Tag Archives: penalty

Snapshot: Some Considerations in Determining Penalty #DisciplinaryAction

June 22, 2021 By in Foreign Service, Grievance, Regulations, Snapshots, State Department Tags: , ,
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3 FAM 4375 (“SOME CONSIDERATIONS IN DETERMINING PENALTY”) reads as follows:
The following factors should be considered in determining the appropriate penalty. This list is not exhaustive, and not all factors are applicable to all cases.
(1) Nature of the offense, its seriousness, and consequences;
(2) History of past conduct problems, whether or not discipline was imposed (nature and frequency of past offenses and how recent the occurrences);
(3) Intent (possibility of genuine misunderstanding), willfulness of the conduct;
(4) Enticement or provocation;
(5) Position of employee (nature or relationship between behavior and official responsibilities, sensitivity of position);
(6) Culpability of others;
(7) Contacts with the public and prominence of the position;
(8) Notoriety of the offense or its impact upon the reputation of the Department;
(9) Where and when the misconduct occurred – in the United States or abroad, on duty or off-duty;
(10) Length of employee’s service, level of professional experience;
(11) Quality of employee’s work history;
(12) Past contributions and achievements;
(13) Record of cooperativeness, efforts toward and potential for rehabilitation;
(14) Other mitigating or extenuating circumstances;
(15) Clarity with which the employee was on notice of any rules that were violated in committing the offense;
(16) Consistency of the penalty with those imposed upon other employees for similar offenses and with the table of penalties in 3 FAM 4377; and
(17) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
“These factors are derived from those enunciated in Douglas v. Veterans Administration, 5 Merit Systems Protection Board (MSPB), 313 (1981), which established criteria that agencies must consider in determining an appropriate penalty for an act of employee misconduct.”
Source: FSGB 2020-046; 3 FAM 4375 is available online here.
Note: FSGB cases are not available to read online; each record needs to be downloaded to be accessible. Please use the search button here to locate specific FSGB records.

 

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Snapshot: Douglas Factors

November 3, 2016 By in Court Cases, Grievance, Regulations, State Department Tags: , , , , ,

Posted: 3:34 am ET
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For both Civil Service and Foreign Service disciplinary cases, a proposed penalty is based on the review of similar past discipline cases and the application of the Douglas Factors.  The 12 Douglas Factors are mitigating or aggravating factors that may affect the penalty imposed:

  • The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional, technical, or inadvertent; was committed maliciously or for gain; or was repeated frequently.
  • The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
  • The employee’s past disciplinary record.
  • The employee’s past work record, including length of service, performance on thejob, ability to get along with fellow workers, and dependability.
  • The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties.
  • Consistency of the penalty with those imposed upon other employees for the same or similar offenses.
  • Consistency of the penalty with any applicable agency table of penalties.
  • The notoriety of the offense or its impact upon the reputation of the agency.
  • The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.
  • The potential for the employee’s rehabilitation.
  • Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, bad faith, or malice or provocation on the part of others involved in the matter.
  • The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

In Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), the Merit Systems Protection Board established criteria that supervisors must consider in determining an appropriate penalty for misconduct. See the Office of Personnel Management Web site for a complete list (https://www.opm.gov/policy-data-oversight/employee- relations/reference-materials/douglas-factors.pdf).

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