Month: October 2019

News

Move Agency Headquarters Out of DC? Only if You Want Them to Fail

by Jeff Neal

Carol M. Highsmith [Public domain], via Wikimedia CommonsA Bill introduced by Senators Josh Hawley (R-Mo.) and Marsha Blackburn (R-Tenn.), the “Helping Infrastructure Restore the Economy Act’’ (HIRE Act), would move the headquarters of 10 Departments out of the national capital region. The Bill would make the following moves:

  • Department of Agriculture to Missouri
  • Department of Commerce to Pennsylvania
  • Department of Education to Tennessee
  • Department of Energy to Kentucky
  • Department of Health and Human Services to Indiana
  • Department of Housing and Urban Development to Ohio
  • Department of the Interior to New Mexico
  • Department of Labor to West Virginia
  • Department of Transportation to Michigan
  • Department of Veterans Affairs to South Carolina

Senator Hawley’s office said “Every year Americans’ hard-earned tax dollars fund federal agencies that are mainly located in the D.C. bubble. That’s a big part of the problem with Washington: they’re too removed from the rest of America. The HIRE Act will move policymakers directly into the communities they serve, creating thousands of jobs for local communities and saving taxpayers billions of dollars along the way.” Senator Blackburn said, “Moving agencies outside of Washington, D.C. both boosts local economies and lowers costs — that’s a winning combination. This legislation would enable Americans across the country to have greater access to good jobs. Tennesseans would greatly benefit from having portions of the Department of Education in the Volunteer State. It is my hope that the HIRE Act will quickly pass the Senate.” A news release from Senator Hawley’s office said “Americans spend billions in taxes to pay for federal salaries. But they lack equal access to those jobs. Even though federal jobs are paid for by everybody, those jobs disproportionately are in the D.C. area.Federal jobs provide economic stability and encourage regional growth. When the FBI moved the Criminal Justice Information Services Center to Clarksburg, WV, the stable stream of revenue from those jobs boosted the local economy and helped it grow. Moving agencies also is cheaper long term. Lease costs typically are less outside D.C. Relocating agencies in the Department of Agriculture to Kansas City, according to one report, will save $300 million over 15 years. That report also notes that moving agencies outside D.C. similarly saves costs by decreasing employee attrition. Retaining quality employees is easier when costs of living are low, commute times are short, and federal salaries are high relative to the region.”

The Bill would not only require the headquarters of the affected Departments to relocate within 10 years of the date Census Bureau completes and reports on the 2020 decennial census, it would prohibit the departments from locating within 30 miles of a city with 800,000 or more people.

Moving people out of DC has been proposed before, so this is not a new idea. Some people believe the cost of living, rent, and the government’s tendency to drive up labor costs for agencies by robbing talent from one another make DC too expensive. Others make the argument that Senator Hawley made that moving jobs puts them near the communities they serve, making them more responsive to the people. Some people say too much of government is in the National Capital Region anyway, so jobs should move. Still others say decentralizing government helps strengthen the U.S. from attacks by making it far harder to “decapitate” the U.S. government in a single attack.

Before we look at those arguments, let’s take a look at some facts. It is true that a large number of federal workers are in the National Capital Region. It is also true that most of them are not. In fact, California has more federal workers than the District of Columbia. Texas is only a few thousand behind Maryland. Pennsylvania, which would be the recipient of the Department of Commerce, is eighth in the number of federal workers, and Ohio, which would receive the Department of Housing and Urban Development is number 11. The fact that many federal jobs are in the nation’s capital should come as a surprise to no one. In fact, that was intent of the framers of the U.S. Constitution. In Federalist 43, James Madison explained why the Constitution provides for a capital that is not located in a state.

The number of federal jobs that could relocate as a result of this bill is small relative to the populations of most of the recipient states. Moving (at most) 2,900 HUD jobs to Ohio (population 11.7 million) is unlikely to make a significant difference in the economy. The example that was offered of moving FBI jobs to Clarksburg, WV would be a more compelling example if West Virginia didn’t already rank number 12 in the ratio of federal jobs to the state’s population (thanks to the late Senator Robert C. Byrd).

How about cost? Surely it is less expensive to house people somewhere else. Yes, it is. But what happens when you cannot get them to move? When you have termination costs associated with people declining jobs somewhere else in the country? When you lose the institutional knowledge of a Department because people decline the move? And when agencies cannot hire the talent they need?

How about the argument that they are closer to the people they serve? Is somewhere in Pennsylvania, Tennessee, or Ohio so much closer to agency customers in California or Nevada or Idaho that it makes a difference? Probably not. Once you are far enough away that a face-to-face meeting requires getting on an airplane, it doesn’t matter so much where the airplane lands.

How about turnover? About 5.7 percent of federal employees in the District of Columbia left the government in fiscal 2018. The numbers were 6 percent in Ohio and South Carolina, 6.2 percent in Pennsylvania, 6.3 percent in West Virginia, 6.4 percent in Michigan, 6.8 percent in Indiana, 8 percent in Tennessee, 8.9 percent in Missouri, 9.2 percent in Kentucky, and 9.4 percent in New Mexico.

And how about that suggestion some people made after the September 11 attacks that decentralizing the U.S. government would make it much harder to “decapitate” our government. That may actually be the strongest argument for some moves out of the District of Columbia, but this proposal did not address that concern and leaves the headquarters of the Departments of Defense and Homeland Security here in the National Capital Region. Along with the Supreme Court, the House of Representatives, the Senate and the White House.

