After successfully completing another rotation through a complex deployment, your commander, Colonel (COL) Rock, had commanded superbly and shown great leadership potential for increased responsibility.1 In order to prepare him for the next level of command, COL Rock has been given a broadening assignment at a large installation and assumed command of a garrison.2 He recognizes that he will be presented with many unfamiliar challenges since he has not served on a garrison staff for quite some time.
After the change of command ceremony, COL Rock begins operating on a new battle rhythm with a new routine of meetings, new issues to tackle, and a new staff to command. He quickly recognizes that the structure, workforce composition, and mission of a garrison is inherently different from what he has been used to in a deployed environment. The number of service members on his new staff is greatly reduced in comparison to his staff while deployed; his new staff is comprised primarily of federal Civilian employees. And, although different in many ways,3 COL Rock begins to appreciate that his Civilian employees are equally value-adding members of the team and are focused on executing the same goal and achieving mission success. Twenty-four-hour operations become almost non-existent and urgency takes on a new meaning. And, while not to devalue the importance or complexity of garrison operations, COL Rock is starting to realize that command of a garrison will be a truly unique leadership challenge.
Since 2001, we have been a military at war. For the past nearly twenty years, our commanders have been entrenched in joint operations, leading highly sensitive missions, and asking complex questions about rules of engagement. Now, more than ever, commanders have been operating on a twenty-four-hour clock and demanding quicker turnaround response times. After a twelve- to fifteen-month deployment, our commanders generally return home for a brief period, reset, and prepare for another deployment. For many of our current active duty commanders, it is not unrealistic to assume that from the time they commissioned until now, their service probably resembles this scenario. For officers who commissioned prior to 2001, command was probably at a very junior level where interactions with, and management of, a Civilian staff was infrequent, at best.
There are approximately 247,393 federal Civilian employees currently serving in the Department of the Army.4 The overwhelming majority of these employees do not deploy alongside our service members, but instead remain in garrison and provide critical support and continuity required to accomplish the mission at home. As such, the majority of Civilian personnel encountered by commanders in deployed environments are likely local nationals or government contractors supporting the force;5 neither group is categorized as Title 5, United States Code (U.S.C.), federal Civilian employees.6 This distinction is important because Title 5 U.S.C. employees are statutorily vested with due process rights and protections,7 concepts with which commanders of Civilian employees must be familiar.
As a legal advisor to the new garrison commander,8 you are presented with the critical task of refreshing COL Rock on the laws and policies for managing his Civilian workforce. This article aims to discuss three pillars of command success—roles, relationships, and responsibilities to ensure your commander can complete and return home safely from this next assignment as a supervisor of Civilians.
Commanders, as the initiators of many actions addressing service member misconduct, are not necessarily the initiators of adverse actions9 involving Civilian employees. Rather, this responsibility is oftentimes reserved for the Civilian’s first-line supervisor, who generally has firsthand knowledge of an employee’s poor performance, misconduct, or other action or behavior that impacts the efficiency of the service, which serves as the trigger for when adverse action should be initiated.10 The initiator of an adverse action is known as the proposing official and, for Civilian employee actions, is generally the Civilian’s first-line supervisor.11 But this does not imply that COL Rock does not have oversight or command of adverse actions taken against his Civilian employees.
