Promoting Accountability and Streamlining Removal Procedures Consistent With Merit System Principles

Executive Order 13839 of May 25, 2018

Promoting Accountability and Streamlining Removal
Procedures Consistent With Merit System Principles

By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including sections 1104(a)(1), 3301, and 7301
of title 5, United States Code, and section 301 of
title 3, United States Code, and to ensure the
effective functioning of the executive branch, it is
hereby ordered as follows:

Section 1. Purpose. Merit system principles call for
holding Federal employees accountable for performance
and conduct. They state that employees should maintain
high standards of integrity, conduct, and concern for
the public interest, and that the Federal workforce
should be used efficiently and effectively. They
further state that employees should be retained based
on the adequacy of their performance, inadequate
performance should be corrected, and employees should
be separated who cannot or will not improve their
performance to meet required standards. Unfortunately,
implementation of America's civil service laws has
fallen far short of these ideals. The Federal Employee
Viewpoint Survey has consistently found that less than
one-third of Federal employees believe that the
Government deals with poor performers effectively.
Failure to address unacceptable performance and
misconduct undermines morale, burdens good performers
with subpar colleagues, and inhibits the ability of
executive agencies (as defined in section 105 of title
5, United States Code, but excluding the Government
Accountability Office) (agencies) to accomplish their
missions. This order advances the ability of
supervisors in agencies to promote civil servant
accountability consistent with merit system principles
while simultaneously recognizing employees' procedural
rights and protections.

Sec. 2. Principles for Accountability in the Federal
Workforce. (a) Removing unacceptable performers should
be a straightforward process that minimizes the burden
on supervisors. Agencies should limit opportunity
periods to demonstrate acceptable performance under
section 4302(c)(6) of title 5, United States Code, to
the amount of time that provides sufficient opportunity
to demonstrate acceptable performance.

    (b) Supervisors and deciding officials should not
be required to use progressive discipline. The penalty
for an instance of misconduct should be tailored to the
facts and circumstances.
    (c) Each employee's work performance and
disciplinary history is unique, and disciplinary action
should be calibrated to the specific facts and
circumstances of each individual employee's situation.
Conduct that justifies discipline of one employee at
one time does not necessarily justify similar
discipline of a different employee at a different time
-- particularly where the employees are in different
work units or chains of supervision -- and agencies are
not prohibited from removing an employee simply because
they did not remove a different employee for comparable
conduct. Nonetheless, employees should be treated
equitably, so agencies should consider appropriate
comparators as they evaluate potential disciplinary
actions.
    (d) Suspension should not be a substitute for
removal in circumstances in which removal would be
appropriate. Agencies should not require suspension of
an employee before proposing to remove that employee,
except as may be appropriate under applicable facts.

    (e) When taking disciplinary action, agencies
should have discretion to take into account an
employee's disciplinary record and past work record,
including all past misconduct -- not only similar past
misconduct. Agencies should provide an employee with
appropriate notice when taking a disciplinary action.
    (f) To the extent practicable, agencies should
issue decisions on proposed removals taken under
chapter 75 of title 5, United States Code, within 15
business days of the end of the employee reply period
following a notice of proposed removal.
    (g) To the extent practicable, agencies should
limit the written notice of adverse action to the 30
days prescribed in section 7513(b)(1) of title 5,
United States Code.
    (h) The removal procedures set forth in chapter 75
of title 5, United States Code (Chapter 75 procedures),
should be used in appropriate cases to address
instances of unacceptable performance.
    (i) A probationary period should be used as the
final step in the hiring process of a new employee.
Supervisors should use that period to assess how well
an employee can perform the duties of a job. A
probationary period can be a highly effective tool to
evaluate a candidate's potential to be an asset to an
agency before the candidate's appointment becomes
final.
    (j) Following issuance of regulations under section
7 of this order, agencies should prioritize performance
over length of service when determining which employees
will be retained following a reduction in force.

Sec. 3. Standard for Negotiating Grievance Procedures.
Whenever reasonable in view of the particular
circumstances, agency heads shall endeavor to exclude
from the application of any grievance procedures
negotiated under section 7121 of title 5, United States
Code, any dispute concerning decisions to remove any
employee from Federal service for misconduct or
unacceptable performance. Each agency shall commit the
time and resources necessary to achieve this goal and
to fulfill its obligation to bargain in good faith. If
an agreement cannot be reached, the agency shall, to
the extent permitted by law, promptly request the
assistance of the Federal Mediation and Conciliation
Service and, as necessary, the Federal Service Impasses
Panel in the resolution of the disagreement. Within 30
days after the adoption of any collective bargaining
agreement that fails to achieve this goal, the agency
head shall provide an explanation to the President,
through the Director of the Office of Personnel
Management (OPM Director).

Sec. 4. Managing the Federal Workforce. To promote good
morale in the Federal workforce, employee
accountability, and high performance, and to ensure the
effective and efficient accomplishment of agency
missions and the efficiency of the Federal service, to
the extent consistent with law, no agency shall:

    (a) subject to grievance procedures or binding
arbitration disputes concerning:

(i) the assignment of ratings of record; or

(ii) the award of any form of incentive pay, including cash awards; quality
step increases; or recruitment, retention, or relocation payments;

    (b) make any agreement, including a collective
bargaining agreement:

(i) that limits the agency's discretion to employ Chapter 75 procedures to
address unacceptable performance of an employee;

(ii) that requires the use of procedures under chapter 43 of title 5,
United States Code (including any performance assistance period or similar
informal period to demonstrate improved performance prior to the initiation
of an opportunity period under section 4302(c)(6) of title 5, United States
Code), before removing an employee for unacceptable performance; or

(iii) that limits the agency's discretion to remove an employee from
Federal service without first engaging in progressive discipline; or

    (c) generally afford an employee more than a 30-day
period to demonstrate acceptable performance under
section 4302(c)(6) of title 5, United States Code,
except when the agency determines in its sole and
exclusive discretion that a longer period is necessary
to provide sufficient time to evaluate an employee's
performance.

