On behalf of the Professional Managers Association - the non-profit professional association that
has, since 1981, represented professional managers, management officials, and non-bargaining
unit employees at the Internal Revenue Service (IRS) - we strongly urge OPM to withdraw its
proposed rule “Suitability and Fitness.”
Congress provided procedures in Title 5 for managers and agencies to handle performance and
conduct issues of federal employees. Supercharging the powers of OPM, not the employing
agency, to terminate employees for the majority of federal personnel actions would separate
managers from essential employment decisions about their employees. This centralized and distant
approach risks politicization and errors, for which employees would be afforded an essentially
feckless appeal to the Merit Systems Protection Board (MSPB), which has no quorum, and even
if it did, has no ability to mitigate suitability determinations, unlike Title 5 personnel actions. Even
at the IRS for violations of the 10 Deadly Sins that typically result in termination, the
Commissioner can provide grace and mitigate penalties.
Background
For over four decades, the Professional Managers Association (PMA) has proudly represente
those employees in the IRS who are ineligible for union membership. Our organization’s focus is
to be a voice for all IRS managers, management officials, non-bargaining unit workers, leadership
development program participants, and retirees. Through our consultative relationship with agency
leaders, PMA advocates for our members in high-level discussions and planning. PMA has a history and track record of supporting great government and will speak out when we see failures or opportunities to improve. Our members are committed to continuously improving the lives of those in public service. PMA is open to reasonable reforms, yet opposes those that jeopardize the merit system and the ability of career federal employees to serve all Americans fairly, without fear for partisan favor nor interest.
I. Concern Over Lack of Distinction Between Proposed Vague New Suitability Criteria
and Existing Fireable Conduct
This proposed rule would allow OPM to take a suitability action for post-appointment conduct
against current employees. It would add several new vague suitability criteria. The addition of
these provisions blurs the line between current adverse action procedures in Chapter 75 intended
for such behaviors in a way that would be challenging for managers to navigate. OPM’s rule
appears to be designed to provide for the deprivation of due process by facilitating an end-run
around those Chapter 75 procedures.
The IRS is also unique in the civilian federal government in the strict law and rules governing
employee conduct. In 1998, Congress codified the “10 Deadly Sins” – fireable offenses – for IRS
employees passing in the 1998 Revenue Reform Act, Section 1203.1 Every employee at the IRS is
aware of the law and these rules, and they are vigorously enforced. But the Commissioner of
Internal Revenue retains the final decision on taking an action against an employee, which could
include mitigation, but which cannot be appealed. Unlike Title 5 due process procedures, the OPM
suitability determinations do not allow the MSPB to review and mitigate the penalty.
SEC. 1203. TERMINATION OF EMPLOYMENT FOR MISCONDUCT.
(a) In General.--Subject to subsection (c), the Commissioner of
Internal Revenue shall terminate the employment of any
employee of the Internal Revenue Service if there is a final
administrative or judicial determination that such employee committed
any act or omission described under subsection (b) in the performance of
the employee's official duties. Such termination shall be a removal for
cause on charges of misconduct.
(b) Acts or Omissions.--The acts or omissions referred to under
subsection (a) are--
(1) willful failure to obtain the required approval
signatures on documents authorizing the seizure of a taxpayer's
home, personal belongings, or business assets;
(2) providing a false statement under oath with respect to a
material matter involving a taxpayer or taxpayer representative;
(3) with respect to a taxpayer, taxpayer representative, or
1 govinfo.gov/content/pkg/PLAW-105publ206/html/PLAW-105publ206.htm
other employee of the Internal Revenue Service, the violation of --
(A) any right under the Constitution of the United
States; or
B) any civil right established under--
(i) title VI or VII of the Civil Rights Act of
1964;
(ii) title IX of the Education Amendments of
1972;
(iii) the Age Discrimination in Employment Act
of 1967;
(iv) the Age Discrimination Act of 1975;
(v) section 501 or 504 of the Rehabilitation
Act of 1973; or
(vi) title I of the Americans with
Disabilities Act of 1990;
(4) falsifying or destroying documents to conceal mistakes
made by any employee with respect to a matter involving a
taxpayer or taxpayer representative;
(5) assault or battery on a taxpayer, taxpayer
representative, or other employee of the Internal Revenue
Service, but only if there is a criminal conviction, or a final
judgment by a court in a civil case, with respect to the assault
or battery;
(6) violations of the Internal Revenue Code of 1986,
Department of Treasury regulations, or policies of the Internal
Revenue Service (including the Internal Revenue Manual) for the
purpose of retaliating against, or harassing, a taxpayer,
taxpayer representative, or other employee of the Internal
Revenue Service;
(7) willful misuse of the provisions of section 6103 of the
Internal Revenue Code of 1986 for the purpose of concealing
information from a congressional inquiry;
(8) willful failure to file any return of tax required under
the Internal Revenue Code of 1986 on or before the date
prescribed therefor (including any extensions), unless such
failure is due to reasonable cause and not to willful neglect;
(9) willful understatement of Federal tax liability, unless
such understatement is due to reasonable cause and not to
willful neglect; and
(10) threatening to audit a taxpayer for the purpose of
extracting personal gain or benefit.