Certainly, COL Rock could, depending on the employee’s grade and position, be a Civilian employee’s first-line supervisor; however, more than likely, COL Rock will serve as the employee’s higher level reviewer (HLR) (otherwise known as the “senior rater”).12 The decision-maker of a proposed adverse action is known as the deciding official, so for Civilian employee actions, this is generally the Civilian’s HLR.13
This also does not imply that COL Rock and other commanders need not have a firm understanding of the Civilian adverse action process. Commanders and senior leaders should possess a clear understanding of the disciplinary process for Civilian employees and have confidence to take swift, deliberate, and appropriate action when necessary. Although, the conventional thinking seems to be sometimes that disciplining a Civilian employee is “too hard, [the process] takes too long, is ineffective, and just cannot be done, the reality is that Civilian employee discipline is essential to unit readiness and good order and discipline.”14 One way to instill confidence is to compare the Civilian disciplinary process,15 something that COL Rock is likely less familiar with, to disciplinary actions taken against service members under the Uniform Code of Military Justice, something that COL Rock is probably quite familiar with.16
Aside from serving as a rater, HLR, proposing official, and a deciding official, there are other roles that COL Rock is likely to serve in, and hats that he will be expected to wear during his time in command. Judge advocates advising such supervisors should familiarize themselves with these roles to better guide their client.
One role that COL Rock is likely to serve in is as a grievance hearing official for bargaining unit and non-bargaining unit employees.17 In this role, COL Rock will serve as the initial decision-maker for actions that an employee elects to grieve. The election to grieve matters that are deemed grievable, or to pursue other available avenues of redress, is an election made by the employee.18 At times, COL Rock may feel that the parameters of his roles are becoming blurred if, for example, while wearing the hat of a grievance hearing official to address Employee A’s employment issue, Employee A simultaneously desires to use COL Rock’s open-door policy to discuss a separate matter.19 Colonel Rock may be hesitant to grant Employee A’s request; however, he should likely allow Employee A to use his open-door policy, recognizing that regardless of the hats he wears, COL Rock, while in command, will always wear the hat of commander. He is ultimately responsible for the well-being of all his employees, regardless of rank or grade.20
Another role that COL Rock is likely to assume when commanding Civilian employees is as a responsible management official (RMO) during an Equal Employment Opportunity (EEO) complaint.21 As an RMO, COL Rock may be identified as someone who allegedly took a discriminatory action against a Civilian employee.22 If the complainant is a current employee,23 COL Rock will likely have concerns about interacting with the complainant, for fear of further discriminatory actions being alleged against him. However, as stated above, COL Rock must continue to command and oversee his entire workforce, which the complainant is part of. Legal advisors should be heavily involved in guiding a commander like our hypothetical COL Rock facing this dilemma.
Within the realm of EEO complaints, if COL Rock is not a named RMO, but rather is senior in the supervisory chain to a named RMO, COL Rock could serve as a settlement authority (SA) during EEO or other complaints involving alternative dispute resolution.24 As a SA, COL Rock may express concern that settling with the complainant may open the floodgates for other Civilian employees to file additional EEO complaints; however, the evidence does not support such a fear.25 Rather, settlement avoids uncertainty in an outcome being decided by an independent federal agency; it allows resolution of a complaint without fault being assigned; it saves time and resources for both the agency and the complainant; and it achieves finality of one or more ongoing complaints.26 Additionally, reaching settlement of a formal complaint filed by a current employee allows COL Rock to rebuild a fractured relationship with a member of his workforce, improve the overall efficiency of his workforce, and maintain good order and discipline within his organization.
With COL Rock wearing various hats in the roles that he assumes during command, developing and maintaining good relationships is critical for his success and the success of his organization.27 As COL Rock begins his transition into command, he should identify strengths and weaknesses of the previous commander’s relationships with his teammates, and start to develop ways to improve and ultimately sustain effective relationships.
As a starting point, COL Rock should get to know his labor counselor and should have points of contact for the Civilian Personnel Advisory Center, EEO, Employee Assistance Program, and union leadership. Each teammate has a different and important role in addressing a Civilian personnel issue and is a subject matter expert (SME) within a particular area that impacts COL Rock’s workforce. And although each teammate serves a different function in the overall success of COL Rock’s organization, the common thread binding them together is the well-being of the workforce to achieve mission success for the organization. As COL Rock’s legal advisor, you should be available to provide ongoing and timely advice and assistance. This will help COL Rock develop trust in you as his legal advisor and instill confidence that COL Rock is able to address Civilian personnel issues.
