Month: February 2021

With many agencies struggling to recruit new talent, an aging workforce whose institutional knowledge will be challenging to replace, and a civil service system that has been unchanged in decades, modernization is a mission-critical need for the federal government. When we talk about modernization, the first thing most people think of is some sort of statutory reform, such as what was done with the Civil Service Reform Act of 1978. It is true that the law should be changed with respect to many aspects of the civil service, but there is also much that can be done administratively.

Administrative changes have the advantage of being entirely within the power of the executive branch. There is no need to wait for Congress or deal with partisan politics. There are some processes, such as public comment periods on regulatory changes, that take time, but those are not remotely close to the challenges of getting legislation passed.

So what do administrative changes look like? Do they have the potential to really make a difference? I decided to lay out some options for administrative changes so you judge for yourself whether they would make a difference. Here are just a few of the changes I recommend:

Senior Executive Service (SES) hiring. Effective leaders are essential in high-performing organizations. Executive hiring processes should be designed to recruit and retain those leaders. Yet anyone who has applied for an SES position knows that the process is bureaucratic and serves as a disincentive to applying for an SES position. Applicants write lengthy applications that must address the five Executive Core Qualifications (ECQs) and any Technical Qualifications (TQs) the agency identifies. The TQs should be limited to those qualifications that are essential for the job, but it is common to see SES jobs advertised with five or more TQs. The result is that, unlike the brief résumés used in the private sector, résumés for SES jobs can be 20 pages long (or more). Once a selection is made, the agencies must seek OPM approval of the ECQs for the selectee. The process is too complicated, too bureaucratic, and adds little value to the search for talent for executive roles. The law requires OPM to “prescribe criteria for establishing executive qualifications for appointment ….” The most restrictive reading of that means that OPM decides what the qualifications must be. A less rigid interpretation is that OPM must establish a means of defining the requirements. 5 USC §3392 says “Qualification standards shall be established by the head of each agency for each Senior Executive Service position in the agency.” The agencies must establish requirements consistent with OPM guidance, but OPM has the authority to dramatically streamline the process of SES hiring and make it more likely that agencies can recruit executive talent.

Expansion of Direct Hire Authority. ” Direct Hire” is just that — it removes many of the administrative burdens in the hiring process and allows agencies to focus on identifying and recruiting the talent they need. The basic requirement for Direct Hire is that there is a severe shortage of candidates or a critical hiring need. 5 USC § 3304 says “The Office [of Personnel Management] shall prescribe, by regulation, criteria for identifying such positions and may delegate authority to make determinations under such criteria.” OPM should delegate authority for making those decisions to agencies or significantly increase their own approvals of Direct Hire Authority. This flexibility would speed new hires for hard to fill jobs in high demand occupations and in agencies that have critical vacancies due to lack of hiring in the previous administration.

Delegation of Classification, Qualifications and Training Requirements to Occupation-Based Communities of Practice. The approach OPM uses for writing classification and qualifications requirements involves subject-matter experts, but the processes take so many years that the government is not able to adequately react to changing labor markets or rapidly evolving job needs. We need a far more agile process that puts the subject-matter experts in the driver’s seat and makes OPM the advisor to the process. Using this model, the CIO Council would drive requirements for IT professionals, the CFO Council for financial management, and so on. For agency-specific work, the agencies would receive delegated authority to manage the requirements and create councils of subject-matter experts to do the work. Such a change would relieve OPM of a workload they are not staffed to carry out, and put the people who know the work in charge of managing their occupations. It would not require legislation, as 5 U.S. Code §1104 says “the Director may delegate, in whole or in part, any function vested in or delegated to the Director, including authority for competitive examinations … to the heads of agencies in the executive branch and other agencies employing persons in the competitive service.”

