Hiring Freeze: Some Answers, Some Questions

Updated with OMB’s January 25 Guidance

President Trump’s freeze on federal hiring was delivered on January 23rd. The Presidential Memorandum answers a number of questions, but the language of the Memorandum also raises some questions. Here is what we know, and what we do not know yet.

  • It is an across the board civilian service hiring freeze in all agencies of the executive branch (regardless of funding source). That means an agency like PTO, that gets its funding from fees, is covered. Some freezes in the past have been focused on agencies that are paid through appropriated funds.
  • No vacant positions existing at noon on January 22, 2017, may be filled and no new positions may be created, except in limited circumstances. That is direct and to the point. What it does not clearly address is whether agencies can honor job offers they already made. As written, the answer would be no, because the positions are still vacant. OMB says offers made and accepted before January 22nd, with an acceptance and firm reporting date on or before February 22nd can report as planned. Agencies must review other offers and decide whether to go forward or revoke them. 
  • Department/Agency heads can exempt positions to meet national security or public safety responsibilities. This is showing a degree of deference to Department/Agency heads to make decisions about what falls into those categories. Most administrations come to town with the idea that they are going to let their agency heads have a lot of discretion. Over time, they often pull more and more decision making back into the White House. What we do not know is how far an agency head might go with this exemption. For example, the Memorandum exempts military positions. When we think of military, we normally mean uniformed members of the armed forces. Does this freeze apply to Defense Department civilians? As written, the answer is yes, but the Secretary of Defense could declare large numbers of Defense civilian jobs to be necessary for national security. OMB guidance refers now to “limited numbers” of exemptions. For example, the depot-level maintenance facilities like air logistics centers, fleet readiness centers and shipyards employ tens of thousands of civilians to perform overhauls of ships and aircraft. If they are delayed, there can be a substantial impact on military readiness. Scheduling in those facilities is so tight that hiring delays can have ripple effects that can last for months or even years. The Memorandum also does not address public health positions. Past freezes have made exceptions for such positions. So – what happens at the Department of Veterans Affairs and their medical personnel in VA hospitals and clinics? I anticipate OMB will offer clarifying information to address questions such as that. Most hiring freezes are followed by such Q&As because every hiring freeze memo raises questions.
  • The OPM Director can grant exemptions when necessary. I would expect that OPM and OMB will lay out some criteria for exemptions so agencies have an idea what might or might not pass muster. OMB guidance says further instructions are coming. 
  • OMB and OPM Directors to come up with plan within 90 days to reduce the workforce through attrition. The freeze ends when the OMB plan is implemented. There are three important points in this one. First, the freeze is finite. It is likely that OMB and OPM will get the plan completed within 90 days and the freeze will be lifted. Second, there is clearly an intent to reduce the size of the civil service workforce. Finally, there is not an intent to have widespread reductions in force to accomplish the reductions. This raises at least five more questions. First, what will be the target for reductions? Will they be across-the-board or targeted to specific agencies? Second, how big will the reductions be? Some republicans on the Hill have proposed a 10% reduction in the total number of employees. Third, will agencies be authorized to use early retirement and separation incentives to encourage turnover in the types of jobs and in the parts of agencies where they want to take the cuts? Attrition has the disadvantage of not being targeted. That means an agency may have more vacancies occur in mission-critical jobs than in less critical jobs. Being able to incentivize turnover where the agency wants it would help alleviate that problem. Fourth, what will the attrition plan look like? The same folks who proposed a 10% cut also proposed using a 1-for-3 partial freeze. That approach allows an agency to continue filling critical positions, as long as they have more turnover in less critical jobs. Finally, will there be a target date by which the agencies have to get to a new headcount?
  • Contracting outside the Government to circumvent the intent of the freeze is prohibited. This was expected.
  • Agencies should “seek efficient use of existing personnel and funds to improve public services and the delivery of these services and reallocations may be made to meet the highest priority needs and ensure essential services are not interrupted and national security is not affected.” That means people and money can be transferred to other accounts. This provision would allow an agency to use its resources, but might reduce or eliminate cost savings from the freeze.
  • The freeze does not apply to political appointees or positions where the employee serves at the will of the appointing officer. It would be absurd for a brand new administration to freeze political appointments before they have a team in place, so no one expected the freeze to apply to politicals. The interesting provision here is that there are a lot more employees (not political appointees) who serve at the will of the appointing officer. For example, reemployed annuitants and most temporary appointees serve at the will of the appointing officer. I would be surprised if the intent was to exempt so many possible appointments and would expect to some clarification from OMB.
  • The freeze is not retroactive and does not overrule collective bargaining agreements. These are common sense provisions. Trying to make a freeze retroactive for people who are already appointed is not really doable. Collective bargaining agreements cannot simply be waived by the President.

