Merit Systems Protection Board: Mission Performance, Employee Protections, and Working Environment
Published: 1995-08-15T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Pursuant to a congressional request, GAO examined the Merit Systems Protection Board's (MSPB) performance, management, and operations, focusing on: (1) whether the MSPB appeals process is effectively protecting federal employees against improper personnel practices; (2) the accountability mechanisms MSPB has in place to provide its employees with merit system protections; and (3) the actions MSPB has taken to foster an environment of trust, respect, and fairness.
section_title: What GAO Found
paragraphs: GAO found that: (1) the practitioner groups surveyed generally felt that MSPB has been fair in processing employee appeals of agency personnel actions and MSPB is accomplishing its statutory mission; (2) during the 4-year period ending September 1994, 91 percent of the final MSPB decisions appealed to the U.S. Court of Appeals were upheld; (3) MSPB regional offices met their 120-day case processing guideline 96 percent of the time during the same period, while MSPB headquarters met its 110-day guideline 61 percent of the time; (4) the differences in the timeliness in processing appeals has been due to the complexity of headquarters' cases; (5) MSPB has established accountability mechanisms and an equal employment opportunity (EEO) policy to protect its employees against workplace discrimination, mismanagement, abuse, and improper personnel practices; (6) two-fifths of MSPB employees surveyed said they would be reluctant to become involved in the processing of EEO complaints; and (7) although MSPB has taken a variety of actions to foster an environment of trust, respect, and fairness, only 29 percent of survey respondents felt that MSPB has been successful.

section_title: Letter
paragraphs: This report responds to your request that we examine certain aspects of the Merit Systems Protection Board’s (MSPB) performance, management, and operations in light of the critical role it plays as a protector of the federal merit employment system. Specifically, you asked us to: assess whether MSPB, through its appeals process, is accomplishing its statutory mission to protect federal employees against prohibited personnel practices and abusive personnel decisions and whether MSPB is abiding by its own guidelines in determining these cases in a fair and timely manner; determine what accountability mechanisms MSPB has in place to provide its employees the merit system protections that MSPB was created to uphold; and identify what actions MSPB has taken, and the extent to which it has been successful, in fostering “an environment of trust, respect, and fairness,” as called for in its 1992 vision statement pledge to “promote and protect, by deed and example,” federal merit employment principles.
Your request noted that effective oversight of MSPB is particularly important and that confirmation of MSPB’s current chairman (sworn in on July 2, 1993) made it a good time for our examination of MSPB to take place. However, because the current chairman had only recently taken office when our work began in November 1993, the data we collected necessarily covered both the early part of his tenure and the latter part of his predecessor’s.
subsections: section_title: Background
paragraphs: MSPB is an independent, quasijudicial executive agency created by the Civil Service Reform Act of 1978. Its mission is to ensure that (1) federal employees are protected against abuses by their agencies’ management, (2) executive branch agencies make employment decisions in accordance with merit system principles, and (3) federal merit systems are kept free of prohibited personnel practices.
In large part, MSPB is to pursue its mission by hearing and deciding appeals by federal employees of actions taken against them by their agencies. Initially, an employee files his or her appeal at one of MSPB’s regional or field offices. The appeal is then to be heard and decided by an administrative judge. The decision becomes final in 35 days unless one of the parties to the appeal files a petition for review to the board members or MSPB reopens the appeal on its own motion. In such cases, the petition for review is to be processed at MSPB headquarters. The board members’ decision constitutes the final administrative action unless the appeal involves allegations of discrimination, in which case the Equal Employment Opportunity Commission may become involved. An employee who is dissatisfied with the board members’ final decision may appeal it to the U.S. Court of Appeals for the Federal Circuit or, if allegations of discrimination are involved, bring the case before a U.S. district court.
MSPB’s three-member bipartisan Board consists of a chairman, a vice chairman, and a member, all of whom are appointed by the president with the advice and consent of the Senate to serve overlapping, nonrenewable 7-year terms.
MSPB’s fiscal year 1994 appropriation was $24.7 million. As of the end of fiscal year 1994, it had 289 employees. Under Public Law 103-424, signed by the president on October 29, 1994, MSPB was reauthorized for a period of 3 years.
section_title: Scope and Methodology
paragraphs: To assess whether MSPB is accomplishing its statutory mission through the appeals process in a fair and timely manner, we developed a mail questionnaire to obtain the views of practitioners who had represented federal employees or agencies before MSPB during the 2-year period ending September 1993 (see app. I). The results of our survey can be projected to the populations from which the survey respondents were selected. We analyzed MSPB’s case processing performance reports to determine whether MSPB met its case processing guidelines at the regional and headquarters levels in fiscal years 1991 through 1994. Additionally, we analyzed data on the extent to which MSPB’s final decisions were appealed to the U.S. Court of Appeals for the Federal Circuit and the court’s disposition of these appeals.
To determine what accountability mechanisms MSPB had in place to provide its employees the merit system protections that MSPB was created to uphold, we reviewed the agency’s EEO and internal oversight activities designed to protect its employees against workplace discrimination, mismanagement, abuse, and improper personnel practices. In doing so, we reviewed MSPB’s EEO policy, procedures, and processes and compared its provisions for internal oversight to those of 10 other federal entities that are roughly comparable to MSPB in budget and staff size. Further, we developed and mailed a questionnaire to all MSPB employees as of May 12, 1994, asking for their views on selected aspects of the agency’s EEO operations and internal oversight activities (see app. II).
To determine what actions MSPB had taken to foster a work environment that is based on trust, respect, and fairness, we interviewed MSPB’s Chief Operating Officer, EEO director, and members of a task force charged with proposing actions for implementing MSPB’s 1992 vision statement. Further, our MSPB employee questionnaire asked employees for their views on how successful their agencies had been in fostering such an environment (see app. II). We compared MSPB employees’ views of their work environment to those reported by federal employees in a 1992 OPM governmentwide survey.
More information on our scope and methodology is presented in appendix III.
MSPB’s chairman provided us written comments on a draft of this report by letter dated July 14, 1995. A summary of his comments is presented on page 19, and they are reprinted in their entirety in appendix VI.
We did our review between November 1993 and January 1995. It was done in the Washington, D.C., area in accordance with generally accepted government auditing standards.
section_title: MSPB Is Generally Accomplishing Its Statutory Mission
paragraphs: In each of the practitioner groups we surveyed, the percentage of respondents who expressed the opinion that MSPB has been successful in accomplishing its mission was higher than the percentage who indicated that it has not been successful. As shown in table 1, the percentages varied among the practitioner groups. For example, the responses from agency general counsels were the most favorable: 89 percent of the general counsels responding to our survey believed MSPB has been very or generally successful in accomplishing its mission; none of these respondents believed MSPB has been very or generally unsuccessful. By comparison, the responses from union officials were the least favorable: 45 percent of the union officials expressing an opinion indicated that MSPB has been very or generally successful in accomplishing its mission, while 23 percent indicated that it has been very or generally unsuccessful.
The responses from the practitioner groups reflect a general view that MSPB has been fair in processing federal employee appeals at the regional and headquarters levels. As shown in table 2, the percentage of respondents who indicated that MSPB’s appellate process at the regional level was almost always or generally fair ranged from a high of 93 percent among agency general counsels to a low of 59 percent among union officials. The percentage of respondents who viewed the process at the regional level as very or generally unfair ranged from a low of 0 percent among agency general counsels and employee and labor-management relations representatives to a high of 26 percent among union officials.
As for the fairness of MSPB’s appellate process at the headquarters level, table 3 shows that the percentage of respondents indicating that the process was almost always or generally fair ranged from a high of 95 percent among employee and labor-management relations representatives to a low of 46 percent among private attorneys. The percentage of respondents indicating that the appellate process at the headquarters level was very or generally unfair ranged from a low of 0 percent among agency general counsels to a high of 29 percent among private attorneys.
Another measure of MSPB’s fairness in processing employee appeals is the rate at which the U.S. Court of Appeals for the Federal Circuit has affirmed MSPB’s final decisions. As shown in table 4, during the 4-year period ending September 1994, 1,422 MSPB final decisions were appealed to the court and adjudicated on the merits. Of that amount, 1,287 cases (91 percent) were affirmed, while 116 cases (8 percent) were either reversed (3 percent) or remanded (5 percent) to MSPB for further processing.
According to a recognized expert on the administrative redress system for federal employees, the affirmation rate of MSPB’s decisions by the U.S. Court of Appeals for the Federal Circuit is much higher than the rate at which other federal circuits affirm the decisions of other federal administrative tribunals.
