Mark Twain said what we do not know does not hurt us as much as what we think we know, but do not. What does “inherently governmental” mean? Why does it matter?
In order to help decide what work can/cannot be performed by contractors, the Office of Management and Budget is trying to develop an improved definition of “inherently governmental” as it relates to work performed for the Government.
This is a difficult task, with input being solicited from the public. Note the current, working definition: The Federal Activities Inventory Reform, or FAIR, Act defines an activity as inherently governmental when it is so intimately related to the public interest as to mandate performance by Federal employees.
What does this mean? What, exactly, is “public interest”? Are you suspicious of this definition? Well, you should be, because it is what is known as a circular definition, or tautology.
A tautology is a statement that explains, or defines, in terms that essentially repeat what is being defined, adding nothing to our understanding. Example: the United States will go to war only if it is necessary to conduct hostile, combat operations against a foreign power. What?
A good definition first provides a general description and then something more specific, or detailed. To illustrate, it would not be sufficient to say a zebra is an herbivorous quadruped—this would include deer, cows, antelopes, etc. But if you say a zebra is a herbivorous quadruped, native to Africa, with distinctive black and white stripes over its entire body, then you have provided a useful definition.
Here is one proposal for a definition of “inherently governmental”:
An activity is inherently governmental when it is primarily associated with the stated mission of the agency in question, to the extent that failure in carrying out the activity would impair the public’s trust. Consider: it has been decided that a taxpayer’s automobile is to be seized, in order to satisfy a delinquent income tax liability. The person making the decision and calling the tow truck operator must be a Government employee, while the operator himself can be a contractor.
Another way of determining governmental function would be to say what it is not. When an activity supports Government work but does not, in and of itself, reflect directly on a Government mission, then it is probably not inherently governmental. An example: grounds keeping at the national headquarters of the Transportation Department needs to be done, but it has virtually nothing to do with the actual mission of the agency, so it can be contracted out.
At Arlington National Cemetery, on the other hand, grounds keeping is essential to the mission of the cemetery, is properly considered governmental activity in this context, and should not be outsourced.
One key dimension is position sensitivity. All Government employees must, by law, be investigated and cleared, at one of several sensitivity levels. Positions designated “critical sensitive” or “top secret” are, by definition, those in which the incumbent has a high degree of trust relative to various mission operations. Virtually all of these positions can probably be safely classified inherently governmental, and thus off limits to being contracted out. This seems to be a good starting point.
At one time or another, most of us have seen positions filled by contractors that seemed to raise serious questions as to appropriateness. We also know of a number of jobs being performed by Government employees where the work does not appear to be inherently governmental. If Management and Budget develops a really good definition of inherently governmental, and a policy requiring use of the definition, these anomalous situations should, to a large extent, go away.
The public will be well served.