Sure, these Protections Can Be a Pain for Govt Managers, but the Alternative Is Far Worse
Last week, President Trump in his State of the Union speech said:
“I call on the Congress to empower every Cabinet Secretary with the authority to reward good workers—and to remove Federal employees who undermine the public trust or fail the American people.”
The sentiment makes sense. But that’s the status quo: agencies can do what he describes already, they just don’t as often as they should. A big problem is, according to a recent government study, agency managers sometimes don’t use their current authority to remove misbehaving or poorly performing employees because they think the law creates more of a barrier than it actually does. There are also opportunities to reward good employees with bonuses, and to promote them when warranted.
There is an existing legislative template for the changes President Trump seeks. He signed a new law last year making it easier to fire the more than 350,000 employees at the Department of Veterans Affairs (VA). Members of Congress have cited the resulting changes at the VA, which weakened civil service protections for VA employees, as a model for the rest of the government. But it’s far too early to understand the impact those changes have had, and there have been no independent studies published on what’s happening at the VA.
Weaker civil service laws would easily undermine whistleblower protections and other protections that insulate the roughly 1.8 million-person career federal workforce from retaliation and political favoritism. In fact, weakening the laws would make the government less effective and put us all at risk. In addition, it would impede Congress’s ability to conduct oversight of the executive branch: Congress’s best sources of information are the employees inside agencies, and without robust protections and due process, more sources will remain silent.
From the late 1800s up until recently, Congress has repeatedly reviewed federal employee protections and has found over and over again that they need to be strengthened in law. There are good reasons: agency leaders hate it when insiders under their supervision call out problems, especially when those concerns become public. Agency leaders also prefer to hire and promote employees they deem “loyal.”
It would be sadly ironic if Congress were to now reverse course and hand senior executive branch officials the power to undermine Congressional oversight and the professionalism of the federal workforce.
There are civil service reform ideas that would preserve protections for the workforce and for Congress to receive truthful information. Those ideas, such as improving the federal government’s recruitment and hiring of employees and improved management and performance, are uncontroversial and have bipartisan support.
Yet those ideas tend to get sidelined in favor of heavily watering down due process rights for employees.
A Century of Civil Service Laws
In the first decade of the 20th century, the White House was aggressive in seeking to control the flow of information to Congress and the public by muzzling employees: the Teddy Roosevelt and Taft administrations barred federal employees from going to Congress unless authorized by their agencies.
In 1912, Republican Senator Robert La Follette of Wisconsin entered into the Congressional Record stories that showed how political appointees abused the federal workforce. In one case, the Postal Service terminated a “particularly efficient” employee in 1906—he had just been promoted a few weeks earlier—because he notified the press about unsanitary conditions in a Chicago post office after four of his coworkers had died of tuberculosis.
La Follette and a colleague in the House, Democratic Representative James Lloyd of Missouri, sponsored legislation that became law, protecting federal employees from unwarranted removal and establishing that the employees had a right to furnish information to Congress without facing interference from their agency.
The Lloyd-La Follette Act was a benchmark. The problem is, it had few teeth.
The Civil Service Commission, the agency that at the time reviewed complaints of wrongful terminations and other disciplinary actions, had limited authority to compel agencies to comply with its recommendations. Employees at different agencies were subject to different levels of protection established largely by agency-specific policies. Even employees within the same agency had different appeal rights; for a time, federal employees who were veterans had greater rights than non-veteran employees. A 1953 Senate report stated that the protections under the Lloyd-La Follette Act were “comparatively feeble” for non-vet employees.
In the late 1960s, one whistleblower drew President Richard Nixon’s ire when he called out waste in the Defense Department in testimony before Congress.
Ernie Fitzgerald, an Air Force civilian cost analyst, testified in 1968 that the Air Force mismanaged the C-5A cargo aircraft program, leading to cost overruns of $2 billion (that would be roughly $14 billion in today’s dollars). (NOTE: Fitzgerald was involved in the founding of the Project On Government Oversight.)
The resulting negative publicity infuriated Nixon. According to transcripts of White House tapes disclosed years after Fitzgerald was fired in 1970, Nixon told one of his aides, “I said get rid of that son of a bitch."
The same day, Nixon told another aide, “the point was not that he was complaining about the overruns, but that he was doing it in public."
Fitzgerald’s retaliation case—which took a dozen years to resolve—as well as other cases were powerful examples that illustrated that protections needed further improvements. The law was strengthened again. According to Senator Chuck Grassley (R-IA), Fitzgerald “was instrumental in helping get the Civil Service Reform Act of 1978 passed.”
The Civil Service Reform Act ushered in the modern system for federal employee protections, which included disbanding the Civil Service Commission and establishing the Office of Personnel Management and the Merit Systems Protection Board—a quasi-court inside the executive branch that hears employee claims of retaliation and other wrongful employment actions. It also set up the Office of Special Counsel that investigates retaliation claims and is a channel for whistleblower disclosures of wrongdoing. (Disclosure: the author formerly worked at the Office of Special Counsel.)
