FEDERAL 

EMPLOYEE 

MISCONDUCT

Actions Needed to 

Ensure Agencies 

Have Tools to 

Effectively Address 

Misconduct

Report to Congressional Requesters

July 2018

GAO-18-48

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-18-48, a report to 

congressional requesters

July 2018

FEDERAL EMPLOYEE MISCONDUCT

Actions Needed to Ensure Agencies Have Tools to 

Effectively Address Misconduct

What GAO Found

Chapter 75 of title 5 of the U.S. Code specifies the formal legal process that most 

agencies must follow when taking adverse actions, i.e., suspensions, demotions, 

reductions in pay or grade, and removals, for acts of employee misconduct. 

Chapter 75 details the built-in procedural rights certain federal employees are 

entitled to when faced with adverse actions.

Depending on the nature of misconduct, an agency may use utilize alternative 

discipline approaches traditionally used in government to correct behavior.

Alternative discipline is an approach to address misconduct that is available to 

agencies in lieu of traditional penalties (e.g., letters of reprimand and 

suspensions of 14 days or less). An example is a last chance agreement, 

whereby an employee recognizes the agency’s right to terminate him or her 

should another act of misconduct occur.

Based on the data collected by the Office of Personnel Management (OPM), 

agencies formally discipline an estimated 17,000 employees annually under 

Chapter 75, or less than 1 percent of the federal workforce, for misconduct.

Based on OPM data, in 2016, agencies made 10,249 suspensions, 7,411 

removals, and 114 demotions for misconduct. However, because of weaknesses 

in OPM’s data on employee misconduct, which is provided by the agencies, 

OPM is unable to accurately target supervisory training to address misconduct,

and decision-makers do not know the full extent or nature of this misconduct.

Key lessons learned can help agencies better prevent and respond to 

misconduct. For example, tables of penalties provide a list of the infractions 

committed most frequently by agency employees, along with a suggested range 

of penalties for each to ensure consistent treatment for similar offenses. 

However, not all agencies have a table of penalties, including OPM, nor are 

agencies required by statute, case law or OPM regulations. Subject-matter 

experts we contacted identified additional promising practices that agencies can 

use to respond employee misconduct. Some of these are presented below.

Key Practices That Can Help Agencies Better Prevent and Respond to Misconduct

Senior Agency Officials Must 

Set Positive Conduct 

Examples (tone at the top)

Senior leaders must exhibit positive workplace behavior as an 

example to agency employees.

Additional Training Could Help 

Supervisors Identify and Deal 

with Misconduct

Conduct on-going training for supervisors and hold them 

accountable for addressing misconduct in a timely manner when it 

occurs

Internal Collaboration is Key 

to Effectively Address 

Employee Misconduct

Maintaining effective lines of communication and collaboration with 

the human resources office staff, line-level management, and 

agencies’ legal counsel

Set Clear Expectations and 

Engaging Employees

Setting and communicating clear rules and expectations regarding 

employee conduct and assuring that employees conform to any 

applicable standards of conduct

Source: GAO analysis of expert testimony. | GAO-18-48

Agencies are accountable for providing required training to their managers. 

However, agency officials and subject-matter experts we interviewed said federal 

managers may not address misconduct because they are unfamiliar with the 

disciplinary process, have inadequate training, or receive insufficient support 

from their human resources offices. View GAO-18-48. For more information, 

contact Robert Goldenkoff at (202) 512-2757

or goldenkoffr@gao.gov. 

Why GAO Did This Study

Misconduct is generally considered an 

action by an employee that impedes 

the efficiency of the agency’s service 

or mission. Misconduct incidents can 

affect other aspects of employee 

morale and performance and impede 

an agency’s efforts to achieve its 

mission.

GAO was asked to examine how 

executive branch agencies address 

employee misconduct. This report (1) 

describes the process agencies are 

required to follow in responding to 

employee misconduct; (2) identifies 

alternative approaches to the formal 

process that agencies can use and 

assesses what factors affect agencies’ 

responses to misconduct; (3) describes 

trends in removals and other adverse 

actions resulting from misconduct; and 

(4) identifies key practices agencies

can use to help them better prevent 

and address misconduct. To address 

these objectives, GAO reviewed 

relevant sections of title 5 of the U.S.C; 

analyzed MSPB and OPM data, and 

interviewed, among others, agency 

officials and subject-matter experts.

What GAO Recommends

GAO recommends that OPM, working 

with the Chief Human Capital Officers 

Council, (1) take steps to improve the 

quality of data collected on 

misconduct; (2) leverage lessons 

learned to help agencies address 

misconduct; and (3) improve guidance 

on training supervisors and human 

resources staff on addressing 

misconduct. OPM partially concurred 

with two recommendations, and 

disagreed with the first, stating that its 

guidance has been successfully relied 

upon by agencies. GAO maintains the 

action is needed to help strengthen 

oversight.
Page i GAO-18-48 Federal Employee Misconduct

Letter 1

Background 6

Agencies Must Follow Statutory and Regulatory Procedures When 

Taking Adverse Actions for Employee Misconduct Under 

Chapter 75 of Title 5 8

Alternative Disciplines Can Help Agencies in Determining the 

Appropriate Response to Misconduct but Several Factors Affect 

How Agencies Respond 19

Removal Actions for Misconduct Taken Under Chapter 75 Are 

Relatively Rare 23

Key Steps Agencies Can Take to Better Prevent and Address 

Employee Misconduct 30

Conclusions 37

Recommendations for Executive Action 38

Agency Comments and Our Evaluations 38

Appendix I Objectives, Scope, and Methodology 43

Appendix II Douglas Factors –12 Criteria Developed by the Merit Systems

Protection Board to Guide Agency Decisions on 49

Appendix III Comments from the Office of Personnel Management 50

Appendix IV GAO Contact and Staff Acknowledgments 57

Table

Table 1: List of Alternative Discipline Approaches and Details of 

the Approach 20

Figures

Figure 1: Adverse Actions for Employee Misconduct Under 

Subchapters I and II of Chapter 75, Title 5 of the U.S. 

Code 9

Contents
Page ii GAO-18-48 Federal Employee Misconduct

Figure 2: Process for Identifying and Addressing Employee 

Misconduct Using Chapter 75, Subchapter II and Chapter 

77 of the U.S. Code 14

Figure 3: Collective Bargaining Unit Appeals Process 16

Figure 4: Statutory Appeals Process for Appealable Adverse 

Actions 17

Figure 5: Number of Suspensions, Demotions, and Removals Per 

Year, Fiscal Years 2006 to 2016 25

Figure 6: Outcomes of Merit Systems Protection Board Appeals, 

Fiscal Years 2006 to 2016 30
Page iii GAO-18-48 Federal Employee Misconduct

Abbreviations:

ADR alternative dispute resolution

CBA collective bargaining agreement

CFO Act Chief Financial Officers Act

CHCO Chief Human Capital Officer

CSRA Civil Service Reform Act of 1978

EEOC Equal Employment Opportunity Commission

EHRI Enterprise Human Resources Integration database

EPA Environmental Protection Agency

MSPB Merit Systems Protection Board

NOA nature of action

OI Office of Inspector General Office of Investigations

OPM Office of Personnel Management

OSC Office of Special Counsel

PFR petition for review

SF-50 Standard Form 50

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Page 1 GAO-18-48 Federal Employee Misconduct

441 G St. N.W.

Washington, DC 20548

July 16, 2018

The Honorable James Lankford 

Chairman

Subcommittee on Regulatory Affairs and Federal Management

Committee on Homeland Security and Governmental Affairs

United State Senate

The Honorable Elijah E. Cummings 

Ranking Member

Committee on Oversight and Government Reform 

House of Representatives

An average of less than 1 percent of the federal government’s 2.1 million 

employees are formally disciplined for misconduct annually, according to 

our analysis of the Office of Personnel Management’s (OPM) data.1 While 

this number is relatively small, even a few cases of employee misconduct 

can have significant impacts on workplace morale and impede an 

agency’s efforts to achieve its mission. Indeed, according to a 2008 study 

by the Merit System Protection Board (MSPB), “Misconduct affects not 

only the employee and the supervisor; it also impacts those who interact 

with the employee.”2 To that end, it is important for agencies to timely and 

effectively address cases of employee misconduct while simultaneously 

respecting employees’ procedural and due process rights.

The term “employee misconduct” does not have a general definition in a 

statute or government-wide regulations. Agencies may elaborate on types 

of misconduct in handbooks and other internal guidance. However, 

according to OPM, there is a large body of decisional law by MSPB 

addressing discipline for employee misconduct in the federal government 

that contains definitions of various forms of misconduct, such as 

“insubordination,” “excessive absence,” and “misuse of government 

property,” as well as instances where specific types of misconduct are 

 1

Formal discipline refers to the legal process under Chapter 75 of Title 5 of the U.S. Code. 

2

Merit Systems Protection Board, Alternative Discipline: Creative Solutions for Agencies to 

Effectively Address Employee Misconduct. (Washington, D.C.: July 2008).

Letter
Page 2 GAO-18-48 Federal Employee Misconduct

referenced concerning appointment into the competitive service.3

According to OPM officials, the lack of a general definition of misconduct 

gives agencies flexibility in the manner in which they address misconduct. 

Ultimately, when an agency needs to take an adverse action4 against an 

employee for inappropriate workplace behavior, it must do so “for such 

cause as will promote the efficiency of the service” as provided for in 5 

U.S.C. Chapter 75.5 Such actions could include, but are not limited to, 

instances of misconduct. The efficiency of the service standard provides 

managers with maximum flexibility to pursue adverse actions whether the 

impetus was a conduct issue, a failure to perform, or something else.

Activities that may be considered misconduct can vary from agency to 

agency. According to agency officials and subject-matter experts we 

interviewed, examples of misconduct include

• time and attendance infractions;

• intoxication;

• workplace violence;

• physical aggression toward an employee;

• improper use of a government-issued credit card;

• misuse of government equipment (such as viewing pornography or 

gambling);

• use of public position for private gain; and

• behavior that affects national security.

 3

5 U.S.C. §§ 7301-7363. There are instances in law and regulation where specific types of 

misconduct are referenced concerning appointment into the competitive service. 5 U.S.C. 

Chapter 73 (Suitability, Security, and Conduct) addresses certain types of misconduct of 

executive branch employees.

4

Adverse actions can be taken for any reason to promote the efficiency of the service. 

Such reasons can include, but are not limited to insubordination, excessive absence, and 

misuse of government property.

5

5 U.S.C. § 7503(a); 5 U.S.C. § 7513(a). The purpose of Chapter 75 was to establish 

procedures that must be followed when an agency determines to pursue certain forms of 

actions against an employee that would, if taken, have an impact upon their pay, i.e., 

“adverse actions.”
Page 3 GAO-18-48 Federal Employee Misconduct

It should be noted that the law differentiates misconduct from 

substandard performance.6 Poor performance can generally be described 

as an employee’s inability to carry out work responsibilities, while 

misconduct can be described as an employee, willfully or otherwise, 

violating stated policies or norms. In certain cases, however, employee 

performance and misconduct can overlap, combining the two issues. 

Sleeping on the job, for example, is both a failure to abide by norms of 

conduct an agency would expect of an employee on duty and a failure to 

perform.

Our prior work on poor performers found that adverse actions, including 

suspensions, demotions, and removals, take time to resolve and because 

of a lack of internal support, concerns over litigation and other factors,

supervisors may be hesitant to initiate required procedures outlined in the 

United States Code (hereinafter U.S.C.).7 Supervisors can address 

misconduct through alternative discipline approaches which can shorten 

the timeline and eliminate costly litigation if the employee decides to 

appeal an adverse action. When used under the right circumstances, 

alternative discipline may be more efficient and effective than traditional 

discipline.8

You asked us to examine the process for addressing misconduct and to 

identify any challenges to removing employees for misconduct. Our 

objectives were to (1) describe the process that agencies are required to 

follow in responding to employee misconduct in the federal service; (2) 

identify alternative approaches to the formal legal process that agencies 

can use to respond to misconduct, and assess what factors affect 

agencies’ responses; (3) describe trends in removals and other adverse 

 6

See 5 U.S.C. §§ 7501-7514; 5 U.S.C. §§ 4301-4306. According to OPM, poor 

performance and misconduct often overlap; nevertheless, it is important to recognize the 

difference between the two. OPM describes misconduct as a failure to follow a workplace 

rule (e.g., tardiness and absenteeism) and poor performance as the failure of an 

employee to do his or her job at an acceptable level. OPM, Addressing and Resolving 

Poor Performance: A Guide for Supervisors (Washington, D.C.: March 2017) 

https://www.opm.gov/policy-data-oversight/employee-relations/employee-rightsappeals/performance-based-actions/toolkit.pdf.

