It may not be likely to become law, but a new bill to reform federal civil service shows how deeply some members of congress feel about the issue. Sen. Rick Scott (R-Fla.) just introduced a bill that would turn all federal employees, not just senior executives, into employees at-will. For one reaction, Federal Drive with Tom Temin spoke to Bob Tobias, a Professor of Management at American University in Washington, D.C.
Tom Temin Bob, I guess we should tell people at the outset, of course, you were the National Treasury Employees Union president at one time. You had deep involvement in federal employee relations management issues for many decades. So this bill, again, it doesn’t have much chance. But what’s your take on the thinking behind it?
Bob Tobias Well, I think basically, Tom, that it’s not possible to increase agency efficiency and effectiveness, as Senator Scott says, using employee fear or protecting supervisory arbitrary action. So the law, as it’s drafted, says that an employee who is about to be discharged or suspended for more than 14 days may be discharged for, quote, good cause, bad cause or no cause. So what that means is that an employee who is about to be discharged can’t argue that the facts that are being used are wrong or that the penalty that’s being imposed is disproportionate to the penalties that have been given to other employees who exhibited the same behavior. Or assert that the discharge is based only on the fact that the supervisor doesn’t like me. I do the work, I get satisfactory evaluations, but the supervisor says, I don’t really like you. Now that can be sustained because the supervisor, the deciding official, can’t be challenged. There is one basis, one area, where employees can challenge, and that’s if they allege that they are being the subject of a prohibited personnel practice. And there are nine of them. But the one that’s most important is the first one, which says that an employee can’t be discriminated on the basis of race, color, religion, sex or national origin or age or handicap. So an employee can say, I’m being discharged for one of those reasons. But what’s Important is that the deciding official can reject all that and say, no, you’re going to be fired. You’re going to be suspended for more than 14 days. And it cannot be appealed anywhere at any time.
Tom Temin Right. Because the bill does eliminate the Merit Systems Protection Board.
Bob Tobias It does. It eliminates the Merit Systems Protection Board. So that decision is final and binding and may not be appealed anywhere. So as I mentioned, Senator Scott says it will boost the efficiency and effectiveness of the federal government. But I would say no to that for a number of reasons. And first, I would say that prior to the 1978 Civil Service Reform Act, we had in place basically what Senator Scott wants to put in place. You could appeal to the Civil Service Commission, but they never reversed. So in the run up to the Civil Service Reform Act, when I was the general counsel of the National Treasury Employees Union, we proposed to an agency, well, we would like to do advisory arbitration of adverse actions. And so we did that. So the first 13 cases, the arbitrator advised the agency to reinstate with full back pay every single one of the first 13 cases. And the agency said no. The agency said no, the employee remains discharged. So when we testified in connection with the Civil Service Reform Act, we said, we need the Merit Systems Protection Board to protect employees from arbitrary and capricious management action. And that really was one of the reasons why Congress provided for protection by having a review outside the agency process.
Tom Temin We’re speaking with Bob Tobias. He’s a professor in the Key Executive Leadership program at American University. And as you can just hear, he’s done a lot of other things, too. But yet the backdrop to all of this, this current bill and there’s that big report from the Heritage Foundation, which does have a lot of detail on civil service reform. There is no one, even the unions, even the senior executives, association, members of Congress, no one does not feel that some kind of reform is needed 50 years on, roughly from civil service reform. So it takes too long to hire people. There’s a lot of issues with the federal civil service. What should happen now, do you think, if anything?
Bob Tobias Well, I think Senator Scott’s bill should be dead on arrival.
Tom Temin Well, it’s that’s likely.
Bob Tobias And I think it should be dead on arrival. But there is, I believe, a way that civil service reform could occur. And I believe that if the union leaders management associations and along with the administration, could create a bill on which all of these folks would agree, and if Congress would say it would enact that bill, enact that recommendation without change, I believe a bill could be prepared in 90 days. The fear is that Congress, once the civil service reform idea is on the table, what we’ll see is a Senator Scott bill, which nobody wants.
Tom Temin Right. Probably not even every Republican wants that. There have been strong, vociferous support for civil servants from both sides of the aisle. So what are some things that you think that the unions and management associations and agency heads could agree on?
Bob Tobias Well, it’s always the devil’s in the details. But everyone agrees that the hiring system is broken. Everyone agrees that the classification system created in 1948 is outmoded and no one understands it and everyone hates it. Everyone agrees that the methodology for doing performance evaluations in the federal government is broken. So there is agreement that there are significant problems, and there is agreement that people, I think, could reach agreement. But the fear of Congress, I think, just eliminates the chance of significant civil service reform.
Tom Temin Right. There’s also just the issue of not only the classifications, but the pay that goes with them. Because the pay goes with classification, but not with job function, which in some cases makes the federal government not a very competitive employer. And no one’s arguing that a federal lawyer should get $1,000 an hour, but they get some tiny fraction of the people they’re litigating against sometimes. And that seems inequitable, just to name one example.
Bob Tobias Certainly how you classify is directly related to how you pay, and it has to be linked. There’s no question that it has to be linked. But how you link it is, as I suggest, the devil is in the details to make that happen. And I think, as I said, I think it could happen. I think it could happen. And if we were really, really interested in making the federal government really competitive with the private sector in hiring and retention. It could be done.
Tom Temin Right in the purpose of making it competitive is so that government services and service to the citizens and the efficiency of government does increase.
Bob Tobias That’s correct. So the last 23 years I’ve been working with federal managers at American University. And I can say that these students who are mid-level managers and members of the SES and people in SES candidate development programs, they come to AU because they want to be better. They want to deliver better public service. So there’s widespread desire to be better.