It seems that every time I look at the Washington Post, Federal News Radio, Government Executive or Federal Times (or any other media targeted at the federal market), I see more talk about ways to hold federal workers accountable for performance. Much of it is focused on the Department of Veterans Affairs, but the idea of making it easier to fire federal employees is popular with a lot of people on the Hill, many federal managers, federal employees in general, and with the public. That talk invariably gets around to the idea of making federal workers “at-will” employees who can be easily fired.
The biggest fear I have about at-will employment is that it could return the government to a spoils system and lead to the end of a merit-based civil service. At the same time, I understand the interest in making it easier to deal with problem employees. Federal employees have been saying for years that agencies should deal more effectively with poor performers. Only 28% of respondents in the 2015 Federal Employee Viewpoint Survey believe that it is happening in their agencies. With that being true, it is no surprise that people in agencies and in the Congress would look for ways to address the problem.
So – how do we make it easier to deal with poor performers without having a spoils system? I believe there are 7 characteristics of any reform that are essential for accountability to be real and to avoid a spoils system.
- Accountability starts at the top. We have a tendency in Washington to want to find someone to blame for every problem. Even when a problem is caused by systemic issues that no one person could be reasonably expected to overcome, the Washington political game wants someone who can be trotted out and identified as the cause. It is easy and deflects accountability from the people who run agencies or write the laws and regulations that create many of the problems. Rather than starting at the bottom and finding the lowest level employee who can take the fall, we need to start at the top and assign accountability where it begins. The one category of federal employee who can be fired on the spot with virtually zero recourse is political appointees. Presidents should be more willing to fire agency heads, and agency heads should be more willing to fire their top appointees. If that happened, those appointees would be more willing to hold senior executives accountable, and those senior executives would be more willing to hold their direct reports accountable, and so on.
- Abuse of accountability must have severe consequences. Hiring and firing career employees for political purposes is wrong. Period. Doing so is the definition of a spoils system. It would mean a career workforce that is filled with political hacks and poorly qualified people whose loyalty is to a political party rather than the American people. I don’t know anyone who argues that having the equivalent of a few hundred thousand political appointees would be a good idea. So how do we stop that from happening? There has to be a price to be paid when hiring or firing is based on politics. It is a hard thing to prove, but I suggest making it a mandatory firing offense for any official (political appointee or career) proven to have taken an action based on political affiliation. I would go a step farther and bar that person from federal employment in any capacity and from federal contracting, for life.
- Any changes must be to the discipline process rather than the hiring process. Federal hiring obviously needs to be reformed, but that can be done in a way that protects merit as the cornerstone of the process.
- Accountability is a matter of public policy that is worthy of real debate by people with the expertise to know what they are designing. Given the risks of a spoils system, any redesigned accountability processes for government need to be the result of a transparent and inclusive discourse that involves experts in conduct and discipline, organizational performance, rewards, and other fact and research based disciplines that can inform the process. It should include democrats, republicans, independents, organized labor, academia and the private sector. There are so many unintended consequences that could result from a wholesale change to the basics of the civil service system, that it must include all of those players to have any kind of credibility.
- It cannot be driven by targets for firing. I have heard people complain about the very low percentage of federal employees who are fired, usually touting some statistic from the private sector, and usually demanding that the federal government fire at least as many people. Statistics and truth are not always found in the same neighborhood. The best available data comes from the Bureau of Labor Statistics Job Openings and Labor Turnover Survey. Their most recent report showed an overall private sector seasonally adjusted layoffs and discharges rate of 1.3% and a rate of .3% for the federal government. Does that mean the private sector fires 4 times the number of people as the Feds? Yes. Is that meaningful? Not really. Those rates include occupational differences (the mining and logging industries (2.8%) and construction (2.9%) rates are much higher than average) and include both terminations for cause and layoffs. Those are both involuntary separations, but they are for very different reasons. The private sector is far more willing, due to business considerations, to engage in layoffs. The federal government avoids them like the plague. Ask a member of Congress if s/he wants an agency to conduct a RIF of his/her constituents and see what reaction you get. When it comes to firings themselves, the private sector is more willing to do that too. But some of those are based on people not performing and others are based on people ticking off their boss. The fact is that we cannot come up with a target number and say that X% of federal employees should be fired every year and most reasonable people in the private sector would not do that either.
- Due process is essential, but needs some boundaries. In the current federal process, employees can often choose from multiple options for getting a third-party review. Employees in bargaining units can file grievances and go to arbitration. Most employees can appeal to the Merit Systems Protection Board or file an EEO complaint. Believe it or not, the most straightforward of those processes is grievance/arbitration. It usually takes less time and does not have all of the trappings of a trial that we see with MSPB and EEOC proceedings. If we really want to address accountability, the ability of employees to forum shop has to go away. My first choice would be to consolidate all of the appeals processes into one streamlined process, conducted by either MSPB or a new agency, limited to a reasonable number of days from the date an appeal is filed, and guaranteeing employees the right to a representative of their choosing.
- The body conducting appeals needs the authority to mitigate penalties. One problem the Department of Veterans Affairs has found is that having MSPB limited to a simple agree/disagree finding on an appeal is a problem. If an agency decides to fire someone, but MSPB has no option to mitigate that to a downgrade or suspension, they may conclude (as they did in recent VA cases) that an offense did not warrant firing and have no means of imposing a lesser penalty.
If we start with those 7 basics, we could have the potential to design a more accountable civil service that is free of political influence. The at-will alternative is unlikely to have the same result and, for that reason, I believe it is bad public policy.