7

GAO, Federal Workforce: Improved Supervision and Better Use of Probationary Periods 

Are Needed to Address Substandard Employee Performance, GAO-15-191 (Washington, 

D.C.: Feb. 6, 2015).

8

Merit Systems Protection Board, Alternative Discipline: Creative Solutions for Agencies to 

Effectively Address Employee Misconduct (Washington, D.C.: July 2008).
Page 4 GAO-18-48 Federal Employee Misconduct

actions resulting from misconduct; and (4) identify key practices agencies 

can use to help them better prevent and address misconduct.

To address the first objective, we reviewed relevant sections of Title 5 

chapter 75 of the U.S.C. (hereinafter chapter 75) which contains the 

statutory process for taking such adverse actions as are necessary to 

promote the efficiency of the service, which would include adverse 

actions to address misconduct.9 We also reviewed OPM regulations 

implementing chapter 75 adverse action procedures and describing 

employee grievance and appeal rights.10 Additionally, we reviewed 5 

U.S.C. §§ 7701 and 7702 (hereinafter chapter 77), which contain the 

statutory process for adverse action appeals to the MSPB and 

subsequent appeals to the Equal Employment Opportunity Commission 

(EEOC) when the employee has alleged that an adverse action within the 

jurisdiction of the MSPB was taken on account of discrimination within the 

jurisdiction of the EEOC.11 To provide context for our review of Chapters 

75 and 77, we interviewed current and former practitioners, subjectmatter experts, and academics. We selected our subject-matter experts 

based on our guidance for selecting experts, including their depth of 

experience on this issue and their present and past employment history, 

the subject-matter experts’ practical experience in applying and practicing 

administrative law related to employee misconduct, and academicians 

who have conducted research on employee misconduct.

To address the second objective, we interviewed OPM and MSPB 

officials and reviewed MSPB documents to obtain alternative discipline 

approaches agencies may use to address employee misconduct. We 

reviewed OPM regulations and documents to determine the legal 

framework within which most agencies address employee misconduct in 

the federal service, including formal procedural and employee appeal 

rights. To describe and assess factors that affect an agency’s response to 

employee misconduct, we interviewed a panel of chief human capital 

officers (CHCO) from selected agencies as well as current and former 

human capital practitioners and other individuals and organizations with 

 9

See generally, 5 U.S.C. §§ 7501-7514. Other adverse that may be taken under Chapter 

75 include, for example, a furlough of 30 days or less for the purpose of keeping the 

agency’s spending within appropriation limits. 

10OPM regulations implementing Chapter 75 are found in 5 C.F.R. subpart D of part 752.

115 U.S.C. § 7701(a)-(b); 5 U.S.C. § 7702(b).
Page 5 GAO-18-48 Federal Employee Misconduct

expertise in working on employee misconduct issues.12 These interviews 

helped us to gain insight into the agency perspective on addressing 

employee misconduct.

To address the third objective, we analyzed data from OPM’s Enterprise 

Human Resources Integration (EHRI) database and MSPB data from 

fiscal years 2006 to 2016 to describe trends in misconduct-related 

personnel actions and determine the number of adverse actions that 

agencies take against employees government-wide.13 Some agencies are 

excluded from the EHRI database, such as those in the intelligence 

community. For this report, the term ‘adverse action’ refers to nonappealable and appealable personnel actions listed under chapter 75, 

which includes reductions in grade or pay, suspensions, and removals.14

Adverse actions can be taken for reasons that will promote the efficiency 

of the service. Such actions include, but are not limited to, misconduct.

To address the fourth objective, we conducted a literature review to 

identify promising practices and lessons learned associated with 

employee misconduct in the federal sector. We interviewed officials from 

OPM, MSPB, the EEOC, and the Office of Special Counsel (OSC), to 

obtain their perspectives on responding to employee misconduct through 

alternative approaches. We also interviewed officials from the 

Environmental Protection Agency (EPA) to obtain their perspectives on 

recent efforts to better coordinate with EPA’s Inspector General to 

address cases of employee misconduct. We obtained the perspectives of 

a panel of CHCOs from selected agencies through the CHCO Council. 

We also interviewed former human capital practitioners and other subjectmatter experts with extensive experience working on employee 

misconduct issues identified through literature reviews and 

recommendations from other experts. For further information on our 

scope and methodology, see appendix I.

 12The Chief Human Capital Officers Act of 2002, enacted as part of the Homeland 

Security Act of 2002 (Pub. L. No. 107-296) required the heads of 24 Executive 

Departments and agencies to appoint or designate Chief Human Capital Officers 

(CHCOs). The CHCO Act also established a CHCO Council to advise and coordinate the 

activities of members’ agencies on such matters as the modernization of human resources 

systems, improved quality of human resources information, and legislation affecting 

human resources operations and organizations.

13EHRI contains information on personnel actions and other data, and is the primary 

government-wide source for information on federal employees.

145 U.S.C. §§ 7502 and 7512.
Page 6 GAO-18-48 Federal Employee Misconduct

We conducted this performance audit from July 2016 to July 2018 in 

accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We 

independently assessed OPM and MSPB’s data by determining data 

checks and quality control steps taken on entering and maintaining the 

data. We determined the data from both agencies to be sufficient and 

reliable for our purposes. We believe that the evidence obtained provides 

a reasonable basis for our findings and conclusions based on our audit 

objectives.

Misconduct can occur in any workplace. When employee misconduct 

happens, an agency may incur a number of direct and indirect costs 

depending on how the agency chooses to address misconduct. For the 

agency, direct costs can mean potentially significant time and resource 

investments, including investigations, adversarial relationships between 

management and the employee, costs to the agency as a result of the 

misconduct committed (e.g., time and attendance or credit card fraud), 

and reduced employee engagement. The subject-matter experts we 

interviewed told us that, based on their experiences, the time it takes to 

address a case of misconduct may range from a couple of weeks to 

years. The time range depends on whether the employee appeals their 

case and other factors.

Agencies may also incur litigation expenses if an employee decides to 

appeal an adverse action. While there are costs to addressing 

misconduct, agencies also incur indirect costs when misconduct goes 

unaddressed in the workplace. These indirect costs include corrosive 

effects on other employees’ morale, higher employee turnover, reduced 

productivity, and lower employee commitment to their work or agency. 

Indirect costs also include redirecting management’s attention away from 

achieving the agency’s mission.

Employee misconduct in the federal government is regulated by a welldeveloped body of statutes and regulations as well as decisions from 

MSPB and U.S. Court of Appeals for the Federal Circuit and Supreme 

Court. While there is no general definition of the term “employee 

misconduct” in a statute or government-wide regulation, Standards of 

Ethical Conduct are prescribed by the Office of Government Ethics at 5 

CFR Part 2635 and agencies may also elaborate on types of misconduct 

in handbooks, tables of penalties (listings of some of the most common 

Background
Page 7 GAO-18-48 Federal Employee Misconduct

offenses with recommended ranges of penalties), and other internal 

guidance. There is a large body of law by MSPB addressing discipline for 

employee misconduct in the federal government that contains criteria of 

various forms of misconduct, such as, “insubordination,” “excessive 

absence,” and “misuse of government property.” According to OPM 

officials, there are instances in law and regulation where types of 

misconduct are referenced concerning appointment into the competitive 

service. Chapter 73 (Suitability, Security, and Conduct) addresses certain 

types of misconduct of executive branch employees.

Generally speaking, an employee’s violation of an agency’s regulation or 

policy may cause the agency to take disciplinary or corrective action. 

Ultimately, if an agency needs to take an adverse action for inappropriate 

workplace behavior, it must do so “for such cause as will promote the 

efficiency of the service” as provided for in Title 5, Chapter 75.15 OPM has 

also prescribed some regulations on employee responsibilities and 

conduct.16 One of the nine Merit System Principles set forth by the Civil 

Service Reform Act of 1978 that govern the management of the federal 

workforce states that federal employees “should maintain high standards 

of integrity, conduct, and concern for the public interest.”17

According to MSPB, when there is misconduct by a federal employee, 

management’s goal should be to either persuade the employee to behave 

properly or to remove the employee if the conduct is serious enough.18

Moreover, OPM maintains that supervisors have a responsibility to set 

clear rules and expectations for employees in the workplace.19 It is 

imperative that federal agencies manage their workforces effectively, 

which includes the effective use of discipline when addressing employee 

misconduct. In addition, employees may be disciplined for conduct that 

 155 U.S.C. § 7503(a) and 5 U.S.C. § 7513(a). Chapter 75 provides the procedures 

agencies must follow for actions that affect pay (e.g., suspensions and removals).

165 C.F.R. Part 735.

175 U.S.C. § 2301(b)(4).

18Merit Systems Protection Board, Alternative Discipline: Creative Solutions for Agencies

to Effectively Address Employee Misconduct (Washington, D.C.: July 2008).

19For the purpose of this report, we apply MSPB’s definition of supervisors as first-line 

supervisor who do not supervise other supervisors; typically those who are responsible for 

employees’ performance appraisals and approval of their leave.
Page 8 GAO-18-48 Federal Employee Misconduct

that they knew or should have known was unacceptable.20 Similarly, 

federal executive branch employees have a responsibility to adhere to 

principles of ethical conduct and should avoid any actions that appear to 

violate the law or ethical standards.21

Overall, the objective of discipline is to deal with employees who are 

unwilling or unable to behave properly, and, where management deems it 

possible and appropriate, correct deficiencies in employee conduct. When 

management decides to take an action short of removal, discipline can 

deter misconduct and correct situations interfering with productivity. 

Conduct-based actions are important tools designed to aid supervisors in 

maintaining an efficient and orderly work environment.

Most agencies are required to adhere to formal, statutorily established 

guidelines under chapter 75 when taking adverse actions against an 

employee for misconduct. Chapter 75 of Title 5 includes two subsections 

that outline the requirements for (1) non-appealable adverse actions such 

as suspensions of 14 days or less22 or (2) appealable adverse actions 

such as reductions in pay or grade, suspensions of more than 14 days, 

and removals (see figure 1).23 Subchapter I actions are covered by 

sections 5 U.S.C. 7501-7504 (Subsection I) and are referred to as “nonappealable actions,” while Subchapter II actions covered by sections 5 

U.S.C. 7511-7514 are referred to as “appealable actions” based on 

whether or not they can be appealed to the MSPB.24

 20 As the Supreme Court observed in Arnett v. Kennedy, 416 U.S. 134 (1974), a case 

addressing the Constitutionality of the “efficiency of the service” in connection with an 

employee’s removal for impugning his supervisors, “[I]t is not feasible or necessary for the 

Government to spell out in detail all that conduct which will result in retaliation.... The 

most conscientious of codes that define prohibited conduct of employees include `catchall’

clauses prohibiting employee `misconduct,’ `immorality,’ or `conduct unbecoming.’ We 

think it is inherent in the employment relationship as a matter of common sense if not [of] 

common law that [a Government] employee . . . cannot reasonably assert a right to keep 

his job while at the same time he inveighs against his superiors in public with intemperate 

and defamatory [cartoons].. . . [Dismissal in such circumstances does not come] as an 

unfair surprise ....” 416 U.S. at 158-164.

215 C.F.R. § 2635.101 (2011).

225 U.S.C. §§ 7501-7504.

235 U.S.C. §§ 7511-7514.

245 U.S.C. § 7701.

Agencies Must Follow 

Statutory and 

Regulatory 

Procedures When 

Taking Adverse 

Actions for Employee 

Misconduct Under 

Chapter 75 of Title 5
Page 9 GAO-18-48 Federal Employee Misconduct

Figure 1: Adverse Actions for Employee Misconduct Under Subchapters I and II of 

Chapter 75, Title 5 of the U.S. Code

Note: Outside of taking adverse actions under Subchapter I or II of chapter 75, Title 5 of the U.S. 

Code, agencies may take less severe actions to address misconduct, such as letters of counseling or 

oral admonishments, as well as official reprimands which are placed in an employee’s official 

personnel file for a period of time.

According to a MSPB report, through the Civil Service Reform Act of 1978 

(CSRA), “Congress sought to ensure that agencies could remove 

employees who engage in misconduct while protecting the civil service 

from the harmful effects of management acting for improper reasons, 

such as discrimination or retaliation for whistleblowing.”25 OPM 

regulations specify the process agencies must pursue to take adverse 

actions.26 These regulations also specify the procedural and appeal rights 

to which employees facing adverse actions are entitled.27 According to 

OPM officials, agency policies usually cover lesser disciplinary actions, 

such as oral and written reprimands, letters of warning, and letters of 

counseling. Employees may grieve these actions depending on the 

agency’s administrative or negotiated grievance processes. According to 

 25MSPB, What is Due Process in Federal Civil Service Employment? (Washington, D.C.: 

May 2015).

