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The old question persists. Why should it be so difficult to remove underperforming federal employees? Our next guest argues that feds could become at-will employees with fewer job protections, and that wouldn’t mean a return to the patronage system. View report here. He was special assistant to the president for domestic policy during the Trump administration, now with the conservative America First Policy Institute, James Sherk. He talked with Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: The thesis of the whitepaper you’ve written is exactly that, that the argument always seems to be the way things are now versus patronage as we had it in the 19th century. You’re arguing a good, independent, fair minded civil service can exist, even with at will employment basis?

James Sherk: That’s exactly right. We’ve had for years federal employees themselves were reporting huge problems with performance management. Every year on the Federal Employee Viewpoint Survey, it’s either the top or the second greatest pain point that federal employees report, that their agency just doesn’t handle poor performance well. And the reason for that is pretty obvious, that it’s you basically have to wage an entire trial at law to fire an employee. And whenever you ask, well, why don’t we do it differently? Why don’t we streamline these protections? The answer is, well, look, we don’t want to go back to the spoil system. But what these arguments miss is that when Congress created the civil service and the Pendleton Act in 1883, and for the next six decades, federal employees had no right to appeal to removal. The founders of the civil service wanted a merit service. They were very concerned that you hired based on effectiveness and performance, and not on campaign donations to political connection. But they were equally concerned that, look, if you’ve got a bad performer, you’ve got to be able to fire them. We can’t seal up incompetence in the federal workforce. That’s the way the federal government operated for six decades. And that’s the way many state governments operate now. You can have a professional civil service without making it a three year odyssey to try and fire a poor performance.

Tom Temin: And how does all this tie in with what is available under Title 5? In other words, could you amend Title 5 to be able to have this at will? I mean, what would be required to get to that state?

James Sherk: Well, obviously, very straightforward, Congress has the ability to amend Title 5. All these protections are contained within Title 5. And I would argue that Congress ought to make federal employees at well under Title 5. Now you’d still have your protections against things like racial discrimination or political discrimination, or your supervisors asking for campaign contributions. But the agency wouldn’t be required to prove in the first instance, that was Bob’s performance sufficiently bad to justify firing, or should he have only been demoted, should he have been suspended for a few months but not fired? You wouldn’t have months and years of litigation over these questions. The agency could decide if they thought that Bob or Jane or whosoever performance was bad enough.

Tom Temin: You cite a couple of cases, and some of which I remember. In the case of the late Sen. Ted Stevens, who was exonerated I think of corruption charges, totally exonerated. And it turned out that exculpatory evidence was withheld by federal prosecuting career employees in the Justice Department. And nothing really happened to them for what was really, in some sense malpractice as prosecutors.

James Sherk: This is very concerning, that you’ve got a situation right now with these removal protections, that you can have horrendous misconduct by federal employees, and they stay on the job. What happened in Sen. Stevens case is the prosecution withheld exculpatory evidence that would have exonerated him, showing that he was paying or trying to pay what he understood to be fair market value for these services he was receiving. They didn’t share that information with his defense team which violated his constitutional rights. Judge Emmett Sullivan, who oversaw a corruption trial, called this the worst misconduct he’d seen in a generation from federal prosecutors. And so what happens to these two federal prosecutors whose unconstitutional vendetta against a U.S. senator caused him to lose his reelection bid. DOJ did not even try to fire them. They merely proposed suspending these two prosecutors for a collective 55 days. And even that, under our civil service laws, was not allowed to stick. The the Merit Systems Protection Board overturn these suspensions on a technicality, ordered the Justice Department to pay those employees back wages, about 30,000 in back wage, and $643,000 in attorneys fees. I mean, it’s just outrageous. And it’s not an isolated incident. You have things like EPA employees pawning off agency laptop and cameras, worth thousands of dollars, pawning it off for their personal profit, and the agency doesn’t even try and fire them. I mean, the system’s just horribly out of whack. And we don’t need this morass in order to avoid the spoil system.

