Bill to Move TSA into the Civil Service Mainstream: Interesting and (Maybe) Unintended Consequences
By Bob Gilson
Tuesday, April 21, 2009
A group of Congresspersons has decided to take the choice of what to do about perceived TSA problems out of President Obama and DHS Secretary Napolitano's hands and enact a solution.
Under the current law, the creation of a personnel system for TSA rests within the Authority of the Secretary of Homeland Security. Under the Bill, titled "Transportation Security Workforce Enhancement Act of 2009", the current law would disappear and TSA's workforce becomes part of the civil service indistinguishable from most other Federal employees.
That's good news, right? The answer is that it likely depends on what you do for the Agency and whether you like parts or all of the current system.
What I thought might be helpful is to look at some open questions and/or issues on a section by section basis.
Who's Covered? (Section 2)
The answer is easy and hard. Everybody employed by TSA directly is covered.
However the bill goes on to add that also covered is:
"any position within the Department of Homeland Security, not described in subparagraph (TSA EMPLOYEES), the duties and responsibilities of which involve providing transportation security in furtherance of the purposes of the Aviation and Transportation Security Act (Public Law 107-71), as determined by the Secretary."
I'm not sure who this is but it may be the Air Marshals. I'm sure some commenter will set us straight. Whoever it is appears to keep the old law coverage at the Secretary's discretion. Is having your own peculiar personnel system outside civil service a good or bad thing? That may depend who's sitting in the Secretary's chair.
Effective Date (Section 3)
The Bill lays out what gets killed on its effective date. To quote
Effective as of the date determined by the Secretary, but in no event later than 60 days after the date of the enactment of the Act--
(1) all TSA personnel management systems shall cease to be effective;
(2) any human resources management system established or adjusted under chapter 97 of title 5, United States Code, to the extent otherwise applicable with respect to covered employees or covered positions, shall cease to be effective; and
(3) covered employees and covered positions shall become subject to the provisions of title 5, United States Code, and all other civil service laws which apply with respect to both--
(A) any employees and positions within the Department of Homeland Security (other than covered employees and covered positions, and disregarding the effect of any action taken under chapter 97 of title 5, United States Code); and
(B) employees and positions within agencies generally (outside of the Department of Homeland Security).
So, in essence, it appears that TSA and DHS must (at a minimum):
- Change most or all the internal personnel rules to reflect OPM Regulations.
- Create job descriptions in accordance with OPM classification standards and classify every job in order to be able to cut SF 50s and pay everybody for the first pay period after the bill becomes effective.
- Rework disciplinary and adverse action policies to take actions, some of which will now be appealable to MSPB under a different set of procedures and case law than now applies.
- Ramp up outside staffing to meet competitive service rules.
- Revamp whatever performance management system now employed to make it compatible with whatever system DHS uses and get it approved by OPM. This gets funky in light of the MaxHR and unit employee v. non unit employee implementation thereof. If you don't know what I'm talking about here, you're not alone.
- Rethink its policies on reasonable accommodation and EEO generally which had some lawyerly twists and turns due to TSA's current system's flexibilities.
- And, I'm sure, a bunch of other stuff.
Is there anyone out there that thinks the 60-day window can be met?
Transition Rules (Section 4)
This is also an interesting list. I'll take some liberties and see if it can be put in plain English:
- The Secretary will set rules or pay conversion so no one loses any pay.
- The Secretary will preserve the following employee rights:
o Length of service in TSA is length of service everywhere else for every purpose.
o You get to keep your accrued leave as long as you are continuously employed by DHS. (What happens if you go to another Agency on the day after you are converted? Beats the heck outta Bob.)
o Uncle Sam pays the same part of insurance premiums it paid before the conversion but again only if you remain continuously employed by DHS. (I still got the above question?)
o The new law doesn't affect any pending litigation either administrative or in the courts.
Union Payoff (Section 5)
This section accords national consultation rights to unions getting dues withholding from 1000 employees similar to that under the current statute except that they're not covered under the current statute until they're converted. This provision goes away upon enactment. I guess this is for the union lawyers who helped the sponsors write the bill.
No Striking (Section 6)
In an apparent effort to avoid confusion, the following is included:
Nothing in this Act shall be considered--
(1) to repeal or otherwise affect--
(A) section 1918 of title 18, United States Code (relating to disloyalty and asserting the right to strike against the Government); or
(B) section 7311 of title 5, United States Code (relating to loyalty and striking); or
(2) to otherwise authorize any activity which is not permitted under either provision of law cited in paragraph (1).
I hope that makes it clear to all you potential strikers out there.
Other Stuff (Sections 7, and 8)
- The DHS Secretary can make rules to make all this happen.
- She can delegate authority to the Assistant Secretary.
My Absolute Favorite (Section 9)
The last provision is designed to make every other Cabinet Secretary, Agency Administrator, Board or Commission Chair in the entire Federal government totally, completely and unreservedly jealous. It says:
There are authorized to be appropriated such sums as may be necessary to carry out this Act.
Unsaid But Part of the Deal
Under TSA's current law and policy, Transportation Security Officers (TSOs) are removed for a first offense of on or off duty drug use; on duty alcohol use or off duty DUI and for theft.
The first two (drugs and alcohol) will become governed by a variety of policies under the new law including "safe harbor" for drug use. The issue of theft may be the most important, however. Since TSOs literally have their hands in the pockets of every air traveler at least twice every trip, the question is whether the confidence of the traveler in having their possessions closely examined is enhanced or not by the cessation of this rule. You decide.
In closing, I guess I'm always amazed how congresspeople, the creators of complexity, think there's a simple fix to issues such as this. Sorry folks, but I think the bottomless pit of cash you authorized in Section 9 will be needed to make what you intend happen quickly or otherwise. On the other hand, as a retired Fed, I think that TSOs are better off in the civil service and it's about time they got there.
As always, any opinion stated is mine and mine alone.
© 2009 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.
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