Guidelines for the length of time MSPB should take to process cases differ at the regional and headquarters levels. Guidelines at the regional level stipulate that cases be processed in no more than 120 days. This guideline was imposed by MSPB itself and is identical to the time limit in the statute (5 U.S.C. 7702(a)(1)) requiring MSPB to decide appeals that involve allegations of discrimination within 120 days of the filing of the appeal. At the headquarters level, cases are to be processed within 110 days. This guideline also is self-imposed; the chairman explained that the 110-day guideline at the headquarters level represents a goal to strive toward rather than a hard and fast requirement for processing petitions for review (PFR). Further, MSPB’s written policy states that “it will attempt to complete action on petitions for review of initial decisions within 110 days.”
Over the 4-year period ending September 1994, the regional offices took an average of 78 days to process initial employee appeals and almost always met their 120-day case processing guideline. Most survey respondents were either very satisfied or generally satisfied with the actual amount of time MSPB took to process cases at the regional level (see app. I, question 22). Satisfaction with actual processing time ranged from 87 percent for employee and labor-management relations representatives to 67 percent for agency general counsels. Dissatisfaction with processing time among the five practitioner groups ranged from a high of 18 percent for agency general counsels to a low of 7 percent for agency attorneys and representatives. As shown in table 5, of the initial appeals processed at the regional office level in fiscal years 1991 through 1994, 3 percent, on average, were not processed within the 120-day guideline.
During the same 4-year period, headquarters took an average of 170 days to process PFR cases. Although headquarters met its guideline less often than the regional offices met theirs, its processing time had been improving until fiscal year 1994. Most survey respondents were very or generally satisfied with the actual processing time at headquarters (see app. I, question 26). Satisfaction with actual processing time ranged from 68 percent for the agency attorneys and representatives to 44 percent for agency general counsels. Dissatisfaction among the five practitioner groups with actual processing time at the headquarters level ranged from a high of 31 percent for private attorneys and agency general counsels to a low of 20 percent for agency attorneys and representatives. As shown in table 6, the percentage of PFR cases processed within the 110-day guideline at the headquarters level over the 4-year period steadily increased from 52 percent in fiscal year 1991 to 78 percent in fiscal year 1993, but it dropped to 61 percent in fiscal year 1994.
According to an MSPB headquarters official, the decline during 1994 in the percentage of PFR cases decided within 110 days was caused by an increase in workload due to Postal Service reorganization cases. Also, the chairman cited two additional reasons for the drop in the fiscal year 1994 PFR processing time: a conscious effort by headquarters to reduce the backlog of PFR cases over 1 year old and a decrease in staff occurring simultaneously with an increase in PFR caseload.
In explaining the generally longer headquarters processing times, an MSPB official cited the complexity of cases reaching the PFR stage and the fact that individual cases may have been kept pending for various reasons, such as related cases being held to allow MSPB to decide a lead case. Also, cases have been held because they involved issues under consideration by the courts or because the contending parties failed to provide necessary information within the 110-day period. Further, according to the MSPB official, complex cases occasionally take more than 110 days because they require more time for research, analysis, and drafting, and for a majority of the board members to agree on a decision.
MSPB recently expanded its commitment to improving the appellate process by further encouraging the settlement of appeals. In June 1994, in accordance with National Performance Review (NPR) recommendations encouraging the use of alternative dispute resolution techniques, MSPB established a program to help parties resolve their disputes at the PFR level. From June 1994 through the end of September 1994, MSPB headquarters settlement attorneys attempted to settle 52 cases and succeeded in settling 17 cases—a success rate of 33 percent. MSPB is considering doing a comprehensive assessment of the PFR settlement program after more time has passed.
section_title: MSPB Has EEO and Internal Oversight Processes to Protect Its Employees, but Some Employees Expressed Concerns About Participating in These Processes
paragraphs: MSPB has established accountability mechanisms in the form of policies, procedures, and processes to protect its employees against workplace discrimination, mismanagement, abuse, and improper personnel practices. MSPB has established an EEO policy and has taken various actions to implement it. The agency also has established new internal oversight arrangements in lieu of the nonstatutory OIG it abolished in February 1994. Despite these actions, a substantial number of employees expressed concerns about participating in the processes for handling EEO complaints and for reporting allegations of wrongdoing.
subsections: section_title: MSPB’s EEO Policy and Its Implementation
paragraphs: MSPB’s EEO policy is to provide equal opportunity to all persons and to prohibit discrimination because of race, color, sex, age, religion, national origin, or handicapping condition. In addition, its written policy prohibits reprisals against individuals who file a discrimination complaint; testify, assist, or participate in any manner in an investigation, proceeding, or hearing; or oppose a practice prohibited by Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act, or the Rehabilitation Act. To facilitate implementation of its EEO policy, MSPB has (1) provided EEO training opportunities to supervisors, managers, and EEO staff; (2) evaluated supervisors and managers and rewarded some for their EEO performance; and (3) taken steps to inform employees about the EEO complaint process and their rights under it.
MSPB’s EEO manual, distributed in April 1994, states that “as part of its commitment to equal opportunity in all management actions and decisions, training will be given to managers, supervisors and other personnel as a way of furthering EEO objectives.” According to an MSPB official, all office directors, managers, and supervisors are responsible for identifying and obtaining the necessary EEO training for themselves, and the EEO director is responsible for ensuring that EEO counselors are knowledgeable of current federal EEO rules and regulations. MSPB training data provided to us showed that during the 2-year period ending September 1993, MSPB managers and supervisors were provided opportunities for training and were encouraged to attend various internal and external EEO training courses. The MSPB training data also showed that 10 of MSPB’s 21 EEO staff, which consists of 2 full-time staff and 19 collateral-duty staff (mostly EEO counselors) received some type of EEO training during the 2-year period.
In November 1993, the chairman informed MSPB employees of his strong commitment to diversity and equitable treatment in the workplace. To demonstrate his commitment, he established a new performance element under which to review and evaluate employees’ performance in valuing and respecting diversity in the workplace. An MSPB official told us that top management takes its commitment to EEO very seriously, as demonstrated by the fact that only one MSPB manager has received an outstanding rating under the new performance element. MSPB’s senior executives and other managers and supervisory employees are also evaluated on their adherence to EEO and affirmative action principles under the performance element on human resources management.
To reward EEO performance, MSPB established the Chairman’s Award for Excellence in EEO. An employee is eligible for this award under eight criteria, one of them being whether his or her leadership in achieving EEO goals and objectives serves as a model for others. Since October 1990, three MSPB employees have received the award—one manager and one nonsupervisory employee in January 1992 and another manager in November 1994.
MSPB’s EEO director told us that MSPB has taken various actions to communicate MSPB’s EEO policy, program, and complaint process to employees and to make them aware of their EEO rights. For example, offices and employees were provided information on the names and locations of the agency’s EEO counselors and special emphasis program managers and on the circumstances under which EEO counseling should be sought. Also, in April 1994, MSPB’s EEO manual was distributed to all MSPB offices for their employees’ reference and use. As shown in table 7, most of the survey respondents indicated that they had received or seen posted information that described MSPB’s EEO program, their EEO rights, and procedures for contacting MSPB’s EEO counselors; less than one-half of the respondents indicated that they had received or seen posted information that described the details of the EEO complaint process.
section_title: New Internal Oversight Policies and Procedures Recently Implemented
paragraphs: MSPB abolished its nonstatutory OIG in February 1994 because of concerns about its effectiveness and efficiency and in accordance with NPR’s governmentwide goal of streamlining agency operations. Since then, MSPB has assigned the former OIG’s internal oversight functions to its OGC. Also, to provide its employees with an avenue for reporting their concerns should they become aware of mismanagement, abuse, or improper personnel practices, MSPB has entered into an oral agreement with USDA’s Inspector General for hotline and investigative services.
MSPB’s OGC is responsible for planning and directing internal audits of MSPB’s programs and operations. However, OGC is to contract for the actual performance of the audits, either with other agencies through interagency agreements or with private firms. MSPB has contracted with a certified public accounting firm to help develop a 5-year audit plan and to establish procedures for handling the agency’s internal oversight functions. OGC also is responsible for arranging, as necessary, for investigations into allegations of wrongdoing and for coordinating the hotline and investigative services provided by USDA’s Inspector General. Any complaints or allegations received by USDA’s Inspector General hotline are to be forwarded to MSPB’s OGC for appropriate action. USDA’s Inspector General has agreed to provide investigative services to MSPB on an as-needed basis. As of November 1994, USDA’s OIG hotline had received two allegations; both allegations involved complaints about MSPB appellate decisions rather than instances of mismanagement, abuse, or improper personnel practices.
