A Publication of the Office of Policy and Evaluation, U.S. Merit Systems Protection Board 

Addressing Misconduct in the Federal Civil Service: 

Management Perspectives 

DECEMBER 2016 

INSIDE: 

1 

Supervisors Report the 

Greatest Barriers to 

Addressing Employee 

Misconduct Come from
 

Within Agencies
 

3 

Supervisors Want the 

Process of Taking Adverse 

Actions to Be Easier 

While Keeping Employee 

Protections 

4 

Supervisors Say Preventing 

and Addressing 

Misconduct Are Among 

the Easier Tasks They 

Perform 

6 

Proposing Removals 

Leads to Actual 

Departures 

7 A Different View at the 

Top 

8

Relevant Materials for 

Reference 

Supervisors Report the Greatest Barriers to Addressing 

Employee Misconduct Come from Within Agencies 

In 2016, the U.S. Merit Systems Protection Board (MSPB) conducted a 

survey of supervisors, managers, and senior executives and asked them, “If a 

subordinate employee engaged in serious misconduct are you confident that 

you would be able to remove that employee?” Approximately half said yes, 

they were confident they could remove such a person, but half said no. As 

shown in the table on the next page, the factors that most influenced the 

view that a removal could not occur were issues within the control of the 

agency. 

Each item on the table has been assigned a “score.” The score is based on 

the strengths of the expressed views, so that if everyone agreed to a “great 

extent” the score would be 3, and if everyone agreed to “no extent” the score 

would be 0. 

As the table shows, the greatest perceived barriers to removal were the 

agency’s culture toward taking such actions and the level of support given by 

managers and leaders. The next greatest barrier was the quality of service 

provided by the human resources (HR) office. (MSPB is currently working 

on a study of HR services, including the knowledge, reliability, and 

helpfulness of the staff in multiple different HR disciplines.) 

The perceived level of proof required by law ranked fourth. This item is 

particularly interesting because, as we have reported before, officials who 

actually propose and decide to implement removal actions overwhelmingly 

use a much higher level of proof than the law requires. 

The legal standard to remove an employee is preponderance of the evidence, 

which means it must be more likely than not that the charges against the 

employee are true. Yet, a few years ago, when we surveyed proposing and 

deciding officials for removal actions that occurred, 90 percent of proposing 

officials and 84 percent of deciding officials reported that the standard they 

used was “beyond a reasonable doubt” – the level of proof our legal system 

requires in order to send a person to prison or even give them the death 

penalty. Another 7 percent of proposing officials and 10 percent of deciding officials used the standard 

of “highly likely” – again a higher standard of proof than is required by law or regulation. Overall, 

approximately 95 percent of officials used a higher standard of proof than is required by law or 

regulation. 

Adverse 

Thus, it is quite possible that a lack of understanding about the true requirements of the law is a greater 

barrier than the law itself. (For more on our survey of proposing and deciding officials, see 

Actions: The Rules and the Reality available at www.mspb.gov/studies/noteworthyarchive.) 

Respondents to our 2016 survey of supervisors did recognize there are gaps in their knowledge. 

Approximately 60 percent stated that, to some or a great extent, one barrier was the degree to which they 
 

 

 

ADDRESSING MISCONDUCT IN THE FEDERAL CIVIL SERVICE: 

Page 2 MANAGEMENT PERSPECTIVES

If agencies are the 

source of the 

problem, then they 

can be the source 

of the solution. 

Barriers Come from Within Agencies (Continued) 

understand the process to remove an employee. However, as shown by the standard of 

proof used by officials who actually implemented removal actions, officials may not 

realize just how much they do not know or they may be choosing to make the process 

more difficult than Congress intended. 

The barrier supervisors felt posed the least challenge is their own discomfort with taking a 

person’s job away, with only 45 percent stating it would be a barrier to some or a great 

extent. The responses to this factor provide only part of the story about the supervisors 

themselves, because 88 percent of supervisors agreed with the statement, “I think that 

some supervisors do not manage their employees’ conduct because the supervisors want 

to avoid conflict.” In other words, supervisors do not see their own discomfort with 

firing people as a major factor, but they believe other supervisors are hindered by a

discomfort with conflict. 