Additionally, COL Rock should seek input from the senior Civilian within his organization. This individual has likely worked for the organization for a long period of time, can provide valuable insight and observations of areas for improvement and systemic concerns, understands specific concerns related to his employees, and can provide continuity for COL Rock and future commanders. Collectively, these conversations should help COL Rock maintain effective relationships with his teammates and provide him with insight on where improvement within the organization is needed.28
However, change simply for the sake of change is not necessarily a good thing. Colonel Rock should be mindful to implement proposed changes only after consulting with his labor counselor and complying with statutory requirements;29 otherwise, COL Rock could risk committing an unfair labor practice, exposing the agency to litigation that could have easily been prevented.30
As the senior executive for installation activities, COL Rock is, in part, responsible for ensuring that the intent of the Senior Commander’s mission is met—“the care of Soldiers, Families, and Civilians, and to enable unit readiness.”31 More specifically, as it applies to the Civilian workforce, COL Rock must ensure that he has a general understanding of the laws, rules, and regulations applicable to Civilian employees. He must also be confident to seek guidance from the proper SME if there appears to be a deviation from a requirement. Just as it would not be appropriate for COL Rock to be uninterested in daily operations of noncommissioned officers and junior enlisted Soldiers, COL Rock cannot uninvolved in his Civilian workforce. His duty to ensure the well-being of his organization means that he must understand how to operate in the terrain of Civilian personnel matters, even if it is unfamiliar to him, with the help of his legal team.
As a starting point, COL Rock should understand that the federal civil service is grounded upon brick and mortar principles, known as the Merit System Principles.32 The Merit System Principles require all Civilian personnel actions to be based on fairness, equity, and merit, not only with regard to hiring and firing Civilian employees, but also as it relates to performance ratings, details, and opportunities for advancement.33 A violation of the Merit System Principles, an allegation of discrimination, retaliation, or improper hiring practice could result in an alleged prohibited personnel practice.34 Affirming adherence to fairness, good faith bargaining is also statutorily required when negotiating with federal labor unions representing bargaining unit employees within the organization.35
To underscore unit readiness, COL Rock should communicate to his supervisors clearly defined goals and expectations, then hold them accountable and take appropriate action if they fail in meeting those goals and expectations.36 Colonel Rock should recognize that performance management includes more than simply following the four phases of the Civilian performance management program,37 it means having a clear vision about the mission of his organization and ensuring that every Civilian employee has a position description and performance plan that aligns with accomplishing that mission.38
His legal advisor and/or labor counselor is pivotal in helping COL Rock with these two tasks, especially the latter one. Knowing this information will help him identify skill gaps and vacancies in positions that are value-added to the organization.39 The broader umbrella of workforce management means understanding how to grapple with the very occasional odd, aggressive, and even threatening behavior40 of an employee, accommodating individuals with disabilities,41 and ensuring a safe workplace for all. In conjunction with the labor counselor, COL Rock should also review command policies currently in effect to ensure compliance with recent changes in the law, and ensure that all federally required annual notices are posted.42
By highlighting the various roles that COL Rock will likely juggle during his command; underscoring the value in developing and sustaining effective relationships; educating him about the organization’s statutory and agreed-upon responsibilities; and providing support and advice throughout these processes, you, as COL Rock’s legal advisor, will have effectively equipped him with the tools necessary to serve confidently in another complex environment. Not only will COL Rock feel empowered to take swift, deliberate, and appropriate action in Civilian personnel actions within his garrison, but his knowledge will carry with him as he continues to progress into increased leadership roles, thereby creating greater opportunities to educate and mentor our future leaders. TAL
1. All names used in this article are fictional and not intended to represent a particular individual.
2. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 2-5b(4)(b) (6 Nov. 2014) [hereinafter AR 600-20] (The “Garrison Commander] commands the garrison, is the Senior Commander’s senior executive for installation activities[, . . .] is responsible for day-to-day operation and management of installations and base support services.” Id.