We found that by placing its oversight functions in a staff office in lieu of an OIG, MSPB is administering these functions in a manner comparable to those of 10 other federal entities we studied of roughly comparable budget and staff size (see app. IV). Like MSPB, 8 of the 10 federal entities we studied do not have their own audit or investigative offices but obtain audit or investigative services through contracts with private firms or agreements with other agencies’ OIGs. Such arrangements do not ensure the same level of objectivity or independence as do statutory inspector general offices. However, if MSPB’s arrangements are implemented as planned, MSPB should be able to comply with federal audit requirements set by the Office of Management and Budget and with investigative requirements set by the President’s Council on Integrity and Efficiency. Since MSPB’s arrangements are new, data on usage and results are not yet available, and it is too early to assess their effectiveness in ensuring that MSPB employees are provided an avenue for reporting their concerns should they become aware of mismanagement, abuse, or improper personnel practices.
Despite the provisions MSPB has made to protect its employees against workplace discrimination, mismanagement, abuse, and improper personnel practices, a sizeable portion of survey respondents indicated concerns about becoming involved in the processes established for handling EEO complaints and for reporting wrongdoing. About 40 percent of the respondents indicated they would be either uncertain about or unwilling to participate in EEO counseling or to file a formal EEO complaint if they felt they had been discriminated against; the most common reason was fear of reprisal (see app. II, questions 19 through 22). Fifty-one percent of the survey respondents indicated they would be either uncertain about or unwilling to report waste, fraud, abuse, or mismanagement of which they became aware; the most common reasons were a concern over maintaining anonymity and a fear of retaliation (see app. II, questions 24 and 25).
section_title: Most Employees Described the MSPB Workplace as Impartial, but Perceptions Varied Among Groups
paragraphs: As shown in figure 1, nearly two-thirds of the MSPB employees responding to our survey described the work environment as impartial. Nearly one-fourth of the respondents described it as discriminatory.
More female (29 percent) than male (16 percent) employees and more minority (45 percent) than nonminority (18 percent) employees described their work environment as discriminatory (see figure V.1 in app. V). Overall, most survey respondents believed that they had been treated fairly regarding various employment and personnel decisions, such as job assignments and promotions (see table V.1 in app. V). However, more women, minorities, and nonattorneys believed they had been treated unfairly regarding such decisions (see tables V.2 through V.4 in app. V). Sixty-nine (29 percent) of the MSPB employees responding to our survey suggested various actions for MSPB top management to take to further promote an impartial work environment. Employees’ suggestions generally related to promoting more diversity in management; treating everyone fairly; making promotion and hiring decisions only on the basis of merit and not on such factors as race, gender, or political affiliation; and providing counseling and training to supervisors who are repeatedly the subject of EEO complaints.
Regarding actual numbers of EEO cases, our analysis of MSPB data on the EEO complaint process showed that during the 5-year period ending September 1994, 34 employees received EEO counseling, and 10 employees filed a total of 21 formal EEO complaints. We have no basis on which to infer from these numbers the extent to which MSPB has been effective in establishing a fair and impartial workplace.
We recognize that the responses of MSPB employees to our survey represent perceptions rather than proven instances of discrimination or indicators of wrongdoing going unreported. Nevertheless, we believe the fact that, overall, 24 percent of MSPB employees view their workplace as discriminatory, and that 45 percent of the agency’s minority employees concur, should be of concern to the agency because of (1) its role as protector of the merit system; and (2) the standard it set for itself in its 1992 vision statement, “To promote and protect, by deed and example, the Federal merit principles in an environment of trust, respect and fairness.” We believe that in light of MSPB’s mission and the standard adopted in its vision statement, it is important that MSPB’s own employees feel confident that they are fairly treated regardless of their race, religion, color, sex, national origin, political affiliation, marital status, disability, or age.
section_title: Employees’ Perceptions Varied Regarding MSPB’s Efforts to Foster an Environment of Trust, Respect, and Fairness
paragraphs: In November 1992, MSPB announced as its vision, “To promote and protect, by deed and example, the Federal merit principles in an environment of trust, respect and fairness.” Although the vision statement was developed and adopted prior to the current chairman’s appointment, he supports it, according to MSPB officials. MSPB officials said that several actions have been taken to foster “an environment of trust, respect, and fairness.” These actions have included the institution of a new performance element for valuing and respecting diversity in the workplace, various efforts to improve internal communication, and the involvement of employees in the decisionmaking process. Examples of these efforts include (1) featuring articles in MSPB’s internal newsletter, News of Merit, that highlight various agency events; (2) cross-training employees within MSPB offices; (3) allowing employees to select award recipients; and (4) involving employees in the process for reengineering and reorganizing MSPB in response to NPR recommendations on streamlining agencies and empowering employees.
Twenty-nine percent of survey respondents expressed the belief that MSPB has been very successful or generally successful in fostering an environment of trust, respect, and fairness. But 39 percent, of whom disproportionate numbers were headquarters, women, and minority employees, expressed the belief that the agency has been generally unsuccessful or very unsuccessful. Respondents’ perceptions of MSPB’s success varied by duty station, gender, and minority or nonminority status (see figs. V.2 through V.4 in app. V).
MSPB believes that the staff’s mixed perceptions of the agency’s efforts to foster an environment of trust, respect, and fairness may have been affected by the uncertainties associated with the arrival of a new chairman, along with the staff’s concerns over job security at a time when management was in the process of reorganizing and reengineering the agency’s operations. However, an internal MSPB survey that was administered about 2 years prior to both our survey and MSPB’s current reorganization efforts yielded similar results. Fifty percent of the respondents to MSPB’s internal survey administered in February 1992 disagreed with the statement that “overall, the Board creates and fosters an environment of trust, respect, and fairness.”
The views of MSPB employees in this regard are somewhat similar to those of federal employees in general. In OPM’s 1992 survey of 56,767 federal employees, 44 percent of the respondents expressed confidence and trust in their organizations, but 26 percent did not. OPM’s survey also showed that although 30 percent believed their organizations treated all employees equally regardless of position or rank, 47 percent did not. OPM’s survey results demonstrate that other federal agencies, based on their employees’ perceptions, have had mixed success in fostering trust and fairness in the workplace.
Nearly half (45 percent) of MSPB employees responding to our survey—including many who felt that MSPB has been successful in promoting an environment of trust, respect, and fairness—suggested actions for MSPB top management to take in this regard. The suggestions generally related to improving workplace communication and managerial decisionmaking about employment and resource matters, allowing employees to contribute to the decisionmaking process and involving staff at all levels, and treating staff equitably without regard to position or to minority or nonminority status. MSPB officials said that some of these suggestions correspond with actions already taken by management, and they are continuing to pursue them.
section_title: Conclusion
paragraphs: Our examination of MSPB’s mission performance, employee protections, and working environment began 4 months after the swearing-in of MSPB’s current chairman and therefore covered a transitional period for the agency. Regarding mission performance and employee protections, indications were that MSPB’s new management is pursuing policies and initiatives that are in accord with relevant standards and with the needs of its customers and employees. Management has taken several actions to provide employee protections and to promote a working environment based on trust, respect, and fairness. However, MSPB employees had mixed perceptions of the impartiality of the workplace and of management’s success in improving the work environment. We believe the eventual impact on MSPB’s employees of management’s actions will become clearer after the current chairman has been in office for a longer period of time, and the process of reorganizing and reengineering the agency’s operations has been completed.
section_title: Agency Comments
paragraphs: In a letter dated July 14, 1995, MSPB’s chairman provided comments on a draft of this report. The chairman said that our report, on the whole, was thorough and thoughtfully presented. He did not express any disagreement with its findings and conclusions. His comments consisted of apprising us that (1) processing time for petitions for review on merit cases improved during the first half of fiscal year 1995 (a time period that was outside the scope of our review); and (2) while the report states that OGC will contract out audits, it may also be prudent for OGC, under the current fiscal environment, to arrange for Board personnel to perform some audits in situations where appropriate safeguards can be established. The chairman also recommended a technical change that we made where appropriate. The chairman’s comments are presented in their entirety in appendix VI.
We are sending copies of this report to the Chairmen of the Merit Systems Protection Board, the Senate Committee on Governmental Affairs, and the House Committee on Governmental Reform and Oversight. Copies will be made available to others upon request.
This report was prepared under the direction of Stephen Altman, Assistant Director, Federal Management and Workforce Issues. Other major contributors are listed in appendix VII. If you have any questions about this report, please contact me on (202) 512-8676.
section_title: Annotated Survey on the Appellate Process of the U.S. Merit Systems Protection Board
paragraphs: The questionnaire can be completed in about 20 minutes. Space has been provided at the end of the questionnaire, and additional pages may be added, for any comments you may want to make.
U.S. General Accounting Office Attn: William Trancucci Room 3150 441 G Street, N.W. Washington, D.C. 20548 -- time limits for filing appeals, -- case processing standards, and -- alternative dispute resolution practices.
If you have any questions about this survey, please call William Trancucci at (202) 512-5043 or Mary Martin at (202) 512-4345.
Thank you for your cooperation and assistance.
