Tag Archives: #jeffnealHR

“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.

 

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Replacing the General Schedule: Some Facts

My last post on replacing the General Schedule addressed some of the common fallacies about the GS pay system. Among them is the idea that all Federal employees are over/underpaid (depending on the political bias and source of the study), that GS pay is truly based on labor costs by location, and that the GS system no longer covers most employees.

Today I’m addressing some facts about the General Schedule and the implications of what is happening to it. While I know there are many people who have no interest in changing the GS system, probably because of fear of what it could become, there are also many good reasons why it must be reformed. There are a lot of numbers here, but I think it is important to get a look at them to better understand the problems with the General Schedule.

Facts About the General Schedule

The number of people in the top 4 GS grades (GS-12 – 15) is going up much faster than the total number of employees. Grade inflation (the tendency of grades to go up without substantial changes in duties) has become more common in the Federal government. Here is a look at Federal employment numbers and the distribution of employees in the top General Schedule and Equivalent Grades (GSEG)*. In just 15 years, the number of employees in the top grades has increased by 29.4% and the percentage of GSEG employees in the top grades has increased from 39.0% to 49.1%. The numbers of GS-12, 13 and 14 positions have increased substantially more than the overall or GSEG workforce.

1998

2013

% Change

Federal Workforce

1,810,300

2,080,000

+14.9%

GSEG* Workforce

1,431,800

1,473,000

+2.9%

GSEG % of Workforce

79.1%

70.1%

-11.4%

GS-12

233,500

292,100

+25.1%

GS-13

179,875

248,567

+38.2%

GS-14

91,893

122,498

+33.3%

GS-15

53,156

61,566

+15.8%

Total 12-15

558,424

724,731

+29.8%

The number of GS-13s outside of DC, Maryland and Virginia and the number of GS-14s and GS-15s in DC, Maryland and Virginia have skyrocketed. The number of GS-13s outside of DC/MD/VA has increased by 41.8%. GS-14s are increasing everywhere, but have increased  far more in DC, Maryland and Virginia (55%). The data on GS-15s is remarkable – the number of GS-15 jobs has increased only marginally more than the percentage of the overall workforce (but more than 5 times as much as the GSEG workforce). However, the number of GS-15s outside of DC, Maryland and Virginia has actually gone down by 19.9%, while the number of GS-15s in DC/MD/VA has increased by 48.8%.

Grade

Location

1998

2013

% Change

GS-13

DC/MD/VA**

59,852

78,371

+30.9%

Everywhere Else

120,023

170,196

+41.8%

Total

179,875

248,567

+38.2%

GS-14

DC/MD/VA

40,998

63,340

+55.0%

Everywhere Else

50,895

59,158

+16.2%

Total

91,893

122,498

+33.3%

GS-15

DC/MD/VA

27,375

40,733

+48.8%

Everywhere Else

25,781

20,833

-19.9%

Total

53,156

61,566

+15.8%

Total GS High Grades

DC/MD/VA

128,225

182,444

+42.3%

Everywhere Else

196,699

250,187

+27.2%

Total

324,924

432,631

+33.2%

*GSEG = General Schedule and Equivalent Grades.  Source: OPM Fedscope Data

**The best data available is OPM’s Fedscope (a great resource for anyone interested in Federal employment data). Older Fedscope data shows data by metro area, but now it is state-by-state. I chose DC/MD/VA as the best surrogate for National Capital Region data.

The number of high grade employees ages 20 – 34 and over age 50 is increasing dramatically, while average length of service has dropped significantly. The average length of service for GS-14s has gone down from 20 years to 17.5 years. The average length of service for GS-13s has gone down even more – from 18.8 years to 15.9 years. That means we are seeing employees advance to high grades much more quickly than in the past and employees in high grades are increasingly becoming retirement-eligible. Here is a look at the age distribution of GS-13, 14 and 15 in 1998, compared to 2013. Numbers that have increased since 1998 are shown in green, those that have decreased are red.

