SECTION 1. PURPOSE.
.01 The purpose of this order is to state the policy of the Department of Commerce with respect to discipline.
.02 The purpose of this revision is to omit material covered adequately in other sources, to provide more guidance in the application of appropriate and progressive discipline in individual cases, and to update the Table of Offenses and Penalties.
SECTION 2. GENERAL PROVISIONS
.01 this order supplements the basic provisions of law and regulations governing disciplinary action.
.02 The basic authority for disciplinary actions by agencies is et forth in Executive order 9830, as amended, and chapters 43 and 75 of Title 5, U.S. Code, and is regulated by Parts 432, 752, 771 and 772 of Title 5 of the Code of Federal Regulations. Additional guidance is found in Federal Personnel Manual chapters 751, 752 and 771, and in Department Administrative Orders 202-752 "Adverse Actions" and 202-432 "Reduction in Grade and Removal Based on Unacceptable Performance," which will be issued shortly.
SECTION 3. POLICY
.01 General Policy
a. As used in this order, "discipline" means corrective measures intended to maintain the efficiency of the service and encourage employee performance and conduct compatible with the appropriate and lawful goals, practices, policies and procedures of the organization.
b. It is the policy of the Department that disciplinary action be taken whenever it is warranted by the employee's conduct or performance; and that discipline be administered in a constructive, progressive, consistent and timely manner.
c. Any official or supervisor who is considering taking an adverse action shall consult the servicing personnel officer or his/her designee to assure that the action being considered is appropriate. Before an adverse action, other than a suspension of 14 calendar days or less, is proposed, the personnel officer shall consult with an appropriate staff attorney of the Department regarding any issues of law that may be involved. Consultation with legal counsel may also be appropriate in taking lesser disciplinary actions. In any case where an employee's conduct may involve violations or criminal law, no disciplinary action shall be taken until after consultation with legal counsel.
.02 Selection of Appropriate Disciplinary Action.
To aid in the selection of an appropriate disciplinary action, consideration shall be given to the table of selected offenses and suggested penalties which is appended to this order as Appendix B. The penalties suggested there are guidelines only and are not mandatory. Each situation shall be considered on its own merits. Appendix A provides additional guidance on the selection of a penalty.
.03 Use of Enforced Leave.
a. In general, an employee may be placed on enforced leave (i.e., required to absent him or herself from duty) when:
1. The employee is not ready, willing, or able to work; or
2. An emergency situation exists, i.e., the employee's conduct or mental or physical condition is such that his/her presence on the job constitutes an immediate threat to Government property or to the well-being of the employee, co-workers, or the public.
b. Emergency situations
1. In an emergency situation as described in subparagraph .03a.2. of this section, in which a responsible official has not had an opportunity to appraise the situation and decide whether to initiate disciplinary action, an employee may be placed on enforced leave during the pendency of the emergency.
2. A period of enforced leave that began in an emergency situation shall not be continued indefinitely. Thus, if the employee presents him/herself for duty after the immediate emergency has ceased and it is determined by the responsible official that the employee is ready, willing and able to perform duty, continued use of enforced leave is not appropriate. However, the employee may be placed in a non-duty status, with pay and without charge to leave (administrative leave) for up to ten calendar days to allow time to effect a suspension and for other disciplinary action.
c. Disciplinary situations
Except as provided in paragraph .03b1. above, use of enforced leave in a disciplinary situation (i.e., an incident or set of circumstances which will or may result in a disciplinary action being proposed or taken against an employee) constitutes a suspension and the procedures set forth in Department Administrative order 202-752 shall be followed.
d. Non-disciplinary situations
In a non-disciplinary situation, where no emergency exists, an employee who is not "ready, willing and able" to work may be placed on enforced leave (annual, sick or leave without pay) and this action will not be considered a suspension.
e. Alternatives to enforced leave
In situations where it is not in the interest of the Government for an employee to remain in his/her position in an active duty and pay status, a number of options are available depending on the circumstances, in addition to or in lieu of enforced leave:
1. the employee may be assigned to other suitable duties,
2. the employee may be placed on excused absence (administrative leave),
3. the employee may be placed on voluntary leave (i.e., annual leave, sick leave, or leave without pay as appropriate in accordance with applicable regulations and policies), or
4. the employee may be considered absent without leave (AWOL).
SECTION 4. SPECIFIC DISCIPLINARY SITUATIONS.
.01 Absence Without Leave (AWOL). (see DAO 202-630, Section 7.05)
a. General. If an employee (1) has failed to obtain advance approval for absence on any type of leave (except in instances of emergency here it is impracticable for the employee to obtain advance leave), or (2) has ben denied a request for leave, or (3) has obtained approval of leave by fraud or deception, or (4) has failed to submit a required physician's statement upon return to duty showing that the employee was incapacitated for duty (when previously advised that a medical certificate would be required) or (5) has failed to follow prescribed leave procedures, the employee shall be considered absent without leave (AWOL) for the period of absence unless an authorized official finds special justification exists to approve the absence as leave after consideration of the circumstances.
b. Prolonged Absence and Failure to Return from Leave or Furlough.