Overall, the perceptions reported by supervisors indicate that there is not just one barrier 

that poses a challenge to removing employees. But, it also shows that many of the

strongest barriers that potential proposing and deciding officials face come from within 

their own agencies. The good news for agencies is that if agencies are the source of the 

problem, then they can be the source of the solution. 

Barriers Identified by Respondents Who Were Not Confident that They 

Could Remove an Employee for Serious Misconduct *

Rank 

Some or 

Great 

Extent 

Score Issue 

1 80.0% 2.21 My agency’s culture regarding removing people for 

misconduct. 

2 77.3% 2.16 The degree of support given by managers and 

leaders above me. 

3 75.6% 2.08 The quality of service provided by my human 

resources office. 

4 74.3% 2.01 The level of proof required by law. 

5 64.2% 1.75 How well I understand the process to accomplish 

this. 

6 45.3% 1.33 The degree to which I am comfortable taking a 

person’s job away from him/her. 

* The caption of this table has been revised from the original for clarity. The original caption was "To what extent would the following pose a 

challenge in your attempts to remove an employee for serious misconduct?"
 

 

ADDRESSING MISCONDUCT IN THE FEDERAL CIVIL SERVICE: 

MANAGEMENT PERSPECTIVES Page 3 

Supervisors Want the Process of Taking Adverse Actions to Be 

Easier While Keeping Employee Protections 

While survey respondents indicated that addressing serious misconduct is less difficult 

than many of their other tasks, they also reported that it was more difficult than they 

thought it ought to be. Respondents agreed that it is harder than it should be to suspend 

(71%), demote (77%), and remove (78%) employees for misconduct. 

However, as shown in the chart below, 92 percent of survey respondents agreed with the 

statement, “Employees should be protected from erroneous discipline (i.e., not punished 

when innocent of charges).” Ninety-three percent of respondents agreed with the 

statement, “Employees should be protected from improper discipline (i.e., not punished 

for an improper reason such as discrimination or retaliation for reporting wrongdoing). 

While supervisors feel that protecting employees’ rights is important, they are relatively 

evenly split on whether the rights employees currently have are at an appropriate level. 

Approximately one-third of respondents agreed that Federal employees have too many 

rights; one-third disagreed; and one-third neither agreed nor disagreed. At the same time, 

44 percent agreed with the statement, “Knowing that the employee can grieve or appeal a 

serious adverse action makes me feel more comfortable about taking such actions.” 

About a quarter of respondents disagreed with this statement while the rest neither agreed 

nor disagreed. 

Ultimately, what the survey data indicate is that there is some disagreement among 

supervisors about how many rights the system should provide to employees, including the 

desired extent of appeal and grievance rights. But, there is little disagreement on one 

crucial point – supervisors overwhelmingly want a merit-based system where employees 

are protected from managers who either make mistakes or act in bad faith. 

Supervisors 

overwhelmingly 

want a merit-based 

system where 

employees are 

protected from 

managers who 

either make 

mistakes or act in 

bad faith. 

Should Be Protected from Erroneous
 

Discipline
 

Should Be Protected from Improper
 

Discipline
 

0% 20% 40% 60% 80% 100% 

Should Be Protected from Improper Should Be Protected from Erroneous 

Discipline Discipline 

Strongly Agree 80% 78% 

Somewhat Agree 13% 14% 

Neither Agree nor Disagree 5% 5% 

Somewhat Disagree 1% 1% 

Strongly Disagree 2% 1% 
 

ADDRESSING MISCONDUCT INTHE FEDERAL CIVIL SERVICE: 

Page 4 MANAGEMENT PERSPECTIVES

Supervisors Say Preventing and Addressing Misconduct Are 

Among the Easier Tasks They Perform 

While there has been much talk recently about the Government’s inability to deal with 

misconduct and fire bad employees, supervisors tell a different story. In our 2016 survey 

of supervisors (including managers and executives) we asked respondents to tell us, on a 

scale from 1 to 7, how easy they found each of 19 enumerated tasks. The higher the 

number assigned, the more difficult the task. Respondents also had the option to select 

“Not Applicable/Can’t Judge” for tasks where they did not have adequate experience to 

assign a rating. Responses were then averaged, so that the “mean” could serve as a score 

to allow comparisons between items. 