On further examination, it appears there are few sound reasons for relocating agency headquarters out of the National Capital Region. On the other hand, there are many compelling arguments to keep them where they are. Here are just a few:

The Talent Drain. The recent attempt to relocate Department of Agriculture staff out of DC has not worked as planned, because most of the employees have declined to move. That should not be a surprise to anyone who looks at history. When the Department of Defense was undergoing base closures, getting 20 percent of a workforce to relocate was a good number. It is not simply that federal workers do not want to leave the National Capital Region. The fact is that geographic mobility tends to decrease as people become established in their lives and careers. Most households have two wage earners and packing up the family and moving is hard to do.

Breaking the Interagency Process. Much of what happens in Washington only works when agencies work together. That Interagency Process is essential to effective operation of government, and making it work is hard enough already. Moving much of the headquarters of ten Departments out of the District of Columbia will make that Interagency work far more difficult and make collaboration even less likely to happen.

Communications with the Congress. Agency headquarters staff are constantly dealing with Representatives, Senators and their staff. Moving those people out of the District of Columbia would only make that process more difficult, and increases the likelihood that Congress may act on inaccurate or incomplete information. Some people would say that congressional affairs challenges could be avoided by leaving departmental legislative affairs staff here. That would work if those folks were the ones the people on the Hill want to deal with, but the reality is that they serve as a liaison between the Hill and the people who actually have the information that people on the Hill need.

Hiring. During the 229 years since the Residence Act of 1790 authorized the establishment of the District of Columbia, the National Capital Region has developed a labor market that is responsive to the needs of the federal government. Disrupting that by moving thousands of jobs to locations that do not have the right mix of skills in the labor market would make hiring for many jobs impossible. It is not just the federal government that would be affected. Government uses many contractors to support its operations. Those firms would also be required to pack up and move many of their employees. While those costs would not be directly evident in agency budgets, the costs would be passed on to agency customers.

This proposal has little chance of passing the House – if it gets that far. The likelihood it can pass the Senate is low. The Senate’s reaction to the proposed move of the Office of Personnel Management into the General Services Administration demonstrated that most Senators would want real data to back up such a disruptive move, so getting 50 Senators to support it is not likely to happen.

 

 

News

The Oath of Office and What it Means

by Jeff Neal1 Comment on The Oath of Office and What it Means

Federal employees, Representatives, Senators, judges, political appointees, and the President and Vice President of the United States take an oath of office. So what does taking an oath mean? Why even do it?

The reason is simple – public servants are just that – servants of the people. After much debate about an Oath, the framers of the U. S. Constitution included the requirement to take an Oath of Office in the Constitution itself. Article VI of the Constitution 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 President is also required by the Constitution to take an Oath of Office. Article 2, Section 1, of the US Constitution prescribes the Oath. 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.”

The Oaths are relatively straightforward, but what do they 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.

One thing that federal workers often hear is a career supervisor or political appointee talking about loyalty to the agency or the boss. One purpose of the Oath of Office is to remind federal workers that they do not swear allegiance to a supervisor, an agency, a political appointee, or even to the President. The oath is to support and defend the U.S. Constitution and faithfully execute your duties. The intent is to protect the public from a government that might fall victim to political whims and to provide a North Star – the Constitution – as a source of direction. Other laws have been enacted that support that view. For example, in 1939, Congress passed and President Franklin D. Roosevelt signed the Hatch Act. We call it that today, but the actual name of the law is “An Act to Prevent Pernicious Political Activities.”

The Oath does not remove ambiguity and it is not always easy for an employee to know what to do. Here are a few examples:

  • Lawful orders. Let’s say someone in authority gives a federal worker a lawful order that s/he does not agree with. That disagreement might be for ethical reasons, differences in policy direction, or other reasons. Federal employees are required to follow lawful orders, even if they disagree with them.
  • Unlawful orders. 5 USC 2302(b) (9)(D) gives employees the right to refuse with respect to unlawful orders. Refusing an unlawful order is not easy. The employee may face significant pressure to carry out an order that s/he knows is unlawful. Most employees never have the experience of being given an unlawful order. In the few cases it has happened to me, an explanation to my boss that what I was asked to do was illegal was sufficient and the matter was dropped. If it had not been enough, my only acceptable course would be to refuse to carry out the order. Doing something illegal because you are “just following orders” is not a viable defense.
  • Regulatory violations. What happens when an order violates a regulation or rule, but is not technically illegal? A 2015 Merit Systems Protection Board decision 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).” That meant a manager could discipline or even remove an employee for failing to carry out an order that violated a regulation but not a law. In response, Congress changed the law to include violation of a rule or regulation, so employees can refuse orders that violate a rule or regulation.
  • Other situations. The oath of office and most case law do not grant any protection for deciding that an order is a bad idea, bad policy, or morally 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, contacting their Senators or Representatives or their organization’s Inspector General, or any other avenue provided by law or regulation. 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. It is up to individual employees to decide how much risk they are willing to assume. 

Federal workers are accountable to the people, not to politicians. Whether an employee was a Trump supporter or Clinton supporter, a supporter of another candidate, or someone who chooses 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 in every Administration 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.

I have been hearing more and more from people who say that federal workers should support the President more, or that federal workers should actively work against the President. I heard that to a lesser degree in the Obama Administration too. Neither is true. Federal workers should do their jobs, obey the law, and carry out their oath to support and defend the Constitution. That is what most of the American people expect and deserve from their public servants.