OPM reopens its accountability rule to publish its data

The Office of Personnel Management reopened the comment period on its half of the “Promoting Employee Accountability” rulemaking on 15 September 2026, “for additional comments on OPM data and a new report published by a nongovernmental organization.”¹ The original comment period closed 3 August; it “is now reopened for two weeks,” to 29 September, and OPM “will only consider comments and material received during the reopened comment period that address the data published in the supplementary information.”¹ The Merit Systems Protection Board’s half of the same rulemaking is already final (see The MSPB retires the mandatory Douglas framework).²

1. The data OPM publishes shows its reforms did not move the numbers, and OPM says so. “The data shows that despite President Trump’s significant changes to how Federal agencies address poor performance and misconduct, the Federal Government has not seen significant increases in performance-based and adverse actions in Fiscal Year 2026,” and “the number and types of actions taken in Fiscal Year 2026 appear to be consistent with Fiscal Year 2025 levels.”¹ OPM lists countervailing factors — deferred resignations, reductions in force, retirements — and then states that “there is no doubt that Presidential policy shifted workplace culture across Government towards one that recognizes high performance and greater accountability.”¹ Its conclusion is that the flat numbers support the proposal: “OPM views this data as support for making structural changes necessary to appropriately incentivize supervisors to take necessary action.”¹

2. The comparison is nine months against twelve. The table runs FY2019 to FY2026, and the FY2026 column is footnoted “Data through June 2026” — nine months of a fiscal year that began on 1 October 2025.¹ Excluding the disputed ZLM code, the annual totals are 2,451, 2,189, 2,098, 2,517, 2,586, 2,732 and 3,492 for FY2019 through FY2025, and 3,105 for the nine months of FY2026.¹ Raw, 3,105 is below 3,492. Per month it is not: FY2025 averaged 291 actions a month and the FY2026 partial year averages 345, about 19 percent higher, which at that rate would annualise to roughly 4,140.³ On the inclusive basis the same comparison gives 347 a month against 397, about 15 percent higher.³ The step OPM does not remark on is the one before: FY2025 ran about 28 percent above FY2024 on the exclusive basis and 33 percent above on the inclusive one.³ OPM also records a limit on the data’s reach — “[n]either OPM nor MSPB referred to this data to support proposed changes to 5 CFR parts 715 and 1201,” the supervisor-training and Board-procedure portions.¹

3. The outside report says more than the sentence OPM takes from it. OPM reopened partly to invite comment on “Fast but Fair Federal Firing: Balancing Speed and Due Process when Removing Employees for Cause,” published 27 August 2026 by We the Doers, a fiscally sponsored project of The Fund for Constitutional Government.¹⁴ OPM’s citation is accurate: the report does find that “[m]anagers are encouraged — and often incentivized — to leave poor performers on the job.”⁴ The report’s framing question, though, is “[w]hat would it take to be able to remove true underperformers from federal service within six months while still ensuring due process, adherence to merit system principles, and protecting civil servants from whistleblower retaliation and politically motivated firings?”⁴ Its authors want a process that “[a]llows for the removal of an employee for cause in a reasonable time frame, while respecting due process,” and offer the work as “a starting point for a meaningful nonpartisan discussion of common-sense reforms.”⁴ It describes the Douglas factors, which the Board has now retired as a required analysis, as “the criteria a supervisor and agency must use to, in layman’s speak, ‘ensure the punishment fits the crime.’”⁴²

4. What is still only proposed is the operative half. The July notice proposed that OPM “improve the accountability of employees for poor performance and misconduct by streamlining the administrative procedures used by agencies to take performance-based and adverse actions,” amending 5 CFR parts 412, 432, 715 and 752 — the performance and adverse-action regulations themselves.⁵ It also proposed “restricting agencies’ ability to engage in settlement agreements that remove official documentation of performance or conduct detrimental to the efficiency of the service,” which would curtail the clean-record settlement.⁵ None of that is final. What is final is the Board’s portion, which changed the standard of review before the procedural changes it was paired with have been adopted.²⁵