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.

Shake Up Government With an Agile Organization and Workforce

Recent Government Accountability Office testimony before the House of Representatives, Talent Management Strategies to Help Agencies Better Compete in a Tight Labor Market, highlighted several challenges the government faces as it competes for talent in an increasingly tight labor market. GAO identified five key trends.

To address those challenges, GAO made the following recommendations:

  • Align human capital strategy with current and future mission requirements. Agencies need to identify the knowledge and skills necessary to respond to current and future demands. Key practices include identifying and assessing existing skills, competencies, and skills gaps.
  • Acquire and assign talent. To ensure the appropriate capacity exists to address evolving mission requirements, agencies can use internships, cultivate a diverse talent pipeline, highlight their respective missions, and recruit early in the school year.
  • Incentivize and compensate employees. While agencies may struggle to offer competitive pay in certain labor markets, they can leverage existing incentives that appeal to workers’ desire to set a schedule and to work in locations that provide work-life balance.
  • Engage employees. Engaged employees are more productive and less likely to leave, according to the Office of Personnel Management (OPM). Agencies can better ensure their employees are engaged by managing their performance, involving them in decisions, and providing staff development.

The trends GAO identified are a good sample of the many challenges the government faces, and their recommendations were a good start. But when we look at the challenges in talent management and performance, I do not think fixing hiring and strengthening employee engagement are enough. Those employees will still be stuck in unresponsive organizations that look much like they did five, ten or twenty years ago. Government organizations tend to be inflexible, and jobs are often narrowly defined and stay the same for years. Many are reorganized periodically, but those reorgs do not change the character or inflexible nature of the organization. They are just rearranging the boxes and where people sit.

Those inflexible organizations exist is a world that is awash in change. Technology is evolving at such a pace that government may struggle to catch up, let alone stay current. Mission demands will also continue to change, as will the demographics of the nation and the attitudes toward work. Government is not even remotely prepared to keep up with those changes, and their ability to do so is likely to get worse before it gets better. 

In an interconnected world where virtually any information you need is literally in the palm of your hand, government is hierarchical, not effective at sharing information, and not designed to evolve with mission, technology and workforce changes. Organizations could be designed with flexibility in mind, but few in government are. They can have job descriptions that are adaptable, but few are. They can listen to their employees, but many do not.

At the same time that everything around them is changing, the federal workforce is aging rapidly. The number of workers over age 60 is increasing, while new hires of people under age 30 continue to fall short of what is needed. The government is also developing a gap in midcareer employees. The number of workers between ages 45 and 54 decreased by more than 40K in the past 4 years. When an organization has a weak pipeline of young hires and a hollowing out of the middle, the future is grim.

As if that were not enough, federal employee bashing as a political activity is increasing. Politicians referring to career employees as “the deep state” and calling for reductions in workers in many departments are making it less likely that people in high-demand occupations will choose the federal government as an employer.

The trends and government’s organization and talent management policies add up to a great deal of risk. If the economy continues to produce jobs, the government will struggle to compete for talent, and will have difficulty keeping the people it has. The aging workers are going to age out of the workforce, so there will be big holes to fill. And the government’s unwillingness or inability to be more agile in its management and organization practices will make it difficult to keep up.

One potential solution is to apply some of the principles of Agile project management to government organizations. While Agile may be overhyped, the approach does include several concepts that are particularly adaptable to organization and talent issues. Ideas like satisfying customers by early and continuous delivery of solutions, welcoming change, and building organizations and projects around trusted, motivated individuals apply to more than software development and project management. Greater use of face-to-face conversations, a focus on simplicity and maximizing the amount of work not done are also concepts that can apply to how jobs and organizations work. So are self-reflection and focus on how to become more effective.

Imagine government organizations that focus on customers and continually adapt to meet their needs. How about trusting the employees who know the work? And reducing hierarchy and allowing more flexible, self-managing teams? Why not have job descriptions that are far more focused on what people should know and the results they should achieve, rather than being lists of unchanging duties that are never current and rarely accurate?

Government gets far too many unfounded complaints about its shortcomings and federal workers take the blame for problems politicians create, but it is true is that government is too rigid, too unwilling to adapt, and too comfortable with the status quo. If we take some Agile concepts and apply them to how government is organized and staffed, we may see that those criticisms can be addressed. Taxpayers will be better off and federal workers will have better working conditions.