Age and Length of Service Comparison

High Grade General Schedule Employees

1998 to 2013

 

GS-15

GS-14

GS-13

Age

1998

2013

1998

2013

1998

2013

20­–24

0

1

3

0

5

16

25–29

37

29

587

757

2,404

5,552

30–34

1,175

1,694

5,562

7,343

15,329

23,206

35–39

3,820

3,952

12,790

10,738

27,687

28,063

40–44

7,051

6,612

15,696

16,229

31,906

35,127

45–49

11,798

10,537

20,054

22,734

38,417

43,244

50–54

14,728

14,199

20,817

26,255

37,102

47,591

55–59

8,827

12,395

10,739

20,579

18,132

36,370

60–64

3,767

7,966

4,000

12,109

6,518

20,218

65 and over

1,953

4,185

1,645

5,754

2,375

9,179

Average Length of Service

21.0 years

19.2 years

20.0 years

17.5 years

18.8 years

15.9 years

Why Should We Care About The Numbers?

Some folks have asked me why we should care about these numbers. The reason is that they reveal a job classification system that has significant issues. Here are just a few:

Grade inflation makes career progression impossible. When the General Schedule was established by the Classification Act of 1949, employees in positions such as Budget Analysts, Contract Specialists, HR Specialists and other 2-grade interval jobs had full performance levels at GS-9 or GS-11. After a few years at the full performance level, an employee could become a team leader or individual contributor at the 11 or 12 level and could aspire to several more promotions in his/her career. Today, particularly in the National Capital Region, the full performance level is GS-12 or 13. An employee can rise to that level rapidly, then has only 1 or 2 possible promotions to look forward to. Because GS-15s comprise only 4% of the workforce, realistically a GS-13 can only look forward to one more promotion. A system that rapidly moves people to near the top of the pay range and then freezes their careers for 2 decades or more is not healthy. It stifles growth, creates nothing to aspire to, and creates morale issues that are difficult to address.

Federal employee pay is not based on market conditions, so it will remain a political football. Federal employee pay has become such a political issue in the last 25 years or so that having an adult discussion about it seems to be impossible. Regardless of their beliefs about the proper size of government, most reasonable people agree that Federal employees should receive fair compensation for their work. Until Federal pay is based upon real data for real occupations in real places, and kept up to date based upon such data, we will continue to hear the pro and anti government camps arguing about whether Federal employees should receive no pay increases or 1% raises like they got this year. Defining “fair” is a challenge that I will address in my next post on this issue.

The age distribution shows three changes that could be cause for concern.

  1. The number of younger and less experienced high grade employees is increasing. While new ideas and youthful enthusiasm can be a great asset, the overall reduction in experience can create problems with workforce capabilities.
  2. The number of high grade GSEG employees over age 55 has increased 122%, from 57,956 to 128,755. That means the number of retirement-eligible employees in the highest grade levels is exceptionally high at the same time the numbers of mid-career GS-15 employees has decreased. While I believe fears of an across-the-board retirement wave are overstated, the retirement eligibility numbers at the highest grade levels are cause for concern.
  3. The average length of service is decreasing significantly at high grades. Combined with the increasing age of the workforce and likelihood of high grade retirements, the government faces talent shortages that could become severe.

Either (a) the position classification process is broken, resulting in grade inflation that breaks the system, or (b) Federal jobs really have become so complex that most of the employees should be in the top 3 or 4 grades of a 15-grade system. Regardless of which is true, the system must be changed to correct it. If it is a classification problem, fixing the classification process when high grades have become so pervasive can only be done if the pay issues and the government’s ability to compete in the labor market are addressed. Doing that means fixing the pay system, and that means overhauling the General Schedule. If the problem really is that the General Schedule was designed for a mostly clerical and low-grade level workforce that no longer exists, then the General Schedule has to be overhauled. 

In my next post, I will outline some ideas for replacing the General Schedule with something more suitable for today’s workforce, while protecting both the right of Federal employees to receive competitive pay for their work and the government’s ability to compete for talent.

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