As shown in the table on the next page, supervisors reported that preventing serious 

misconduct and addressing such misconduct when it does occur were among the easier 

tasks, ranking 14th and 15th in difficulty out of 19 tasks. 

To say that a task is “easier” than others is not the same thing as saying that the task is 

easy – that would be a score of 1 out of 7, a rating that no task was consistently assigned. 

Additionally, a task that is relatively easy for one supervisor might be a much more 

difficult task for a different supervisor (who has different competencies or training) or 

when it is a different workforce (with much different needs) being supervised. 

Challenges that supervisors face when addressing poor performers have also been the 

subject of much discussion. Yet, supervisors reported that addressing performance issues 

Supervisors 

reported that 

preventing serious 

misconduct and 

addressing such 

misconduct when 

it does occur were 

among the easier 

tasks, ranking 

14th and 15th in 

difficulty out 

of 19 tasks. 

Differences in Difficulty Level for Selected Tasks 

7-Point Scale MidpointEasier Harder 

1 

2 

3 

4 

5 

6 

7 

Getting a pool 

of quality 

candidates 

4.73 

Addressing 

performance 

that does not 

improve 

3.56 

Addressing 

serious 

misconduct that 

has occurred 

3.21 

Managing 

employee 

conduct to 

prevent serious 

misconduct 

from occurring 

3.17 

Ensuring that 

employees do 

not experience 

unlawful 

discrimination 

2.33 
ADDRESSING MISCONDUCT INTHE FEDERAL CIVIL SERVICE: 

MANAGEMENT PERSPECTIVES Page 5 

Easier Management Tasks (Continued) 

was moderately difficult (10th place, scoring 3.56 out of 7), while communicating with 

employees about their performance was considered one of the easiest tasks to perform (18th 

place). Overall, it appears that hiring qualified people in the first place is considered much 

harder than addressing problems with employees after they are on board. Hiring qualified 

people in the first 

place is 

considered much 

harder than 

addressing 

problems with 

employees after 

they are on board. 

Please rate on a scale of 1-7 how challenging you find each of the 

following (1 is very easy, 7 is very difficult). 

Rank Score Item 

1 4.73 Getting a pool of quality candidates. 

2 4.16 Paying employees an amount that is appropriate for the work they do. 

3 4.14 Getting enough employees to accomplish the work. 

4 4.12 Creating recruitment plans to identify the best candidates for particular 

jobs. 

5 3.99 Getting enough resources to give my subordinates the tools to 

accomplish their work effectively. 

6 3.98 Establishing in subordinates’ performance standards clear 

measurements for success in each element. 

7 3.74 Establishing performance standards for subordinates that cover all 

critical elements of the jobs. 

8 3.66 Managing office interpersonal relationships. 

9 3.62 Managing employee morale. 

10 3.56 Addressing performance that does not improve. 

11 3.47 Ensuring that higher-level supervisors appreciate what my subordinates 

have accomplished. 

12 3.43 Ensuring that subordinates have accurate position descriptions. 

13 3.41 Finding ways to increase employee engagement. 

14 3.21 Addressing serious misconduct that has occurred. 

15 3.17 Managing employee conduct to prevent serious misconduct from 

occurring. 

16 3.16 Managing employee training. 

17 2.86 Providing meaningful recognition for good performance. 

18 2.72 Communicating with employees about how they can improve their 

performance. 

