Reforming the Federal Civil Service System
Congressman Barry Loudermilk (R-Ga.) has been pushing for reform of the federal government’s civil service system in the House. He is starting to see some success. The MERIT Act of 2018 now has 55 co-sponsors in the House.
Also, Senator David Perdue (R-Ga.) has recently introduced companion legislation to the MERIT Act in the Senate.
Bill Passed by House Committee
In the House, the House Oversight and Government Reform Committee passed this bill on July 17th. However, the bill that was passed by the committee is substantially different than the original bill. The bill, as amended, is 36 pages long. The original bill was about three pages in length.
Summary of the MERIT Act Under Consideration in the House
The original bill would enable faster removal of a federal employee for misconduct or poor performance. The bill just passed by the committee is more comprehensive. Here is a summary of what is contained in the amended bill:
- Permits agencies to remove a senior executive from the civil service for performance reasons, rather than demoting the individual to a non-Senior Executive Service (SES) position.
- Impacts the retirement benefits of federal employees who are fired based on a felony conviction based on actions taken in performing official duties.
- Repeals the special process for taking action against poor performers and streamlines the process for removal or suspension of poor performers and or employees engaging in misconduct.
- Addresses concerns about arbitrators overruling Merit Systems Protection Board (MSPB) precedent by prohibiting grievances based on adverse personnel actions. Employees will restricted to appealing these actions exclusively to the MSPB.
- Prohibits appeals to MSPB based on short-term furloughs, consistent with current short-term suspension rules.
- Prohibits appeals of emergency furloughs (furloughs resulting from a lapse of appropriations).
- Authorizes the Office of Personnel Management to reduce the procedural burden on agencies when taking furlough actions, particularly those resulting from budgetary constraints.
- Authorizes agencies to order repayment of bonuses and awards when performance or conduct issues are discovered and it is determined the bonus or award would not have been paid had these issues been known at the time.
- Ensures adequate time to evaluate a new employee to determine if the employee should be retained by extending the probationary period for competitive service appointments and SES members from one year to two years.
Statement by Congressman Loudermilk
Representative Barry Loudermilk, the primary sponsor of the MERIT Act in the House, issued this statement:
The MERIT Act is a huge step to creating a more efficient and effective government that works for the people, streamlining the process and lessening the time it takes to dismiss poor performing or negligent employees. It shouldn’t take over a year to remove a bad employee, as under the current system. I am encouraged that the Oversight and Government Reform Committee has passed MERIT, and now we can work on getting it passed in the House of Representatives.
Congressman Loudermilk also linked to an article on his Congressional website that supports the MERIT Act noting the strong opposition of unions to the legislation.
It makes sense unions are scared. Thanks to union litigation, the federal government termination rate, including layoffs and firings, is a mere 3.37 percent, compared to a private-sector termination rate of over 17 percent. Unions have made the firing process for poor performing employees timely and complex, causing managers to prefer transferring poor performing employees rather than going through the process to dismiss them.
Statement of Union Position on the Bill from AFGE
In a press release, the American Federation of Government Employees wrote:
There is no merit to H.R. 559. The bill dismantles over 100 years of protections and over 40 years of federal statute ensures the workforce is protected against political cronyism and that the public good is protected against the excesses of a political spoils system.
The union also takes issue with the “punitive in nature” provisions of the bill. For example, the AFGE notes that a federal employee who is convicted of a felony could face a reduction in the retirement annuity or could face the loss of a bonus or award under the provisions of the bill.
This bill has a considerable way to go before becoming a law. It has a good chance of passing the House in some form. It has a lesser chance of passing in the Senate. Federal employee unions will strongly oppose the bill and most Democrats will vote against it.
While the VA Accountability and Whistleblower Protection Act passed in Congress with at least some bipartisan support, it is likely this bill will encounter greater opposition. Voting against a bill that is designed to improve care for veterans will likely create political problems for an elected official. And, while scandals involving the VA were prominent in news headlines for some time prior to the passage of the VA Accountability bill, there has not been similar publicity for the broader civil service system.
In short, it is too early in the legislative process to lose sleep over the possibility of this bill becoming the law of the land. If it passes in the House and should advance in the Senate, we will provide more details at that time.