265 C.F.R. §§ 752.203; 752.404; 752.604 (2012).

27See 5 CFR 752.405.
Page 10 GAO-18-48 Federal Employee Misconduct

OPM, agencies may issue these actions without following the procedural 

requirements for adverse actions under 5 U.S.C. Chapter 75.

The procedural rights due to employees subject to adverse actions 

covered by Chapter 75 are derived both from Chapter 75 and from the 

U.S. Constitution. In 1985, the U.S. Supreme Court held that tenured or 

post-probationary public employees who may be terminated only for 

cause have a constitutional property interest in continued employment 

and cannot be deprived of their jobs without due process of law. The 

process that was due in that case was notice of the proposed removal 

before it occurred and the opportunity to present reasons why the 

proposed action should not be taken.28 Chapter 75 and OPM regulations 

promulgated thereunder establish additional procedural requirements 

extending to actions other than removal that go beyond what the Due 

Process Clause of the U.S. Constitution would itself require under current 

precedent. For example, they require that employees be given advance 

notice of a suspension or a reduction in pay with the opportunity to 

respond in writing with supporting affidavits.

An agency may take an adverse action under Subchapter I of Chapter 75

only for such cause as will promote the efficiency of the service. When 

proposing to suspend an employee for 14 days or less, an agency must 

give the employee advance written notice stating the reasons for the 

proposed suspension. The agency must also inform the employee of his 

or her right to review the material which is relied on to support the 

reasons for the action. The agency must give the employee a reasonable 

time (no less than 24 hours) to answer orally and in writing, to furnish 

affidavits and other documentary evidence in support of the answer, and 

to be represented by an attorney or other representative. Lastly, the 

agency is to give the employee a written decision with the specific 

reasons for the suspension on or before the effective date of the action.29

An employee may challenge a suspension of 14 days or less through an 

agency administrative grievance procedure, if applicable. If the employee 

is represented by a union with a collective bargaining agreement (CBA) 

with the agency that includes an applicable grievance procedure, the 

 28Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985); see also Gilbert v. 

Homar, 520 U.S. 924 (1997).

295 U.S.C. § 7503(b)(1)-(4); 5 CFR § 752.203(a)-(e).

Subchapter I of Chapter 

75 and Corresponding 

Regulations Describe 

Procedures for a 

Suspension of 14 Days or 

Less
Page 11 GAO-18-48 Federal Employee Misconduct

employee may challenge the suspension only under the CBA unless the 

employee is alleging that the suspension was discriminatory.30 If the 

employee wishes to challenge the suspension as discriminatory or 

retaliatory under the EEO laws, the employee may file an EEO complaint 

with agency followed by a request for a hearing with the EEOC. The 

employee may also file a complaint with the OSC and then, if necessary, 

an Individual Right of Action appeal with the MSPB, to assert that the 

suspension was in retaliation for the employee’s whistleblower activity. If 

the employee is represented by a union that has a collective bargaining 

agreement with the agency that includes an applicable negotiated 

grievance procedure, the employee may only file a grievance under the 

agency’s collective bargaining agreement.31

Subchapter II of Chapter 75 addresses steps agencies must follow to take 

the four adverse actions listed below. These following actions are referred 

to as appealable adverse actions:

• suspensions longer than 14 days;

• reductions in grade;

• reductions in pay; and

• removals.32

An agency may take an adverse action under Subchapter II only for such 

cause as will promote the efficiency of the service. Subchapter II and 

OPM regulations contain more extensive procedural requirements for 

removals, reductions in pay or grade, and suspensions of over 14 days.33

The employee is entitled to at least 30 days advanced written notice of 

the proposed action, unless there is reasonable cause to believe the 

employee has committed a crime for which a sentence of imprisonment 

 305 CFR § 751.103(f).

31Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985); see also Gilbert v. 

Homar, 520 U.S. 924 (1997).

325 U.S.C. § 7512(1)-(5). Subchapter II also applies to furloughs of 30 days or less. A 

“furlough” means the placing of an employee in a temporary status without duties and pay 

because of lack of work or funds or other non-disciplinary reasons. 

335 U.S.C. §7511-7514 and 5 C.F.R. 752.404.

Subchapter II of Chapter 

75 Describes Steps 

Agencies Must Take to 

Address More Significant 

Cases of Employee 

Misconduct Than Those 

Addressed Under 

Subchapter I
Page 12 GAO-18-48 Federal Employee Misconduct

may be imposed.34 The notice must state the reasons for the action and 

inform the employee of their right to review the material on which the 

reasons stated in the notice are based.35 Agencies typically provide the 

material supporting the proposal to the employee with the notice. The 

proposal is usually prepared by the employee’s supervisor in consultation 

with human resources and, sometimes, the agency’s legal staff.

The agency must give the employee a reasonable amount—no less than 

7 days—of official time to review the supporting material, to prepare an 

answer orally and in writing, and to furnish affidavits and other 

documentary evidence in support of the answer.36 According to OPM and 

MSPB officials, normally the agency designates an official other than the 

person who proposes the adverse action to review the employee’s 

response and make the decision. The employee is entitled to be 

represented by an attorney or other representative, including a union 

steward if the employee is a bargaining unit member. The employee is 

entitled to a written decision on or before the effective date specifying the 

reasons for the decision and advising the employee of any appeal and 

grievance rights under 5 CFR § 752.405.37

An employee may challenge discipline under Subchapter II through an 

agency administrative grievance procedure, if applicable, or by filing a 

grievance under an applicable CBA. An employee may also appeal 

adverse actions covered by Subchapter II to the MSPB unless the 

employee first filed a grievance challenging the action under the CBA.38

Accordingly, a large number of MSPB decisions address the elements 

and relative seriousness of various kinds of misconduct.

According to OPM, if the employee wishes to challenge an appealable 

adverse action under subchapter II as discriminatory or retaliatory under 

the EEO laws, the employee may file a “mixed case” EEO complaint with 

agency. The agency then issues a final agency decision that may be 

appealed to the MSPB. An employee affected by an appealable action 

(removal, suspension for more than 14 days, reduction in pay or grade) 

 34See 5 CFR 752.404(d).

355 CFR § 752.404(b)(1).

365 CFR § 752.404(c)(1).

375 C.F.R. § 752.404(c)-(e) and (g) (2012).

385 U.S.C. 7511-7512, 7514; 5 C.F.R. 752.405(a).
Page 13 GAO-18-48 Federal Employee Misconduct

who believes that the action was motivated by prohibited discrimination, 

such as a person’s race, color, religion, sex, national origin, age or 

disability, may also file a “mixed case” appeal directly with MSPB and 

raise the discrimination claim in that forum. The employee may seek 

review of MSPB’s decision on the discrimination claim before the EEOC. 

If MSPB and EEOC disagree on the discrimination claim and MSPB does 

not defer to EEOC’s view, then a special panel of the EEOC and MSPB 

will be convened to resolve the disagreement.39

When deciding an appropriate penalty for misconduct, agency officials 

are to make decisions on a case-by-case basis, taking into consideration 

all relevant circumstances. Deciding officials within the agency should 

consult the Douglas Factors –12 criteria developed by MSPB to guide 

such decisions (see appendix II). In the Douglas vs. Veterans 

Administration decision, MSPB found that a penalty will be sustained as 

long as “managerial judgment has been properly exercised within 

tolerable limits of reasonableness.”40 The list of Douglas Factors is not 

exhaustive. According to MSPB, weighing all relevant aggravating and 

mitigating factors and the totality of the circumstances is critical in any 

disciplinary case. The process agencies use to identify and address 

employee misconduct is illustrated in figure 2.

 395 U.S.C. § 7702(d)(2)(A)

40MSPB, in its often cited decision, Douglas vs. Veterans Administration, 5 M.S.P.R. 280, 

305 (1981), established criteria that supervisors must consider in determining an 

appropriate penalty to impose for an act of employee misconduct. The Board examined 

past court rulings and Civil Service Commission decisions regarding penalties and then 

summarized them into twelve (12) factors that it would look at to determine if a penalty 

was unreasonable. These factors are collectively known as the Douglas factors for the 

case that articulated them and they are still in use today.
Page 14 GAO-18-48 Federal Employee Misconduct

Figure 2: Process for Identifying and Addressing Employee Misconduct Using Chapter 75, Subchapter II and Chapter 77 of the 

U.S. Code

Agencies may use progressive discipline to help determine which course 

of action to take when responding to misconduct. OPM officials define 

progressive discipline as the “imposition of the least serious disciplinary 

or adverse action applicable to correct the issue or misconduct with 

penalties imposed at an escalating level for subsequent offenses.” The 

Douglas factors incorporate the concept of using a lesser penalty in 

appropriate circumstances. For instance, if an employee commits a first 

offense, the agency may choose to suspend the employee for 14 days or 

less. After that, the employee might learn from his or her mistake or 

correct the action, and not commit another offense, and therefore the 

agency will not discipline the employee again. However, the President 

has now prescribed that “supervisors and deciding officials should not be 

required to use progressive discipline”, and that “the penalty for an 

instance of misconduct should be tailored to the facts and 
Page 15 GAO-18-48 Federal Employee Misconduct

circumstance.”41 This will affect how agencies will determine appropriate 

penalties going forward.

Alternatively, if the employee commits the same offense a second time, 

the agency may choose to suspend the employee for longer, or impose 

stronger adverse actions, including removal. According to OPM officials, 

progressive discipline is not defined or required by civil service law, rules 

or regulations.

Chapter 75 provides that an employee with appeal rights who wants to 

contest an agency decision to remove, suspend for over 14 days, or 

reduce in pay or grade may appeal the agency’s decision with MSPB.42 If 

that employee is a member of a collective bargaining unit, the employee 

also has the option of pursuing a grievance under negotiated grievance 

procedures if the appeal has not been excluded from coverage by the 

collective bargaining agreement. The employee may pursue either option, 

but not both.43 The employee may seek review of an arbitrator’s decision 

before the U.S. Court of Appeals for the Federal Circuit. If the employee 

is challenging an adverse action within the jurisdiction of the MSPB and 

also alleged unlawful discrimination before the arbitrator or was prevented 

from doing so by the negotiated grievance procedure, the employee may 

appeal the arbitrator’s decision to the MSPB. In addition, the union may 

appeal an arbitration award concerning a suspension of 14 days or less to 

the Federal Labor Relations Authority (FLRA) on behalf of the 

employee.44 See figure 3 for the collective bargaining unit appeals 

process for major disciplinary actions.

 41Section 2(b) of Executive Order13839: Promoting Accountability and Streamlining 

Removal Procedures Consistent with Merit System Principles (Washington, D.C.: May 25, 

2018).

425 U.S.C. § 7513(d).

435 U.S.C. § 7121(e)(1); 5 C.F.R. § 752.405(b).

44See 5 C.F.R. Part 2425.
Page 16 GAO-18-48 Federal Employee Misconduct

Figure 3: Collective Bargaining Unit Appeals Process

1 An employee who claimed discrimination before an arbitrator or who was precluded by the 

negotiated grievance procedure from raising discrimination before the arbitrator may seek review of 

the arbitrator’s decision before the MSPB. 5 U.S.C. § 7121(d); 5 C.F.R. § 1201.155(c).

2

An employee may seek review of an arbitrator’s decision before the U.S. Court of Appeals for the 

Federal Circuit. 5 U.S.C. §§ 7121(f), 7703.

Employees may use several avenues if they elect to appeal adverse 

actions through the statutory appeals process for such actions (removal, 

suspension of more than 14 days, and reduction in grade or pay).45 If the 

employee believes the disciplinary action was motivated by unlawful 

discrimination, he or she may file a discrimination complaint with the 

agency or file an appeal directly with MSPB. If the employee believes the 

disciplinary action was taken in retaliation for whistleblowing, he or she 

may choose to file a whistleblower retaliation complaint before deciding to 

appeal to the MSPB. If the employee or agency does not agree with the 

decision rendered by a MSPB administrative judge (AJ), he or she may 

seek review before the full MSPB. See figure 4 for statutory appeals 

process.

 45See 5 CFR 752.405.
Page 17 GAO-18-48 Federal Employee Misconduct

Figure 4: Statutory Appeals Process for Appealable Adverse Actions

1 An employee who claimed discrimination in an appeal to the MSPB or in a grievance may seek 

review of the final MSPB decision before the EEOC. 5 U.S.C. § 7702(b).

2 An employee who claimed discrimination in an appeal to the MSPB or in a grievance may file a civil 

action in federal district court. 5 U.S.C. § 7703(b)(2).