3. See generally 5 C.F.R. Parts 1-3 (1963) (methods of appointment into federal service); 5 U.S.C. § 6329a (2016) (administrative leave); 29 C.F.R. § 1630 (1991) (reasonable accommodations); U.S. Dep’t of Army, Reg. 690-12, Equal Employment Opportunity and Diversity app. C (12 Dec. 2019) [hereinafter AR 690-12] (reasonable accommodations within the Department of the Army).
4. Office of Pers. Mgmt., FedScope Report, Counts for Employees by Agency (June 2018).
5. See generally U.S. Dep’t of Def., Dir. 1404.10, DoD Civilian Expeditionary Workforce (23 Jan. 2009).
6. The scope of this article is limited to Title 5 employees as defined in 5 U.S.C. § 2105 (2013).
7. 5 U.S.C. § 7513(b) (1978); 5 C.F.R. § 752.404 (2009). Prior to pursuing disciplinary action, the proposing official should check with the Civilian Personnel Advisory Center (CPAC) Labor Management and Employee Relations (LMER) Specialist servicing their organization to determine whether the employee is a probationary employee. See 10 U.S.C. § 1599e (2015) (discussing probationary periods for employees).
8. Whether a seasoned labor counselor, an inexperienced administrative law attorney, or simply a judge advocate asked to review a particular situation dealing with a federal Civilian employee, this article is designed to provide a starting point in your role as legal advisor.
9. 5 C.F.R. § 752.401 (2009) (noting adverse actions include removals, suspensions for more than fourteen days, including indefinite suspensions, reductions in grade, reductions in pay, and furloughs of thirty days or less); 5 C.F.R. § 432 (1989) (discussing performance-based actions).
10. 5 C.F.R. § 752.403 (2009); See Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999).
11. See generally 5 C.F.R. pt. 432 (1989); 5 C.F.R. pt. 752 (2009).
12. U.S. Dep’t of Def., Instr. 1400.25, DoD Civilian Personnel Management & Appraisal Program, vol. 431, at 22 (4 Feb. 2016) [hereinafter DPMAP vol. 431] (defining Higher Level Reviewer (HLR) as “a senior-level management official, normally above the level of a rating official”). The Defense Personnel Management and Appraisal Program does not mandate a higher level reviewer. Memorandum from Assistant Sec’y of Army to Principal Officials of Headquarters, Dep’t of Army et al., subject: Army Policy on Requirement for a Higher Level Reviewer (HLR) for the Dep’t of Army Civilian Employees Covered Under the Defense Performance Management & Appraisal Program (9 May 2016) (Department of Army established a HLR to “serve as an internal organizational review contributing to organizational rating consistency and provide checks and balances for finalizing employee ratings.”).
13. See 5 C.F.R. §§ 752.404(c)(2), 752.404(g) (2009) (describing the contents of the agency notice of decision).
14. Rebecca Ausprung, Director, Civil Law and Litigation, United States Army Legal Services Agency, Presentation at The Judge Advocate General’s Legal Center and School, Worldwide Continuing Legal Education: Civil Service Disciplinary Rules and Procedure (Sept. 19, 2019) [hereinafter Ausprung WWCLE].
15. 5 C.F.R. § 752.403 (2009) (“An agency may take adverse action, including a performance-based adverse action or an indefinite suspension, under this subpart only for such cause as will promote the efficiency of the service.”); 5 C.F.R. § 752.404 (2009) (describing the procedures for the notice of proposed action and the notice of decision).
16. Ausprung WWCLE, supra note 14 (comparing LMER Specialist to a paralegal/military justice advisor; Table of Penalties to the Manual for Courts-Martial; notice of disciplinary action to preferral; decision of disciplinary action to referral; labor counselor to trial counsel; administrative leave to pretrial confinement; an Equal Employment Opportunity or Merit Systems Protection Board hearing to an Article 15, administrative separation board, or court-martial).
