Cheri Cannon is a partner at Tully Rinckey PLLC and the former chief counsel to the chairman of the Merit Systems Protection Board. She concentrates her practice in federal sector employment and labor law and can be reached atinfo@fedattorney.com.
As everyone who reads the newspapers knows, members of the Senior Executive Service (SES) are supposed to be held to a higher standard of conduct than their colleagues in GS ranks regarding their performance and conduct.
The higher standard, though, is rapidly becoming an albatross SES members wear around their necks, rather than a badge of pride. Recent months have seen various agencies try to make this undefined higher standard even higher when taking disciplinary action against senior executives.
Obviously, when taking action, a supervisor's managerial status can aggravate a penalty: "[A]gencies are entitled to hold supervisors like the appellant to a higher standard of conduct than non-supervisors because they occupy positions of trust and responsibility," the Merit Systems Protection Board said in Ransom v. Department of Veterans Affairs (2013). This higher standard for management is not exclusive to the SES and covers other employees in the managerial ranks. Fortunately for these employees, the MSPB has established a ceiling for this standard that is not as impossibly high as agencies would like it to be.
Here are a few things managers, whether SES or not, need to keep in mind when agencies invoke the higher standard of conduct to take action against them:
- class="Default">The higher standard does not "relinquish its [the agency's] obligation to prove charges against an SES employee," the MSPB noted in Prouty and Weller v. GSA (2014).
- class="Default">The higher standard does not relieve the agency of its obligation of putting a supervisor on notice that certain conduct, such as how a government credit card is used, is wrong, the Board noted in Edwards v. U.S. Postal Service (2010).
- class="Default">The higher standard does not free agencies from considering mitigating factors, the Board noted in Reid v. Department of the Navy (2012).
- class="Default">Just because an SES employee fell short of the higher standard of a supervisory position does not mean he or she should be removed. Noting how the appellant in Halper v. U.S. Postal Service (2002), an EAS-16 supervisor, was capable of performing satisfactorily in a high-level non-supervisory position, the Board opted to reduce his removal penalty to a 30-day suspension and demotion to a non-supervisory position at the next highest grade. This happens quite often in some agencies.
President Barack Obama recently
SES employees at a meeting "we've got to work harder" to be sure that government is working. This need to work to assure public confidence in the government does not mean SES members should be held to a standard of conduct so high that they can never meet it. Employees who believe they are being held to a standard impossible to meet should consult with an experienced federal employment law attorney and explore their legal options.