3 An employee may file a civil action in federal district court following a final decision by the EEOC. 

See authorities cited in 5 U.S.C. § 7702(a) & (b)(5)(A) and 29 C.F.R. §§ 1614.407 & 1614.408.

4 An employee who filed a whistleblower complaint may obtain judicial review of a final decision of the 

MSPB before the U.S. Court of Appeals for the appropriate regional circuit 5 U.S.C. § 7703(b)(1)(B).

5 An employee may obtain judicial review of a final decision of the MSPB before the U.S. Court of 

Appeals for the Federal Circuit. Such review may include a claim of whistleblower retaliation but may 

not include a claim of discrimination. 5 U.S.C. § 7703(b)(1)(A) & (B); Kloeckner v. Solis, 133 S. Ct. 

596 (2012).

6 An employee who pursued a civil action in federal district court may seek judicial review of the 

district court in the U.S. Court of Appeals for the relevant regional circuit. 28 U.S.C. § 1291.
Page 18 GAO-18-48 Federal Employee Misconduct

We analyzed MSPB’s data and found initial appeals at MSPB generally 

take from 63 to152 days to render a decision.

46 MSPB has a policy goal 

of resolving cases by an administrative judge on or before 120 days after 

the filing of the appeal. An employee or agency can appeal an initial 

MSPB decision in a process called petition for review (PFR). PFR cases 

are reviewed by the full MSPB, and range from an additional 99 to 251 

days, based on our analysis of the MSPB’s data. The time that it takes to 

resolve cases at MSPB is consistent for demotions, suspensions of 

greater than 14 days, and removals. According to MSPB officials, the 

system is designed to require an individual to choose a path of review to 

the exclusion of other paths. Depending on the claims raised, there may 

be multiple levels of review of a single action before multiple fora. 

However, there is only one hearing at the administrative level; therefore, 

the timeline to resolve an adverse action appeal can be longer than the 

initial appeal and PFR.

According to MSPB officials, the selected CHCOs, and the subject-matter 

experts we interviewed, agencies most often make the following errors 

which may cause MSPB to reverse the adverse action decision47:

• Failure to follow procedures by agency: MSPB may overturn an 

adverse action decision if the agency did not adhere to the processes 

set out in statute and regulation. This most often means that the 

agency did not give the employee a chance to respond to the adverse 

action charge or did not notify them of their rights to an attorney.

• Failure to follow procedures by deciding official: An action may be 

vulnerable to a modification or reversal upon appeal if the deciding 

official did not fulfill their role appropriately in weighing the evidence 

through a Douglas Factors analysis.

• Ex parte communications: A challenge may be overturned if a 

deciding official gave consideration to any issue not in the proposal 

letter.

• Incorrect labeling (or charge): Nothing in law or regulation requires 

an agency to attach a label to a charge of misconduct. However, if 

labels are used, they must be proven. An example used by MSPB 

 46Range is based on the 25th and 75th percentiles.

47Penalties imposed may vary depending on how agencies label different types of 

misconduct.

Initial Appeals to MSPB 

Take Around 100 Days to 

Resolve
Page 19 GAO-18-48 Federal Employee Misconduct

provides that if an agency uses the label of “theft” as its charge, then 

the agency must prove that the employee “intended to permanently 

deprive the owner of possession” of the item in question.48 Experts 

told us that MSPB requires agencies to prove all legal aspects of a 

misconduct label.

Federal courts have held that it is impermissible to allow the official who 

makes the final decision in a removal proceeding to rely on aggravating 

factors regarding either the alleged offense or the proposed penalty that 

were not contained in the notice, and to which the employee did not have 

an opportunity to respond.49 MSPB is bound by this precedent.

Alternative discipline is an approach to address misconduct that is 

available to agencies in lieu of traditional penalties (e.g., letters of 

reprimand and suspensions of 14 days or less). According to MSPB, 

agencies may choose to offer alternative discipline at any stage of the 

disciplinary process. OPM officials said alternative disciplines tend to be 

more focused on taking a corrective or remedial response rather than 

punitive actions against an employee. In a report on alternative discipline, 

MSPB states that alternative discipline can take many forms and is an 

effort undertaken by an employer to address employee misconduct using 

a method other than traditional discipline.50

As an alternative discipline approach, it is recommended by MSPB that 

agencies may consider entering into an agreement with an employee. In 

general, such an approach involves a legally binding written agreement 

between the employee and the agency addressing an act of misconduct. 

If the employee violates the agreement, the agency will proceed with 

additional or more serious forms of discipline, up to and including 

removal. MSPB also recommends that managers and human resources 

personnel consult with legal counsel when drafting and implementing an 

alternative discipline agreement that requires the employee’s consent, 

adding that it is extremely important for agreements to meet certain legal 

requirements to form a valid agreement.

 48King v. Nazelrod, 43 F.3d 663, 666-67 (Fed. Cir. 1994).

49Aggravating factors could include prior disciplinary actions, poor work record, lack of 

rehabilitative potential, etc. See Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 

2011); Stone v. F.D.I.C., 179 F.3d 1368 (Fed. Cir. 1999).

50Alternative Discipline: Creative Solutions for Agencies to Effectively Address Employee 

Misconduct (July 2008).

Alternative Disciplines 

Can Help Agencies in 

Determining the 

Appropriate 

Response to 

Misconduct but 

Several Factors Affect 

How Agencies 

Respond
Page 20 GAO-18-48 Federal Employee Misconduct

We compiled a non-exhaustive list of alternative discipline based on a 

literature review and interviews. Subject-matter experts, including the 

panel of CHCOs, reviewed this list and they cited benefits and drawbacks 

to some of the approaches (see table 1).

Table 1: List of Alternative Discipline Approaches and Details of the Approach

Alternative discipline Details of approach

Additional training Employee attends training designated by the agency that addresses specific acts of misconduct, such 

as time and attendance infractions.

Involvement in process 

improvement

The employee can develop or lead training in proper employee behavior for that specific area of 

misconduct in which the employee engaged.

Rescinding telework or 

alternate work schedule 

agreement

Preventing a telework eligible employee from teleworking or eliminating an alternative work schedule 

as part of the disciplinary action.

Counseling Employee attends counseling for problems that are causing him or her to act inappropriately; types of 

counseling may include anger management, drug and alcohol treatment, and more. If the employee 

agrees to counseling, the penalty can be held in abeyance or laid out in the last chance agreement.

Community service Employee agrees to complete a specific number of community service hours equal to the amount of 

time spent on a suspension. 

Alternative dispute resolution 

(ADR)

A third-party mediator is used to settle disputes between two or more parties. ADR is more costeffective than going to litigation before an adjudicating board.

Last chance agreements In the event of an ongoing disciplinary history or egregious first-offense misconduct, an agency can 

hold a removal action in abeyance by entering into a written agreement with an employee. The 

agreement should state that the employee will not repeat the act of misconduct or any similar act of 

misconduct and should remain in effect for a set period of time. If the employee engages in the same 

or similar misconduct again, he or she can be removed without further procedural rights or appeal 

rights.

Abeyance agreements Management holds a disciplinary action in abeyance, meaning that the discipline is not immediately 

enacted, for a set period of time or only imposes a portion of the disciplinary action, e.g., a 

suspension. This agreement is also in writing. If the employee commits another act of misconduct 

during this set period of time, then management enacts discipline. If an employee commits an 

infraction that he or she is unaware is misconduct, then an abeyance agreement might be 

appropriate. The employee agrees to waive grievance or appeal rights if applicable.

Paper suspension agreement An employee receives a suspension on paper, which is documented on their permanent or temporary 

record, but the employee is not actually suspended on a non-pay status. The paper agreement states 

that the paper suspension is counted as progressive discipline and is of the same weight as a 

traditional suspension if there is additional misconduct. Employee agrees to waive appeal rights.

Clean-slate agreements In lieu of disciplinary action or removal, the employee voluntarily agrees to separate, and waives 

appeal rights. In return, the agency agrees that the employee will have a clean slate, meaning the 

misconduct will not be permanently recorded in his or her personnel file. The employee must be 

honest about the reason prompting the separation in applying for future employment, filling out forms 

for background investigations, or responding to investigators’ inquiries in connection with background 

investigations. Agencies must follow ethical requirements with respect to providing references.

Financial agreements If an agency proposes an adverse action and the employee in question responds with a complaint, the 

agency is authorized to buy out the employee, meaning the agency will pay the employee a sum of 

money to separate from the agency. Employee agrees to waive appeal rights as part of the buyout 

process.
Page 21 GAO-18-48 Federal Employee Misconduct

Added approaches from subject-matter experts

Leave donation in lieu of 

formal discipline

An employee voluntarily agrees to donate annual leave to the agency’s leave bank in lieu of 

disciplinary action. 

Reassignment of employee or 

manager

Employee or manager is reassigned to a new team or different part of the agency. Must be mutually 

agreed upon and consistent with any collective bargaining agreements that the employee is under.

Financial restitution for cases 

involving misuse of 

government property

This would require a full investigation and the agency would specify how the employee would be 

required to make restitution. 

Employee issues a public 

apology to affected individuals 

and or agency

Employee issues a public apology to the agency or individuals affected by the misconduct. 

Source: GAO summary of feedback provided by agency officials and subject-matter experts. | GAO-18-48

MSPB noted in its 2008 report that the specific alternative discipline 

approach an agency decides to use should be based on the nature and 

severity of the misconduct. According to OPM officials, alternative 

discipline approaches are not appropriate for egregious acts of 

misconduct or when the employee is remorseless but rather lower level 

offenses where an employee may show remorse for the misconduct and 

demonstrate that she or he can be rehabilitated. Egregious acts of 

misconduct may involve discrimination, reprisal or retaliation, or sexual 

harassment. Alternative discipline approaches are also not appropriate 

when the employee’s continued presence in the workplace would pose a 

threat to the employee or others.

On a case by case basis, an agency may decide to provide counseling or 

additional training as appropriate, depending on the facts and 

circumstances that address specific acts of minor misconduct.

Additionally, agencies have flexibility in using alternative discipline as a 

final effort before taking formal action such as suspension or removal. 

However, in its 2008 report, MSPB found that managers had applied 

alternative discipline approaches ineffectively, resulting in further 

inefficiencies in the civil service. Specifically, MSPB recommended that 

managers and human resources personnel consult with legal counsel 

when drafting and implementing an alternative discipline agreement that 

requires the employee’s consent, adding that it is extremely important for 

agreements to meet certain legal requirements to form a valid agreement. 

CHCOs and subject-matter experts said managers and supervisors 

should coordinate internally with human resources staff, employee 

relations, and legal counsel when assessing whether an alternative 
Page 22 GAO-18-48 Federal Employee Misconduct

discipline approach would result in correcting improper behavior and 

ultimately improve their workforce.

Some subject-matter experts we interviewed expressed concern that 

workforces would view alternative discipline measures as providing 

opportunities for employees to avoid accountability or encouraging similar 

negative behaviors from coworkers rather than penalizing the employee 

more stringently through a formal adverse action process. These subjectmatter experts identified community service, buy-outs, involvement in 

process improvements, and clean-slate agreements as approaches that 

had this kind of effect. Additionally, some subject-matter experts told us 

that alternative discipline approaches such as community service and 

paper suspension agreements could have the unintended effect of 

benefiting the employee being disciplined. For example, community 

service may allow the employee to serve the alternative discipline during 

their scheduled duty time instead of performing their regularly assigned 

duties. This may require the employee’s co-workers to take on additional 

work while the employee serves the alternative discipline. Additionally, 

while a paper suspension limits interruption to work production, it also 

allows the employee to work in a pay status while carrying out the 

suspension. According to feedback we received from the CHCOs, some 

of these alternative discipline approaches were used more often than 

others and some approaches were more effective at addressing 

employee misconduct. We did not evaluate how often or the extent to 

which any of these approaches are used at agencies, nor did we consider 

the propriety or legality of these approaches.

According to the CHCOs and subject-matter experts, agency managers 

and supervisors may be able to effectively resolve employee misconduct 

cases through the use of alternative approaches, which can shorten the 

timeline and simplify the adverse action process in a manner that has the 

most potential to prevent additional harm to the workplace and avoid the 

potentially high costs of litigating a misconduct case.

Current and former agency officials and subject-matter experts we 

interviewed told us in interviews that several factors can affect whether 

and how an agency responds to misconduct. Both agency officials and 

subject-matter experts told us that supervisors may not report misconduct 

due to fear that an employee could counter with their own complaint. 