17. 5 C.F.R. Part 771 (1995) (describing the agency Administrative Grievance System); U.S. Dep’t of Def., Instr. 1400.25, DoD Civilian Personnel Management System: Administrative Grievance System, vol. 711 [hereinafter DoDI vol. 771] (13 June 2018). See also all Collective Bargaining Agreements that impact your organization. There are approximately 49,970 (22.4%) appropriated fund employees and 8,940 (36.1%) non-appropriated fund employees employed by the Department of the Army who are either represented or entitled to be represented by a federally recognized labor union, as well as 459 bargaining units comprised of appropriated fund employees and 49 bargaining units comprised of non-appropriated fund employees serving Department of the Army federal Civilian employees. Headquarters, Army Civilian Personnel System (8 July 2019).
18. 5 C.F.R. § 752.405(b) (2009); DoDI vol. 771, supra note 17, para. 3b(3)(c) (“An employee may not grieve the same matter raised in any other grievance, appeal, complaint, or other dispute resolution process.”).
19. AR 600-20, supra note 2, para. 2-2. The labor counselor and LMER can provide suggestions on appropriate courses of action. Id.
20. Id. paras. 2-1(b), 3-3(n) (“[All] leaders . . . will provide an environment that contributes positively to the mental, physical, spiritual, and emotional dimensions of the lives of their subordinates. [Additionally, all leaders will] demonstrate and promote resilience by setting the example, encouraging help-seeking behavior, and by remaining actively engaged with their . . . Army Civilians. . . .”).
21. See U.S. Dep’t of Army, Reg. 690-600, Equal Employment Opportunity Discrimination Complaints (9 Feb. 2004) [hereinafter AR 690-600]; Equal Emp’t Opportunity Comm’n, Management Directive 110 (5 Aug. 2015) [hereinafter MD-110].
22. 29 C.F.R. § 1614.103 (1992).
23. AR 690-600, supra note 21 (defining complainant as an Army employee, a former Army employee, an applicant for Army employment, or certain contract employees who files a formal complaint of discrimination based on their race, color, religion, sex, national origin, age, physical or mental disability, and/or reprisal).
24. Id. paras. 2-2(d), 2-3(g).
25. Kimberly Mlinaz, Director, Negotiation and Dispute Resolution, United States Air Force, Presentation at The Judge Advocate General’s Legal Center and School, 72d Law of Federal Employment Course: Command the Litigation Space through Negotiation (July 31, 2019).
26. Michael Lassman, Senior Civilian Attorney, Office of The Staff Judge Advocate, Installation Management Command, Presentation at the U.S. Army Legal Services Agency, The Second Annual Senior Labor Counselor Forum (Sept. 25, 2019).
27. U.S. Dep’t of Army, Doctrine Pub. 6-22, Army Leadership and the Profession para. 1-11 (25 Nov. 2019) (“Within the Army profession, trust is shared confidence among commanders, subordinates, and partners in that all can be relied on and all are competent in performing their assigned tasks.”); Id. para. 1-12 (“Trust has a direct relationship on the time and resources required to accomplish the mission. Subordinates are more willing to exercise initiative when they believe their commander trusts them [and] more willing to exercise initiative if they believe their commander will accept and support the outcome of their decisions.”).
28. See generally 5 C.F.R. pt. 251 (1996).
29. There are three instances when the union representation has statutory rights: (1) 5 U.S.C. § 7103(a)(14) (2004) (management is required to provide notice to the union of a proposed change and allow the union an opportunity to negotiate a change to conditions of employment for bargaining unit members); (2) 5 U.S.C. § 7114(a)(2) (1978) (management is required to provide notice to the union of the formal discussion and allow the union an opportunity to attend a formal discussion); and (3) 5 U.S.C. § 7114(a)(2)(B) (1978) (during an investigative inquiry, when a Civilian employee is being questioned and has a reasonable belief that the investigative inquiry by the agency could result in disciplinary action being taken against the employee, the employee may invoke Weingarten rights, prompting management to either stop the interview, coordinate with the union representative and resume questioning once the union representative is present; terminate the interview; or give the employee the choice).