19 2.33 Ensuring that employees do not experience unlawful discrimination. 
 

 

 

 

ADDRESSING MISCONDUCT INTHE FEDERAL CIVIL SERVICE: 

Page 6 MANAGEMENT PERSPECTIVES

Proposing Removals Leads to Actual Departures 

Data from our 2016 survey show that when an agency official proposes a removal for 

misconduct, 70 percent of the time, the outcome is that the employee departs. But, what 

many people may not realize is how many of those departures are recorded as an action 

other than a removal. 

According to surveyed supervisors, for the most recent removal they proposed, only 54 

percent of the departures were removals, while 28 percent were resignations, 8 percent 

were retirements, 3 percent of employees found another Federal job, and in 6 percent of 

cases, the proposing official did not know the nature of the departure. 

Not surprisingly, 90 percent or more of respondents with an employee who resigned, 

retired, or was removed agreed that the outcome was in the best interest of the 

Government and the public. However, less than 40 percent agreed that it was in the best 

interest of the Government or the public when the employee obtained a different Federal 

job. This is one reason why reference checks are so important, as noted in our report, 

Reference Checking in Federal Hiring: Making the Call. Of course, if the employee engages in 

serious misconduct at the new agency, the new agency is free to propose an action on that 

basis. Diligence before hiring is preferable, but diligence after hiring should occur as well. 

If a hiring official is aware of the employee’s weaknesses and then makes an informed 

assessment that the person will still fit the unique requirements of the new job, it may help 

explain some of the nearly 40 percent of respondents who proposed a removal and then 

said that the transfer elsewhere in the Government was in the interest of the Government 

and public. 

What about the almost 30 percent of employees who received a notice of proposed 

removal but later remained employed by that same agency? Understandably, when an 

official proposes a removal, he or she tends to think that retaining the employee was not 

the best choice. In those cases where the employee with alleged misconduct was 

demoted, suspended, or reassigned, approximately one out of every five proposing 

officials agreed that the outcome was in the best interest of the Government and public. 

In contrast, when the employee remained in the same position without such an action, 

less than 1 out of every 20 proposing officials thought that outcome was best. 

This data about retained employees is one reason why it is important to understand that 

just because a removal was proposed, it does not mean the removal was warranted. In 

some cases, even the official who proposed a removal said that it was a good outcome 

when the agency kept the employee. Whether the proposing official endorsed the 

outcome or opposed it, the data come from a survey of perceptions, not a review of 

agency evidence. We are not in a position to say what decision was “correct” or “best” 

for the agency or the public – only to note that sometimes even the proposing officials for 

removal actions support a different outcome in the end. 

The survey data show that looking only at the number of employees who were removed 

cannot tell the whole story of what happens to employees with conduct issues. The rest 

of the tale is harder to see, but the data indicate that other outcomes can also serve the 

best interest of the Government and the American people. In other words, not every 

departure needs to be a removal action. 

Looking only at

the number of

employees who

were removed

cannot tell the

whole story of

what happens to 

employees with

conduct issues.
ADDRESSING MISCONDUCT INTHE FEDERAL CIVIL SERVICE: 

MANAGEMENT PERSPECTIVES Page 7 

A Different View at the Top 

The views of first-line supervisors, managers, and executives differ on many issues, 

including how they perceive the adverse action process. This is important because in 

many agencies, the decision to act begins with first-line supervisors who collect 

information and then decide whether to propose an adverse action. Managers often 

complete the process by rendering a decision on those proposed actions. Managers also 

set the tone for the future through how they deal with decisions by supervisors to not 

propose actions. (This can include commending the supervisor for proper restraint or 

expressing concern that serious misconduct has not been addressed.) Yet, while the 

greatest number of agency employees are at the bottom of the organizational chart, 

changes to agency policies or requests to Congress for new laws often come from the top, 

several levels away from the bulk of the workforce. 

