The new Republican majority in the House of Representatives and the
President’s conciliatory approach, fearing he’ll become a one term president,
puts on the table a number of possibilities for Federal employee
legislation. The Democrats still hold
the Senate and the Obama Administration is likely to veto any Federal employee
law that greatly upsets the unions whose funds are a major factor in a second
That won’t stop the
Republicans from proposing change and using their sweep in 2010 to justify that
change as a mandate from the American people. What this means is that it may be time for all interested parties to
think about whether the civil service is ripe for a round of reform. The last venture into reform was a dismal
I remember clearly the lead up to the last major reform in 1978. As I recall, the impetus for the 1978 law was
a claimed need for an accountability-based performance management system, a responsive
senior executive system, merit pay for certain employees and decentralization
of employee appeals. I worked for CSC at
the time and it was uncontested fact that AFL-CIO demanded a Federal employee
labor law in exchange for any reform at all. The Administration acquiesced and the rest is history.
It’s interesting, in retrospect, that no one except policy writers
thinks any of the various and multitudinous performance measurement systems
over the last 32 odd years have been even credible. The Senior Executive Service billed in 1978
as a mobile, highly skilled force that could be switched from job to job to
solve problems became a vehicle in which no one was ever moved, switched or utilized
as proposed. I would talk about merit pay
but it simply went away since no funding scheme ever existed to make it
work. So what came of the 1978 law? The original issues that gave it impetus were
unrealized but the trade off (labor relations by law and decentralization)
became an expensive albatross for Agencies, as we’ll see.
What Became of the Civil Service
In 1977, the soon to be defunct three-member Civil Service Commission
(CSC) was responsible for virtually all employee appeals including equal
employment opportunity complaints.
1969, Executive Order had created a Federal Labor Relations Council composed of
the Chairman of CSC, the Director of OMB and the Secretary of Labor. The 1978 reform act abolished CSC and this
Council and created an Office of Personnel Management, a Federal Labor
Relations Authority, a Merit Systems Protection Board, a General Counsel for
the FLRA and an Office of Special Counsel. From three political appointees in CSC, these Agencies spawned nine
positions requiring senate approval and a host of politically appointed aides
and staffers in numbers difficult to discern. OPM, for example, is flush with politicals. The old CSC, which had a
total of six counting member aides and members, morphed into more than twenty in
the new Agency alone.
Government Lawyers Suing the Government
on Behalf of Unions
In 1977, unfair labor practices (ULPs) were adjudicated through a party
advocacy process. If the union filed a
ULP, it had to put on a case which the Agency rebutted and the matter was
decided by an office called the Assistant Secretary of Labor for Labor
Management Relations (A/SLMR).
law created a General Counsel based on the NLRB model in the private
sector. Under this model, unions or
employees (in over 99.9% of cases) file allegations against agencies, a passel of lawyers working for the General
Counsel investigate and, if they think there’s a violation, prosecute the
Agency in a formal trial. The results may then go before the Federal Labor
Relations Authority and then the courts.
In an average year there are between 5 and 7 thousand allegations
filed. That means that in the last thirty
some years the 1978 law has engendered between 150,000 and 210,000 allegations
which the FLRA General Counsel staff has gladly created a bureaucratic empire
to address. Interestingly enough, a mere
allegation of Agency wrong doing provokes an investigation.
During the Clinton Era, a comment was made at a conference about the
General Counsels’s litigation strategy. Since virtually 100% of ULPs were filed against government Agencies, I
asked if this strategy was available to read and was told in front of a hundred
or more attendees that it wasn’t. So we
had (and may still have) an Agency that has a secret litigation strategy
targeted against other governmental Agencies. Now there’s an operation that the new Hill members will certainly want
By the way, to file an
allegation costs a union not a cent. It
is most often typed on a government computer, printed on a government printer,
mailed in a government envelope and stamped with government provided postage
based on decisions of the Federal Labor Relations Authority..
Various Counsels General over the last thirty years have expressed
their interest in developing the statute. This invariably involves including more behavior as violating that
statute. To give you an idea of how this
works, under the FLRA General Counsel’s vision of the law, it’s a ULP for an
agency to expect a union steward assigned by the contract to a specific
organizational area and paid official time to handle a grievance or attend a
meeting. The union can dictate who will
show up regardless of the sense or nonsense of the contract. There
are literally thousands of such developments of the law since 1978.
“Merit Systems Protection Board” Has
Little to Do with Merit Systems
When the Civil Service Commission went away, the Merit Systems
Protection Board(MSPB) took over employee appeals. In the last thirty years, they have heard
over a quarter million of them through a full trial process which may then be
appealed to the Board itself and the courts. Not a cheap process by anyone’s standards. Unless run by politically motivated types,
the Board has generally been viewed as producing decisions that guide Agencies
in taking a wide variety of actions. The
current Board is dominated by two former union lawyers who appear intent on
reversing lower administrative judge decisions to level the playing field for
employees using the system.
Nonetheless, one might think that these folks are on the lookout for
merit within the civil service system. Nope, their job is to hear appeals. The Board has periodically published reports on the civil service and
while almost all of these were on point and well developed, they fall on deaf
ears as the Board’s authority does not extend to the “merit” of filling a job,
promotion or other relevant issue. That
job supposedly fell to the Office of Personnel Management which talks about
“modern models of merit.”
merit, according to Merriam Webster, derives from a Latin word meaning to earn
or deserve. I guess I don’t know what a
modern difference would be. In essence,
nobody’s watching the store of a merit based civil service system and perhaps
someone should. What do you think?
In short, the vision of the future in 1978 couldn’t take in what has
transpired in just the few examples addressed above.
As we look closer at the civil service of
2011, what will likely emerge is a picture of an unconnected series of
decisions made over time which did not consider the whole but rather focused on
little fixes for little parts, one at a time, resulting in the somewhat chaotic
system we have today. A major
contributor to this chaos was the 1978 law which opened the door to constant
uncoordinated laws and regulations.
This is the first in what I hope will be a continuing effort to look at
the state of the civil service. Any
opinion you may find here is my responsibility alone.