What’s Really in Those New Executive Orders?

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:

Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles

Executive Order Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use

Executive Order Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining

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.

You’re Fired! and Other Federal Management Fantasies

imageWith Agency Heads, members of Congress, pundits and others continuing to press the issue of making it easier to fire Federal workers (and thinking it will actually make a difference), I decided to rerun a post from last year. Nothing has changed and these proposals are not going to produce the kinds of benefits most people expect from them.

The recent news about the Department of Veterans Affairs has generated a lot of talk about performance – lack of it, failure to deal with problems, rating inflation, and so on. During a June 20th hearing of the House Committee on Veterans’ Affairs, the VA revealed that none of its Senior Executives had gotten a rating below fully successful in the past 4 years. While that may seem shocking, the VA is not that out of the ordinary. Sub-par ratings for SES members are not common and firing them is even less common. Firing anyone in a management job is rare. There are a lot of reasons for that, including a selection process that weeds out unqualified applicants long before they could be selected and a lack of will to deal with problem employees.

The raw numbers of removals for employees below the SES level are higher, but overall there are not large numbers of supervisors and managers who get less than fully successful ratings.

The overall number of permanent Federal employees who have been fired in recent years is not large. A recent article in Federal Times cited numbers of 11,564 in FY 2009, 11,733 in FY 2010, 10,373 in FY 2011, 9,980 in FY 2012 and 9,513 in FY 2013. That ranges from a high of 0.57% of Federal employees fired in 2009 to a low of 0.46% in FY 2013. Those numbers may actually be a bit higher than true number of people fired for poor performance or misconduct, because they include people who were terminated because their appointments expired and for other reasons.

The Federal Times article points out the higher numbers of people fired from the Transportation Security Administration (TSA is exempt from most Federal employment laws as a result of authority it has in Section 111(d) of the aviation and Transportation Security Act) and the higher numbers of people at lower grades (particularly GS-5) who are fired. The high number of GS-5s is not surprising. More people enter Federal service at the GS-5 level than any other grade and, as new employees, they are much more likely to be let go. GS-5s also represent the largest number of resignations of any grade.

Federal Employee Terminations and Removals FY2009 – FY 2013

The raw number of SES terminations and removals is very low:

Senior Executive Service Removals and Terminations FY 2009 – FY 2013

Federal Times noted that lower graded employees are fired at a much higher rate than higher grades. What is not often mentioned is that SES members are fired at the same or higher rate than GS-14s and GS-15s. In fact, the FY 2012 SES firing rate was almost twice that of GS-15s and one-third more than the rate of GS-14s. In 2012, 7 of 7,815 SES (.09%) were fired for performance or misconduct, while 28 of 59,216 GS-15s (.05%) and 86 of 119,507 GS-14s (.07%) were fired.

Firing rates for higher grades are most likely lower because those employees have been screened repeatedly as they have moved up through the grades. Another factor may be the familiarity that more senior people have with one another. Firing anyone is hard, but it is easier to fire someone you don’t know as well. Firing the people you work most closely with every day is much harder.

All these numbers about firing lead to the question – why aren’t more people being fired if we want to make government better? A June 24 Government Executive article on a a House/Senate conference committee was headlined “VA Conferees Agree on One Thing: Fire More Bureaucrats.” Wouldn’t it be better if we give managers the ability to fire people much more easily so they can clear out the deadwood? Wouldn’t that lead to a general housecleaning that would make government far more effective? Shouldn’t government fire people at a rate similar to the private sector?

In a word, no.

The simple idea that it should be easier to fire people sounds good in theory. If we let good managers make good management decisions about letting poor performers go they will get rid of the poor performers. Like many simple ideas, that one is too simple. The real world is a bit more complex. Here are just a few of those complexities:

  • The simple view assumes managers will manage. This post started with the story about every SES member in the Department of Veterans Affairs getting a fully satisfactory or better rating. The numbers are not a lot better in other agencies. Most managers who talk about how hard it is to fire people have never tried to fire anyone. Keep in mind that MSPB’s 2005 report, The Probationary Period: A Critical Assessment Opportunity, MSPB reports that 1.6% of competitive service employees are removed from their jobs during their probationary period. Those are employees who can be fired easily and have little avenue of appeal. Firing them doesn’t require a lot of documentation or time. Firing probationary employees is as simple as it gets, yet only 1.6% of them are fired every year. Why should we believe a quick and easy process for firing everyone else would have different results?
  • The simple view assumes Federal employees who cannot perform are the reason for many of government’s problems. In that scenario, there are tens or hundreds of thousands of employees who contribute nothing and wiping out large numbers of them will make government better. That view doesn’t assign the blame for government’s biggest problems to the people and cultures that are actually responsible for them. Federal employees do not cause duplication of services across agencies. They don’t cause money to be appropriated for wasteful projects. They do not cause most of the problems of the federal government. For the most part, the ability of anyone other than the most senior employees to dramatically change anything is next to non-existent. By shifting the focus to them, we lose focus on the bigger systemic problems our government faces and guarantee we will never deal with the underlying causes. Are there poor performers in government? Yes. Is the number massive? No. Will rolling a few heads distract attention from the bigger problems? Absolutely.
  • The simple view also assumes those managers who do have the backbone to deal with poor performers will deal only with poor performers and not the people they do not like for personal or political reasons. The federal civil service was designed to protect government workers and the American people from a government spoils system and the toxic results it produced in the past. The great champion of the civil service, President Theodore Roosevelt, said “The spoils-monger and spoils-seeker invariably breed the bribe-taker and bribes-giver, the embezzler of public funds and the corrupter of voters.” President Roosevelt was right. “Reforms” that would lead us back to a spoils system would do far more damage to the interests of the American people than any harm that can be done by a ten or twenty or thirty thousand people who do not perform.
  • The simple view assumes performance is an individual accomplishment. I have worked 33 years in government and 6 years in the private sector. During all of that time I have seen very few accomplishments that are the result of just one person’s actions. Virtually all good results come from teams of people working together.  Most bad results are failures of a team or an organization. They fail to deal with systemic problems. They fail to provide training for their employees. They fail to provide the technology that would enable success. They fail to create a culture that gets good results. Yet, when they have a failure, they always seem to default to finding someone to blame so they do not have to accept the fact that they might be part of the problem too.

We seem to have reached a point where the solution to a problem is to hunt down the offending party and say “You’re fired!” Maybe it makes us feel better to think we made someone pay for their failure. While we would be better off if we dealt effectively with poor performance, the truth is that government is so complex, cultural norms in agencies are so powerful, and our political process is so broken, that there is rarely a single person or even a small group of people who are truly responsible. If we want to make government better, we need to deal with cultural issues that drive the kind of problems we have seen at the Department of Veterans Affairs. We need to deal with the political dysfunction that can make Congressional oversight more of a sideshow than the powerful tool it was designed to be. We need to deal with the lack of training for Federal managers that would help equip them to deal with problem employees and problem organizations. We need to deal with the unresolved questions of the scope and reach of government. None of those are easy. None are likely to be completed within a daily news cycle, and none of them give someone the satisfaction of finding someone to blame and firing that person. But – if we want to make our government better, they are what we have to do.