30. 5 U.S.C. § 7116 (1978).
31. AR 600-20, supra note 2.
32. 5 U.S.C. § 2301 (1990). See also 5 C.F.R. § 7.1 (1963) (“[An appointing officer] shall exercise his discretion in all personnel actions solely on the basis of merit and fitness and without regard to political or religious affiliations, marital status, or race.”).
33. 5 U.S.C. § 2301.
34. 5 U.S.C. § 2302 (2017).
35. 5 U.S.C. § 7117 (1978).
36. U.S. Dep’t of Army, Reg. 350-1, Army Training and Leader Development para. 3-82(a) (19 Aug. 2014) (“Supervisors are responsible for the training and education of Army [c]ivilians, identifying capability requirements and competency gaps, recommending employees for training, coaching and counseling, . . . and setting performance [standards] that include training and educational opportunities.”). When a supervisor fails to hold an underperforming employee accountable, then the supervisor is presumably failing to perform appropriate duties as a supervisor, and should be held accountable. Supervisors are also subject to a probationary period when they assume duties as a supervisor; therefore, monitoring and evaluating their performance is a critical aspect of supervisory performance management.
37. 5 C.F.R. § 430.102(a) (1995) (defining performance management as “the systematic process by which an agency involves its employees, as individuals and members of a group, in improving organizational effectiveness in the accomplishment of agency mission and goals”).
38. DPMAP vol. 431, supra note 12, § 3.3;5 C.F.R. § 430.203 (2015) (defining performance plan as “all of the written, or otherwise recorded, performance elements that set forth expected performance. A plan must include all critical . . . elements and their performance standards.”); U.S. Office of Pers. Mgmt., The Classifier’s Handbook (TS-107) 18 (Aug. 1991) (Position description (PD) is defined as “a statement of the major duties, responsibilities, and supervisory relationship of a position. The purpose of a position description is not to spell out in detail every possible activity during the work day.”) Annual PD reviews are strongly encouraged to ensure that the work being performed by the employee aligns with the mission of the organization, but also to provide a basis upon which to hold an employee accountable for unacceptable performance if ever necessary.
39. DPMAP vol. 431, supra note 12, § 3.3(b). See U.S. Merit Sys. Prot. Bd., Managing for Engagement—Communication, Connection and Courage, A Report to the President and the Congress of the United States 11 (July 2009) (“Immediate supervisors . . . link employees to the larger organization by helping them understand how their individual accomplishments lead to the achievement of agency goals.”).
40. Jolly v. Department of the Army, AT-0752-15-0013-I-1 (11 Sept. 2017) (nonprecedential). The United States Court of Appeals for the Federal Circuit (denied an employee’s appeal from a decision whereby she was removed from federal service for making menacing remarks, including “have you [her supervisor] heard about the [recent] Camp Lejeune and Fort Hood shootings . . . her supervisor and  her second line supervisor needed to be careful, to leave her alone and not to mess with her.” Id. See also Susan Henry, Labor and Employment Law Division, Office of The Judge Advocate General, Presentation at the U.S. Army Legal Services Agency, The Second Annual Senior Labor Counselor Forum: Workplace Violence Prevention, Assistance, and Response (Sept. 25, 2019) (discussing efforts to study potentially violent behavior in the workplace).
41. See 29 C.F.R. § 1630 (1991); AR 690-12, supra note 3, app. C; 28 C.F.R. § 36 (1991).
42. See generally 5 U.S.C. § 2302 (2017) (The Office of Special Counsel requires annual posting of Your Rights as a Federal Employee and Know Your Rights When Reporting Wrongs). Both notices are generally posted by either the G-1 or the servicing LMER Specialist.