The Civil Service Reform Act of 1978 not only improved protections for whistleblowers, but also sought to make it easier to discipline misbehaving and poorly performing employees. It did. In the first year after the Act passed into law, removals for poor performance shot up fifteen-fold, according to a 1980 report by The Washington Star.
But protections have had to be strengthened again with the Whistleblower Protection Act of 1989 and through other legislation.
The most recent round of major improvement in law came with the Whistleblower Protection Enhancement Act of 2012. A Supreme Court decision in 2006, Garcetti v. Ceballos, provided some of the impetus for the improvements because it said public employees did not have First Amendment protections for speech made as part of their job.
Government Workers Still Need Protections
There are plenty of recent examples that show protections are still needed. The reason is the same as in the past: a whistleblower is “too often treated like a skunk at a picnic,” as Senator Grassley is fond of saying. They don’t make life easy for top officials at agencies who often have to face harsh questions from Congress and the media because of the whistleblowers’ disclosures.
Whistleblowers can also bring the wrath of powerful interests that may then put pressure on senior officials to get rid of that whistleblower, who is seen as a troublesome government employee.
That happened in the Obama administration when a fairly low-ranking Interior Department employee raised questions about the legality of certain clauses inserted by a Native American tribe and approved by the Interior Department that exempted gas leases from environmental assessments. The employee’s disclosures angered the tribe, according to an Office of Special Counsel report.
The tribe, described in the report as having a “powerful lobbying presence in Washington, D.C., and was amongst the wealthiest tribes in the country due to its Gulf Coast oil interests,” leaned hard on then-Secretary Ken Salazar, who directed senior staff to address the tribe’s concerns. The tribe wanted the employee gone and Salazar’s senior staff put pressure to make him move to one of the agency’s other field offices.
Because of the challenges in finding an office where the commute was reasonable and where he could live near his extended family, the single-father whistleblower eventually left the agency.
The whistleblower’s supervisor wrote to senior agency officials, saying it was “very concerning that removing the employees as the Tribe requests, is implying that the employees have done wrong, while realistically they were only doing their job."
Years later, in 2016, the Office of Special Counsel was able to get the employee his job back, back pay, and compensatory damages thanks to civil service protections.
Similar scenarios could happen where, say, an oil company is upset with an individual Environmental Protection Agency employee who is conducting an environmental review, or a where a defense contractor is angered by a Defense Department employee who is reviewing the expenses the contractor has charged to the government. A company could put pressure on an agency head to “deal” with that employee. Civil service protections help insulate those employees from the undue influence.
Are Civil Service Protections Keeping Agencies from Disciplining Bad Employees?
The waiting-list scandal at the Department of Veterans Affairs that became at national story in 2014 has fueled the appetite for more accountability when federal employees are poor performers or engage in misconduct, including retaliation against whistleblowers.
More discipline is needed and there are cases where misbehaving employees wrongly get off scot-free. But the conversation has largely been one-dimensional. The prevailing narrative in DC and nationally is that civil service protections for federal workers prevent them from being disciplined.
The prevailing wisdom is wrong. Those protections don’t prevent discipline—but management has to appropriately document poor performance and misbehavior. Management also has to act fairly and follow the process laid out by law, rules, and regulations.
In addition to warding off arbitrary and bad decisions by management, the protections have a big upside for all of us: they make it harder for whistleblowers to lose their jobs as a result of retaliation, and make the whistleblowers more comfortable coming forward (although it must be said that, even in the best of circumstances, whistleblowing is never easy).
The protections in place require that management adequately justify taking action to discipline an employee. They are there to prevent agencies from suddenly targeting whistleblowers or other employees management doesn’t like. And if agencies do target those employees, the protections give the employees an opportunity to respond and a process through which they can appeal management decisions.
Many of the proposals out there to increase “accountability” within the federal workforce strip down these due process rights, reducing employee’s time to respond to management allegations, and reducing employee appeal rights.
Yet when agency supervisors are surveyed on what the actual barriers are to taking action against poor performing and misbehaving employees, the supervisors say the biggest factors are their agency’s culture, support from top agency officials, and support from the human resources office, the Merit Systems Protection Board has found.
There is a widespread misconception that the legal standards for removal are much higher than they actually are. The Board’s study found a few years ago that 95 percent of officials who propose removal thought the standard for defending an employee’s removal is much higher than it is.
This means that supervisors think they must have a much stronger case against an employee before taking action.
Another reason management does not appropriately deal with poorly performing employees that has nothing to do with employee protections under civil service law is rampant performance inflation. In 2016, the Government Accountability Office released data showing that around 99 percent of the federal workforce get rated “fully successful” (38.8 percent), “exceeds fully successful” (27.4 percent), or “outstanding” (33.1 percent).