We are sending this questionnaire to: -- general counsels of federal agencies, -- federal agency attorneys/advocates, -- employee and labor-management relations representatives in federal agencies, -- private attorneys representing appellants, and -- union officials representing appellants.
To obtain different perspectives on MSPB’s appellate process, we would appreciate receiving individual responses from each representative. We would like you to focus on your experiences with MSPB’s operations since October 1991.
Regional level - Under MSPB regulations, an employee must initially file an appeal of an agency personnel decision with one of MSPB’s 11 regional offices. At the regional level, an administrative judge will hear and decide the employee’s appeal.In this survey, the appellate process that is carried out at MSPB’s 11 regional offices is referred to as the regional level.
Your responses will be kept confidential and will not be released outside GAO, unless compelled by law to do so or required to do so by the Congress. While the results are generally provided in summary form, individual answers may be discussed in our report, but they will not include any information that could be used to identify individual respondents. The questionnaire is numbered only to aid us in our follow-up efforts and will not be used to identify you with your response. The link between you and your response will be destroyed before the report is issued.
Headquarters level - Under MSPB regulations, an employee and/or agency may ask the 3-member Board located in Washington, D.C. to review the appeal’s decision that was made by an administrative judge in the regional office.In this survey, the appellate process that is carried out by the 3-member Board at its office in Washington, D.C. is referred to as the headquarters level.
subsections: section_title: I. Background
paragraphs: 1. Since October 1991, with about how many MSPB 3. Are you an attorney? (Check one.) cases, if any, have you had experience in representing clients?(Enter number and continue to Question 2. If none, enter "0" and read box below.)
If you had no experience (entered 0) with MSPB cases, please stop here and return the questionnaire to us in the enclosed envelope. Thank you.
Considering all the cases since October 1991 with which you have had experience representing clients before MSPB (see Question 1), about how many were in each of the following categories? (Enter numbers in appropriate boxes.)
MSPB was established by Reorganization Plan No. 2 of 1978, which was codified by the Civil Service Reform Act of 1978, as an independent, quasi-judicial agency. MSPB’s mission is to assure that Federal merit systems are kept free of prohibited personnel practices, employees are protected against abuses by agency management, and executive branch agencies make employment decisions in accordance with merit systems principles. One way MSPB accomplishes its mission is by hearing and deciding employee appeals from agency personnel actions. 4. How familiar or unfamiliar are you with the MSPB precedential body of case law? (Check one.)
Question 5.) reduction in grade or pay, suspension for more than 14 days, or furlough for 30 days or less for cause that will promote the efficiency of the service under 5 U.S.C. 7512)
Question 6.) b. Unacceptable performance action (reduction in grade or removal under 5 U.S.C. 4303)
5. c. Rights or interests of individuals under federal retirement programs (5 U.S.C. 8347(d)(1)-(2) and 8461(e)(1))
In your opinion, are the outcomes in decisions that constitute the MSPB precedential body of case law consistent or inconsistent from case to case (where the same or similar issues are involved? (Check one.) d. Other (Specify.)
Consider the cases with which you were associated. level consistent or inconsistent with the evidence in the appeals records related to each individual case? (Check one box in each row.)
In your opinion, are the decisions at the regional level and headquarters (1) (2) (3) (4) (5) (6)
In your opinion, at the regional level, how fair (impartial) or unfair (partial) is the appellate process? (Check one.)
9.
In your opinion, at the headquarters level, how fair (impartial) or unfair (partial) is the appellate process? (Check one.)
Question 9.)
Question 11.)
Question 8.)
Question 10.)
Question 9.)
Question 11.)
Please explain your response to Question 7.
MSPB considers each case on its own merits (is neutral) or is it biased in favor of employees or agencies (management)? (Check one.)
Very biased in favor of employees Somewhat biased in favor of employees Neutral (considers each case on its own merits)
MSPB requires that an appeal of an agency personnel action, such as removal from employment or suspension for more than 14 days, be filed with the appropriate regional office within 20 days of the action’s effective date. MSPB requires that a petition to review a regional office administrative judge decision be filed with the Clerk of the Board within 35 days after the regional office decision is issued.If these time frames are not met, MSPB may dismiss the appeal or the petition to review the regional office decision as untimely filed, and not decide the appeal or petition on its merits, unless a good reason for the delay in filing is shown. 13.
In your opinion, how adequate or inadequate is the 20-day time limit for filing an appeal with an MSPB regional office?(Check one.)
No basis to judge/Don’t know In your opinion, how successful or unsuccessful has MSPB, through the appellate process, been in accomplishing its mission (see introductory paragraph, Section II, page 2.)(Check one.)
Question 15.)
Question 14.)
Question 15.)
Very unsuccessful - ------- 14.
In your opinion, which of the following limits for filing an appeal with an MSPB regional office would provide appellants the most reasonable amount of time to file the required petition for appeal?(Check one.) (Specify.)
In your opinion, how adequate or inadequate is the 35-day time limit for filing a petition for review of a regional office decision with the Clerk of the Board? (Check one.)
MSPB requires that an agency response to an employee petition for appeal of an agency personnel action be filed with the appropriate regional office within 20 days of the date of the regional office order acknowledging the appeal. 17.
Question 17.)
In your opinion, how adequate or inadequate is the 20- day time limit imposed on agencies for filing a response to an employee appeal with an MSPB regional office? (Check one.)
Question 19.)
Question 16.)
No basis to judge (Skip to Question 17.)
Question 18.)
In your opinion, which of the following time limits for filing a petition for review with the Clerk of the Board would provide petitioners the most reasonable amount of time to file the required petition?(Check one.)
Very inadequate ------- No basis to judge (Skip to Question 19.)
18.
In your opinion, which of the following time limits for filing a response to an employee appeal with an MSPB regional office would provide agencies the most reasonable amount of time to file a response? (Check one.)
Other ____________________________________ ____________________________________ ____________________________________ ----------- (Specify.)
MSPB requires that an agency or employee response to a petition for review of a regional office decision be filed with the Clerk of the Board within 25 days after the date that the petition for review was served on the party.
20.
In your opinion, which of the following time limits for filing a response to a petition for review with the Clerk of the Board would provide a party the most reasonable amount of time to file a response? (Check one.)
In your opinion, how adequate or inadequate is the 25-day time limit imposed on parties for filing a response to a petition for review with the Clerk of the Board? (Check one.)
Question 21.)
Question 20.)
Very inadequate ------- No basis to judge (Skip to Question 21.)
section_title: IV. Case Processing Standards
paragraphs: MSPB has established standard time frames for processing cases at both the regional (120 days) and Board (110 days) levels. At the regional level, the 120 days begins with receipt of the initial appeal and ends with the issuance of an initial decision. During that time period, the appeal is assigned to an administrative judge, the agency’s case file is received, and the discovery process begins. Also, prehearing motions are filed, attempts are made to achieve settlement, and a hearing may be held.
At the Board headquarters level, the 110 days begins with the filing of the petition for review by the appellant or agency. The case file is received from the regional office and reviewed. The 110 day period ends with the issuance of a final Board decision.
We are interested in (1) how satisfied or dissatisfied in general you are with these standard time frames for processing cases; (2) how satisfied or dissatisfied you are with the actual amount of time MSPB has taken to process and decide cases at the regional and headquarters level; (3) whether you believe MSPB should revise its standard time frames; and (4) what would be a reasonable standard for MSPB to process and decide cases. 21. How satisfied or dissatisfied are you with MSPB’s standard time frames for administrative judges and board members to decide cases at the regional (120 days) and headquarters (110 days) levels, respectively? (Check one box in each row.)
Not sure/ No basis to judge (1) (2) (3) (4) (5) (6) a. Regional level (120 days) b. Headquarters level (110 days) N=415 22. Consider the actual amount of time it has generally taken MSPB to process a case at the regional level. How satisfied or dissatisfied are you with the time it actually takes MSPB to process a case at the regional level? (Check one.)
23. Please explain the reason for your dissatisfaction with the actual amount of time it takes MSPB to process a case at the regional level.
Question 26.)
24.
Question 23.)
If you are dissatisfied with the actual amount of time it has taken MSPB to process cases at the regional level, do you believe it needs to revise its standard time frames for processing cases? (Check one.)
Yes --> (Continue with Question 25.)
Question 26.)
Question 26.)
In your opinion, what would be the most reasonable standard for processing a case through MSPB at the regional level? (Check one.)
27. Please explain the reason for your dissatisfaction with the actual amount of time it takes MSPB to process a case at the headquarters level. 28.
If you are dissatisfied with the actual amount of time it has taken MSPB to process cases at the headquarters level, do you believe it needs to revise its standard time frames for processing cases? (Check one.)
Yes ---> (Continue with Question 29.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - page 9.)
26. Consider the actual amount of time it has generally taken MSPB to process a case at the headquarters level.
How satisfied or dissatisfied are you with the time it 29. actually takes MSPB to process a case at the headquarters level? (Check one.)
