Late on Friday afternoon, the White House announced that President Donald Trump had signed 3 Executive Orders that will affect the civil service. They are:
OPM Director Jeff Pon issued a statement saying “These Executive Orders are about protecting taxpayers’ dollars, including those of our dedicated federal employees, and putting those resources to use in the most efficient and effective way possible. By holding poor performers accountable, reforming the use of taxpayer-funded union time, and focusing negotiations on issues that matter, we are advancing our efforts to elevate the federal workforce. The vast majority of our employees are dedicated public servants who are dedicated to their missions and service to the American people. It is essential that we honor their commitment, and these measures reflect just that. Looking ahead, our focus will be on continuing to leverage technology to digitize our federal human resources infrastructure, build modern public human resources systems for the 21st century, and celebrate the hardworking federal employees who serve our great Nation each and every day.’
The new Executive Orders got a quick reaction from others, with American Federation of Government Employees President J. David Cox saying “Our government is built on a system of checks and balances to prevent any one person from having too much influence. President Donald Trump’s Executive Orders will undo all of that. This administration seems hellbent on replacing a civil service that works for all taxpayers with a political service that serves at its whim.”
Virginia Congressman Gerry Connolly tweeted “Trump continues his assault on the federal workforce with today’s executive orders. Attacking unions and demagoguing federal workers won’t help morale. Show the federal workforce that serves all Americans the respect it deserves, Mr. President.”
Heritage Foundation President (and former OPM Director) Kay Coles James tweeted “Encouraged to see POTUS executive orders for our civil service. These are important reforms and will make our government work more efficiently for taxpayers!”
So what are these Executive Orders? The death of democracy? The salvation of our nation? Those extremes overstate the impact these orders will have, both good and bad. With that in mind, this is the first of 2 posts I will write to go through the provisions of the orders. This post will focus on the order streamlining removal procedures, while the next will cover the 2 orders that address union issues. I will highlight key provisions of each order, along with my take on what it means and how it might affect federal workers. Let’s start with the order titled “Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.”
Section 1 — Purpose.
This section outlines the requirements in the Merit System Principles that employees be held accountable for performance and conduct (Merit System Principles 4, 5 and 6). It goes on to say that employees, via the Federal Employee Viewpoint Survey, have said their agencies do not do enough to deal with poor performers. Those are both facts, so I do not have anything to add, other than that I agree with the employees.
Section 2 — Principles for Accountability in the Federal Workforce.
This section requires that “removing unacceptable performers should be a straightforward process that minimizes the burden on supervisors” and “agencies should limit opportunity periods to demonstrate acceptable performance under section 4302(c) (6) of title 5, United States Code, to the amount of time that provides sufficient opportunity to demonstrate acceptable performance.” It goes on to say “Supervisors and deciding officials should not be required to use progressive discipline. The penalty for an instance of misconduct should be tailored to the facts and circumstances.” After a brief discussion of the reason why discipline should be tailored to each employee’s circumstances, the order states “Suspension should not be a substitute for removal in circumstances in which removal would be appropriate. Agencies should not require suspension of an employee before proposing to remove that employee, except as may be appropriate under applicable facts.” It goes on to say that agencies should make decisions on proposed removals within 15 days of the end of the employee reply period, and that agencies should use Chapter 75 (adverse action) procedures where appropriate rather than the more common Chapter 43 (performance) procedures when dealing with poor performance. It also reminds agencies that the probationary period is the final step in the hiring process. A final paragraph says agencies should “prioritize performance over length of service when determining which employees will be retained following a reduction in force.”
There is a lot in this section. The statement about progressive discipline does not actually change anything. There is no requirement to use progressive discipline when it is not appropriate. For example, if an employee physically assaults another employee, and agency could go directly to a removal. There are other offenses for which removal on the first offense is appropriate. Most agency tables of penalties have numerous offenses where the prescribed penalty for a first offense is “reprimand to removal.” The part about probationary periods is right on target. Many agencies do a poor job of using the probationary period to weed out employees with conduct or performance problems and probation is, in fact, considered to be the final step in the hiring process. If agencies made better use of probation, many problem employees would go away long before they could become problems.
One of the most interesting provisions in this section is the requirement that OPM rewrite the regulations for reduction in force to “prioritize performance over length of service.” My first thought was that they could not do that because the law requires the current hierarchy of tenure group (career or career-conditional), then veteran preference, then length of service, and finally, performance, in determining RIF retention standing. The RIF provisions in the United States Code do not appear to specify that those factors be considered in that order. They are listed in that order and OPM regulations prioritize them in that order. It appears the administration does have the authority to rewrite the regulations to place performance higher in the list of considerations. Putting performance first has already been done in the Department of Defense, based on provisions in the 2016 National Defense Authorization Act.