In general, this is not the hardest freeze I have seen. It provides some flexibility for critical positions and clarifying guidance from OMB and/or OPM may provide a bit more. The fact that it has an end-point and the criteria for lifting it is positive. Like most things, the devil is in the details, and the reduction plans are where I would expect to see much more controversy.

I Do Solemnly Swear that I Will….

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People in the private sector do not take an oath of office when they get a job. They get an offer, report to work, and that’s it. For federal employees it is different. Reading so many articles about the inauguration that refer to the president-elect taking the oath of office on the 20th of January got me thinking about oaths and what they mean.

I have taken that oath of office as a civil service employee. Raising your right hand and swearing to “support and defend the Constitution of the United States” is not something most people take lightly. It is a solemn oath and it means something to most people who take it.

The president becomes a federal employee by taking an oath prescribed by Article 2, Section 1, of the US Constitution. It says “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Judges, members of the House and Senate, political appointees, the military, and other federal employees take oaths of office that are required by Article VI of the Constitution, which says “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The Constitution does not prescribe the actual text of the Article VI oaths. For federal civil service employees, the oath is set forth by law in 5 U.S. Code § 3331, which reads as follows:

“An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, ___, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.””

The oath is relatively straightforward, but what does it mean? I see the oath as having 3 important aspects. First, the employee swears to support and defend the Constitution against enemies. Second, s/he swears allegiance to the Constitution. Finally, the employee promises to do his/her job well.

How does the oath manifest itself in day-to-day work? Does it provide any protection for an employee who refuses an order s/he believes would be a violation of the oath? That question is far more complex than the oath itself. Federal employees are required to follow lawful orders, even if they disagree with them. 5 USC 2302(b)(9)(D) gives employees the “right to refuse” with respect to unlawful orders. But what happens when an order violates a regulation or rule, but is not technically illegal? A 2015 Merit Systems Protection Board decision directly answered that question. MSPB outlined the issues in the case, writing “Specifically, the appellant asserted that the agency violated 5 U.S.C. § 2302(b)(9)(D), which protects employees from retaliation “for refusing to obey an order that would require the individual to violate a law.” 5 U.S.C. § 2302(b)(9)(D). He alleged that the agency improperly stripped him of particular job duties and gave him a subpar performance rating for disobeying an order that would have required that he violate (1) a Federal Acquisition Regulation that limits the authority of a contracting officer’s representative (COR), and (2) “PA296: How to be a COR,” the agency’s training course for COR certification, which further clarifies the limitations to this authority.” MSPB’s final decision said “…we hold that the right-to-disobey provision at section 2302(b)(9)(D) extends only to orders that would require the individual to take an action barred by statute. Because the appellant in this case contends that he disobeyed an order that would have required him to violate an agency rule or regulation, his claim falls outside of the scope of section 2302(b)(9)(D).”

The oath of office does not grant any protection for deciding that an order is a bad idea, bad policy, or morally or ethically wrong. In fact, the oath does not grant any protection from anything. It is an oath of allegiance and a promise to do good work. Employees who believe they are being ordered to act in a manner inconsistent with their oath of office may pursue other options, such as whistleblower complaints or any other avenue provided by law or regulation, but disobeying direct orders is generally not one of the available options. That means an employee who wants to argue that s/he is adhering to the oath of office by disobeying orders has a very tough hill to climb.  There is also the option of going to the press, but that can bring its own set of risks.

The Constitution outlines the responsibilities of the President, the Congress, and the Judiciary. It describes the process for running presidential elections, and for the president to appoint people to federal office. The transition that happens on January 20th is part of that constitutional process. Whether an employee was a Trump supporter, a Clinton supporter, a supporter of another candidate, or someone who chose not to vote at all, is not relevant to the oath of allegiance to the Constitution.

Nor is it relevant to the promise to do a good job. Most federal employees are highly professional. They understand their oath of office and take it seriously. Even though many political appointees do not recognize the professionalism of federal workers on the day they take their own oath of office, as their experience with federal workers increases, they typically begin to recognize the vital role federal employees play.

 

 

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