Several CHCOs and subject-matter experts told us that an agency’s 

approach to dealing with misconduct can influence how first-line 

supervisors act. In a recently released MSPB publication that highlighted 

Several Factors Can Affect 

Whether and How an 

Agency Addresses 

Employee Misconduct
Page 23 GAO-18-48 Federal Employee Misconduct

selected results of its 2016 Merit Principle survey of managers and 

supervisors about challenges to addressing employee misconduct, 80 

percent of managers and supervisors agree to some extent or a great 

extent that their agency’s culture poses a challenge when attempting to 

remove an employee for serious misconduct.51 Additionally, MSPB’s 

report provided the perspectives of managers and supervisors regarding 

the factors that affect how agencies address misconduct, including

• 77 percent of managers/supervisors agree to some extent or a great 

extent that they do not feel supported by their agencies’ senior 

leadership in their actions to remove an employee for serious 

misconduct.

• 88 percent of managers/supervisors somewhat or strongly agree that 

some supervisors do not manage their employees’ conduct because 

the supervisors want to avoid conflict.

• 64 percent of managers/supervisors agree to some extent or a great 

extent that they do not fully understand the process to remove an 

employee for misconduct.

MSPB’s 2016 survey findings were consistent with what agency officials 

and subject-matter experts told us during interviews.

Our analysis of OPM data from fiscal year 2006 to 2016 shows that, on 

average, agencies disciplined approximately 17,000 or less than 1 

percent of the federal workforce per year under Subchapter II of Chapter 

75.52 The number of employees who separate from the federal workforce 

for misconduct under alternative means, such as settlements, is not 

known and would not be recorded as misconduct in OPM’s EHRI 

database, according to agency officials and experts. Many of the CHCOs 

and subject-matter experts we interviewed told us that while data around 

such cases are not collected government-wide, they believe internal 

 51The MSPB 2016 Merit Principles survey is a government wide survey of federal 

employees and supervisors that covered a variety of workforce issues, prohibited 

personnel practices, and selected aspects of their work experience and work environment.

Merit Systems Protection Board, Addressing Misconduct in the Federal Civil Service: 

Management Perspectives (Washington, D.C.: December 2016).

52For our analysis of EHRI data, the observational unit is an adverse action, such as 

removal, suspension, or demotion, rather than an individual employee because 

employees may have multiple adverse actions recorded in EHRI.

Removal Actions for 

Misconduct Taken 

Under Chapter 75 Are 

Relatively Rare
Page 24 GAO-18-48 Federal Employee Misconduct

resolutions using alternative approaches to address misconduct occur 

frequently.

According to EHRI data, as the number of probationary employees 

fluctuated over time, the number of terminations generally followed the 

same trend. One of the likely reasons for this fluctuation is that 

probationary employees are more likely to be terminated than career 

employees who are no longer in a probationary status because 

probationary employees are not yet subject to the Chapter 75 process 

protection afforded career employees.

Similar to addressing performance issues, it is generally easier to 

terminate employees for misconduct during the probationary period. As 

we previously reported, the probationary period is an important 

management tool to evaluate the conduct and performance of an 

employee and should be treated as the last step in the hiring process. 

According to OPM, appropriate actions taken within the probationary 

period are the best way to avoid long-term problems.

Our data analysis of personnel actions against employees for misconduct 

shows that the most common form of discipline is suspension. In 2016, 

agencies made 10,249 suspensions, 7,411 removals, and 114 demotions 

for misconduct (the numbers refer to the number of adverse actions that 

agencies made in 2016, not the number of employees that received 

adverse actions; one employee can be suspended multiple times, and 

each suspension is recorded as a separate personnel action in the 

employee’s SF-50).53 The data we analyzed indicated that approximately 

one-fourth of suspended employees have multiple suspensions. 

According to OPM officials, third parties such as the MSPB will review 

whether disciplinary actions are taken “only for such cause as will 

promote the efficiency of the service” which includes the assessment of 

the relevant Douglas factors.

Figure 5 shows how many suspensions, demotions, and removals took 

place from fiscal years 2006 to 2016 according to EHRI data.

 532016 is the most recent year for which data were available. 

Trends in Misconduct 

Removals Are Associated 

with Fluctuations in 

Probationary Employee 

Numbers

The Most Widely Used 

Form of Formal Discipline 

for Misconduct Is 

Suspension; 

Approximately One-Fourth 

of Suspended Employees 

Have Multiple 

Suspensions
Page 25 GAO-18-48 Federal Employee Misconduct

Figure 5: Number of Suspensions, Demotions, and Removals Per Year, Fiscal Years 2006 to 2016

Note: For our analysis of EHRI data, the observational unit is an adverse action, such as removal, 

suspension, or demotion, rather than the individual employee because employees may have multiple 

adverse actions recorded in EHRI.
Page 26 GAO-18-48 Federal Employee Misconduct

OPM collects data on personnel actions reported by most agencies and 

stores this information in the EHRI database, but these data could be 

improved to provide OPM with better information to help agencies 

address misconduct.54 Because not all misconduct data are entered into 

the database, the data presented in this report do not represent the 

entirety of employee misconduct instances that occur in the federal 

government.55 Personnel actions in the EHRI database originate from 

data that agencies send to OPM through the Standard Form 50 (SF-50), 

a form that documents personnel actions. OPM officials told us that lesser 

disciplinary actions such as a letter of reprimand are not documented by 

an SF-50. Without maintaining comprehensive data regarding the extent 

and nature of misconduct in the federal government, OPM risks missing 

opportunities to provide agencies with guidance and other tools, such as 

targeted training to help agencies better address cases of misconduct. 

Indeed, better data could help OPM and agencies identify systemic 

misconduct issues, such as misuse of government property or physical 

aggression toward a co-worker, as well as emerging problems that benefit 

from early detection and/or more comprehensive approaches.

It should be noted that for the codes that indicate performance or 

misconduct as the underlying cause for the adverse action, it is not 

possible to make a clear distinction between whether the action was 

specifically related to misconduct, performance, or a mix of the two. 

Therefore, some cases include a mix of employee poor performance and 

misconduct. OPM officials said they do not have a sense of how 

frequently agencies use these (and other non-specific) nature of action 

(NOA) codes for misconduct-related actions. According to OPM officials, 

by establishing rules in terms of improving the efficiency of the service 

and the types of actions that will require specific procedures, Congress 

provided managers with maximum flexibility to pursue adverse actions 

whenever it would promote the efficiency of the service, whether the 

underlying impetus was a conduct issue or a failure to perform.

 54Our analysis of the data does not represent a minimum or maximum of misconduct 

cases. Rather, it represents the number of adverse disciplinary actions taken under 

Subchapters I and II of Chapter 75 that agencies took and reported to OPM through the 

EHRI database.

55EHRI captures actions that generate an SF-50 such as suspensions, removals,

reduction in grade, and reduction in pay. It does not capture lesser penalties for which 

OPM does not regulate.

Better Data on Employee 

Misconduct Could 

Strengthen OPM’s 

Oversight and Provide 

Clarity to Agencies 

Regarding How to Address 

Misconduct
Page 27 GAO-18-48 Federal Employee Misconduct

OPM officials told us the Guide to Processing Personnel Actions directs 

agencies to indicate the nature of personnel actions in the EHRI database 

through the NOA codes. These codes indicate the employee type, the 

nature of the personnel action to be recorded in EHRI, as well as the 

underlying cause (e.g., conduct or performance) for the personnel action. 

OPM performs validity checks on the NOA codes and legal authorities to 

assure the agencies are compliant with OPM reporting 

requirements. OPM also periodically reviews agencies’ use of NOA codes 

and legal authorities in general.

The EHRI database does not collect or store the specific type of 

misconduct—only that the personnel action belongs in the misconduct 

category. Several CHCOs and subject-matter experts who we interviewed 

agreed this flexibility is helpful to agencies. For example, officials said that 

while common types of misconduct exist, such as time-and-attendance 

infractions, many unique types of misconduct cannot be placed into easily 

identifiable categories. The officials added that it would be easy for 

agencies to mislabel misconduct. For instance, OPM officials said that 

disobeying an agency’s policy or rules could manifest itself in many 

different ways.

Moreover, we found inconsistencies in the data OPM provided. For 

example, during this review, we initially used stored EHRI data from 

previous audits for fiscal years 2006 to 2014. We used NOA codes 

provided by OPM officials to analyze employee misconduct data in the 

executive branch. When we compared the results of our data analysis for 

this period to the data OPM provided for the same period, we found their 

data identified approximately 500 more adverse actions per year. Though 

we consulted with OPM, we were unable to resolve these differences. 

OPM officials noted that agencies submit data on a rolling basis and may 

later correct it, and, some SF-50 forms are filed after the fiscal year ends, 

so our stored data may not include these actions.

According to OPM officials, agencies generally have day-to-day oversight

for determining use of NOA codes and legal authorities. Agencies are 

required to report a valid NOA code and legal authorities that is found in 

OPM’s Guide to Data Standards. Guidance to agencies for classifying 

misconduct into the correct nature of action codes is provided in The 

Guide to Processing Personnel Actions. Although OPM verifies that 

agencies provide valid NOA codes in their data, they assert that agencies 

have responsibility for determining which NOA codes to use for each 

personnel action based on OPM documentation.
Page 28 GAO-18-48 Federal Employee Misconduct

As we noted in a 2017 report on federal human resources data, OPM 

developed EHRI to (1) provide for comprehensive knowledge 

management and workforce analysis, forecasting, and reporting to further 

strategic management of human capital across the executive branch; (2) 

facilitate the electronic exchange of standardized human resources data 

within and across agencies and systems and the associated benefits and 

cost savings; and (3) provide unification and consistency in human capital 

data across the executive branch.56

An important part of OPM’s role is to support federal agencies’ human 

capital management activities, which includes ensuring that agencies 

have the data needed to make staffing and resource decisions to support 

their missions. EHRI data are essential to government-wide human 

resource management and evaluation of federal employment policies, 

practices, training, and costs. The ability to capitalize on this information 

is dependent, in part, on the reliability and usefulness of the collected 

data. According to Federal Internal Control Standards, management is to 

obtain relevant data from reliable internal and external sources in a timely 

manner based on the identified information requirements.57

More specific guidance from OPM to agencies on which NOA codes to 

use for misconduct cases will increase confidence in the data, without 

requiring practitioners to capture and tabulate the type of misconduct.

More importantly, enhanced data on the extent and nature of misconduct 

will improve OPM’s oversight ability and agencies’ ability to target 

management training and identify specific trends in misconduct.

 56GAO, Federal Human Resources Data: OPM Should Improve the Availability and 

Reliability of Payroll Data to Support Accountability and Workforce Analytics, GAO-17-127 

(Washington, D.C.: Oct.7, 2016).

57Internal controls help agency program managers achieve desired results and provide 

reasonable assurance that program objectives are being achieved through, among other 

things, effective and efficient use of agency resources. GAO, Standards for Internal 

Control in the Federal Government, GAO-14-704G (Washington, D.C.: September 2014); 

effective in fiscal year 2016.
Page 29 GAO-18-48 Federal Employee Misconduct

Our analysis of MSPB data found that the most frequent appeal outcome 

is a settlement. MSPB said settlements often benefit both the agency and 

the appellant because they manage risk. The officials said that when 

entering an adverse action appeal with MSPB, both the agency and the 

appellant face a risk: the agency is at risk of spending time and money for 

litigation only to, in some cases, have its decision overturned; the 

appellant is at risk of being removed from his or her position with a 

permanent mark on his or her record, which may make finding another 

job difficult. To avoid these outcomes for both parties, an agency may 

offer the employee a variety of settlement options to incentivize them to 

willingly leave. Settlement options may include, but are not limited to

• back-pay for the time that the employee was out of work, but still 

litigating the appeal; and

• paying the employee’s attorney fees.

OPM notes, on the other hand, that the MSPB’s data might not always 

reflect voluntary settlements. According to OPM officials, the MSPB has a 

large caseload and typically strives to induce the agency to settle. OPM 

officials noted that the pressure to settle cases regardless of merit after 

the agency has made the determination that discipline is necessary and 

has gone through the procedure to carry it out may be one of the most 

significant deterrents to dealing with misconduct or performance under 

Chapter 75.

Figure 6 shows the number of MSPB appeals that were filed from fiscal 

years 2006 to 2016 that were affirmed, reversed, settled, or dismissed.

We also analyzed data from MSPB’s database of appeals cases.58 MSPB 

hears appeals from those adverse actions that Congress made 

appealable under Subchapter II of chapter 75, including suspensions of 

greater than 14-days, demotions, and removals. These actions can be 

taken for performance problems as well as misconduct under Chapter 

75—MSPB does not differentiate between performance and misconduct 

in its database. Rather, the agency categorizes its cases by legal 

authority. Therefore, similar to OPM’s EHRI data, any analysis with 

 58When we refer to adverse actions regarding MSPB data, we are referring to 

suspensions longer than 14 days, demotions, and removals.

