A panel discussion held this week by the Heritage Foundation addressed challenges in the federal hiring and firing process and suggestions on how they could be overcome.
Two FedSmith.com authors were featured on the panel for their human resources and labor relations expertise: Bob Gilson, a senior labor and employee relations advisor, and Bob Dietrich, who has spent over 35 years dealing with human resources management in various agencies.
The third panel member was Bill Valdez, the President of the Senior Executives Association.
John York, a Policy Analyst with the Heritage Foundation, led the panel discussion. He summarized the theme of the discussion in his introduction:
Certainly cabinet secretaries and federal managers should not be free to hire and fire federal employees without just cause, or for political or personal reasons. After all, no one wants to go back to the spoils system.
The problem, however, is that the additional protections and procedures meant to ensure a politically neutral expert civil service have made it nearly impossible to fire public sector employees for any reason at all. This was not the intent of the early 20th century reformers who replaced the old spoils system with the modern merit systems, but it has been one outcome.
The cost of an essentially tenured civil service is nearly incalculable. On one hand, there is the monetary expense, but the greater cost is the dysfunctional federal bureaucracy when it can take years to fire a poor performing employee and many months to hire a replacement; it’s hard for federal managers to maintain a motivated and productive atmosphere at work.
Challenges with Firing Poor Performers
The majority of the discussion focused on the complexities in the disciplinary process for removing federal employees for poor performance and the challenges those create for agencies and managers.
“I don’t think I’ve ever come across an employee who thought that the action for removal was just and didn’t fight it with every tool available at their disposal,” said Valdez. “Those tools include union grievances, EEOC complaints, IG complaints, whistleblower allegations, chapter 43 processes which include appeals to the Merit Systems Protect Board, and even court actions. The avenues available to employees to delay or deter an adverse action are numerous.”
Valdez also said that a very small number of employees are using the appeals system to their own advantage and not in the public interest.
Dietrich echoed this latter point. He said, “The vast majority of the civil servants I’ve met were very excellent employees. It’s what I used to call my 95/5 rule; 95% of my problems came from 5% of my population, but it was that 5% that was so noisy, that it made it very arduous on supervisors and managers.”
“A lot of folks don’t know that there are only three reasons you can fire a federal employee,” said Gilson. He cited three laws passed by Congress that have spelled those out, one of which dates back to 1912. Those are:
- Performance, specifically, failure to perform a critical element of a job at an acceptable level (under the 1978 Civil Service Reform Act)
- Treason (based on a 1942 law) and, as Gilson noted, the only offense for which a federal employee can lose his/her retirement
- “For such cause as promotes the efficiency of the service” as per the 1912 Lloyd-La Follette Act
On point number three, Gilson said in the discussion and has said before that this is, at best, very vague.
“It’s a very complicated business,” said Gilson. “The [disciplinary] process is not only set out by law, but interpreted by people like the Office of Personnel Management, the Merit Systems Protection Board, arbitrators, the Equal Employment Opportunity Commission, and there is no requirement that they be consistent. That gets you started on the complexity of the process.”
“It means less to the deciding official whether this individual gets disciplined than it would to the supervisor,” said Gilson.
He went on to say that a more efficient disciplinary review system would be one in which the ultimate decision lies within the agency rather than several levels removed from the situation, i.e. the MSPB, EEOC, etc. He said that this is how the security clearance revocation process works, and applying the same kind of system to disciplinary appeals would be much more efficient.
“I don’t believe the government could be better served than to have that exact same kind of system [as is done with the security clearance revocation process] apply to the removal of federal civil servants,” said Gilson. “In other words, take away from the people with no expertise in the work the second guessing of management; the Department of Defense is the best judge of who should work in the Department of Defense. MSPB often applies the same criteria to people who are in a 400 person agency to a million person agency like DoD.”
Dietrich agreed overall and said he would set up an internal procedure. “I would set up an internal process to meet due process, very similar to the central adjudication process over in the Pentagon.”
One problem raised by Valdez is that there hasn’t been a change in the composition of the federal workforce or the ability of managers to bring in people they need. In the 1960s, he said the federal workforce was largely clerical and blue collar positions; today, it’s highly technical (such as IT jobs), but there is still a hiring system in place that produces clerical jobs.
“And who is defending that system are, frankly, the unions who are vested in retaining that existing workforce because that is who their dues members are. Don’t go into the trap of saying we need to reduce the size of the workforce; we need to change the composition of the workforce,” said Valdez.
Dietrich said the first change he would make is requiring a bachelor’s degree for anybody who wants to be a professional personal specialist. “There’s a degree of critical thinking that comes along with a college degree and I would say that person should have a degree either in human resources or business.”
The complete panel discussion is available in the video above.