FITARA – Big Deal or Big Snooze?

dreamstime_xs_6998336The Federal Information Technology Acquisition Reform Act (FITARA) is getting a lot of attention since OMB’s implementation guidance was released for public comment. OMB set a deadline of May 30, 2015 for comments, but strongly encouraged interested parties who believe they have substantive comments to get them in by this Friday – May 15.

So is FITARA worth all the hype? Will it make a difference? If so, why? After all, the Clinger-Cohen Act was passed in 1996 and many would argue it did not have the impact its supporters envisioned.

FITARA is different and I believe it has the potential to fundamentally change how IT is bought and used in government. It will change the role of the Chief Information Officer and the Chief Financial Officer and may improve partnering between those two and the Chief Human Capital and Chief Acquisition Officers. The Office of Management and Budget learned a lot from the government’s experience since Clinger-Cohen was passed. Let’s be honest – Clinger-Cohen was implemented in the standard bureaucratic way with no teeth. It made changes, but fell far short of what was needed. OMB clearly was determined to implement FITARA in a new and far more effective manner.

They started by listening to experts in government and industry. They sought out people who knew what happened with Clinger-Cohen and other reform efforts. They asked what worked and what did not work, and why. Then they crafted draft guidance that was anything but wishy-washy. It set clear requirements that agencies could not dance around. They defined a clear and unambiguous role for the CIO in the IT budget and program planning processes, including a requirement that the agency certify the CIO reviewed and approves the major IT investments portion of budget requests. They clearly state “The CIO defines the development processes, milestones, review gates, and the overall policies for all capital planning and project management and reporting for IT resources.” They carved out a role for the CIO in IT acquisition as well, saying “Agencies shall not approve an acquisition strategy or acquisition plan (as described in FAR Part 7)21 or interagency agreement (such as those used to support purchases through another agency) that includes IT without review and approval by the agency CIO.”

They did not stop there. The draft guidance includes a substantial role for Departmental CIOs in the selection of bureau/component CIOs, saying “The CIO shall be involved in the recruitment and shall approve the selection of any new bureau CIO.” Once bureau CIOs are on board, the guidance requires that “The CHCO and CIO shall jointly establish an agency-wide critical element (or elements) included in all bureau CIOs’ performance evaluations” and “The [agency] CIO must identify “key bureau CIOs” and provide input to the rating official for this critical element(s) for at least all “key bureau CIOs” at the time of the initial summary rating and for any required progress reviews. The rating official will consider the input from the [agency] CIO when determining the initial summary rating and discusses it with the bureau CIO during progress reviews.”

Recognizing the critical role of talent management in any organization and the challenges the government faces in maintaining a skilled IT workforce, OMB included a section on the IT workforce. They say “The CIO and CHCO will develop a set of competency requirements for IT staff, including IT leadership positions, and develop and maintain a current workforce planning process to ensure the department/agency can (a) anticipate and respond to changing mission requirements. (b) maintain workforce skills in a rapidly developing IT environment, and (c) recruit and retain the IT talent needed to accomplish the mission.” They go on to require that “the CIO shall have direct access to the agency head (i.e., the Secretary, or Deputy Secretary serving on the Secretary’s behalf) regarding programs that include information technology.”

OMB’s initial draft of FITARA guidance survived the interagency review process remarkably intact. The version that is out for comments now is in many respects a model for how policy guidance should be developed. OMB Deputy Director for Management Beth Cobert, CIO Tony Scott, and E-Government chief Lisa Schlosser should be commended for producing a public policy document that will make a difference rather than just answering the mail.

How big a difference will it make? Given the authority it gives to CIOs, the difference may be surprising to a lot of people. It clearly defines the role of the CIO and assures s/he will have the authority to do the job. Whether you think biblically (“For unto whomsoever much is given, of him shall be much required”) or like Spiderman (“With great power comes great responsibility”), the authority granted to CIOs by FITARA and OMB could be a game-changer for many CIOs.

CIOs who are highly capable, but may have been struggling with the bureaucracy and its unwillingness to change, may find they have new weapons and tools to get their jobs done. They can drive budgets (the mother’s milk of Washington, DC), force changes in under-performing programs, hire the right leaders for bureau/component CIO roles, and if necessary, kill programs. CIOs who are less capable may find themselves exposed. Rather than being able to blame others for their shortcomings, they may find themselves with no excuse for their performance. They will have the tools, but if they do not know how to use them, they may fail quickly.

