Note: Updated March 6, 2019 with excerpt from and link to testimony by John Palguta, former Director, Policy and Evaluation, MSPB.
President Theodore Roosevelt was a prominent voice for elimination of the spoils system in federal employment. Mr. Roosevelt served as a member of the Civil Service Commission from 1889 to 1895 and remained an advocate for the career civil service for the remainder of his life.
Mr. Roosevelt believed the spoils system was like a cancer on public life. He once wrote, “The government cannot endure permanently if administered on a spoils basis. If this form of corruption is permitted and encouraged, other forms of corruption will inevitably follow in its train. When a department at Washington, or at a state capitol, or in the city hall in some big town is thronged with place-hunters and office-mongers who seek and dispense patronage from considerations of personal and party greed, the tone of public life is necessarily so lowered that the bribe-taker and the bribe-giver, the blackmailer and the corruptionist, find their places ready prepared for them.”
So why am I writing about a President who has been dead for 110 years? Because some of the actions being taken or proposed in Washington endanger the career civil service that President Roosevelt so tirelessly advocated to expand and preserve. Here are two examples of recent attacks on the career civil service:
- A 2017 Bill in the House of Representatives called the “Promote Accountability and Government Efficiency Act” would have eviscerated the career civil service. The core of the proposal said “Notwithstanding any other provision of law, any employee in the civil service hired on or after the date that is 1 year after the date of enactment of this Act shall be hired on an at-will basis. Such an employee may be removed or suspended, without notice or right to appeal, from service by the head of the agency at which such employee is employed for good cause, bad cause, or no cause at all.” Most people would agree that public servants should be discharged for “good cause.” How many would argue they should be fired for bad cause or no cause at all? Such a policy would result in a return to the spoils system.
- The Merit Systems Protection Board, and agency that does exactly what its name says, has no Members. With the expiration of former Board Member Mark Robbins’ term last week, MSPB was left with no members. That means much of the work of the agency is halted. Employee appeals can still be heard by administrative judges, but an agency or employee who wants to petition for review of those decisions has no place to go. MSPB’s Office of Policy and Evaluation will also not be able to publish its studies. It may be able to continue publishing its excellent Issues of Merit newsletter. President Donald Trump has nominated two individuals (Dennis D. Kirk and Julia A. Clark) to serve on the Board (a third nominee withdrew from consideration). There is little disagreement that both nominees are qualified to serve. For now their confirmation is being delayed by Sen. Ron Johnson, Chair of the Senate Homeland Security and Government Affairs Committee, who said he would not bring the nominees up for a vote until the president provides a third nominee. Sen. Rand Paul said he believes MSPB is failing and has turned into a job protector for civil servants.
While MSPB can function with only two members, it is best to have all three positions filled to enable tiebreaking. It is clearly in the best interests of the civil service to have a functioning MSPB, so rapid movement to confirm President Donald Trump’s nominees would be wise. As for the idea that MSPB is just a job protection agency for federal workers, there are no facts to back it up. In fact, 8 in 10 cases are decided in favor of agencies. Not many people would think that batting .800 or more is bad.
In short, the impact of the extended vacancies has been devastating. MSPB has an extremely important role to play in protecting and enhancing a merit-based civil service system designed to provide the executive branch with a highly qualified and motivated workforce. The current situation has substantially undermined MSPB’s ability to fulfill its statutory mandate to provide due process for federal employees and to protect the public interest in a civil service free of prohibited personnel practices, including actions taken for discriminatory or partisan political purposes.
John M. Palguta, former MSPB Director of Policy and Evaluation, testimony before the House Committee on Oversight and Reform, Subcommittee on Operations on February 28, 2019
Knowing that there is not a fully functioning MSPB may encourage agencies to take more actions that are not consistent with merit principles. Not having the ability to review issues and provide findings will make necessary improvements less likely to occur. Combine that with proposals like the idea that keeps resurfacing to make federal workers at will employees, and the result is significant damage to the merit-based civil service.
Is the civil service perfect? Of course not. As President Theodore Roosevelt said, “There are, of course, defects and shortcomings in the merit system. We do not for a moment pretend that it is perfect. We only assert that it is a great improvement upon the old spoils system, and that as a matter of fact in every instance where it has been tried in good faith it has worked well.”
The career civil service rules need updating for a modern workplace, but returning to a spoils system is the logical outcome of removing or substantially weakening civil service protections. The only interests served by the spoils system are those of politicians. Before the Pendleton Act created the merit-based civil service, wholesale firings resulted from every election, with their replacements hired based on politics rather than merit. That was the problem that the civil service solved, however imperfectly.
As Mr. Roosevelt said, “They can no longer be scrambled for in a struggle as ignoble and brutal as the strife of pirates over plunder; they no longer serve as a vast bribery chest with which to debauch the voters of the country. Those holding them no longer keep their political life by the frail tenure of service to the party boss and the party machine; they stand as American citizens, and are allowed the privilege of earning their own bread without molestation so long as they faithfully serve the public.”