Burrowing In Is a Form of Theft; Maybe It Should Be Treated That Way?

The author proposes a different way of looking at the practice of burrowing in by political appointees.

With great fanfare, the Biden Administration, upon the new President’s inauguration, pledged to mitigate the supposed evils of the past, issuing on January 20th an Executive Order on Ethics Commitments by Executive Branch Personnel. This included bans on gifts, curbing the revolving door and, importantly, taking an ethics pledge that included a commitment “to decision-making on the merits and exclusively in the public interest, without regard to private gain or personal benefit.” 

Burrowing in, which occurs when a political appointee converts to a competitive civil service job. This becomes problematic because, as the Washington Post notes, “when political appointees become permanent career employees, they often appear to circumvent the normally open and nonpartisan competitive selection process for government jobs.” On its face, burrowing in certainly seems to be inconsistent with the Biden Administration’s ethics Executive Order and the commitment to ethics required of its appointees.

As appointees from the previous Administration burrowed in at the tail end of the Administration, some in the incoming Biden Administration were quick to criticize this practice. Now, two years later, the shoe is on the other foot and the temptation of a full-time federal civil service job soon may beckon this Administration’s appointees as well.

The Office of Personnel Management (OPM), which oversees the process through which political appointees can enter the civil service, has counseled agency human resources leaders in 2022 and 2021 that agencies first must seek OPM approval. In Feb. 2021, OPM advised that “OPM requires agencies to seek our approval prior to appointing any current or former political appointee to a permanent non- political civil service position, including time-limited appointments that would allow for non-competitive conversion to a permanent appointment.” 

OPM in its review, according to materials on the Chief Human Capital Officers Council and OPM Web sites, examines the hiring process, interview panel and notes, recruitment process and the nature of the political appointment and potential civil service appointment. OPM pledges to respond to requests sent by agencies, if complete, within 15 business days. Unfortunately, in every Administration, the default answer seems to be yes.

Burrowing in raises questions about the agency’s human resources as a whole: was an employee recruited in the first place knowing they would soon attempt to obtain a full-time civil service job as an appointee? If the agency is tolerating and abetting this sort of conduct by its political appointees, just how fair, merit-based and unbiased is the agency’s entire hiring process in general?

It’s also not all that great for morale. Generally speaking, civil service employees appear to prefer reporting to someone who is not a political appointee, but once an appointee burrows in, the agency’s employees are potentially stuck with them long-term. 

One author suggests this problem could be remedied with a one-year ‘cooling off’ period after an appointee leaves an Administration whether imposed by the Administration or Congress. Basically, under this approach, a political appointee would have to wait one year after they leave an Administration before then applying for a federal civil service job. 

This is a good idea. But one could also go further, arguing, as one law firm associate did in the N.Y.U. Journal of Legislation and Public Policy (L. Mendolera, Fall 2010), that Congress could “consider creating a misdemeanor statute for agency personnel who violate civil service laws.” The author, assessing in depth the harms of burrowing in, observes that such a penalty would increase accountability for those violating civil service laws.

The NYU article notes the complexities inherent in imposing any new penalty or fine. But while there may be extenuating circumstances in some individual cases, at its essence burrowing in is a fairly simple issue. Someone is taking something or giving something that isn’t theirs. If someone jumps the turnstile on the subway or metro, they are fined. Yet, if someone uses a political appointment to procure a federal service job they are effectively rewarded, not punished.

Despite justifications by agencies and appointees, few indeed are likely to be the political appointees whose skillsets are so unique and personalities so transformative that they simply must be allowed to burrow in to save their Agency and better the Republic. 

At the end of the day, what this practice consists of is an agency leader or high-level supervisor giving someone a gift – the gift of a federal civil service job that does not belong to them and therefore is not theirs to bestow on others. Gifts to a political appointee that a senior supervisor or agency leadership happens to like should be from their own pocket(s)– not from the taxpayer. Burrowing in is the political equivalent of subway fare evasion. The Biden Administration and any Administration that follows (regardless of its party affiliation) should demonstrate their commitment to good government and a merit-based civil service by curbing this practice, and if these Administration(s) decline to do so, then Congress ultimately should.

Mitchell Berger has worked in public and behavioral health at the federal and local levels. The opinions expressed are solely those of the author and should not be imputed to any other individual nor to any public or private entities.