Lawmaker questions proposed changes to DHS appeals process

Senate Governmental Affairs Committee Chairwoman Susan Collins, R-Maine, said Monday that she was concerned about changes to the employee disciplinary appeals system proposed last week by Homeland Security Department officials.

The changes were announced in a Federal Register notice Friday outlining the department's proposals on a range of issues related to its personnel system overhaul. When Congress created the department in 2002, it also authorized its leadership to develop a personnel system.

"It's very important to have an independent entity look at an adverse employee decision and make sure that it was fairly arrived at," Collins said in an interview with reporters from Government Executive and other Atlantic Media publications.

Collins noted that the department will continue to rely on the Merit Systems Protection Board, an independent federal agency charged with adjudicating discipline disputes between federal managers and employees, but will reduce the burden of proof requirement and limit the board's ability to alter penalties imposed by agency managers.

Under the proposal, DHS would use the same disciplinary system to take action against employees who are performing poorly or who have engaged in misconduct.

When an agency manager wants to fire or discipline an employee for poor performance, the manager must document over the course of months the employee's problems, then provide the employee with a period of time, typically 60 to 90 days, in which to improve. After that, the manager can take action. If the employee appeals to the MSPB, the agency has to show that a reasonable person could have come to the same determination as the manager. If MSPB disagrees, it can reduce the penalty or throw it out.

Firing an employee for misconduct is somewhat easier. There is no requirement to document employee performance or to offer an improvement period. But in the event of an appeal, the agency has to show by a preponderance of the evidence that the employee had done something seriously wrong, a slightly higher standard of proof.

The proposed change would eliminate the required employee performance improvement plan. The agency would give notice to the employee and allow the employee 15 days to respond. Then, the agency could immediately take action.

The DHS secretary also could determine that certain offenses merit mandatory firing without possibility of appeal to the MSPB. An internal DHS panel would review those decisions.

Collins said she plans to follow up with agency officials about the proposed changes, but added that she is pleased with the department's plans to adopt a pay-for-performance system in lieu of the current General Schedule system. She said it would allow the agency "to better recruit and retain and reward outstanding employees."

She also was pleased with the nearly yearlong process used to develop the personnel system proposal. Union officials and outside human resources experts were involved in creating a series of options that DHS Secretary Tom Ridge and Office of Personnel Management Director Kay Coles James reviewed before issuing the proposed changes.

"I want to give the Department of Homeland Security very high marks for the lengthy process, and the collaborative process that it went through," Collins said. "I think even if the unions are unhappy with some of the final provisions--and they are--they can't fault the process, and their input resulted in a different product than otherwise would have come from the department."