Tom Temin: We’re speaking with James Sherk, director of the Center for American Freedom at the America First Policy Institute. There’s also the issue that comes up in the Annual Employee Viewpoint Survey and the commentary related there too that, very often the good performing employees are the ones most upset by the fact that the bad performers do persist. And so in some sense, the argument could be made that with a easier removal process, the better performers would be that much more empowered and maybe motivated.

James Sherk: Oh, that’s exactly right. When the Federal Employee Viewpoint Survey comes in every year, this is one of the top pain points that federal employees report. Most federal employees don’t appreciate having to carry their poor performers slack. They want to accomplish their agency mission. And they feel that these employees who are not doing the job, aren’t keeping up with them. We also see this in the the Merit Principles Survey. Other groups like Government Executive Magazine’s commission surveys that find that 80% of federal employees believe that firing procedures, federal firing procedures, prevent agencies from appropriately dealing with poor performers. And look, President Trump issued a number of executive orders designed to make it easier to fire poor performance in the federal government. And there were some media groups who did surveys, of federal employees views on these orders. And the unions at the time who claimed to speak for the broader federal workforce were saying this is an attack on federal employees, this is so terrible, how could you possibly wage this war on federal employees. The federal employees themselves by a two to one margin supported these executive orders. Federal employees, most federal employees, work hard, want their agencies to succeed, and they don’t want poor performers holding them back.

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Tom Temin: And in an at will system then, how do you envision it would actually look day to day? That is to say, what would it take to fire someone? What protections would remain? And what apparatus would be removed as the way you envision it?

James Sherk: Well look, I think it would work a lot like it does in the private sector, where in the private sector, you can’t simply fire someone for any reason, yes, if there’s racial discrimination, or religious discrimination, or whistleblowing, there’s procedures in place to protect against those sort of discriminatory or retaliatory removals. But as long as you can show that you’re removing someone for legitimate reason, and not for some sort of impermissible cause like that, then you don’t have to litigate. How good was this employee’s performance? Was it really? This sort of burden of proof that agencies have to surmount now showing that a preponderance or a substantial evidence, justified removal, depending on which authority they’re using, just doesn’t exist in the private sector. And that’s what I would imagine now. You would have internal agency procedures, just as there are in the private sector. It’s very rare in the private sector that you’ve got a supervisor who’s got the unilateral authority to fire everyone who reports to him. You’ve got procedures that agency HR sets up to make sure the authority is being used appropriately. But it doesn’t tie you down in years and years of red tape. The Government Accountability Office estimates it takes six months to a year to go through the internal agency process to remove a poor performer under Chapter 43. And that’s before you factor in any external appeals to the Merit Systems Protection Board or anything like that. We would just basically propose getting rid of that process, where you need multiple years to satisfy this while retaining all the safeguards against things like politically motivated removals, racial discrimination, religious discrimination, anything like that, keep the EEOC process, keep the inspector general’s, but don’t require this trial at law every time you want to fire a poor performer.

Tom Temin: So it would not get to be say, like Ford Motor Company under Henry Ford II when he fired Lee Iacocca. He said, sometimes you just don’t like someone.

James Sherk: No. I think sometimes you’ve got personality clashes. And if you’re saying that this person just doesn’t work, and it’s personality clash, as long as it’s not based on the color of their skin, or where they worship, or making campaign contributions, I’d say that’s fine, that sometimes you need a team that meshes together. And look, the Senior Executive Service operates not that different from these rules. It’s very easy for agencies to reassign senior executives, it’s very easy to just give the senior executive a low performance rating. They can’t appeal that performance rating. And you’re actually required by law, if they get two low performance ratings to to fire the senior executive. So the Senior Executive Service operates under something not terribly removed from this right now. And what we would propose is extend that to the remaining 2.1 million federal employees.

Jared Serbu: James Sherk is director of the Center for American Freedom at the America First Policy Institute.

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