In my last commentary, I focused on the recent report by the National Academy of Public Administration (NAPA) on the reorganization of the Office of Personnel Management, once proposed but now largely overcome by events. And while I agreed with its conclusions—especially the part about retaining an independent OPM as the federal government’s central personnel agency—my fear then (and now) is that its broader recommendations on “reforming” OPM into the strategic partner that its constituent agencies so desperately want will be admired and applauded, but ultimately ignored.
That doesn’t need to happen, but if NAPA’s broader recommendations are to be realized, it will take the concerted efforts of OPM’s new leadership—both political and career—to achieve them, and in the first installment of my personal ‘get well’ plan for OPM, I offered some somewhat controversial suggestions to facilitate that transformation. Those suggestions had a decidedly internal focus, urging the new OPM political leadership to ‘refresh’ its senior career cadre from the ranks of agency-level HR professionals, and while that’s a start, in my view, it will take more than that.
So, with this second installment of my OPM ‘get well’ plan, I’d like to focus on things that OPM could do—mostly by itself, with little if any help from a divided and diverted Congress—to actually reform a civil service system that appears to be old and decrepit, though those appearances can be a little deceiving.
One of most neglected laws in the federal civil service is 5 USC §5392, which governs the ‘establishment of special occupational pay systems’ by the President’s Pay Agent, comprised of the directors of OPM and the Office of Management and Budget, along with the Labor secretary. Decades old, that provision empowers the Pay Agent to do just what its title implies — that is, create a special pay system for any occupation or group of occupations that those officials determine should be excluded by regular civil service pay and classification rules.
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I’ll skip all the legal mumbo-jumbo, but yes, you read that right. The President’s Pay Agent can decide on its own to say all STEM or IT (or cybersecurity) occupations in the federal government should have their own “special pay system” in place of the General Schedule, and it can design, develop, and implement such a special system without waiting for an act of Congress.
To be sure, the new director of OPM and her peers in OMB and Labor are required by law to take the views of affected agencies, employees and the unions representing them into account (presumably via the public hearings that the law also requires). And of course, there are reporting and oversight requirements as well. But that’s all just process. And while I know it’s all easier said than done, I would argue that it’s considerably less onerous than trying to do something similar through legislation, especially these days.
And as best I can tell, while this provision has been around almost as long as I have, it’s never been used. The previous administration flirted with it—its first OPM director pledged to exercise it, and his successor explored it as well, until she got diverted by visions of mergers and reorganizations. But it remains untouched by human hands. Use it. And if using it for STEM or IT jobs is too ambitious to start, try it for something smaller, like economists or accountants or even cybersecurity specialists, to see if it works. Then go wild!
Readers will argue that pay is not enough, especially given that 5 USC 5392 contains an absolute cap of Executive Level V on the amount any given civil servant can earn in a year. I won’t disagree. Thus, while I believe that a limited upper limit on pay is problematic, the real challenge to pay comparability is at the entry level, with applicants and new hires.
Accordingly, administrative pay reform has to be accompanied by other flexibilities. And the good news here is that most of those flexibilities already exist in law and regulation. It’s just that they have heretofore required ‘mother may I’ approval from a distrusting OPM. At the risk of sounding like my good friend Tony Reardon, president of the National Treasury Employees Union, if the new OPM director is serious about becoming a true strategic partner to her constituents, she can start by just delegating existing flexibilities to them, and then holding them accountable to use them responsibly. In other words, ‘trust but verify.’
Here’s how it could work: Tell agencies that if they submit a comprehensive workforce strategic plan that includes the promised use of those personnel flexibilities (as well as the involvement of relevant labor organizations), OPM will give them blanket approval to use them in good faith to further the goals of those plans. That means giving agencies some leeway in their execution—after all, they’re just plans, and as we know, they rarely survive first contact with reality—so the delegations have to be general in nature. And OPM must trust agencies to use those flexibilities in a way that comports with the spirit of the law.