(c) Determination of Commissioner.--
(1) In general.--The Commissioner of Internal Revenue may
take a personnel action other than termination for an act or
omission under subsection (a).
(2) Discretion.--The exercise of authority under paragraph
(1) shall be at the sole discretion of the Commissioner of
Internal Revenue and may not be delegated to any other officer.
The Commissioner of Internal Revenue, in his sole discretion,
may establish a procedure which will be used to determine
whether an individual should be referred to the Commissioner of
Internal Revenue for a determination by the Commissioner under
paragraph (1).
(3) No appeal.--Any determination of the Commissioner of
Internal Revenue under this subsection may not be appealed in
any administrative or judicial proceeding.
(d) Definition.--For purposes of the provisions described in clauses
(i), (ii), and (iv) of subsection (b)(3)(B), references to a program or
activity receiving Federal financial assistance or an education program
or activity receiving Federal financial assistance shall include any
program or activity conducted by the Internal Revenue Service for a
taxpayer.
II. OPM’s Expanded Suitability Power Interferes with Employee-Employer
Relationship
PMA is extremely concerned by OPM’s proposal to centralize suitability actions within OPM.
OPM is the employer of its employees, but not of those who work for the IRS nor any other federal
agency. OPM proposes to put itself in the middle of the relationship between employees and their
agency employers, including their managers who are responsible for their performance.
OPM states that it will need to hire significant staff to fill this function, and envisions half of
federal employee personnel actions would be suitability actions in the future. How long will this
take, and will OPM’s process potentially slow down agency decision making? Will a backlog be
created? Does OPM believe agencies will need less labor relations specialists, HR specialists, EEO
counselors, and the like, once it assumes the role of firing over 5,000 employees a year? What the
implications of this could be, if enacted, for agency resourcing of HR and management officials is
unclear.
III. Concerns with OPM’s Expanded Power
Under this proposed rule for any suitability actions for current employees based on post-appointment conduct, agencies must make referrals to OPM, which must then determine whether to take an action. There is ample potential for abuse in creating incentives for agencies and managers to make such referrals. Centralizing this power in OPM also increases the risk of politicized process and decisions. OPM doesn’t know who the agency employees it might review for suitability are and has minimal obligations to them under this proposed rule.
IV. Recommendations and Alternatives
Civil service protections, such as those codified by the Civil Service Reform Act of 1978, do not
exist for federal employees. They exist for the American people–to ensure the equal, apolitical,
and efficient delivery of taxpayer services. OPM’s proposal seeks to bypass the civil service rights
of federal employees by supercharging its own powers to terminate them, instead of their
employing agency and responsible manager. There are alternative approaches.
- Ensure a full quorum on the MSPB – the MSPB typically rules in favor of agency
management decisions in over 85% of cases. The administration should work with the
Senate to ensure a full compliment of 3 MSPB qualified members to hear and adjudicate
cases.
- Provide training to managers – IRS managers have historically been under supported by
the agency, in terms of training and adequate HR support to handle employee issues.
Seasonal managers at the IRS are often afforded minimal training or support. Elevating the
importance of the selection, development, and support for federal managers to enable
employee performance and accountability is critically necessary.
- Resource agency HR – Agency human resources offices have also historically received
minimal support, investment, and modernization, bogging systems and processes down in
paperwork and red tape. Research by the MSPB and GAO have documented that
inadequate support from knowledgeable HR specialists is a major barrier for managers in
ensuring employee accountability.
- Work with Congress to update civil service laws – For several decades, PMA, federal
managers associations, good government organizations have called for a streamlining of
the federal employee appeals and adjudicative process, including addressing mixed cases,
considering expanding the 10 Deadly Sins more broadly, creating manager career tracks
and incentives, and more. PMA stands ready to work with stakeholders to codify
modernization of federal personnel management into law.
Thank you for your consideration of PMA’s perspective.
Sincerely,
Kelly Reyes
Executive Director
Professional Managers Association
https://www.govexec.com/management/2022/08/theres-no-easy-button-modernize-civil-service/376417/
700 12th St NW Ste 700
PMB 95968
Washington, DC 20005
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