Most MSPB Appeals Are 

Resolved by the Parties, 

Which Benefits Both the 

Agency and Appellant, 

According to Officials
Page 30 GAO-18-48 Federal Employee Misconduct

MSPB’s data may include performance appeals as well as misconduct 

appeals under Chapter 75.

Figure 6: Outcomes of Merit Systems Protection Board Appeals, Fiscal Years 2006 

to 2016

Note: For our analysis of MSPB data, the observational unit is an appeal action such as affirmed, 

reversed, settled, or dismissed, rather than the unit being an individual employee because employees 

may appeal cases several times to MSPB. We omitted “mitigated” and “other” as observational units 

because very few cases are mitigated by MSPB and the other category covered a wide range of 

outcomes.

On the basis of our literature review, as well as interviews with CHCOs 

and subject-matter experts, we identified key promising practices and 

lessons learned that can help agencies better prevent and address 

employee misconduct. These key practices include tables of penalties, 

engaging employees, making full use of the probationary periods, and 

maintaining effective lines of communication and collaboration between 

the human resources office staff, line-level management, and agencies’

legal counsel. Going forward, it will be important for OPM and agencies, 

in concert with the CHCO Council to examine each of these practices and 

lessons learned, refine, as appropriate, and share how best to implement 

these practices.

Key Steps Agencies 

Can Take to Better 

Prevent and Address 

Employee Misconduct
Page 31 GAO-18-48 Federal Employee Misconduct

We found that tables of penalties—a list of recommended disciplinary 

actions for various types of misconduct—though not required by statute, 

case law, or OPM regulations, nor used by all agencies, can help ensure 

the appropriateness and consistency of a penalty in relation to an 

infraction. Further, tables of penalties can help ensure the disciplinary 

process is aligned with merit principles because they make the process 

more transparent, reduce arbitrary or capricious penalties, and provide 

guidance to supervisors.

According to the panel of CHCOs and the subject-matter experts we 

interviewed, a table of penalties may also provide information on the 

period over which offenses are cumulative, for purposes of assessing 

progressively stronger penalties. The officials described tables of 

penalties as a listing of common infractions committed most frequently by 

agency employees, along with a suggested range of penalties for first, 

second and third offenses; however, the range of penalties should not be 

too broad, and the penalties should be progressive, meaning that they 

increase in harshness with each subsequent offense committed by the 

employee. The CHCOs and subject-matter experts said a table of 

penalties should also provide sufficient flexibility in the penalty range 

(e.g., 1-day to 5-day suspensions for a first offense) to consider mitigating 

and aggravating factors when considering discipline for misconduct. OPM 

officials stated that where an agency elects to have a table of penalties, it 

should serve as a guide in addressing misconduct, noting that it does not 

serve as a substitute for management’s judgment. According to OPM 

officials, management must take into account the applicable Douglas 

Factors, and must consider other appropriate circumstances not covered 

by the Douglas Factors. Neither OPM nor MSPB provide any written 

guidance to agencies in developing their tables of penalties. However, 

OPM officials told us their agency is available to provide assistance upon 

request to agencies that elect to use a table of penalties.

Views on the usefulness of the tables of penalties were mixed among 

agency officials and subject-matter experts. On the one hand, some 

agency officials and other subject-matter experts told us the table of 

penalties can assist agencies in determining an appropriate penalty and 

ensure consistency of penalty selection from case to case. For that 

reason, they said the tables can also help ensure the action taken is 

legally defensible based on past similar cases. MSPB officials told us that 

they believe table of penalties, which rely on the Douglas Factors, can 

help human capital practitioners when making decisions about employee 

misconduct cases. On the other hand, several subject-matter experts and 

Tables of Penalties Can 

Help Guide Responses to 

Misconduct
Page 32 GAO-18-48 Federal Employee Misconduct

agency officials, including OPM, indicated that table of penalties tend to 

be too broad in the range of penalties for individual offenses, which they 

said ultimately limited their usefulness in the decision-making process.

OPM officials said their agency does not use a table of penalties nor does 

it support encouraging agencies to establish tables of penalties. 

According to OPM officials, where table of penalties exist, they are 

established at an agency’s discretion and not under OPM’s auspices. 

OPM officials believe agencies have the ability to address misconduct 

appropriately without a table of penalties and with sufficient flexibility to 

determine the appropriate penalty for each instance of misconduct. 

Further, OPM officials said that agencies that adopt a table of penalties 

will be required to consider its table of penalties, if applicable, as part of 

the MSPB’s Douglas Factors analysis which, in their view, imposes an 

additional condition on the agency’s ability to defend its actions. Finally, 

OPM said there is no substitute for management judgment and that tables 

of penalties should not be applied so inflexibly as to impair consideration 

of other factors relevant to the individual case.

In short, tables of penalties, if drafted at an appropriate level of detail and 

used in conjunction with the Douglas Factors and other case-specific 

forms of discretion, could provide agencies with reasonable assurance 

that similar cases of misconduct are addressed with similar penalties as 

appropriate, and can reduce the risk of inconsistently and potentially 

unfairly applying remedial measures.

Agency officials and subject-matter experts told us that having effective 

agency policies and programs that set clear expectations around behavior 

and that engage employees may help reduce the number of misconduct 

incidents that occur. These policies and programs may also mitigate the 

damage when an incident does occur. Several subject-matter experts 

said that agencies should set formal expectations early and reinforce 

these expectations throughout an employee’s career. To this point, as we 

discussed in our 2015 report on addressing substandard employee 

performance, when addressing misconduct agencies should help 

Set Clear Expectations 

and Engage Employees
Page 33 GAO-18-48 Federal Employee Misconduct

managers and supervisors take appropriate action if misconduct occurs 

during an employee’s probationary period.59

Some subject-matter experts indicated that agencies may also consider 

conducting more thorough job screening and hiring processes which 

could help determine if the individual is a good fit for their agency. 

Specifically, the subject-matter experts mentioned that agencies should 

take a closer look at a prospective employee’s work history and carefully 

check references. We also learned from our interviews that, as a 

deterrent, agencies must clearly communicate that an employee will be 

held accountable for any acts of misconduct.

According to OPM, agencies can mitigate the risks of these difficulties by 

establishing a well-trained, experienced, and empowered employee and 

labor relations staff. OPM said these individuals play a crucial role in 

educating supervisors and managers in taking appropriate and 

sustainable disciplinary actions. CHCOs and subject-matter experts 

provided a number of key promising practices that an agency can use to 

mitigate and address employee misconduct, including:

• Demonstrating positive conduct at the agency’s senior leadership 

(tone at the top): Through policies and their own individual actions, 

senior leaders must exhibit positive workplace behavior as an 

example to agency employees.

• Maintaining a good workplace atmosphere: Agencies should take 

steps to monitor workforce morale and initiate programs that 

encourage respect and community.

• Engaging employees by connecting them directly to the agency’s 

mission: Employees should have a sense of purpose and commitment 

toward their employer and its mission which can lead to better 

organizational performance.

• Making full use of the probationary period for employees: Supervisors 

should use probationary periods as an opportunity to evaluate an 

employee’s performance and conduct to determine if an appointment 

to the civil service should become final.

 59GAO, Federal Workforce: Improved Supervision and Better Use of Probationary Periods 

Are Needed to Address Substandard Employee Performance, GAO-15-191 (Washington, 

D.C.: Feb. 6, 2015).
Page 34 GAO-18-48 Federal Employee Misconduct

• Setting and communicating clear rules and expectations regarding 

employee conduct: Agencies should set expectations about 

appropriate conduct in the workplace and communicate 

consequences of inappropriate conduct at the earliest possible time 

after on-boarding an employee.

• Assuring that employees conform to any applicable standards of 

conduct: Supervisors and managers, with the support of their 

agencies’ leadership and human resources staff, should train and 

monitor employee compliance with its stated conduct policies.

• Maintaining effective lines of communication and collaboration with 

the human resources office staff, line-level management, and 

agencies’ legal counsel: Agencies should establish clear lines of 

communication across relevant offices to ensure misconduct cases 

are addressed effectively and consistently.

• Conducting on-going training for supervisors and holding them 

accountable for addressing misconduct in a timely manner when it 

occurs: Supervisors should be trained in identifying employee 

misconduct cases and knowledgeable about the process for 

addressing such cases.

MSPB and OPM officials as well as subject-matter experts said human 

resources staff and line-level supervisors and managers would benefit 

from additional training in how to address employee misconduct. The 

subject-matter experts told us that managers do not receive sufficient 

training in how to identify and subsequently deal with misconduct in the 

workplace. Specifically, subject-matter experts told us that many 

supervisors and managers do not understand the requirements needed to 

remove an employee for misconduct, including misconceptions about the 

standard of proof required. Many subject-matter experts repeated 

observations MSPB made in its 2008 report that without sufficient training 

managers and supervisors may find it difficult to engage in challenging 

one-on-one conversations with an employee about misconduct.

Agency officials and subject-matter experts also told us that supervisory 

training varies by agency. Our subject-matter experts said some agencies 

are more structured and provide staff with training curricula with required 

timetables to complete, while others rely on staff to self-guide the training 

they need. We found many agencies contract out specific training or 

provide learning opportunities to staff on their intranet sites via e-learning 

tools. Most subject-matter experts said that misconduct training is likely 

More Effective Training 

Could Help Supervisors 

Identify and Deal with 

Misconduct
Page 35 GAO-18-48 Federal Employee Misconduct

more effective when delivered in-person, due to the broad range of issues 

related to misconduct.

OPM officials told us that supervisors and managers are responsible for 

observing and enforcing applicable laws in the federal workplace. OPM 

officials also indicated that training, resource allocation, skills, and 

knowledge all have a bearing on the administration of the disciplinary 

process. According to OPM, good communication and partnerships are 

also critical to processing a solid, sustainable response related to 

misconduct. OPM guidelines require that agencies provide training when 

employees make critical career transitions, for instance from 

nonsupervisory to manager or from manager to executive. Further, 

OPM’s Supervisory and Managerial Curriculum Framework highlights 

human resources technical areas and leadership competencies 

necessary for success. The curriculum framework includes employee and 

labor relations with supporting learning objectives.

OPM has specific regulatory requirements for training and development of 

supervisors, managers, and executives under 5 CFR § 412.202, including 

to

• provide training within 1 year of an employee’s initial appointment to a 

supervisory position and follow up periodically, but at least once every 

3 years, by providing each supervisor and manager additional training 

on the use of appropriate actions, options, and strategies:

• to mentor employees;

• improve employee performance and productivity;

• conduct employee performance appraisals in accordance with agency 

appraisal systems; and

• identify and assist employees with unacceptable performance.60

According to 5 U.S.C. § 4103, it is the responsibility of each agency to 

train its employees. According to OPM officials, it is not responsible under 

the CSRA for providing training for the federal workforce. However, while 

agencies are accountable for providing required training for their 

supervisors, OPM has a key role in ensuring the training meets the 

government-wide needs of supervisors. By taking steps to help agencies 

 605 CFR 412.202(b)(1)-(4).
Page 36 GAO-18-48 Federal Employee Misconduct

improve the training they provide supervisors and managers on 

addressing misconduct, OPM could help those managers ensure they 

have the knowledge and skills to effectively deal with misconduct in the 

workplace. For example, OPM could consider the feasibility of developing 

more in-person training modules designed to provide interactive or role 

play scenarios around addressing employee misconduct. Furthermore, 

subject-matter experts said if an agency is not training new supervisors to 

equip them with the appropriate skills to address misconduct, there may 

be inconsistencies in how an agency handles misconduct across the 

agency. Without sufficient training, supervisors and managers may not be 

addressing misconduct appropriately, if at all.

Many of the subject-matter experts we interviewed said that it is important 

that the primary stakeholders—first-level supervisors and managers and 

human resources and general counsel offices—collaborate on the 

agency’s approach to dealing with misconduct.

We found agencies vary in how collaboration takes place. For example, 

some subject-matter experts and CHCOs told us that an agency may 

choose to handle a case by having their human resources staff and 

management work closely together. The subject-matter experts we 

interviewed said this collaboration can sometimes include general 

counsel staff, if necessary. For example, at EPA, the human resources 

office collaborates with the office of general counsel and the agency’s 

Office of Inspector General Office of Investigations (OI). EPA officials told 

us that their agency’s human resources office, OI, general counsel, and 

labor relations meet bi-weekly to discuss ongoing misconduct 

investigations to provide a report of investigations to EPA’s senior 

management on the facts surrounding allegations of employee 

misconduct.