That is not a bad thing. FITARA may very well generate some turnover in CIO roles and allow Departments to get the right talent in the jobs. OMB’s guidance, wisely developed with the intent of making a real and lasting difference, is a great start that should have a lasting impact. This is definitely no snooze – it is a big deal.

“Notwithstanding Any Other Provision of Law…”

It is hard to read the newspaper or watch cable news without seeing coverage of the Department of Veterans Affairs. As both a former career senior executive and a political appointee, I was particularly surprised when on May 21, the House of Representatives passed H.R. 4031 – the “Department of Veterans Affairs Management Accountability Act of 2014.” The House Veterans Affairs Committee says the Bill will “give the Secretary of the Department of Veterans Affairs authority to remove employees of the Senior Executive Service, whose performance the Secretary believes warrants removal, from the government service completely or transfer them to a General Schedule position within the current civil service system.” Passed in response to the scandal over alleged misconduct at 26 VA medical facilities, the Bill is a sweeping piece of legislation that may have many unintended consequences.

On its surface, this legislation is simple. It says in part “Notwithstanding any other provision of law, the Secretary may remove any individual from the Senior Executive Service if the Secretary determines the performance of the individual warrants such removal.” Its simplicity belies the risks it presents. “Notwithstanding any other provision of law” is language that has been used before. I first encountered it in Section 111(d) of the Aviation and Transportation Security Act (ATSA) that created the Transportation Security Administration. ATSA allowed TSA to create hiring and firing rules “notwithstanding any other provision of law.” When the Bush Administration used the provision to ban collective bargaining for TSA employees, federal employee unions went to court. The courts consistently ruled that the plain language of the law means exactly what it says. Current TSA Administrator John Pistole used the same provision to implement collective bargaining after crafting a labor relations construct that protected the TSA security mission while still offering collective bargaining to Transportation Security Officers. Depending on your views, one of them made a mistake and the other did something very good. The language of 111(d) gave them unfettered ability to make that call.

Why should we care if the same language is used again? Particularly if the legislation gives the Veterans Affairs Secretary the ability to fire poor performers? We should always care when the law grants one person the ability to ignore any other law and deprive people of their rights without due process. H.R. 4031 would grant that power to the Secretary. It provides for no review, no third party to check the broad power it grants, and no restrictions on how it can be used. Should Secretary Shinseki or any future VA Secretary choose to fire senior executives because he believes they too aligned with the priorities of the previous Administration, he can do it. In fact, he could describe virtually anything as performance that warrants removal. Laws regarding discrimination and equal employment opportunity, political activity, reprisal for protected activities, and anything other law on the books today will provide no protection. Notwithstanding any other provision of law means any law, not just the due process of law that some people are describing as “red tape.”

The unintended consequences of this Bill would be dangerous. In effect, it converts every Senior Executive Service position in the Department of Veterans Affairs to a political appointment. The positions will be covered with the veneer of a career appointment, but the ability to fire any executive for poor performance as defined by one person makes them “at will” employees. In the federal government that makes them political appointees in reality if not in name. How many people argue government would be better off with all executive positions filled with political appointees? When a future scandal occurs, the career executives are far more likely to become the sacrificial lambs than political appointees who are a part of the Administration.

Another, more dangerous, risk of the Bill is the chilling effect it will have on the willingness of executives to report misconduct. Whistleblowers are already taking significant risks when they disclose misconduct in their agency. Those who choose to do so rely on the protections of laws such as the Whistleblower Protection Enhancement Act and the requirement for due process before they can be removed from their jobs. This Bill would make any VA executive think twice before questioning actions of their leaders or revealing misconduct that might embarrass the VA Secretary of this or any Administration.

If the Bill is successful and it results in termination of a large number of executives, how will they be replaced? Who would take an executive position under these circumstances, with all of the risks of a political position and none of the benefits? VA executive ranks could quickly be depleted and it will be difficult, if not impossible, to replace them. Current Senior Executives with proven records in other agencies would have no interest in putting their livelihood and career at risk by moving to VA.

The people who crafted this legislation no doubt had intentions to improve the state of affairs of healthcare for our Veterans. If that is what they want to accomplish, they should do the hard work of crafting well thought out legislation that provides a more effective means of addressing poor performance and misconduct. Casting aside every law already on the books is an overreaction and one that will do far more harm than good.

Virtually everyone agrees that our Veterans should receive excellent health care, quick responses to benefit applications, and our undying respect and thanks for their service. Depriving people of the due process of law that Veterans fought to preserve, politicizing the Senior Executive Service, discouraging whistleblowers and giving unrestricted power to one person is not the way to honor Veterans and deliver the benefits they earned.