Here’s an example, one that has long bothered me. The law governing direct hire authority (DHA) says it can be used to help reduce shortages in particular occupational categories or to meet ‘critical’ agency hiring needs, but that particular conjunction notwithstanding, OPM has long required agencies to show evidence of both shortage and criticality in order to receive approval for DHA. The net result: DHA has been granted by ‘Mother OPM’ sparingly. However, inasmuch as the law treats the two conditions separately, I would argue that an agency ought to be able to show and use the latter ‘critical need’ criterion to meet staffing priorities that may be unique to its mission. And if it can do so, let them!
So OPM requires agencies to develop and submit comprehensive workforce plans (something it has long tried to do, with limited success), and as an incentive, it tells them to include the intended use of existing personnel flexibilities as part of those plans. If the plans pass muster—incidentally, I would have them reviewed by the President’s Management Council to make sure they are sufficiently strategic and mission-focused—OPM would approve the use of flexibilities by the submitting agency, subject to annual oversight (again, by the PMC) to ensure that the flexibilities are used responsibly.
Like I said, ‘trust but verify.’ To be clear, that oversight cannot be so overly critical that it discourages the very use of the flexibilities this approach is intended to foster. Rather, it has to take into account the unexpected and unanticipated challenges that are an inevitable part of execution and give agencies the benefit of the doubt — that is, if they act in good faith, within the general parameters of the law, they won’t be second-guessed. That’s why I’d have the PMC—and Congress, of course, if and when their involvement is appropriate—conduct that oversight, at least to start. Bottom line: Whether it’s approval of direct hire authority, the use of recruiting, retention and relocation allowances (the so-called 3 R’s), or some other flexibility, the law already allows them, so turn agencies loose.
Here’s another thing that OPM could do, albeit with a modicum of help from the Congress: Expand the Defense Department’s Laboratory and Acquisition Demonstration Projects—which long ago ceased to be demonstration projects and morphed into full-fledged personnel systems—to cover all similar positions government-wide. That would require legislation but given the history of these ‘demos’ over the last three decades, one would hope that that wouldn’t too steep a hill to climb.
For those that may not be familiar with them, those two ‘demonstration projects’ cover thousands of STEM-related and acquisition positions (respectively) in DoD’s huge R&D establishment, and their collective accomplishments have enabled our nation to maintain its technological edge in national security. Indeed, I would argue that they support one of our nation’s intellectual crown jewels, and while they actually started out as modest demonstration projects under 5 USC chapter 47 (the demo project provision of the old Civil Service Reform Act of 1978) to help Defense compete for scientific and acquisition talent, they were codified, expanded, and protected in the early 1990s.
Today, they cover ten times as many employees as the original demo project limits, and they operate pretty much under the radar. And while extending them to the rest of the federal government would require an act of Congress, it’s not like the latter would have to design something from scratch. Indeed, if anything, it would help level the ‘playing field’ for those agencies that have to compete against DoD for STEM or acquisition talent, if those agencies are willing to take something that’s good enough.
Are those systems (and the other changes I suggest) perfect? No. There are lots of legislative changes that could make them better, but that ‘more perfect system’ (in the form of more substantive legislation) would likely founder on the shoals of partisanship, with further delay the inevitable result.
The easier route is to try to see the systems (as well as the other suggestions on my list) as good enough, and certainly better than the alternative of more status quo. And for the record, I do not believe that implementing any or all of these suggestions will be easy, but I do believe that they are certainly easier than the alternative. And these days, I’m all for easier!
Bottom line: OPM can do things to become a more strategic partner to the federal agencies it oversees. It need not wait for Congress to tell it what to do. And as NAPA once said, there’s no time to wait!
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With over twenty years of service as a member of the Senior Executive Service, Dr. Ronald Sanders has held senior career positions with DOD, IRS, OPM, and the US Intelligence Community. The former Chair of the Federal Salary Council, he is currently Staff Director for Florida’s Center for Cybersecurity.