As noted in an earlier article, we asked respondents if they were confident that they would 

be able to remove an employee who engaged in serious misconduct. While 48 percent of 

non-managerial supervisors and 50 percent of managers said they were confident that they 

could do this, 69 percent of executives reported that they could remove such employees. 

The view at the top may differ, in part, because of differences in experience. For the most 

recent removal the respondent proposed, 65 percent of supervisors, 74 percent of 

managers, and 84 percent of executives reported that the individual was no longer 

employed by the agency. In other words, executives may be more likely to feel they can 

successfully remove a person because they are more likely to have succeeded when trying. 

Also, given that the two greatest reported barriers to removal actions were the agency’s 

culture and support from leadership, it makes sense that those who set the tone for those 

two things did not perceive heavy obstacles to the same degree as first-line supervisors or 

managers. 

There were also notable differences in the respondents’ perceptions of support after a 

removal occurs, which could affect supervisors’ level of commitment to proposing the 

removal of employees with conduct issues. Less than half of first-line supervisors said 

they were confident they would be allowed to replace an employee fired for misconduct, 

while 61 percent of managers and 72 percent of executives were confident they would be 

allowed to hire a replacement. A perceived inability to hire a new employee may affect 

how an official calculates the damage to efficiency of the organization if the individual 

remains versus the damage if the person is removed, as a lack of employees to perform 

assigned duties can also hinder the mission. 

These are just a few of the ways in which the view at the bottom differs from the view at 

the top. Whenever Congress, the President, and agency leaders consider how to improve 

the civil service, and in particular how to improve the adverse action process, it is 

important to recognize that not every official has the same experiences when using the 

adverse action system or the same perceptions about how it operates. In the end, how 

agency officials – at all levels – interact with the system will ultimately determine the 

effectiveness of that system. 

Less than half of 

first-line 

supervisors said 

they were 

confident they 

would be allowed 

to replace a 

person fired for 

misconduct. 
Relevant Materials for Reference
 

MSPB has been issuing reports related to the health of the civil service since 1981. We have also published 

shorter articles since 1996. Our website’s studies page, www.mspb.gov/studies, contains copies of these 

publications under the sections titled Studies, Noteworthy, and Newsletters. Below is a list of a few available 

materials that readers may find relevant to the subjects covered in the preceding articles. The list is not allencompassing, and we encourage people and organizations with an interest in a merit-based civil service to 

search the MSPB studies website for items that correspond to their interests. 

Study Reports: 

What is Due Process in Federal Civil Service Employment (2015). 

Clean Record Settlement Agreements and the Law (2013). 

Addressing Poor Performers and the Law (2009). 

Alternative Discipline: Creative Solutions for Agencies to Effectively Address Employee Misconduct (2008). 

Navigating the Probationary Period After Van Wersch and McCormick (2007). 

The Probationary Period: A Critical Assessment Opportunity (2005). 

“Noteworthy” Publications: 

Indefinite Suspensions and Potentially Criminal Behavior: Using Reasonable Cause to Act, May 2016. 

Performance Management is More than an Appraisal (article collection), December 2015. 

Adverse Actions: The Rules and the Reality (article collection), August 2015. 

Identifying a Probationer: It is not Always Easy, but is Always Important, June 2014. 

Supervisory Probationary Period: A Missed Opportunity, May 2011. 

Issues of Merit Articles:

Ensuring Accountability Through Supervisory and Managerial Probation, Spring 2016, p. 5. 

Probationary Periods: A Missed Opportunity to Address Poor Performance, Spring 2015, p. 5. 

Alternative Discipline: What You Need to Know, February 2009, p. 3. 

What Agencies Should Know in a Post-Van Wersch and McCormick World, July 2006, p. 6. 

Due Process: What You Need to Know, May 2006, p. 5. 

The Trial Period: A Missing Link, January 2006, p. 1. 

Replace Warm Bodies With Working Bodies, April 2005, p. 5. 

Using the Probationary Period to Weed Out Selection Errors, June 2004, p. 5.