Simplification of Delegated Examining Authority. “Delegated Examining” is the term for agencies advertising jobs for candidates outside of the civil service. Many years ago OPM’s predecessor, the Civil Service Commission, handled most of the hiring process for outside candidates. They administered civil service exams and referred candidates to agencies. Delegated Examining Units (DEUs) in agencies were the exception rather than the rule. Over time, the Commission was replaced by OPM, hiring processes changed, and OPM’s staffing was reduced, and the process moved from OPM to agencies. Now a DEU is the norm. The problem is that the process is absolutely miserable, and has no room for innovation. Agency DEUs must follow the processes in OPM’s Delegated Examining Operations Handbook. The 318 page Handbook prescribes virtually every step of the process and is a good example of taking a statutory requirement to extremes. 5 U.S.C. §1104 says OPM may delegate authority for examining and “The Office shall establish standards which shall apply to the activities of the Office or any other agency under authority delegated under subsection (a) of this section” and “The Office shall establish and maintain an oversight program to ensure that activities under any authority delegated under subsection (a) of this section are in accordance with the merit system principles and the standards established under paragraph (1) of this subsection.” That does not mean OPM has to prescribe every step of the process. The DEU process could be simplified and the handbook reduced to the minimum needed to ensure compliance with Merit System Principles and requirements such as veteran preference. If OPM reduced its DEU requirements to the minimum required by law, agencies could be freed to innovate in ways that are simply not going to happen when everyone in government has to follow a 318-page Handbook.

These changes are only a few examples of steps to modernizing the civil service within the confines of existing law. They would make OPM’s workload more manageable, focus the agency on providing assistance and oversight, and empower agencies to play a greater role in talent management to meet mission needs.

So, why not do these things now? The biggest concern I hear about making changes such as these is the idea that agencies cannot be trusted to make decisions based on merit and in compliance with the law. We trust the Department of Defense with nuclear weapons, but we cannot trust them with HR decisions? DOJ can enforce the law, but they cannot be trusted with HR decisions? NASA can successfully land Perseverance on Mars, but they cannot be trusted to hire the people who did it? We trust agencies with critical missions every day. I think we can trust them to manage their own employees.

 

The United States is facing immense challenges with COVID, the environment, the economy, global adversaries, and more. The pandemic accelerated discussions regarding the future of work and reminded us that government must play a critical role in addressing challenges whose scale is far beyond the capabilities of individual states, cities and industry. That means an effective, merit-based civil service is essential.

We attempt to meet that essential requirement with civil service pay and job classification processes driven by a law that is 72 years old and a hiring process that limits the government’s ability to compete for talent. For a deep dive on the government’s human capital challenges, check out the National Academy of Public Administration study No Time to Wait.

Even with such immense challenges and a clear need for reform, civil service issues are not immune to our toxic political climate. There are clear partisan battle lines on civil service issues that make significant changes difficult.

It is not just the parties who fight over civil service issues. Other constituencies have their own interests. I participated in a roundtable discussion in 2019 where virtually everyone in the room had an issue they considered sacrosanct. They mostly agreed civil service modernization is necessary, as long as their issue was untouched. Unions wanted to protect collective bargaining and the institutional rights of the unions themselves. Veteran Service Organizations (VSOs) wanted to protect veterans preference as it is handled today. Conservative think tanks wanted fewer federal workers, with lower pay, less generous benefits, and less job security. Individual agencies wanted flexibility for themselves, even if it makes things more difficult for other agencies. Whether you agree or disagree with those interests, the idea that various groups have issues that they want off the table before they discuss civil service reform is the primary barrier to modernization.

So how do we make civil service modernization happen? It is unlikely everyone is going to walk away from protecting their own interests. It is even more unlikely that Congress will ignore their constituents and the interest groups that weigh in on civil service issues. Does that mean civil service reforms will be doomed? That we will have to be satisfied with tinkering around the edges? Or that Democrats should just ignore the Republicans and pass civil service modernization on their own? The answer to all those questions is no.

A partisan bill would not contribute to restoring confidence in government and trust in the civil service. It would be likely to be replaced with equally partisan changes the next time Republicans are in power. It is also unlikely that a one-sided civil service bill could be passed in the Senate due to the filibuster.