According to EPA, OI also provides real-time notification whenever OI 

receives information concerning serious misconduct, before the 

investigation is completed, so EPA management can take appropriate 

immediate mitigating steps, should it be necessary. However, OI does not 

have a role in determining the type of discipline, if any, to be imposed 

upon the employee, nor does OI have any role in helping to prevent 

misconduct in EPA’s workplace. We did not obtain data to verify that this 

process has been successful, but agree that enhanced communication 

among key stakeholders is important to addressing misconduct.

Internal Collaboration Can 

Help Agency Components 

Better Communicate about 

Misconduct Cases
Page 37 GAO-18-48 Federal Employee Misconduct

Most of our subject-matter experts told us an agency’s culture and the 

nature of its work play a significant role in how the agency addresses 

employee misconduct. For example, several subject-matter experts told 

us law enforcement and defense-related agencies or other particular jobs 

where injuries may occur or lives may be at risk often have significantly 

less tolerance for employee misconduct than other agencies. In addition, 

OPM officials said that according to MSPB past studies, if an agency 

views federal employee due process procedural rights as burdensome 

and restrictive, this may discourage supervisors from addressing 

misconduct as it occurs. An MSPB report addressed concerns that the 

culture in many federal agencies prevents them from effectively dealing 

with problem employees.61 Many of the subject-matter experts we 

interviewed indicated that if an agency’s culture is risk averse, it may be 

less aggressive in pursuing adverse actions, and instead either ignore 

misconduct or reassign an employee without holding him or her 

accountable for the misconduct.

The process for dismissing an employee for misconduct can be complex 

and lengthy. However, many of these process challenges can be avoided 

or mitigated with effective performance management. Supervisors who 

take performance management seriously and have the necessary training 

and support to address misconduct can help employees either change 

their conduct or be subject to removal from the federal workforce.

OPM has a role in ensuring that agencies have the tools and guidance 

they need to effectively address misconduct and maximize the 

productivity of their workforces. Though OPM already provides a variety 

of tools, guidance, and training to help agencies address issues related to 

misconduct, we found opportunities to do more to identify the nature of 

employee misconduct, improve training tools for managers, and make 

tools and guidance available for agencies when and where they need it.

 61Merit Systems Protection Board, The Changing Federal Workplace: Employee 

Perspectives (Washington, D.C.: March 1998).

An Agency’s Culture and 

Mission Can Impact How 

Agencies Approach and 

Respond to Misconduct

Conclusions
Page 38 GAO-18-48 Federal Employee Misconduct

We are making the following three recommendations to the Director of 

OPM:

• The Director of OPM, after consultation with the CHCO Council, 

should explore the feasibility of improving the quality of data on 

employee misconduct by providing additional guidance to agencies on 

how to record instances of misconduct in OPM’s databases. 

(Recommendation 1)

• The Director of OPM, after consultation with the CHCO Council, 

should broadly disseminate to agencies the promising practices and 

lessons learned, such as those described in this report, as well as 

work with agencies through such vehicles as the CHCO Council, to 

identify any additional practices. (Recommendation 2)

• The Director of OPM, after consultation with the CHCO Council, 

should provide guidance to agencies to enhance the training received 

by managers/supervisors and human capital staff to ensure that they 

have the guidance and technical assistance they need to effectively 

address misconduct and maximize the productivity of their workforces. 

(Recommendation 3)

We provided a draft of this product to the Acting Chairman of MSPB and 

Acting Director of OPM for comment. The Acting Chairman of MSPB

provided technical comments on the draft. We incorporated these 

comments, as appropriate. MSPB did not comment on the 

recommendations.

OPM’s Associate Director for Employee Services provided written 

comments on the draft, and these comments are reproduced in appendix 

III. In its comments, OPM noted that while we had made many of the 

changes OPM suggested, the changes still did not reflect all of OPM’s 

feedback, and also contained what it believed to be inaccurate 

information and incomplete representations of OPM’s views. To the 

contrary, we maintain that our report contains accurate factual information 

and represents the views of OPM that we collected through reviewing 

documents, interviewing OPM officials, and incorporating OPM’s written 

feedback. Of our three recommendations, OPM partially concurred with 

two recommendations, and did not concur with one recommendation. For 

those recommendations OPM partially concurred with, OPM described 

the steps it planned to take to implement them. We stand by our 

recommendations which we maintain would give OPM and Congress 

Recommendations for 

Executive Action:

Agency Comments 

and Our Evaluations
Page 39 GAO-18-48 Federal Employee Misconduct

better visibility over the extent and nature of employee misconduct in the 

federal government, as well as help strengthen agencies’ capacity to 

address misconduct.

With respect to OPM’s overall comments, OPM noted that Chapter 75 is a 

set of procedural requirements that must be met when certain actions are 

contemplated that would impact an employee’s pay, specifying that it was 

never intended to encompass or catalogue all forms of action an agency 

could take to address misconduct. On this issue, we agree with OPM on 

the purpose of Chapter 75 and noted as much in our description of the 

statutorily established guidelines and procedures throughout this report. 

OPM also noted that there is no general statutory definition of 

misconduct, and that managers need maximum flexibility to pursue 

adverse actions, whether the underlying impetus is a conduct issue, a 

failure to perform, or any other reasons related to federal employment. 

We also agree with OPM on this point, as our report makes clear that, in 

certain cases, employee performance and misconduct can overlap, 

conflating the two issues.

As indicated in this report, OPM believes a table of penalties creates 

additional conditions and restrictions on an agency’s ability to address 

misconduct and does not improve the agency’s ability to address 

misconduct effectively. Accordingly, OPM does not require or encourage 

agencies to adopt tables of penalties. Our report recognizes both the pros 

and cons of an agency having a table of penalties and the circumstances 

under which they could be effective. However, we believe the use of a 

table of penalties ensures the appropriateness and consistency of a 

penalty in relation to the charge. It also ensures merit system principles 

guide the process by providing penalty transparency, reducing arbitrary or 

capricious penalties, and serve as a guide for managers and supervisors 

who deal with these issues.

With respect to our recommendations, OPM did not concur with our first 

recommendation to explore the feasibility of improving the quality of data 

on employee misconduct by providing additional guidance to agencies on 

how to record instances of misconduct in OPM’s databases. Specifically, 

OPM noted that the OPM Guide to Processing Personnel Actions is a 

thorough resource that has been and continues to be successfully relied 

upon by agencies to document adverse actions as expressly defined in 

Chapter 75. We acknowledge OPM’s view that NOA codes were never 

intended or designed to allow reporting of adverse actions down to the 

degree of a particular kind of misconduct involved, but we maintain that 

our recommendation would increase confidence in the data on 
Page 40 GAO-18-48 Federal Employee Misconduct

misconduct and make it more useful to OPM and agencies. Further, 

OPM’s non-concurrence with this recommendation seems inconsistent 

with the Administration’s own initiatives, including the May 2018 

Executive Order Promoting Accountability and Streamlining Removal 

Procedures Consistent with Merit System Principles, which was released 

after OPM commented on our draft report.62 Specifically, the Executive 

Order requires all federal agencies, beginning in FY18, and for each fiscal 

year thereafter, to provide a report to the OPM Director containing 

detailed data about how it addressed issues of misconduct. For example, 

agencies will need to report out on

(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 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; and

(iii) 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.

We maintain that enhanced data on the extent and nature of misconduct 

will help strengthen OPM and congressional oversight and better position 

agencies to address misconduct through management training and other 

approaches.

OPM partially concurred with our second recommendation to broadly 

disseminate to agencies the promising practices and lessons learned, 

such as those described in this report, as well as work with agencies 

through such vehicles as the CHCO Council, to identify any additional 

practices to help agencies better address employee misconduct. Indeed, 

the President’s Management Agenda (PMA) for 2018 states, “Aligning 

and managing the Federal workforce of the 21st Century means 

spreading effective practices among human resources specialists.”63 In 

response to this recommendation, OPM noted that some of the key 

 62Executive Order 13839: Promoting Accountability and Streamlining Removal

Procedures Consistent with Merit System Principles (Washington, D.C.: May 25, 2018).

63The President’s Management Agenda 2018: Modernizing Government for the 21st 

Century (Washington, D.C.: March 20, 2018).
Page 41 GAO-18-48 Federal Employee Misconduct

practices and lessons discussed in this report are already part of OPM’s 

comprehensive accountability toolkit in addressing employee misconduct 

across the federal government and are frequently communicated through 

on-going educational outreach to federal agencies and available on 

OPM’s website. Specifically, OPM said it will decide which appropriate 

measures it should take to obtain examples of practices agencies believe 

are promising and will broadly disseminate any of these practices and 

lessons learned as identified by OPM. We acknowledge OPM’s existing 

efforts to develop and disseminate promising practices and lessons 

learned, and also maintain that OPM should also be open to considering 

additional practices from other sources.

OPM also partially concurred with our third recommendation to provide 

guidance to agencies to enhance the training received by 

managers/supervisors and human capital staff to ensure that they have 

the guidance and technical assistance they need to effectively address 

misconduct and maximize the productivity of their workforces. In its 

response, OPM said it will continue to play its statutory role under 5 

U.S.C. Chapter 41 and will support agencies on a cross-agency priority 

goal, which it believes could be read to encompass training, pursuant to 

the PMA, for example by providing guidance to agencies on training 

requirements for managers, supervisors and human resources staff. 

However, OPM notes that it is not responsible under current statute for 

providing training to the federal workforce. As stated in the report, while 

agencies are accountable for providing required training for their 

supervisors, OPM has a key role in ensuring the training meets the needs 

of supervisors. Further, OPM’s position on this recommendation seems 

inconsistent with the Administration’s own initiatives, including the May 

2018 Executive Order which states that “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,” following any final rules issued pursuant to parameters set in the 

Order. Indeed, the PMA states, “In order to best leverage the workforce to 

achieve our mission efficiently and effectively, Government needs to 

remove employees with the worst performance and conduct violations.”

By taking steps to help agencies improve the training they provide 

supervisors and managers on addressing misconduct, OPM could help 

those managers ensure they have the knowledge and skills to effectively 

deal with misconduct in the workplace.

OPM also provided technical comments, which we have incorporated as 

appropriate.
Page 42 GAO-18-48 Federal Employee Misconduct

As agreed with your office, unless you publicly announce the contents of 

this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies to the Director of the Office 

of Personnel Management, the Chairman of the Merit Systems Protection 

Board, as well as to the appropriate congressional committees and other 

interested parties. In addition, the report will be available at no charge on 

the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report please contact 

me at (202) 512-2757 or goldenkoffr@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on 

the last page of this report. GAO staff who made key contributions to this 

report are listed in appendix IV.

Robert Goldenkoff

Director

Strategic Issues
Appendix I: Objectives, Scope, and 

Methodology

Page 43 GAO-18-48 Federal Employee Misconduct

You asked us to examine the process for addressing misconduct and to 

identify any challenges in removing employees for misconduct. Our 

objectives were to (1) describe the process that agencies are generally 

required to follow in responding to employee misconduct in the federal 

service; (2) identify alternative approaches to the formal legal process 

that agencies can use to respond to misconduct, and assess what factors 

affect agencies’ responses; (3) describe trends in removals and other 

adverse actions resulting from misconduct; and (4) identify key steps 

agencies can take to help them better prevent and address misconduct.

To describe the process that most agencies are generally required to 

follow in responding to employee misconduct in the federal service, we 

reviewed relevant sections of Title 5 Chapter 75 of the U.S.C. (herein 

Chapter 75) which contains the statutory process for formally disciplining 

employees for misconduct and performance.1 We also reviewed the Civil 

Service Reform Act and OPM regulations to describe and determine the 

authority agencies have to address employee misconduct in the federal 

service, including formal procedural and employee appeal rights.2

Additionally, we reviewed 5.U.S.C. §§ 7701 and 7702 (herein Chapter 

77), which contains the statutory process for employee appeals with the 

Merit Systems Protection Board (MSPB) subsequent appeals to the Equal 

Employment Opportunity Commission (EEOC).3 To contextualize our 

review of Chapters 75 and 77, we interviewed current and former 

practitioners, subject-matter experts, and academics. We selected our 

subject-matter experts based on our guidance for selecting experts, 

including their depth of experience on this issue and their present and 

past employment history, the subject-matter experts’ practical experience 

in applying and practicing administrative law related to employee 

misconduct, and academicians who have conducted research on 

employee misconduct.

To identify the time it takes to resolve appeals by employees of adverse 

actions, we analyzed MSPB appeals data. Specifically, we counted the 

appeals for each type of adverse action from 2006-2016, by year and in 

aggregate, calculated the average number of days that it took the MSPB 

to resolve cases for initial appeals and for petitions for review (PFRs), and 

 1

5 U.S.C. §§ 7501-7514.

2

OPM regulations implementing Chapter 75 are found in 5 C.F.R. subpart D of part 752.