Sec. 5. Ensuring Integrity of Personnel Files. Agencies
shall not agree to erase, remove, alter, or withhold
from another agency any information about a civilian
employee's performance or conduct in that employee's
official personnel records, including an employee's
Official Personnel Folder and Employee Performance
File, as part of, or as a condition to, resolving a
formal or informal complaint by the employee or
settling an administrative challenge to an adverse
personnel action.

Sec. 6. Data Collection of Adverse Actions. (a) For
fiscal year 2018, and for each fiscal year thereafter,
each agency shall provide a report to the OPM Director
containing the following information:

(i) the number of civilian employees in a probationary period or otherwise
employed for a specific term who were removed by the agency;

(ii) the number of civilian employees reprimanded in writing by the agency;

(iii) the number of civilian employees afforded an opportunity period by
the agency under section 4302(c)(6) of title 5, United States Code,
breaking out the number of such employees receiving an opportunity period
longer than 30 days;

(iv) the number of adverse personnel actions taken against civilian
employees by the agency, broken down by type of adverse personnel action,
including reduction in grade or pay (or equivalent), suspension, and
removal;

(v) the number of decisions on proposed removals by the agency taken under
chapter 75 of title 5, United States Code, not issued within 15 business
days of the end of the employee reply period;

(vi) the number of adverse personnel actions by the agency for which
employees received written notice in excess of the 30 days prescribed in
section 7513(b)(1) of title 5, United States Code;

(vii) the number and key terms of settlements reached by the agency with
civilian employees in cases arising out of adverse personnel actions; and

(viii) the resolutions of litigation about adverse personnel actions
involving civilian employees reached by the agency.

    (b) Compilation and submission of the data required
by subsection (a) of this section shall be conducted in
accordance with all applicable laws, including those
governing privacy and data security.
    (c) To enhance public accountability of agencies
for their management of the Federal workforce, the OPM
Director shall, consistent with applicable law, publish
the information received under subsection (a) of this
section, at the minimum level of aggregation necessary
to protect personal privacy. The OPM Director may
withhold particular information if publication would
unduly risk disclosing information protected by law,
including personally identifiable information.
    (d) Within 60 days of the date of this order, the
OPM Director shall issue guidance regarding the
implementation of this section, including with respect
to any exemptions necessary for compliance with
applicable law and the reporting format for submissions
required by subsection (a) of this section.

Sec. 7. Implementation. (a) Within 45 days of the date
of this order, the OPM Director shall examine whether
existing regulations effectuate the principles set
forth in section 2 of this order and the requirements
of sections 3, 4, 5, and 6 of this order. To the extent
necessary or appropriate, the OPM Director shall, as
soon as practicable, propose for notice and public

comment appropriate regulations to effectuate the
principles set forth in section 2 of this order and the
requirements of sections 3, 4, 5, and 6 of this order.

    (b) The head of each agency shall take steps to
conform internal agency discipline and unacceptable
performance policies to the principles and requirements
of this order. To the extent consistent with law, each
agency head shall:

(i) within 45 days of this order, revise its discipline and unacceptable
performance policies to conform to the principles and requirements of this
order, in areas where new final Office of Personnel Management (OPM)
regulations are not required, and shall further revise such policies as
necessary to conform to any new final OPM regulations, within 45 days of
the issuance of such regulations; and

(ii) renegotiate, as applicable, any collective bargaining agreement
provisions that are inconsistent with any part of this order or any final
OPM regulations promulgated pursuant to this order. Each agency shall give
any contractually required notice of its intent to alter the terms of such
agreement and reopen negotiations. Each agency shall, to the extent
consistent with law, subsequently conform such terms to the requirements of
this order, and to any final OPM regulations issued pursuant to this order,
on the earliest practicable date permitted by law.

    (c) Within 15 months of the adoption of any final
rules issued pursuant to subsection (a) of this
section, the OPM Director shall submit to the President
a report, through the Director of the Office of
Management and Budget, evaluating the effect of those
rules, including their effect on the ability of Federal
supervisors to hold employees accountable for their
performance.
    (d) Within a reasonable amount of time following
the adoption of any final rules issued pursuant to
subsection (a) of this section, the OPM Director and
the Chief Human Capital Officers Council shall
undertake a Government-wide initiative to educate
Federal supervisors about holding employees accountable
for unacceptable performance or misconduct under those
rules.

Sec. 8. General Provisions. (a) Nothing in this order
shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or
the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.

    (b) Agencies shall consult with employee labor
representatives about the implementation of this order.
Nothing in this order shall abrogate any collective
bargaining agreement in effect on the date of this
order.
    (c) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
    (d) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.

    (e) If any provision of this order, including any
of its applications, is held to be invalid, the
remainder of this order and all of its other
applications shall not be affected thereby.

    (Presidential Sig.)

THE WHITE HOUSE,

    May 25, 2018.