Section 3 — Standard for Negotiating Grievance Procedures.
This section requires that “Whenever reasonable in view of the particular circumstances, agency heads shall endeavor to exclude from the application of any grievance procedures negotiated under section 7121 of title 5, United States Code, any dispute concerning decisions to remove any employee from Federal service for misconduct or unacceptable performance.” The idea here is that removals would not go through a negotiated grievance procedure (and arbitration), but rather would go to the Merit Systems Protection Board. This one is much easier said than done. Negotiated grievance procedures are exactly that — negotiated. Unions may not want to agree to such provisions and agencies will not be able to impose them unilaterally. What the president ordered is within his rights as chief executive, but refusing to go along is within the rights of unions. Getting anywhere on this one is going to take a long time.
The bigger question is whether it will actually make a big difference, even if fully implemented. In reality, unions often encourage employees to appeal to MSPB rather than going through the grievance/arbitration process. That is because typically because the union and agency split the cost of arbitration. What we may find is that this provision of the executive order may have little real impact.
Section 4 — Managing the federal workforce.
This section lays out a number of things agencies cannot do, including subjecting ratings and awards to a grievance or arbitration process, agreeing to limits on the agency’s ability to use Chapter 75 rather than Chapter 43 procedures, and giving employees more than 30 days notice before a removal. Like the changes in Section 3, most of this is negotiable. That means nothing will change quickly in response to the executive order.
Section 5 — Ensuring integrity of personnel files.
This section says “Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.”
There are 2 sides of this issue. The first is the idea that agencies should not agree to let a problem employee walk out with a clean record and go to work in another agency. The second is the idea that settlement agreements can save a lot of time and money and get a problem employee out of the agency for good with no risk of being overturned by a third party. Both arguments have merit. In an ideal world, settlement agreements would include language that an employee would not seek federal employment again, but agencies tend to think about the problem in front of them rather than the problem they might be creating for another agency a year from now. The president has the authority to issue this direction to agencies, but may find that getting them to abide by it is more difficult.
Sections 6, 7 and 8 — Implementation guidance.
These sections state that the executive order will need implementing guidance and regulations and that the order does not abrogate collective bargaining agreements.
What does really do and what does it miss?
This order is unlikely to result in immediate changes that will affect most federal employees. Agencies do not fire large numbers of people and are unlikely to start doing so now. We may see fewer settlement agreements and agencies taking a harder line on contract negotiations. Employees with performance problems may find they have less time to improve, or, if the agency elects to use Chapter 75 procedures, no time to improve before receiving a notice of proposed removal.
There are a few things that this order could have included that might have made a more immediate difference. For example, rather than getting into a discussion of the merits of progressive discipline (which often works in the agencies’ favor), agencies could have been ordered to update their tables of penalties to make removal the preferred penalty on the first offense for some particularly egregious offenses. For example, if an employee physically assaults another employee, uses certain illegal drugs, or commits other severe offenses, the agency would consider those as mandatory removal offenses in the absence of some compelling individual circumstances. Some agencies have no table of penalties, making it harder for managers to decide what is a proper penalty. Requiring every agency to develop a table of penalties would be another good step.
Another more consequential change would be to focus on the time between the offense and the proposed discipline. The executive order focuses on the time between the proposed notice and the decision, when the reality is that much of the time is often in the gap between an employee doing something and the agency issuing a proposal letter. It may be months after an offense before the agency gets around to doing something about it. The time lag makes discipline less effective because it is so long after the offense occurred. That time is not typically governed by law, regulations or collective bargaining agreements. Significantly reducing the gap would have the dual benefits of reducing the time to take an action and making actions such as reprimands and suspensions more effective by reinforcing the cause-and effect nature of misconduct and discipline.
The bottom line is that this Executive Order may make a small dent in the problem of dealing with poor performers and misconduct. It may result in changes to collective bargaining agreements at some point in the future. For the vast majority of federal workers who do their jobs and do not have performance or conduct problems, there is likely to be no impact at all. With respect to this Executive Order — in the words of the British Ministry of Information during World War II, Remain Calm and Carry On.
The federal government’s fiscal year began on Oct. 1, 2017. As of the date of this post that was 101 days ago. There is still no budget for the full year, just a continuing resolution (CR) that expires on January 19.
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