's 
                performance.

                Sec. 5. Ensuring Integrity of Personnel Files. Agencies 
                shall not agree to erase, remove, alter, or withhold 
                from another agency any information about a civilian 
                employee's performance or conduct in that employee's 
                official personnel records, including an employee's 
                Official Personnel Folder and Employee Performance 
                File, as part of, or as a condition to, resolving a 
                formal or informal complaint by the employee or 
                settling an administrative challenge to an adverse 
                personnel action.

                Sec. 6. Data Collection of Adverse Actions. (a) For 
                fiscal year 2018, and for each fiscal year thereafter, 
                each agency shall provide a report to the OPM Director 
                containing the following information:

(i) the number of civilian employees in a probationary period or otherwise 
employed for a specific term who were removed by the agency;

(ii) the number of civilian employees reprimanded in writing by the agency;

(iii) the number of civilian employees afforded an opportunity period by 
the agency under section 4302(c)(6) of title 5, United States Code, 
breaking out the number of such employees receiving an opportunity period 
longer than 30 days;

(iv) the number of adverse personnel actions taken against civilian 
employees by the agency, broken down by type of adverse personnel action, 
including reduction in grade or pay (or equivalent), suspension, and 
removal;

(v) the number of decisions on proposed removals by the agency taken under 
chapter 75 of title 5, United States Code, not issued within 15 business 
days of the end of the employee reply period;

(vi) the number of adverse personnel actions by the agency for which 
employees received written notice in excess of the 30 days prescribed in 
section 7513(b)(1) of title 5, United States Code;

(vii) the number and key terms of settlements reached by the agency with 
civilian employees in cases arising out of adverse personnel actions; and

(viii) the resolutions of litigation about adverse personnel actions 
involving civilian employees reached by the agency.

                    (b) Compilation and submission of the data required 
                by subsection (a) of this section shall be conducted in 
                accordance with all applicable laws, including those 
                governing privacy and data security.
                    (c) To enhance public accountability of agencies 
                for their management of the Federal workforce, the OPM 
                Director shall, consistent with applicable law, publish 
                the information received under subsection (a) of this 
                section, at the minimum level of aggregation necessary 
                to protect personal privacy. The OPM Director may 
                withhold particular information if publication would 
                unduly risk disclosing information protected by law, 
                including personally identifiable information.
                    (d) Within 60 days of the date of this order, the 
                OPM Director shall issue guidance regarding the 
                implementation of this section, including with respect 
                to any exemptions necessary for compliance with 
                applicable law and the reporting format for submissions 
                required by subsection (a) of this section.

                Sec. 7. Implementation. (a) Within 45 days of the date 
                of this order, the OPM Director shall examine whether 
                existing regulations effectuate the principles set 
                forth in section 2 of this order and the requirements 
                of sections 3, 4, 5, and 6 of this order. To the extent 
                necessary or appropriate, the OPM Director shall, as 
                soon as practicable, propose for notice and public

[[Page 25346]]

                comment appropriate regulations to effectuate the 
                principles set forth in section 2 of this order and the 
                requirements of sections 3, 4, 5, and 6 of this order.

                    (b) The head of each agency shall take steps to 
                conform internal agency discipline and unacceptable 
                performance policies to the principles and requirements 
                of this order. To the extent consistent with law, each 
                agency head shall:

(i) within 45 days of this order, revise its discipline and unacceptable 
performance policies to conform to the principles and requirements of this 
order, in areas where new final Office of Personnel Management (OPM) 
regulations are not required, and shall further revise such policies as 
necessary to conform to any new final OPM regulations, within 45 days of 
the issuance of such regulations; and

(ii) renegotiate, as applicable, any collective bargaining agreement 
provisions that are inconsistent with any part of this order or any final 
OPM regulations promulgated pursuant to this order. Each agency shall give 
any contractually required notice of its intent to alter the terms of such 
agreement and reopen negotiations. Each agency shall, to the extent 
consistent with law, subsequently conform such terms to the requirements of 
this order, and to any final OPM regulations issued pursuant to this order, 
on the earliest practicable date permitted by law.

                    (c) Within 15 months of the adoption of any final 
                rules issued pursuant to subsection (a) of this 
                section, the OPM Director shall submit to the President 
                a report, through the Director of the Office of 
                Management and Budget, evaluating the effect of those 
                rules, including their effect on the ability of Federal 
                supervisors to hold employees accountable for their 
                performance.
                    (d) Within a reasonable amount of time following 
                the adoption of any final rules issued pursuant to 
                subsection (a) of this section, the OPM Director and 
                the Chief Human Capital Officers Council shall 
                undertake a Government-wide initiative to educate 
                Federal supervisors about holding employees accountable 
                for unacceptable performance or misconduct under those 
                rules.

                Sec. 8. General Provisions. (a) Nothing in this order 
                shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or 
the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget 
relating to budgetary, administrative, or legislative proposals.

                    (b) Agencies shall consult with employee labor 
                representatives about the implementation of this order. 
                Nothing in this order shall abrogate any collective 
                bargaining agreement in effect on the date of this 
                order.
                    (c) This order shall be implemented consistent with 
                applicable law and subject to the availability of 
                appropriations.
                    (d) This order is not intended to, and does not, 
                create any right or benefit, substantive or procedural, 
                enforceable at law or in equity by any party against 
                the United States, its departments, agencies, or 
                entities, its officers, employees, or agents, or any 
                other person.

[[Page 25347]]

                    (e) If any provision of this order, including any 
                of its applications, is held to be invalid, the 
                remainder of this order and all of its other 
                applications shall not be affected thereby.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    May 25, 2018.

[FR Doc. 2018-11939
Filed 5-31-18; 8:45 am]
Billing code 3295-F8-P