When an appointing officer is unable to ascertain that an absent employee intends to return to duty, and the employee is entitled to adverse action procedures, the separation should ordinarily be processed as an adverse action for absence without leave rather than as an abandonment of position.
.02 Unacceptable Performance.
a. In accordance with Chapter 43 of Title 5, U.S. Code, an employee covered by that chapter whose performance continues to be unacceptable may be reassigned, removed or demoted only after an opportunity to demonstrate acceptable performance.
b. As a matter of sound personnel management, when an employee's performance is less than satisfactory, a timely warning should normally be given to afford the employee the opportunity to improve before any disciplinary action is effected.
SECTION 5. EFFECT ON OTHER ORDERS.
This order supersedes Administrative order 202-751 dated July 26, 1967.
Signed by: Acting Director of Personnel
Approved by: Acting Assistant Secretary for Administration
A. SELECTING A PENALTY.
.01 A preliminary judgement should be made as to an appropriate penalty without regard to any considerations other than the nature of the offense, its seriousness and consequences, the nature of the employee's position, and the disciplinary effect of the penalty. On the basis of these considerations, "everything else being equal," select the penalty appropriate for the offense in ordinary circumstances.
.02 Then consider any aspects of the situation that would tend to suggest a greater or lesser penalty than would ordinarily be imposed. Possible considerations include:
1. Possibility of genuine misunderstanding.
2. Enticements or provocations.
3. Culpabilities of others.
4. Other mitigating or extenuating circumstances.
1. Length of Service.
2. Quality of Work History.
3. Personal Reputation.
4. Past Contribution.
5. Record of Cooperativeness.
6. Record of Achievements.
7. Past Disciplinary Record (nature, frequency and recency of past offenses).
.03 On the basis of all of the above, select the appropriate disciplinary action.
.04 For adverse actions and other disciplinary actions for which the employee receives notice and the opportunity to reply in advance, there are actually two separate penalty considerations: the first, on the basis of available evidence when the action is proposed; and the second, in consideration of the employee's reply and all other evidence, when the final decision to take action is made.
B. TABLE OF OFFENSES AND PENALTIES.
.01 The purpose of this table is to assist supervisors and managers in selecting appropriate penalties and to provide a framework for constructive discipline. In selecting an appropriate disciplinary action, it should be remembered that discipline has a constructive purpose, and is intended to:
a. Correct the unacceptable conduct, attitude or work habits;
b. Help maintain morale and the efficiency of the service; and
c. Be fair and reasonable in its degree of severity.
.02 This table does not cover every possible offense but it describes the more common types of offenses and the range of penalties normally assessed for those offenses.
.03 The range of penalties described in the table is intended to serve as a guide only, and greater or lesser penalties than suggested may be imposed as circumstances warrant. For example, removal on the first offense may be warranted for extended periods of absence without leave.
TABLE OF OFFENSES AND PENALTIES
|First Offense||Second Offense||Subsequent Offense|
|Relationships with Public
1. Failure to obtain any required clearance of official speech or article (See DAO 219-1).
Written reprimand to removal
5 days suspension to removal
30 days suspension to removal
2. Violation of a security regulation.
Oral admonishment to removal
5 days suspension to removal
30 days suspension to removal
|Outside Employment & Interests
3. Engaging in private business activities of a prohibited or unethical nature (See DAO 202-735for details).
Written reprimand to removal
5 days suspension to removal
30 days suspension to removal
|4. Acceptance of improper dual employment or dual compensation by U.S. Government.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|5. Acceptance by an employee of gratuity which might reasonably be interpreted as tending to affect the performance of official duties.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|6. Acceptance of foreign employment without prior authorization.||5 days suspension to removal||30 days suspension to removal||Removal|
7. Improper political activities (See DAO 202-731).
Suspension or removal as determined by the Merit Systems Protection Board or the Department.
