Working for the Federal Government in a Divided Country and Era of Political Division
There is another war now being waged in the Middle East. National elections are coming up next year. Political campaigns are already more visible on television. News headlines feature former president Trump being charged with various crimes—perhaps as a political gambit to dilute his chances of winning the next elections or perhaps as a normal execution of the criminal justice system—depending on the political views of the observer.
Americans are more focused on differences with others rather than celebrating common interests. In one poll, 60 percent of Americans reported their belief that the nation’s “best days are in the past.” Former President Jimmy Carter described America’s malaise in a famous speech in 1979. It seems relevant today.
What you see too often in Washington and elsewhere around the country is a system of government that seems incapable of action. You see a Congress twisted and pulled in every direction by hundreds of well-financed and powerful special interests.
You see every extreme position defended to the last vote, almost to the last breath by one unyielding group or another. You often see a balanced and a fair approach that demands sacrifice, a little sacrifice from everyone, abandoned like an orphan without support and without friends.
The federal workplace is not immune to the mood of the country. When morale is low, crazies come out of the closet with their vision of making the country a better place.
Political Division Leading to Workplace Extremism
Here are two recent examples.
In the Government Printing Office (GPO), a recent complaint describes this scenario:
The complaint, which names Hugh N. Halpern, the Director of U.S. GPO, and Samuel Mewshaw, a U.S. GPO employee — and the plaintiff’s disturbed co-worker — as defendants, alleges a pervasive culture of anti-Semitism, racism, sexism, homophobia, and transphobia within the agency. Nazi salutes, sexually explicit and derogatory comments, and vile racist remarks were just some of the repulsive behaviors that the plaintiffs allege polluted the workplace, creating an unbearable work environment.
The activities and actions reportedly went on for years and were not being kept a secret.
In another example, a former spokeswoman for a terrorist organization, the Palestinian Liberation Organization delegation in the United States, recently worked as an asylum officer for US Citizenship and Immigration Services. With that background, it is not surprising she was actively distributing propaganda touting her support of Hamas and anti-semitic diatribes.
How Supervisors React to Workplace Problems
Whenever inappropriate or even despicable actions of a federal employee become public knowledge, a typical reaction among some senior agency officials is to fire the person right away. That seems reasonable. Uncle Sam does not want to pay people hired to do a job for the government to act out in a way many consider engaging in despicable behavior and certainly not meeting the high standards supposed to be set for federal employees.
From having worked on federal human resources issues for several decades, the immediate supervisor’s first reaction to dealing with extreme employee behavior is often much different than the reaction of senior agency officials—some of whom are political appointees and may be new to government service.
The first reaction of the immediate supervisor will more likely be, “Why me”? He or she will quickly recall how much work is usually involved in firing a federal employee. Other options will quickly come to mind. These are some of the more common ones:
- We should transfer the employee. He can keep his current grade, he will be hidden inside the organization, and no one will even know he is there. It will save money and time.
- I don’t have time for this. It will take years. My job performance will suffer. The union will make sure I am portrayed as a bad person and an incompetent supervisor.
- We probably won’t win any removal action. There are too many pitfalls. The system makes it hard to fire anyone. In the end, the employee will be back and work anyway, and my job will be even more difficult.
- It will be cheaper and easier to ignore this. It will go away in a few weeks, and no one will even remember it. Why create difficult problems?
Job Security in the Federal Government
Federal employees are rarely fired.
This article notes that 4,040 permanent full-time employees with at least two years of service for performance or misconduct were terminated in fiscal year (FY) 2021. This is about one-quarter of 1 percent of the federal government’s 1.6 million tenured employees.
The data show that while federal employees can be fired for misconduct or poor performance, being a federal employee is a virtual guarantee of secure employment. One-quarter of 1% is a small number.OPM’s Federal Employee Viewpoint Surveys have revealed about 64% of employees think their agencies do not deal effectively with poor performance.
In a research brief published by the Merit Systems Protection Board (MSPB) dated June 18, 2019, 41% of federal supervisors were confident they could remove an employee for serious misconduct, and 26% were confident they could do so for poor performance. This means it is unlikely a supervisor will undertake an action to remove an employee.
What About the CSRA Reforms?
The Civil Service Reform Act (CSRA) was passed and signed into law in 1978. A major intent of this law (it created the Merit Systems Protection Board) was to make it easier to remove federal employees who do not perform well. If the employee challenges the action with a grievance, appeal, or other complaint, the Act specified that discipline cases be proven by a “preponderance of evidence” but performance-based actions need only be proven by “substantial evidence” – a much lower bar to clear.