In your opinion, what would be the most reasonable standard for processing a case through MSPB at the headquarters level? (Check one.)
Question 30.)
Question 27.)
Question 30.)
section_title: V. Alternative Dispute Resolution Practices
paragraphs: Broadly defined, alternative dispute resolution is any process that disputing parties use to resolve a disagreement other than a formal process such as court or administrative proceedings. MSPB has incorporated alternative dispute resolution into the appellate process by requiring administrative judges to order the parties to discuss the possibility of voluntarily settling their dispute. With the parties’ approval, the administrative judge may participate in the settlement discussions.
32. Consider all the cases with which you have had experience with MSPB since October 1991 (see Question 1).In about how many cases, if any, have you entered into a settlement agreement with the other party to resolve the dispute?(Enter number and continue to Question 33.If none, check box below and then skip to Question 36.If necessary, an estimate will suffice.)
N = 454 N = 39 N = 7 N = 10 1 - 10 Cases 11 - 20 Cases 21 - 30 Cases Over 30 Cases 30. Consider all the cases with which you have had experience with MSPB since October 1991 (See Question 1). you had experience where an administrative judge participated (encouraged, discussed terms of settlement, etc.) in the settlement discussions? (Enter number and continue to Question 31. If none, check box below and then skip to Question 32.)N = 551 In about how many cases, if any, have (Number of cases)
N = 438 N = 65 N = 20 N = 12 N = 7 N = 9 1 - 10 Cases 11 - 20 Cases 21 - 30 Cases 31 - 40 Cases 41 - 50 Cases Over 50 Cases entered into settlement agreements with other parties (see Question 32). In about how many, if any, do you believe that the settlement agreements’ terms were equitable, given the weight of the evidence in the other parties’ and your cases? (Check one.)
All, or almost all, of the cases (Number of cases)
None (Skip to Question 32.)
In about how many of these cases (see question 30), if any, did you want to proceed with a formal adjudication of the case, but were persuaded by the Administrative Judge not to terminate settlement negotiations? (Check one.)
All, or almost all, of the cases About half of the cases None, or almost none, of the cases ----------- No basis to judge 34. Consider those cases since October 1991 where you entered into settlement agreements with the other parties (see Question 32). better off than if you had proceeded with adjudication?
In about how many, if any, do you believe that the terms of the settlement agreements left the party you represented (Check one.)
All, or almost all, of the cases About half of the cases None, or almost none, of the cases ----------- 35. Consider all the cases since October 1991 where you entered into settlement agreements with the other parties (see Question 32). following? (Check one box in each row.)
In about how many of these cases, if any, did the administrative judges discuss (either in writing or verbally) the Administrative judges discussed whether you ...
About half of the cases almost none, of the cases (1) (2) (3) (4) (5) (6)
section_title: VI. General Comments
paragraphs: If you have additional comments regarding any previous question or general comments or suggestions for improving the MSPB appeals process, please use the space provided below.If necessary, attach additional sheets.
Please check here if you would like a copy of the final report.
The following section will be separated from the questionnaire before processing.
Name of agency, union, law firm you represent: Name of the person who filled out this questionnaire and who may be contacted, if necessary, for clarification of responses. (Please print.) (_____________) (Area code) (Number)
section_title: Annotated Survey of U.S. Merit Systems Protection Board Employees’ Attitudes and Views About Their Work Environment
paragraphs: The U.S. General Accounting Office (GAO), an independent agency of Congress, is reviewing the U.S. Merit Systems Protection Board (MSPB) at the request of the Chairman, Senate Committee on Governmental Affairs and the Chairman, Subcommittee on Civil Service, House Post Office and Civil Service Committee. As part of this review, we are surveying all MSPB employees to get their views on the work environment in general and MSPB’s efforts to (1) foster a work environment that is based on trust, respect, and fairness; (2) ensure that its employees work in an environment that is free of discrimination; and (3) create a climate that encourages reporting of waste, fraud, abuse, and mismanagement. We also ask for views on the reasonableness of MSPB’s standard time frames for processing and deciding cases.
The questionnaire should take about 20 to 30 minutes to complete. Space has been provided at the end of the questionnaire for any comments you may want to make. Additional pages may be added if necessary.
Your frank and honest answers will help GAO inform the committees on how MSPB employees view their work environment and the agency’s equal employment opportunity (EEO) operations. Your responses will be kept confidential and will not be released outside GAO, unless compelled by law or required by Congress to do so. While the results are generally provided in summary form, individual answers may be discussed in our report, but they will not include any information that could be used to identify individual respondents. The questionnaire is numbered only to aid us in our follow-up efforts and will not be used to identify you with your response. The link between you and your response will be destroyed before the report is issued.
In this section, we ask about your satisfaction or dissatisfaction with certain aspects of your work environment at MSPB.
1. In general, how satisfied or dissatisfied are you with each of the following as they relate to your current MSPB work environment? (Check one box in each row.)
The people you work with daily (peers/colleagues) b. Your immediate supervisor N=221 d. Your office director in g. Availability of resources (i.e., budget, technology, staff, etc.) necessary to do your job N=233 The career progress you have made in MSPB up to nowN=230 The opportunities for promotion or career advancement N=222 Other (Please specify.) 2. Looking at your responses to question 1, overall, 3. Thinking in general about your responses to how satisfied or dissatisfied are you with your current MSPB work environment? (Check one.) question 1, would you say that the work environment at MSPB is improving, staying about the same, or getting worse? (Check one.)
N=5 4. What actions, if any, would you suggest that MSPB top management take to further improve the work environment at MSPB? (Please describe below. If you believe no actions are necessary, enter "None".)
No comment "None" entered Suggested actions 20% (N=49) 9% (N=21) 56% (N=135)
Dissatisfaction expressed or problems cited 15% (N=35)
subsections: section_title: In November 1992, MSPB announced the following vision statement: "To promote and protect, by deed and example, the Federal merit principles in an environment of trust, respect and fairness." The following questions ask for your views on the extent to which MSPB has fostered a work environment based on trust, respect, and fairness, since announcing its vision statement in November 1992.
paragraphs: 5. Based on your experience, in general, to what extent does your MSPB manager or supervisor currently show respect to you in the following ways? Please focus on manager or supervisor you currently report to. (Check one box in each row.) a. He/she shows interest in my well- being. b. He/she creates an environment in which I feel valued. c. He/she is receptive to my suggestions on how to improve operations. d. He/she considers my views in formulating policy or programs. e. Other (Please specify.)
subsections: section_title: In general, how much do you currently trust or distrust the people in each of the following categories? By trust, we mean your expectation that they will maintain a fair and honest work relationship with you. (Check one box in each row.)
paragraphs: Trust as much as distrust a. Members of your work group or unit (peers/colleagues) b. Your immediate supervisor N=224 d. Your office director in Senior managers above your office N=178 director g. Members of the Board h. Human resource officials or Other (Please specify.)
section_title: 7. Since MSPB announced its vision statement in November 1992, overall, how fairly or unfairly do you believe you
paragraphs: have been treated in terms of decisions in each of the following areas? By fair, we mean decisions that were based on merit and were free of bias and favoritism. (Check one box in each row.) (32-38)
section_title: Job or project assignments N=226
paragraphs: Don’t know/No basis to judge If necessary, what actions would you suggest that MSPB top management take to further promote a work environment based on greater trust, respect, and fairness? (Please describe below. If you believe no actions are necessary, enter "None".)
No comment "None" entered Suggested actions 25% (N=59) 11% (N=27) 45% (N=108)
Dissatisfaction expressed or problems cited 19% (N=46)
section_title: The following questions ask for your views on the extent to which MSPB has a discrimination-free work environment.
paragraphs: 10. We have listed below certain behaviors and actions that could occur in any organization. During the past 2 years, do you believe that any of these situations occurred anywhere at MSPB? If yes, please indicate whether it happened to you, you saw it happen or you were told by the person it happened to, or you heard about it through a third party. (Check yes or no for each situation. If yes, check all boxes that apply.)
What is the basis for your belief? (Check all boxes that apply.) occurred at MSPB?
I heard it through a a. An employee was not considered for job or career advancement because of family responsibilities (e.g., caring for children/elders). b. An employee was not considered for job or career advancement because of a physical disability. c. An employee was assigned to a job or project based primarily on race or sex. d. An individual was hired based primarily on the hiring official’s personal bias regarding race or sex. e. An employee was given formal recognition or rewarded based primarily on race or sex.
An employee was given a training or developmental opportunity based primarily on race or sex. g. A qualified employee was not promoted based primarily on the selecting official’s personal bias regarding race or sex. h. Management was informed that remarks with racial or ethnic overtones were being made but continued to tolerate them. i. Management was informed that remarks or actions with sexist or sexual overtones were being made but continued to tolerate them.