3

5 U.S.C. § 7701(a)-(b); 5 U.S.C. § 7702(b).

Appendix I: Objectives, Scope, and 

Methodology
Appendix I: Objectives, Scope, and 

Methodology

Page 44 GAO-18-48 Federal Employee Misconduct

counted the outcomes of the cases from 2006-2016, by year and in 

aggregate (e.g. out of the total number of cases, how many were 

reversed, upheld, mitigated, or settled). For the purpose of our analysis, 

we used the following nature of action (NOA) code categories in OPM’s 

EHRI database: (1) codes directly attributed to misconduct; and (2) codes 

that indicate a mix of misconduct or poor performance. Based on data 

limitations in both databases, we did not make any evaluative 

assessments from our data analysis.

To identify alternative approaches to the formal legal process, we 

reviewed documentation provided by the Merit System Protection Board 

(MSPB) on alternative discipline approaches used by agencies to address 

employee misconduct. We also reviewed OPM regulations and 

documents to determine the authority agencies have to address 

employee misconduct in the federal service, including formal procedural 

and employee appeal rights. We interviewed current and former 

practitioners, subject-matter experts, and academics to identify alternative 

approaches that they were aware of or were commonly used at agencies 

to address employee misconduct.

To develop our list of alternative discipline approaches to addressing 

employee misconduct, we conducted a literature review and reviewed 

reports and documents to identify alternative discipline approaches 

commonly used to address employee misconduct in the federal sector. 

After compiling our non-exhaustive list of alternative approaches, we 

contacted our previously interviewed subject-matter experts and asked 

them to provide their final thoughts or suggestions to our alternative 

discipline approaches. We included those additional approaches to the 

list. We interviewed human capital experts from academia, unions, and 

former and current human resources practitioners. We also interviewed a 

panel of CHCOs to gain insight into the agency perspective on 

addressing employee misconduct. To identify CHCO members, we asked 

the Director of the CHCO council to select CHCOs that have knowledge 

and experience in addressing employee misconduct. Agency size and 

mission were also considered as part of the selection process to gain a 

range of perspectives. Our panel of CHCOs was from the Departments of 

Commerce, Defense, and Housing and Urban Development, the National 

Science Foundation, and the Nuclear Regulatory Commission. We also 

reviewed prior work by MSPB in developing our list of commonly used 

alternative discipline approaches to employee misconduct in the federal 

sector.
Appendix I: Objectives, Scope, and 

Methodology

Page 45 GAO-18-48 Federal Employee Misconduct

To describe and assess the factors that can affect an agency’s response 

to employee misconduct, we interviewed:

• OPM officials and representatives from Employee Services, Human 

Resources Solutions, Planning and Policy Analysis, and the Office of 

the Chief Information Officer

• MSPB officials from the Office of the acting Chairman & Vice 

Chairman, Office of Information Resources Management, and the 

Office of Policy & Evaluation;

• Panel of Chief Human Capital Officers (CHCO)

• National Treasury Employees Union officials;

• American Federation of Government Employees officials;

• Federal Managers Association officials;

• Individual members of the Federal Employees Lawyers Group;

• Partnership for Public Service officials;

• Senior Executives Association officials; and

• Selected individuals with expertise in human capital management, 

specifically focused on employee misconduct, from academia and the 

private sector.

We selected our list of interviewees based on GAO’s guidance for 

selecting experts, the interviewees’ practical experience in applying and 

practicing administrative law, and for academics in their specific areas of 

research. To assess the factors that agencies use to deal with employee 

misconduct, we analyzed the interviewee responses and identified key 

themes that were common throughout our interviews and, we counted the 

frequency of those key themes.

To describe the trends in removals and adverse actions resulting from 

misconduct at Chief Financial Officer (CFO) Act agencies, we analyzed 

OPM’s Enterprise Human Resource Integration (EHRI) data from fiscal 
Appendix I: Objectives, Scope, and 

Methodology

Page 46 GAO-18-48 Federal Employee Misconduct

years 2006 to 2016.4 In OPM’s EHRI database, personnel actions, such 

as separations, demotions, and suspensions, are assigned nature of 

action (NOA) and legal authority codes that describe the action and the 

legal or regulatory authority for the action. Some of these codes comingled performance and misconduct as causes for the personnel action. 

In these cases, we counted the action as misconduct-related to capture 

the potential magnitude of personnel actions taken for misconduct. Thus, 

some cases may instead be exclusively related to poor performance or 

reflect both issues. We reviewed OPM’s “The Guide to Processing 

Personnel Actions” to determine which NOA/legal authority combinations 

could cover misconduct-related actions. We worked with OPM officials to 

determine the appropriate NOA codes and legal authorities that indicate 

misconduct.

Specifically, we analyzed OPM’s EHRI data to count the adverse actions 

that agencies take against employees, government-wide.5 For this draft 

report, the term “adverse action” refers to personnel actions listed under 5 

U.S.C. chapter 75 which includes demotions in grade or pay, 

suspensions, and removals.6

To determine the trends in the number of adverse actions at agencies 

associated with probationary employees, we identified the number of 

removals at these agencies. While direct comparisons to the total 

employee population are not appropriate, we identified the number of 

 4

The 24 CFO Act agencies are listed at 31 U.S.C. § 901(b) and include: U.S. Departments 

of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, 

Homeland Security, Housing and Urban Development, the Interior, Justice, Labor, 

Transportation, the Treasury, Veterans Affairs, and State, as well as the U.S. Agency for 

International Development, Environmental Protection Agency, General Services 

Administration, National Aeronautics and Space Administration, National Science 

Foundation, Nuclear Regulatory Commission, Office of Personnel Management, Small 

Business Administration, and the Social Security Administration. These agencies account 

for a very high proportion of the total federal labor force.

5

For reporting purposes, we only provide data on the number of adverse actions rather 

than use the number of employees subject to an adverse action, because one employee 

may be subject to more than one adverse action. This can be a result of progressive 

discipline or could indicate issues related to data reliability. As part of our analysis, we 

identified all employees subject to each type of adverse action (removal, suspension, and 

demotion) and quantified the number of similar adverse actions taken against the same 

person. 

6

5 U.S.C. §§ 7502 and 7512.
Appendix I: Objectives, Scope, and 

Methodology

Page 47 GAO-18-48 Federal Employee Misconduct

probationary employees to provide some relative statistics.7 To show 

trends in misconduct removals associated with probationary employees, 

we identified the number of adverse actions taken against probationary 

employees (overall and by type of action).

To determine the trends in employee appeals to MSPB, we analyzed 

MSPB’s appeals data, on adverse actions taken under Chapter 75 from 

fiscal years 2006 to 2016. To understand what types of adverse actions 

are driving appeals to MSPB, we calculated the underlying adverse action 

for each case by fiscal year of appeal filing.8 To determine how appeals 

were resolved by MSPB, we identified the number of appeals that were 

settled, mitigated, dismissed, reversed, affirmed, or otherwise resolved. 

We calculated overall trends by fiscal year as well as trends by fiscal year 

for each type of underlying adverse action. To determine how long the 

appeals process takes, we calculated the mean time for resolution along 

with other statistics (minimum, maximum, 25th percentile, 75th percentile) 

for different types of adverse action. Additionally, because appellants can 

file a Petition for Review (PFR) to the larger MSPB body, we looked at the 

time for the initial appeal, the PFR, and the total time from filing through 

final decision.

To assess the reliability of both EHRI and MSPB data, we reviewed past 

GAO data reliability assessments, interviewed relevant agency officials, 

and conducted electronic testing to evaluate the accuracy and 

completeness of the data used in our analyses. We determined the data 

used in this report to be sufficiently reliable for our purposes, subject to 

the constraints identified in our report.

To identify and provide key promising practices and lessons learned at 

agencies from encountering and responding to employee misconduct, we 

conducted a literature review to identify practices and lessons learned 

associated with employee misconduct in the federal sector. We 

interviewed officials from OPM, MSPB, the Equal Employment 

Opportunity Commission (EEOC), and the Office of Special Counsel 

(OSC), to obtain their perspectives on responding to employee 

 7

Due to fluctuations in employment, it is GAO’s policy to compute a 2-year average level 

of employment.

8

Some people file several appeals related to the same adverse action. To avoid overcounting the underlying adverse action, we deleted all but the first case (identified as 

having the same case family key and case key) in this table. We do not do this for the 

other tables, because outcomes may vary for each appeal.
Appendix I: Objectives, Scope, and 

Methodology

Page 48 GAO-18-48 Federal Employee Misconduct

misconduct through alternative approaches. We interviewed officials from 

the Environmental Protection Agency (EPA) to obtain their perspectives 

on recent efforts to better coordinate with their Inspector General to 

address cases of employee misconduct. 9 We also obtained the 

perspectives of a panel of CHCOs from selected agencies as well as 

former human capital practitioners and other subject-matter experts with 

extensive experience working on employee misconduct issues.

 9

We met with EPA officials because of the agency’s relatively unique process for 

addressing employee misconduct. 
Appendix II: Douglas Factors –12 Criteria 

Developed by the MSPB to Guide Agency 

Decisions on Employee Misconduct

Page 49 GAO-18-48 Federal Employee Misconduct

The Merit Systems Protection Board in its landmark decision, Douglas vs. 

Veterans Administration, 5 M.S.P.R. 280 (1981), established nonexclusive criteria that supervisors must consider, as appropriate, in 

determining an appropriate penalty to impose for an act of employee 

misconduct (“The Douglas Factors”). The following relevant factors must 

be considered in determining the severity of the discipline:

1. The nature and seriousness of the offense, and its relation to the 

employee’s duties, position, and responsibilities, including whether the 

offense was intentional or technical or inadvertent, or was committed 

maliciously or for gain, or was frequently repeated;

2. the employee’s job level and type of employment, including 

supervisory or fiduciary role, contacts with the public, and prominence 

of the position;

3. the employee’s past disciplinary record;

4. the employee’s past work record, including length of service, 

performance on the job, ability to get along with fellow workers, and 

dependability;

5. the effect of the offense upon the employee’s ability to perform at a 

satisfactory level and its effect upon supervisors’ confidence in the 

employee’s work ability to perform assigned duties;

6. consistency of the penalty with those imposed upon other employees 

for the same or similar offenses;

7. consistency of the penalty with any applicable agency table of 

penalties;

8. the notoriety of the offense or its impact upon the reputation of the 

agency;

9. the clarity with which the employee was on notice of any rules that 

were violated in committing the offense, or had been warned about 

the conduct in question;

10. the potential for the employee’s rehabilitation;

11. mitigating circumstances surrounding the offense such as unusual job 

tensions, personality problems, mental impairment, harassment, or 

bad faith, malice or provocation on the part of others involved in the 

matter; and

12. the adequacy and effectiveness of alternative sanctions to deter such 

conduct in the future by the employee or others. The list was not 

intended to be exhaustive.

Appendix II: Douglas Factors –12 Criteria 

Developed by the MSPB to Guide Agency 

Decisions on Employee Misconduct
Appendix III: Comments from the Office of Personnel 

Management

Page 50 GAO-18-48 Federal Employee Misconduct

Appendix III: Comments from the Office of 

Personnel Management
Appendix III: Comments from the Office of Personnel 

Management

Page 51 GAO-18-48 Federal Employee Misconduct
Appendix III: Comments from the Office of Personnel 

Management

Page 52 GAO-18-48 Federal Employee Misconduct
Appendix III: Comments from the Office of Personnel 

Management

Page 53 GAO-18-48 Federal Employee Misconduct
Appendix III: Comments from the Office of Personnel 

Management

Page 54 GAO-18-48 Federal Employee Misconduct
Appendix III: Comments from the Office of Personnel 

Management

Page 55 GAO-18-48 Federal Employee Misconduct
Appendix III: Comments from the Office of Personnel 

Management

Page 56 GAO-18-48 Federal Employee Misconduct
Appendix IV: GAO Contact and Staff Acknowledgments

Page 57 GAO-18-48 Federal Employee Misconduct

Robert Goldenkoff, (202) 512-2757 or goldenkoffr@gao.gov.

In addition to the contact named above, Tom Gilbert, Assistant Director, 

and Anthony Patterson, Analyst-in-Charge, supervised the development 

of this report. Isabel Band, Crystal Bernard, Jehan Chase, Sara Daleski, 

Shirley Jones, Serena Lo, Krista Loose, Amanda Miller, and Kayla

Robinson made major contributions to all aspects of this report. Robert 

Gebhart and Robert Robinson provided additional assistance.

Appendix IV: GAO Contact and Staff 

Acknowledgments

GAO Contact:

Staff 

Acknowledgments:

(101023)
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