“If government managers simply give essentially every employee a passing grade, then at best they are encouraging mediocrity and at worst they are failing to hold accountable those who fail to serve the public well,” Senator Ron Johnson (R-WI) said in a statement to The Washington Post.
“Does anyone truly believe that 75 percent of employees rated on a five-level system are outstanding or exceed fully successful?” asked Jeffrey Neal, formerly the top human resources official at the Department of Homeland Security. Neal told the Post that it is “equally not credible” that only 1 percent of federal employees are doing a poor job.
It is tough to justify discipline against poorly performing employees if their ratings don’t accurately reflect their poor performance.
Another reason supervisors may be hesitant to fire misbehaving employees is the rampant belief that the supervisors won’t be allowed to hire a replacement. This clearly provides a disincentive for taking action against a bad employee.
Nonetheless, the federal government removed over 77,000 employees for performance or conduct problems between fiscal years 2000 and 2014, according to federal data.
The VA as Petri Dish
Recently, because of the new law Trump signed last year, the Department of Veterans Affairs has become a petri dish for those who want to reduce civil service protections—it builds on an earlier law during the Obama administration that was limited only to senior executives. The VA’s more than 350,000 employees now all have fewer due process protections than civilians elsewhere in the federal government. Furthermore, the VA is increasingly publicizing the numbers of employees facing major punishments through its new Office of Accountability and Whistleblower Protection.
One issue with the publicity is that we don’t know whether those punishments would have happened anyway without the new law or that new office. For instance, in 2013, before the waiting list scandal hit the front pages and before changes were made to civil service protections for VA employees, the VA fired 2,247 employees for various reasons.
But what if someone is a whistleblower at the VA and earns the ire of management now? They may be less able to defend themselves proactively because of the weaker civil service protections at that agency. The VA law shortens the notice any employee—including a whistleblower—is given before facing termination, suspension, or demotion; they have a shorter timeframe to appeal the action; and the legal standard the VA has to meet to discipline that employee is lower. While some countervailing changes were made that make discipline against managers mandatory if they are found to have retaliated against a whistleblower, on balance it is hard to evaluate if the new system is a step forward or a step backward for VA whistleblowers.
Despite remarks from President Trump and VA Secretary David Shulkin that are supportive of whistleblowers, there are still problems in practice. Special Counsel Henry Kerner, a Trump appointee, recently wrote that the VA’s sluggish actions in a 2017 case involving the Manchester, New Hampshire, VA hospital “sends an unacceptable message to VA whistleblowers that only the glaring spotlight of public scrutiny will move the agency to action, not disclosures made through statutorily established channels.”
Kerner also was critical of the weak discipline in a recent case where two VA employees, a father and daughter, steered $1 million in government contracts to a family member. The father resigned. The only punishment the daughter faced was a demotion by one pay grade, despite her misconduct and her lack of candor during the VA’s investigation into the matter.
“By allowing an employee who engaged in this conduct to remain with the agency, the VA demonstrates a shocking degree of indifference to government ethical standards, procurement regulations, and public integrity,” Kerner said in a statement last week. The case was investigated because of a whistleblower’s disclosures.
These cases suggest that problems with accountability at the VA have more to do with culture and leadership than civil service protections.
It would be premature for Congress to expand the VA law to the rest of the federal government until much more is known. The Merit Systems Protection Board has stated it plans to study the earlier, similar VA law that only impacted senior executives; this study could help inform Congress. But because President Trump hasn’t nominated at least one person to the Board, it lacks a quorum. Even if its study was complete, the Board can’t officially finalize and publish the study until the Board has a quorum again.
The stakes are high. Whistleblowers are not the only ones at risk because of weaker civil service protections. It would be wrong for political appointees during a Democratic administration to target employees who vote for Republicans or to prefer job candidates with ties to the Democratic Party. Or vice versa in the case of a Republican administration.
For example, during the Obama administration, Alan Bersin, Commissioner of Customs and Border Protection, sought to hire three people who had worked on Obama’s presidential campaign for career positions at CBP. They all had meager qualifications for these jobs. The hiring process was manipulated to give them an advantage—disadvantaging truly qualified applicants, including veterans who applied. Ultimately CBP was rebuked by both the Department of Homeland Security and the Office of Personnel Management for violating civil service laws and rules, and the three were not hired.
Currently, at the State and Interior Departments, their Inspectors General are examining allegations that Trump’s political appointees have reassigned career staff just for being associated with Obama administration priorities to less desirable work duties, potentially in violation of civil service laws, rules, and regulations.
That’s the reason civil service laws exist. We want a career federal workforce run on the basis of merit—not on political affiliation, not on whether someone has blown the whistle, and not on any other basis that has nothing to do with the ability of employees to do their jobs. Otherwise we risk having a system filled with ethically weak-kneed, incompetent employees whose main job qualification is keeping their political masters happy. Removing protections for employees might make life easier for senior government officials, but it won’t make government work better for the American people. Civil service laws are there so federal employees defend the Constitution, not individual bosses.