Other (Please specify.) - 11. Considering your responses to the situations 14. If necessary, what actions would you suggest listed in question 10, would you describe the work environment at MSPB as impartial or discriminatory? (Check one.) that MSPB top management take to further promote an impartial work environment at MSPB? (Please describe below. If you believe no actions are necessary, enter "None".)
We define an impartial work environment as one in which an employee is treated fairly without regard to race, religion, color, sex, national origin, political affiliation, marital status, disability, or age (if at least age 40).
No comment "None" entered Suggested actions 35% (N=84) 24% (N=57) 29% (N=69)
Dissatisfaction expressed or problems cited 12% (N=24) 15. During the next year, how likely are you to stay --------------------------- with or leave MSPB? (Check one.)
Very likely to stay More likely to stay than leave 12. Are you aware of any efforts by MSPB during the past 2 years to further promote an impartial work environment? (Check one.)
Yes ---> (Continue with Question 13.)
No ---> (Skip to Question 14.)
16. To what extent, if at all, is your likelihood to 13. In your opinion, how successful or unsuccessful have MSPB’s efforts been to further promote an impartial work environment? (Check one.) leave MSPB within the next year or your indecision due to any dissatisfaction you might have with the employment environment at MSPB (i.e., the issues raised in the questions you’ve answered thus far)? (Check one.)
MSPB’s EEO office manages the agency’s equal employment, affirmative action and complaint programs. Among other things, it is responsible for disseminating information on the agency’s EEO program and complaint process, developing EEO and affirmative action plans, providing counseling to employees who believe they have been discriminated against, and processing and resolving discrimination complaints.
This section asks about the extent to which MSPB’s EEO office has taken certain actions to inform you of your EEO rights and of the agency’s EEO program and operations. It also asks about your willingness to participate in the complaint process if you believed you had been discriminated against.
17. Before reading the description at the beginning of this section, how familiar or unfamiliar were you with the responsibilities of MSPB’s EEO office? (Check one.) 18. Within the past 2 years, do you recall receiving the following materials or seeing them posted at MSPB? (Check all boxes that apply.)
N’s reported for this question. Responses combined for responses 1 and 2. a. Written materials that describe MSPB’s EEO <-- 145 --> b. Written materials about your rights under the federal government’s EEO regulations <-- 127 --> c. Written materials describing how to contact MSPB’s EEO counselors such as their names, addresses, and telephone numbers <-- 164 --> d. Notices, memoranda, or newsletters that describe the <-- 105 --> e. Notices, memoranda, or newsletters that communicate MSPB’s sexual harassment policy <-- 126 --> f. Other materials (Please specify.)
subsections: section_title: 19. If you believed that you had been discriminated against, how willing or unwilling would you be to participate in
paragraphs: EEO counseling at MSPB, including discussing the matter with all parties in an attempt to informally resolve it early in the process? (Check one.)
Skip to Question 21.
Continue with Question 20. ------------------- 20. Which of the following describes your reason(s) for being uncertain or unwilling to participate in counseling? (Check all that apply.)
I would be concerned that my contact with the EEO counselor during the counseling period would not be kept confidential. I would be concerned that I would be assigned to an EEO counselor who was not competent or well trained. I would be concerned that the matter would not be resolved in a timely manner.
I would be concerned that too much of my time would be consumed in the complaint process.
I would be concerned that the matter, if resolved informally, would not result in a mutually satisfactory solution for all parties involved. I would be concerned that I would be alienated from my co-workers.
I would fear reprisal.
I would not be willing to participate for personal reasons.
Other (Please specify.) _________________________________________________________________________ 21. If you believed that you had been discriminated against, how willing or unwilling would you be to file a formal EEO discrimination complaint at MSPB? (Check one.)
Skip to Question 23.
Continue with Question 22. ------------------- 22. Which of the following describes your reason(s) for being uncertain or unwilling to file a formal discrimination complaint? (Check all that apply.)
I would be concerned that my complaint would not be investigated in a competent manner.
I would be concerned that my complaint would not be thoroughly investigated by the EEO office.
I would be concerned that my complaint would not be handled in a fair manner.
I would be concerned that my complaint would not be handled in a timely manner.
I would be concerned that too much of my time would be consumed in the complaint process.
I would be concerned that I would be alienated from my co-workers.
I would fear reprisal.
I would not be willing to file a formal complaint for personal reasons.
This section asks for your views on reporting illegal or wasteful activities, whether you would report such activities if you became aware of them, and the extent to which MSPB has taken certain actions to create a climate that encourages reporting of waste, fraud, abuse, or mismanagement.
23. In encouraging you to report any activities involving waste, fraud, abuse, or mismanagement, how important, if at all, would it be to you that MSPB take the following actions? (Check one box in each row.)
How important is it to you that MSPB would . . . a. take action to correct the problem. b. punish the wrongdoer(s). c. allow me to remain anonymous. N=229 d. assure me that the legal protections against unlawful retaliation for reporting such activities would be enforced. e. provide me with a nonmonetary award for reporting such activities. f. provide me with a monetary award for reporting such activities. g. Other (Please specify.)
section_title: 24. If you became aware of activities involving waste, fraud, abuse, or mismanagement in any MSPB program or
paragraphs: operation, how willing or unwilling would you be to report it? (Check one.)
Skip to Question 26.
Continue with Question 25. 25. If you are uncertain or unwilling to report any activities involving waste, fraud, abuse, or mismanagement, which of the following would describe the reason(s) for being unwilling to report them? (Check all that apply.)
I am not sure to whom I should report such activities.
I feel it would not be my responsibility to report such activities.
I would be concerned that the solution to the problem would not be under MSPB’s control.
I would be concerned that MSPB would not take action to correct the problem.
I would be concerned that MSPB would not punish the wrongdoer(s).
I would be concerned that I would not remain anonymous.
I would be concerned that MSPB would not assure me that the legal protections against unlawful retaliation for reporting such activities would be enforced.
I would be concerned that MSPB would not provide me with a nonmonetary award for reporting such activities.
I would be concerned that MSPB would not provide me with a monetary award for reporting such activities.
Other (Please specify.) ______________________________________________________ 26. Over the past 2 years, how adequate or inadequate was the information provided by MSPB about the following aspects of reporting instances of waste, fraud, abuse, and mismanagement? (Check one box in each row.)
section_title: 27. Over the past 2 years, to your knowledge has MSPB management done any of the following to foster an
paragraphs: environment that encourages reporting of waste, fraud, abuse, or mismanagement? (Check one box in each row.)
Over the past 2 years, MSPB has . . . a. solicited employee knowledge of illegal or wasteful activities using surveys or other means. b. made presentations to MSPB employees at your location that emphasized the importance of reporting illegal or improper activities. c. distributed or made readily available literature which described how and/or where to report illegal or improper activities. d. taken action(s) to correct illegal or improper activities. e. punished an individual who took part in illegal or improper activities. f. punished an individual who retaliated against an employee who reported illegal or improper activities. g. provided an individual with a nonmonetary award for N=80reporting illegal or improper activities. h. provided an individual with a monetary award for reporting illegal or improper activities. i. Other (Please specify.)
section_title: IV. Views on Case Processing Time Frames and Caseload
paragraphs: 28. Are you . . . ? (Check one.)
0% (N=0) 25% (N=58) 13% (N=31) 2% (N=4) 5% (N=11)
Continue with Question 29.
55% (N=129)
None of the above -----> Skip to Question 38 on page 15.
29. How satisfied or dissatisfied are you with MSPB’s 32. How satisfied or dissatisfied are you with MSPB’s 110-day standard time frame for board members to decide petition for review cases at the headquarters level?
120-day standard time frame for administrative judges to decide initial appeal cases at the regional level? (Check one.) (Check one.)
Question 35.
Skip to Question 32.
Continue with  Question 33.
Question 30.
Question 35.
Skip to Question 32.
33. Please explain your reason(s) for your dissatisfaction 30. Please explain your reason(s) for your with the standard 110-day time frame for deciding petition for review cases at the headquarters level. dissatisfaction with the standard 120-day time frame for deciding initial appeal cases at the regional level.
44 respondents expressed or implied a reason 48 respondents expressed or implied a reason 34. In your opinion, which of the following time frames 31. In your opinion, which of the following time would be the most reasonable standard for board members to decide petition for review cases at the headquarters level? (Check one.) frames would be the most reasonable standard for administrative judges to decide initial appeal cases at the regional level? (Check one.)
N=2 35. On average, how many initial appeal cases or petition for review cases do you have pending per month? (Enter number. If none, enter zero.)