We need some mechanism for allowing a policy discussion to occur outside the walls of the Capitol. There is a model that might work, and that is the one created by the Base Realignment and Closure (BRAC) process. BRAC was designed because the Department of Defense needed a means of shedding excess infrastructure, but it was apparent that no sane member of Congress wanted to go on record voting to close bases where their constituents work. There was also a recognition that DoD’s infrastructure was too big and too costly. In order to reduce the political problems, Congress passed the Base Closure and Realignment Act of 1990. This Act (amended in 2005) created a Presidentially appointed BRAC Commission to review and make recommendations for closures and realignments. The Congressional Research Service described the BRAC process this way:

“Congress has defined BRAC selection criteria in statute, thus requiring the Secretary to prioritize military value over cost savings. Additionally, Congress has required the Secretary to align the Department’s recommendations with a comprehensive 20-year force structure plan. The commission may modify, reject, or add recommendations during its review before forwarding a final list to the President.

After receiving the Commission’s list of recommendations, the President may either accept the report in its entirety or seek to modify it by indicating disapproval and returning it to the commission for further evaluation. If the President accepts the commission’s recommendations, they are forwarded to Congress. BRAC implementation begins by default unless Congress rejects the recommendations in their entirety within 45 days by enacting a joint resolution. During the implementation phase, DOD is required to initiate closures and realignments within two years and complete all actions within six years.

The BRAC process represents a legislative compromise between the executive and legislative branches wherein each shares power in managing the closure and realignment of military bases. The imposition of an independent, third-party mediator was intended to insulate base closings from political considerations by both branches that had complicated similar actions in the past.”

I believe a process modeled on the BRAC process is the best approach to achieve real bipartisan civil service modernization. It is clear that we cannot have reform if no one is willing to talk about their favorite issues or either political party believes it is the big loser in reform. All the civil service issues have to be on the table and considered by a bipartisan Commission that is charged with developing a comprehensive reform package that addresses the talent needs of the government, not just the parochial interests of the various constituencies. A bipartisan Commission that conducts public hearings, provides the opportunity for all interest groups to present their views, and conducts a transparent review and analysis, can work. The size of government would not be within the purview of the Commission, because it is a completely different issue.

Following a BRAC-like process, the Commission would make recommendations that President Biden could accept, return to the Commission for reconsideration, or reject. Congress could reject the reforms only if both the House and the Senate voted to reject them.

Opponents of modernization most likely will not like this approach, because it makes changes more likely. Proponents of reform who want reform only on their terms will probably not like this approach either.

Some will say the Biden Administration should use Executive Orders to make reforms happen now. I agree. Executive Orders and other administrative actions are not a bad idea, because there are many needed improvements that can be done administratively. They are not enough, because some needed reforms require statutory changes and the actions that can be done administratively can also be undone by a succeeding Administration. The Biden Administration should proceed with administrative changes where it can to address urgent needs, but also support a Civil Service Modernization Commission with BRAC-like authority to make lasting changes that we need.

Those who argue that Commissions are a Washington way of dodging issues should keep in mind that the General Schedule system that we have used for 72 years grew out of the recommendations of the Commission on Organization of the Executive Branch of the Government – commonly known as the Hoover Commission. That Commission, authorized by statute, was remarkably prescient, making recommendations that are still relevant today. Its recommendations included category rating, simplified and more effective performance ratings, and selection processes for supervisory jobs that focused more on ability to be a supervisor than on technical experience. The Hoover Commission also recommended that pay include locality or industry differentials. The Chair of the Commission, former President Herbert Hoover (R), was appointed by President Harry S. Truman (D). Coming so soon after the existential threat of World War II, the Hoover Commission accomplished far more than was expected of it. Perhaps the existential threats of a global pandemic, cyber warfare, and everything else we have faced recently may inspire our leaders to take a lesson from Presidents Truman and Hoover.

A two-track approach of administrative change coupled with a BRAC-like Commission fulfills President Biden’s promise to “Build Back Better” and approach challenges through bipartisan solutions. It also makes civil service modernization more likely to be based upon what will work best rather than who the changes please the most. It ensures modernization is based on data rather than politics. If we want modernization that can stand the test of time, it is the way to proceed.