Civil servants can undermine the president too easily

Most federal employees serve honorably and uphold their oaths of office — those who don’t make life difficult for everyone.

Every year, federal employees are surveyed about their working conditions. One of the survey questions is whether the respondent agrees with the statement: “In my work, steps are taken to deal with a poor performer who cannot or will not improve.” Every year a vast majority disagree with the statement.

{mosads}In a December 2013 article entitled “You’re Not Fired, Ever,” National Review contributor James Richardson described instances of federal employees remaining on the payroll long after supervisors learned of malfeasance that should have resulted at the very least in dismissal, if not prosecution.

Numerous other reports over the years have shed light on misconduct by government employees, along with the lack of, or extreme delay in, disciplinary action.

Employees have watched pornography on government computers during office hours, posted calls online for the murder of all white people, falsified government records, neglected their duties, been insubordinate, or simply performed poorly.

Yet their supervisors have been sometimes unable, and other times reluctant, to take the steps necessary to fire them.

Based on numbers from the Office of Personnel Management, Dennis Cauchon reported in USA Today last July that employees in some federal agencies were more likely to die of natural causes than to be laid off or fired.

Other OPM data shows that federal government employees are laid off at a rate that is one-sixth that of the private sector.

It’s always difficult for presidential appointees of one party to take over the reins of the executive branch from an outgoing administration of the other party. The recent transition has been more difficult than most.

Federal employees who had been content to implement Obama administration policies for eight years expected to continue to do so under the first woman president — Hillary Clinton. The morning after Election Day 2016, they realized that would not be the case.

They also disagreed viscerally and vehemently with the policies Trump clearly stated he would implement. Some were so distraught about it that they had to call in sick or meet with grief counselors.

According to news reports, within a few weeks after the election, support groups had materialized to give federal employees information about how far they could legally go to resist the new administration.  

Into this environment come presidential appointees intending to help President Trump keep his campaign promises. It’s not universally true, of course, but in many agencies, unelected bureaucrats are doing everything they can to nullify the results of the 2016 election.

In his January 2017 essay for the Wall Street Journal, Philip K. Howard explained how it came to be that a president can be saddled with a workforce who will not do his bidding.

Howard also showed how absurd — and unconstitutional — it is that career employees should be able to prevent a president from keeping the campaign promises that secured his election. And he suggested a rather muscular remedy to the problem: fire them.

Howard will discuss his article as part of panel discussion at the Federalist Society’s Sixth Annual Executive Branch Review Conference at the Mayflower Hotel on April 17.

Anyone who has paid a moment’s attention to them agrees the laws governing the federal workforce need a serious top-to-bottom overhaul. There hasn’t been one since Congress passed the Civil Service Reform Act of 1978, establishing the framework of government employment that is still in effect.

In the 40 years since then, the executive branch has changed significantly, as has its workforce and the demands on them. When the civil service system was founded in 1883, most of its positions were clerical in nature.

Now, 70 percent of the federal government’s more than 2.1 million civilian employees have bachelor’s degrees, and 25 percent have advanced degrees. And they are, among other things, administering twice as many aid and benefit programs — more than 2,300 — than existed in the 1980s.

As FCW’s Chase Gunter reported last July, a National Academy of Public Administration white paper, “No Time to Wait: Building a Public Service for the 21^st Century,” concluded that “[t]he federal government’s human capital system is fundamentally broken,” and that “[t]his is not the time for modest, incremental tinkering.”

Bold reform seems to be what President Trump had in mind when he issued Executive Order 13781, calling for a “Comprehensive Plan for Reorganizing the Executive Branch.”

The Analytical Perspectives section of the president’s 2019 budget describes numerous ways that current law encumbers the effective and efficient operations of federal agencies.

Firing employees isn’t the federal government’s only problem. So is hiring them: Complying with current law can make it take more than a year to fill a position. Couple this long lead-time with the high percentage of federal managers who are eligible to retire, and you have the potential for agencies with insufficient staffing and leadership to accomplish their missions.

It is past time for a major overhaul of the civil service system. It hasn’t been done since 1978. We should soon be seeing the administration’s proposals for long-awaited and sorely needed reformation of the civil service system to bring the rules for hiring, training, retaining, supervising, disciplining, developing and dismissing federal employees into line with current needs.

Let’s hope they can be implemented promptly.

Eileen J. O’Connor, a Washington, D.C. lawyer, is chairman of the Executive Committee of the Federalist Society’s Administrative Law Practice Group and served for six years as head of the Justice Department’s Tax Division in the administration of President George W. Bush, immediately following the administration of President William J. Clinton.