Final Rule Ignores Warnings, Strips Employees of Due Process

The Office of Personnel Management (OPM) and Office of the Director of National Intelligence (ODNI) are planning to issue final regulations regarding sensitive national security positions in the government. The new rules largely appear to be the same as the proposed rules that the Project On Government Oversight and other concerned civil society organizations opposed in 2013. As was true then, POGO remains concerned that this rule and others like it would effectively deny whistleblowers in sensitive positions protections against retaliation and would gut due process and appeals rights of the civil service.

Agencies have very broad authorities to define which employees fall into this category, with previous designations including commissary clerks and accounting secretaries, allowing this rule to affect virtually countless numbers of employees. There is little oversight and no effective guidance of what makes an employee eligible for a sensitive designation, and no real oversight of the removal of that designation. Most importantly, a sensitive employee has no due process rights to challenge a decision to remove them from their position by revoking their “sensitive designation,” making whistleblowers who hold these positions particularly vulnerable to retaliation.

In 1978, Congress created the Merit Systems Protection Board (MSPB) to hear federal employee appeals of alleged prohibited personnel practices. But this new system of sensitive jobs circumvents the MSPB, allowing the agencies an unchecked ability to remove federal employees from their positions without access to an appeal. Without the stability, balanced treatment, and consistent review Congress intended the MSPB process to provide, federal workers have lost and will continue to unfairly lose their jobs.

Congress should immediately prohibit any funds being spent to implement this regulation, and stay any current proceedings to remove workers who are found ineligible to occupy sensitive positions through this rule. The Government Accountability Office (GAO) needs to assess whether there is any need to change the existing internal agency appeal processes and evaluate the impact of limiting the rights of a large portion of the federal workforce to appeal to the MSPB. Finally, Congress should enact legislation to restore due process rights for employees who were removed from their positions due to a change in “sensitive” status. This right existed for all federal employees from 1883-2012 and guaranteed them a day in court before an independent administrative board after termination of employment.

The new OPM/ODNI regulations are a giant step backwards in due process rights for civil service employees. It is a mistake to implement any structural paradigm shift such as this one until there has been a GAO report evaluating agency internal appeals process to determine if they are adequate to support such a change.