38. How long have you been employed with MSPB? (Check one.)
Initial Appeal Cases Per Month 2 to less than 5 years 0 Cases 1 to 10 Cases 11 to 20 Cases 21 to 30 Cases 31 to 40 Cases . . . . . . . . . . . . . . . . . N=22 5 to less than 10 years . . . . . . . . . . . . . N=7 . . . . . . . . . . . . N=6 . . . . . . . . . . . . N=44 . . . . . . . . . . . . N=6 Petition for review Cases Per Month 39. Where is your permanent duty station? (Check one.) . . . . . . . . . . . . . . . . . N=11 0 Cases . . . . . . . . . . . . . N=16 1 to 10 Cases . . . . . . . . . . . . N=10 11 to 20 Cases . . . . . . . . . . . . N=2 21 to 30 Cases . . . . . . . . . . . . N=1 31 to 40 Cases More than 40 Cases . . . . . . . . . N=1 36. In your opinion, given the current standard time frames and the requirements for adjudication, is your average pending caseload too heavy, about right, or too light? (Check one.)
40. What is your sex? (Check one.) 41. Are you of Hispanic origin? (Check one.) -----> Skip to question 38.
Continue with  Question 37. 37. In your opinion, given the current standard time frames and the requirements for adjudication, what would be the appropriate number of cases you should reasonably have pending per month? (Enter number.)
42. What is your race? (Check one.)
Number of Cases Pending Per Month 1 to 10 Cases . . . . . . . . . . . . . . N=13 . . . . . . . . . . . . N=18 11 to 20 Cases 21 to 30 Cases . . . . . . . . . . . . N=20 (American-Indian)
Please return your completed questionnaire in the enclosed preaddressed envelope.
Thank you for your assistance.
section_title: Scope and Methodology
subsections: section_title: MSPB’s Appeals Process
paragraphs: To assess whether MSPB is accomplishing its statutory mission through the appeals process in a fair and timely manner, we (1) developed a questionnaire and mailed it in April 1994 to individuals who had experience as practitioners with MSPB’s process for adjudicating federal employees’ appeals of agency personnel actions during the 2-year period ending September 1993; (2) analyzed its case processing performance reports to determine whether MSPB abided by its own guidelines in processing cases during fiscal years 1991 through 1994 at the regional and headquarters levels; and (3) analyzed data on the extent to which MSPB’s final decisions were appealed to and affirmed by the U.S. Court of Appeals for the Federal Circuit during fiscal years 1991 through 1994.
In analyzing the case processing performance reports, we did not verify them to source documents but did review available MSPB information on the reliability of the case management system from which the reports were generated. For example, we identified various MSPB systemwide controls used to ensure the accuracy and reliability of appeals case data. We also identified and reviewed three data verification studies performed by MSPB’s management analysis group. We did not review appeals cases to determine whether the process was carried out fairly or resulted in well-reasoned decisions.
subsections: section_title: Questionnaire Objectives and Development
paragraphs: We mailed a total of 1,179 questionnaires on April 27, 1994, to appeals process practitioners asking for their views on (1) how successful MSPB has been in accomplishing its mission through the appeals process, (2) the fairness of the appeals process, and (3) the time limits for filing and processing appeals. The practitioners included (1) general counsels of federal agencies, (2) federal agency attorneys and representatives, (3) employee and labor-management relations representatives in federal agencies, (4) private attorneys representing appellants, and (5) union officials representing appellants.
The questionnaire was designed by a social science survey specialist in conjunction with GAO evaluators who were knowledgeable about MSPB’s appeals process. We pretested the questionnaire with members of each of the five participant groups to determine if (1) the respondents possessed the information desired; (2) the questionnaire would be burdensome to the respondents; and (3) the questionnaire design, including such elements as the type size, layout, and procedures for recording the information, was appropriate. Any problems with the questionnaire that were identified by the pretest process were corrected. We also provided the questionnaire to MSPB for review and incorporated the agency’s comments as appropriate. After the questionnaires were completed and returned by survey respondents, the questionnaires were edited. Three data verification procedures were used. All data were double-keyed and verified during data entry. A random sample of these data was verified back to the source questionnaires. Also, computerized logic checks were run to look for incorrect data; any errors that were found were corrected.
section_title: Sampling Methodology
paragraphs: The total population of the 5 participant groups was 5,015 individuals; 1,179 of these 5,015 individuals were mailed questionnaires. Questionnaires were mailed to all persons in the general counsel (83) and employee and labor-management relations representative groups (98). Federal agency general counsels were identified and selected from agency general counsels listed in the Federal Yellow Book, Winter 1994. Employee and labor-management relations representatives in federal agencies were selected from a membership listing of OPM’s Interagency Advisory Group Committee on Employee and Labor-Management Relations.
We sent questionnaires to a total sample of 998 individuals who made up the remaining 3 groups of appeals process participants—federal agency attorneys and representatives (492), private attorneys (368), and union officials (138). Federal agency attorneys and representatives, private attorneys, and union officials were selected from MSPB’s lists of individuals who represented federal employees or agencies before MSPB sometime during fiscal year 1992 or fiscal year 1993; because of the large number of individuals included in these lists, we randomly sampled from the three groups.
Table III.1 presents the population sizes and the original and revised sample sizes for each of the five participant groups that were mailed questionnaires on April 27, 1994.
section_title: Questionnaire Response Rate
paragraphs: Of the 1,179 questionnaires we mailed in April 1994, 206 questionnaires were returned by individuals who indicated they had not had personnel appeals case experience with MSPB since October 1991 and thus were deemed ineligible for our sample. These individuals were dropped from our original population of individuals, resulting in a revised survey sample size of 973 questionnaires for our 5 participant groups. Those individuals who did not respond were sent a second questionnaire mailing on June 8, 1994, and a final questionnaire mailing on August 4, 1994. As a result of these 3 mailings, we received 676 completed and useable questionnaires, for a response rate of 69 percent. Table III.2 summarizes the questionnaire returns for the revised survey sample size of 973.
The useable return rates for the individual groups ranged from 47 to 85 percent. Table III.3 presents the revised sample size and return rates for each group.
section_title: Population Estimates From the Sample Results and Sampling Error
paragraphs: The results obtained from our sampling methodology allow us to make observations about each group’s experience in representing clients before MSPB. Our sample results can be projected to the populations for three of the five groups who have had experience representing clients before MSPB—federal agency attorneys and representatives, private attorneys, and union officials representing appellants. The other two groups—employee and labor-management relations representatives and general counsels of federal agencies—were not sampled; instead, the populations of individuals in these two groups were mailed questionnaires.
Because our survey selected a sample or portion of the population of agency attorneys and representatives, private attorneys, and union representatives, the review results obtained are subject to some uncertainty, or sampling error. The sampling error consists of two parts—confidence level and confidence interval. The confidence level indicates the degree of confidence that can be placed in the estimates derived from the sample. The confidence interval is the upper and lower limit between which the actual population estimate may be found.
We chose the specific sample sizes for each of the three groups so that the confidence interval, based on a 100-percent response rate, would not be greater than plus or minus 5 percent at the 95-percent level of confidence. However, because the useable questionnaire response rate was less than 100 percent and varied for each of the three practitioner groups we sampled, the confidence intervals were generally larger than plus or minus 5 percent.
We calculated the confidence intervals only for the sampled groups’ responses to the three survey questions on MSPB’s success in accomplishing its mission and the fairness of its appellate process, which we presented earlier in tables 1, 2, and 3. In calculating the confidence intervals, we assumed that for each of the three practitioner sample groups the reported percentage of practitioners responding to the three survey questions was near 50 percent, which may result in larger confidence intervals. The confidence intervals are smaller when the actual reported percentages approach 100 percent and 0 percent. For example, the 90 percent of agency attorneys and representatives who responded that MSPB’s appellate process was fair at the headquarters level had a confidence interval of plus or minus 4 percent, as compared to a confidence interval of plus or minus 6 percent if 50 percent had responded that the process was fair.
Table III.4 shows what the confidence intervals for each of the sampled groups would have been if the reported percentage of practitioners responding to the three questions had been near 50 percent.
section_title: MSPB’s Accountability Mechanisms
paragraphs: To determine what accountability mechanisms MSPB had in place to provide its employees the merit system protections that MSPB was created to uphold, we reviewed the agency’s EEO and internal oversight activities designed to protect its employees against workplace discrimination, mismanagement, abuse, and improper personnel practices. We also sought MSPB employees’ views on selected aspects of the agency’s EEO operations and internal oversight activities by mailing a questionnaire to all MSPB employees. A more detailed discussion of the questionnaire development and its mailing is presented later in this appendix.