|Conduct on the Job|
|8. Unauthorized absence from the job during working hours or on any scheduled day of work.||Oral admonishment to 3 days suspension||Written reprimand to 5days suspension||5 days suspension to removal|
|9. Tardiness.||Oral admonishment to 1 day suspension.||Written reprimand to 5days suspension||5 days suspension to removal|
|10. Improper use of sick leave||Written reprimand to10 days suspension.||5 days suspension to removal||30 days suspension to removal|
|11. Intoxication caused by alcohol or other drugs:|
|a. Intoxication while on duty which impairs the ability to perform duties properly.||5 days suspension to removal||30 suspension to removal||Removal|
|b. Selling intoxicants on premises occupied by the Department.||Removal|
|c. Unauthorized possession or use of intoxicant son premises of the Department.||3 days suspension to30 days suspension||10 days suspension to removal||30 days suspension to removal|
|12. Promotion of gambling or lotteries on Government premises or while in duty status.||5 days suspension to removal||30 days suspension to removal||Removal|
|13. Gambling on Government premises or while in duty status.||Written reprimand to10 days suspension||5 days suspension to removal||30 days suspension to removal|
|14. Lending and borrowing:|
|a. Borrowing money or obtaining co-signature from subordinates.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|b. Lending of money to other employees at usurious rates.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|15. Creating a disturbance in the work place or on premises of the Department.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|16. Fighting.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|17. Conduct which violates common decency or morality including use of improper or obscene language.||Written reprimand to10 days suspension||5 days suspension to removal||30 days suspension to removal|
|18. Making vicious, malicious or knowingly false statements concerning another officer or employee of the Government.||Written reprimand to10 days suspension||5 days suspension to removal||30 days suspension to removal|
|19. Negligent or intentional injury to person or property of other employees.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|20. Safety (non-motor Vehicle): Violation of safety regulations, instructions, or prescribed safe practices, including failure to report accident or injury.||Oral admonishment to 3 days suspension||Written reprimand to 5days suspension||5 days suspension to removal|
|21. Safety (Government Motor Vehicle Operation): Violation of traffic laws, safety regulations or instructions, or safe driving practices, including failure to report accident or injury.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|22. Government Property:|
|a. Willful or negligent damage or defacement.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|b. Use of or allowing the use of Government motor vehicles, aircraft or water craft for other than official purposes.||30 days suspension(mandatory) to removal||Removal|
|23. Act of negligence or careless workmanship in performance of duty resulting in waste of public funds or inefficiency.||Oral admonishment to 3 days suspension||Written reprimand to 5days suspension||5 days suspension to removal|
|24. Use of or allowing use of Government funds,property, personnel, or other resources for unauthorized purposes.||5 days suspension to removal||30 days suspension to removal||Removal|
|25. Conducting personal affairs while in duty status.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|26. Loafing, willful idleness, wasting time.||Oral admonishment to 3 days suspension||Written reprimand to 5days suspension||5 days suspension to removal|
|27. Sleeping on duty:|
|a. Where safety or persons or property is not endangered.||Written reprimand to10 days suspension||5 days suspension to removal||30 days suspension to removal|
|b. Where safety of persons or property is endangered.||5 days suspension to removal||30 days suspension to removal||Removal|
|28. Failure or excessive delay in carrying out orders of assignments.||Written reprimand to10 days suspension||5 days suspension to removal||30 days suspension to removal|
|29. Insubordination||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|30. Improper use of official credential card.||3 days suspension to30 days suspension||10 days suspension to removal||30 days suspension to removal|
|31. Unethical use of official authority or information.||30 days suspension to removal||Removal|
|32. Acceptance of voluntary services for the Government contrary to statute.||Removal (required by statute) (31U.S.C. 665)|
|33. Attempted use of influence or pressure to secure favor in the appointment, transfer,advancement or retention of a relative in the Department.||5 days suspension to removal||30 days suspension to removal||Removal|
|34. Violation of "no strike" affidavit.||Removal|
|35. Unauthorized canvassing, soliciting or peddling on Department premises.||oral admonishment to 3 days suspension||Written reprimand to 5days suspension||5 days suspension to removal|
|36. Deliberate or grossly negligent violations of merit principles or procedures with a demonstrable adverse effect on one or more persons.||Written reprimand to10 days suspension||5 days suspension to removal||30 days suspension to removal|
|37. Harassing, threatening or taking reprisal action against an employee as a result of or in anticipation of a grievance, appeal, complaint, or other exercise of rights.||5 days suspension to removal||30 days suspension to removal||Removal|
|38. Misappropriation of funds.||Removal|
|39. Inefficiency||Demotion or separation (as authorized by Chapter 43 of Title5, U.S. Code)|
|40. Gifts to official supervisors - soliciting contributions for gift or present to those in superior official positions, accepting gifts or presents from Government employees receiving lower salary, or making donations as a gift or present to official supervisors.||Removal (required by 5 U.S.C. 7351,see also 5 CFR 735.202(d))|
|Personal Conduct or Character|
|41. Misconduct generally - criminal, infamous,dishonest, or notoriously disgraceful conduct.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|42. Misrepresentation, falsification, or omission of material fact in connection with application,employment or any record, report, investigation or other proceeding.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|43. Certification to the accuracy of a position description containing substantial inaccuracies which may be grade controlling.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|44. Conduct demonstrating untrustworthiness or unreliability.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
(*As used in this table, discrimination refers to specific acts taken by an employee in the performance of his/her official duties which discriminate against one or more individuals on the basis of race, sex, religion, color,age, national origin, handicapping condition, marital status, or political affiliation.)
|5 days suspension to removal||30 days suspension to removal||Removal|
|46. Refusal to answer appropriate interrogation in properly authorized inquiry.||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|47. Failure to pay a just financial obligation in a proper and timely manner (See DAO 202-735A).||Written reprimand to removal||5 days suspension to removal||30 days suspension to removal|
|48. Violation of any administrative regulation which does not provide a penalty:|
|a. Minor Offense||Oral admonishment to 3 days suspension||Written reprimand to 5days suspension||5 days suspension to removal|
|b. Major Offense||5 days suspension to removal||30 days suspension to removal||Removal|