Decades of court decisions … have complicated the process of proving performance-based cases beyond imagination. The original intent of the CSRA has been undermined by the volume of agency evidence required by the MSPB and courts, coupled with the many months needed to reach a conclusion and effect action.
Supervisors have become discouraged in hearing stories from their peers who have attempted performance-based actions. Competent HR specialists know that the road leading to an outcome is long… and paved with documentation. Accordingly, like many others in my field, I now commonly advise supervisors and managers to rely on discipline rather than ratings and PIPs.
Performance or Adverse Action?
If an agency takes action, it will often be an adverse action case rather than one based on performance.
Congress has passed, OPM has regulated (or not in many cases), and the MSPB has ruled in ways that the principal attributes a Federal manager responsible for taking action must have are patience, persistence, and courage.
In my experience, a supervisor will initially be so frustrated and fed up with a problem that he is certain he has the necessary fortitude to follow through. His enthusiasm and energy are much diminished when all is said and done. Many, if not most, supervisors will declare “never again” because it is not worth the time, expense, and aggravation.
When an agency does initiate action, the agency will usually be sustained, but the process may take several years to complete if an employee appeals.
It is not automatic the agency will prevail. For example, if a case goes to arbitration, rather than being appealed to the MSPB, arbitrators uphold 42% of federal employee dismissals. Cases often go to the MSPB instead of arbitration as the parties usually split the cost of the arbitration proceeding.
On the other hand, there is no charge to file an appeal with the MSPB.
Weighing Benefit of Firing an Employee vs. the Cost
The federal process for firing a federal employee is expensive. It will usually involve the legal office, human resources office, the immediate supervisor, and often senior managers. Interviews will be conducted during an investigation; different parties will seek more information and take the time of all parties involved. Witnesses are usually interviewed before an actual hearing occurs as well as before the decision is made whether to move forward with taking an action.
Senior managers, political appointees, and lower-level supervisors will often come to regret the time and effort involved.
In some cases, especially those that generate negative publicity for the agency, the employee may be suspended and told not to come to work. This usually means the employee continues to be paid for a period but at least the agency can say it has taken action to start resolving the problem. The time an employee is not working but continues to be paid may go on for many months while the removal process marches slowly to completion.
One reason the statistics come out very low for the number of removal actions is that an employee is often given the option to retire or be fired. This is only an option if the employee is eligible to retire.
When given this option, the employee may argue the process is unfair and that he should not have to choose between retiring or being fired. As noted in one court’s decision, while this option provides the employee with a tough choice, it is not improper coercion. It usually means the employee will retain retirement benefits, including an annuity, and there is no record of the person having been fired by the federal government.
Creating a More Efficient Government
The Civil Service Reform Act (CSRA) was designed “to provide the people of the United States with a competent, honest, and productive Federal workforce reflective of the Nation’s diversity, and to improve the quality of public service….”
One way it was intended to meet this objective was to make it easier to fire federal employees who were not performing their jobs well. Over time, the system has become as cumbersome, time-consuming, and at least as complex as the systems the CSRS was replacing.
As noted above, our country is going through a time of political division. It is much more diverse than was the case in 1978. This has probably contributed to some of the issues that now divide the country as there are more opinions—including opinions and practices that were considered too extreme to be tolerated or condoned in an earlier era. Social media also enables people to espouse their points of view and gather or convince others that their views and proposed actions are self-righteous.
OPM has recently proposed expanding existing appeal rights to excepted service employees as well as federal employees in the competitive service. It has also recently released regulations to ban federal agencies from requesting an applicant’s criminal history during the federal government’s hiring process.
In the 1960s when running for president, John F. Kennedy used the phrase “best and brightest” in several speeches to refer to the most talented and capable individuals in the country who could be attracted to service in the federal government. He believed the country needed to attract and retain the best talent to ensure success. His famous quote reflected this: “Ask not what your country can do for you; ask what you can do for your country.”
Kennedy’s philosophy is no longer in vogue.
It is easy to understand a theory that attracting the nation’s best and brightest people into government would be beneficial. That was a different approach to government than the current approach of expanding appeal rights and ignoring a person’s criminal history prior to adding a person to the federal payroll.
The impact of these latest actions on government efficiency and performance may provide a study for future Ph.D. dissertations.
The federal government is and will continue to deal with a wide assortment of issues in the workplace. Whether the federal system can work effectively and efficiently in dealing with these new challenges or will evolve into a morass of fumbling ineptitude is an important issue that is not widely discussed.