As discussed and agreed with your office, we did not review (1) MSPB’s affirmative employment program for recruiting, hiring, advancing, and placing minorities, women, and other protected groups; or (2) how well audits and investigations were performed by MSPB’s former OIG. We also did not review appeal cases of MSPB employees to determine whether the process was carried out fairly and resulted in well-reasoned decisions.
subsections: section_title: MSPB’s EEO Operations
paragraphs: In reviewing MSPB’s EEO operations, we focused on (1) training received during fiscal years 1992 and 1993 by MSPB managers and supervisors to make them aware of their EEO responsibilities and by EEO staff in carrying out the agency’s EEO functions; (2) policies and procedures in place to evaluate and reward managers and supervisors on their EEO performance; and (3) actions MSPB has taken to communicate its EEO policy, program, and complaint process to its employees and to make them aware of their rights under the EEO complaint process. We reviewed MSPB’s EEO manual and collected and analyzed data for fiscal years 1990 through 1994 on the number of employees who had received EEO counseling or filed formal EEO complaints. We also reviewed MSPB’s performance management manual and collected data for fiscal years 1991 through 1994 on the number of employees who had received the Chairman’s Award for Excellence in EEO.
section_title: MSPB’s Internal Oversight Activities
paragraphs: We interviewed MSPB officials to determine what measures agency management has taken, since abolishing its nonstatutory OIG in February 1994, to provide audit and investigative coverage of its programs and operations. We examined whether these measures would enable MSPB to conduct audits and investigations in compliance with requirements established by the Office of Management and Budget and the President’s Council on Integrity and Efficiency.
We also compared MSPB’s measures for carrying out its internal oversight activities with those of 10 other federal entities (see app. IV). Specifically, we compared the entities’ capabilities to provide audits and investigations, the offices responsible for handling allegations of wrong-doing, arrangements for obtaining investigative and audit services, and the types of audits provided. We judgmentally selected these 10 entities because they were roughly comparable to MSPB in budget and staff size. As agreed with your office, we did not review how well audits and investigations were performed by MSPB’s former OIG.
section_title: MSPB’s Vision Statement
paragraphs: To determine what actions MSPB has taken to foster a work environment that is based on trust, respect, and fairness, as called for in its 1992 vision statement, we interviewed MSPB’s Chief Operating Officer, EEO director, and members of a task force charged with proposing actions for implementing MSPB’s vision. We also used our previously mentioned MSPB employee questionnaire to solicit employees’ views on their agency’s success in fostering an environment based on trust, respect, and fairness. Lastly, we compared the workplace views of MSPB employees with those of federal employees in general. We did this by reviewing a May 1992 OPM special report entitled “Survey of Federal Employees,” which contained data on federal employees’ attitudes towards their jobs, their supervisors, and their organizations. OPM had distributed this questionnaire to 56,767 federal employees.
section_title: MSPB Employee Questionnaire Objectives and Development
paragraphs: We mailed our questionnaire to all individuals employed by MSPB as of May 12, 1994, asking for their views on MSPB’s efforts to (1) carry out its EEO operations and ensure that its employees work in a discrimination-free environment; (2) create a climate that encourages reporting of waste, fraud, abuse, and mismanagement; and (3) foster a work environment that is based on trust, respect, and fairness. We also asked employees who were involved in the processing of cases at the regional and headquarters levels for their views on the reasonableness of MSPB’s guidelines regarding time frames for processing and deciding cases. These employees included the regional administrative judges, attorneys in MSPB’s Offices of the Appeals Counsel and the General Counsel, attorneys on the board members’ personal staffs, and the board members. The Chairman was not included.
The questionnaire was first mailed on May 25, 1994, to all MSPB employees. On July 7, 1994, we sent a second copy of the questionnaire to those who did not respond to our first mailing. On August 1, 1994, we sent a third copy of the questionnaire to those who still had not responded.
The questionnaire was designed by a social science survey specialist in conjunction with GAO evaluators who were knowledgeable about MSPB’s EEO and internal oversight operations. Before mailing our questionnaire, we pretested it with 10 MSPB employees who held various job titles and were assigned to either an MSPB regional office or to various offices within MSPB headquarters. The pretest helped to ensure that our questions would be interpreted correctly and that the respondents would be willing to provide the information required. We also provided the questionnaire to MSPB for review and incorporated the agency’s comments as appropriate. After the questionnaires were received from survey respondents, the surveys were edited. Three data verification procedures were used. All data were double-keyed and verified during data entry. A random sample of these data was verified back to the source questionnaires. Also, computerized logic checks were run to look for incorrect data, and any errors detected were corrected.
subsections: section_title: Questionnaire Response Rate
paragraphs: A total of 301 employees were mailed the questionnaire, but 2 employees were later dropped from the our original population because they were not employed with MSPB as of May 12, 1994. Of the 299 eligible employees in our universe, 240 of them returned useable questionnaires to us, for a response rate of 80 percent. Table III.5 summarizes the questionnaire returns for the 299 eligible MSPB employees who were mailed questionnaires.
section_title: Nonsampling Errors on Both Questionnaires
paragraphs: In addition to the sampling errors of the kind discussed earlier for the MSPB appeals process questionnaire, the practical difficulties of conducting any survey may introduce other types of errors, commonly referred to as nonsampling errors. For example, differences in how a particular question is interpreted by the survey respondents could introduce unwanted variability into the survey’s results. We took steps in the development of each questionnaire, the data collection, and the data analysis to minimize nonsampling errors. These steps, such as pretesting and editing the questionnaires, have been discussed in previous sections of this appendix.
section_title: Comparison of MSPB’s Internal Oversight Arrangements With Those of 10 Other Selected Federal Entities
paragraphs: Fiscal year 1992 actual budget authority (in millions of dollars)
Financial (to be performed)
MSPB - Merit Systems Protection Board FRTIB - Federal Retirement Thrift Investment Board IAF - Inter-American Foundation IMS - Institute of Museum Services FMCS - Federal Mediation and Conciliation Service NTSB - National Transportation Safety Board NGA - National Gallery of Art OSHRC - Occupational Safety and Health Review Commission ABMC - American Battle Monuments Commission SJI - State Justice Institute USIP - U.S. Institute of Peace IMS does not have a general counsel. An IMS official said that depending on the nature of the allegation, it may be handled by the National Endowment for the Humanities’ general counsel under the interagency agreement that IMS has with it.
section_title: Figures and Tables on Selected MSPB Employee Survey Results
paragraphs: Based on situations that they either had personally experienced or had seen or heard occurred at MSPB during the past 2 years, 24 percent of the respondents to our employee questionnaire described the MSPB work environment as either somewhat discriminatory or very discriminatory. The discriminatory acts that respondents perceived to have taken place most often involved employees being hired, assigned to jobs, or formally recognized or rewarded primarily because of their race or sex. As figure V.1 shows, more women than men and more minority than nonminority employees described the work environment at MSPB as discriminatory. Women and minorities were 61 percent and 32 percent of MSPB’s workforce, respectively, at the time we initiated our survey.
As shown in table V.1, most employees responding to our survey believed that since MSPB announced its vision statement in November 1992, they have been treated fairly in decisions regarding job assignments, training, formal ratings, monetary awards and bonuses, promotion or career advancement, and nonmonetary awards and recognition. However, employees’ responses regarding these decisions varied with their gender, nonminority/minority status, and position as shown in tables V.2 through V.4.
Figures V.2 through V.4 show how employees’ perceptions of MSPB’s success in fostering an environment of trust, respect, and fairness in the workplace varied with their gender, nonminority/minority status, and duty station. More women (47 percent) than men (26 percent), more minorities (42 percent) than nonminorities (37 percent), and more headquarters (42 percent) than nonheadquarters (34 percent) employees indicated they believed that MSPB had been unsuccessful in fostering such an environment.
section_title: Comments From the Merit Systems Protection Board
section_title: GAO Contacts and Staff Acknowledgments
subsections: section_title: GAO Contacts
section_title: Acknowledgments
paragraphs: In addition to those named above, the following individuals in GAO’s General Government Division (GGD), Accounting and Information and Management Division (AIMD), and Office of the General Counsel (OGC) made important contributions to this report: Philip Kagan, Senior Evaluator (GGD), assisted with the design of the job; Stuart M. Kaufman, Senior Social Science Analyst (GGD), assisted with the design and development of both questionnaires and prepared the computerized analyses of the MSPB employee questionnaire results; Gregory H. Wilmoth, Senior Social Science Analyst (GGD), assisted with selecting the appropriate methodology to accomplish the job’s objectives; Jerome T. Sandau, Social Science Analyst (GGD), prepared the computerized analyses of the MSPB appellate process questionnaire results; Jackson W. Hufnagle, Assistant Director (AIMD), reviewed MSPB’s internal oversight activities; Clarence A. Whitt, senior accountant (AIMD), did the comparative analysis of MSPB’s internal oversight activities with 10 other federal entities; Alan N. Belkin, Assistant General Counsel (OGC), and Jessica A. Botsford, Senior Attorney (OGC), provided legal advice.
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subsections: section_title: Address Correction Requested