By William Wiley, January 18, 2017

Here we go again. Congress is convinced that it is impossible to fire bad federal employees. In response to that belief, we’ve seen a bevy of bills, proposals, and actual legislation attempting to remedy this situation. Here are a few:

  • Reduce the notice period in a removal from 30 days to 10 days.
  • Reduce the number of days to file an appeal from 30 days to 7 days.
  • Make Reprimands a permanent part of an employee’s file rather than only temporary.
  • Extend the probationary period to five years.
  • Limit a removal appeal to a final decision by an MSPB career administrative judge rather than a decision by the politically appointed Board members.
  • Annotate a former employee’s file to reflect that after he left government, an investigation revealed that he did bad things while a federal employee.
  • Allow Congress to effectively fire individual civil servants without due process.

Talk about rearranging the deck chairs. Woof.

Look. None of this is going to make much of a dent in the challenges we have in fairly holding employees accountable in the civil service. You can reduce the notice period to a minute and a half, make the probationary period 20 years, and include embarrassing photos of the employee at the office New Year’s party in his OPF forever, and you still are going to have agencies that do not fire enough nonproductive employees.

You would think that before changing the system to correct problems, one might actually look to see what is causing the problems. If those who proposed the above had done that, they would have found out that the difficulty with accountability in the civil service is not going to be fixed by these nipping-at-the-edges changes to what we do. Instead of this “Ready! Fire! Aim!” approach to civil service reform, Congress and the White House should identify what it is that’s causing these systemic problems.

Fortunately, that study has already been done for them. The good folks at MSPB’s Office of Policy and Evaluation recently released the results of a survey that found that the two major reasons that more bad employees are not fired are:

  1. Lack of support from upper management, and
  2. Lack of knowledge on the part of human resources staff.

Here at FELTG, based on our many years of experience, we would add as third to that list:

3.  Lack of knowledge on the part of agency legal counsel.

When we conduct accountability training for management officials, when they bemoan the fact that it’s hard to remove bad employees, they don’t say anything like, “Gee, if I could just have kept his Reprimand in his file permanently, I’d have been able to fire him.” No, they say, “I won’t get any support if I do this. If I fire the guy, there’s no guarantee that I’ll be able to replace him. Besides, HR and legal won’t let me do it.”

So, Congress/White House, if you want to improve accountability in the civil service (aka “drain it”), take action based on the known causes of the current problems, not what you might speculate about in the dark of the night from the corner of your lonely cluttered room. We’ve said it before in this newspaper, and we say it again, just in case you haven’t been reading us for very long. Set the accountability tone from the top. President Trump, here’s your Executive Order:

To all front-line supervisors, managers, executives, human resources specialists, and legal advisors:

From today forward, the Executive Branch will be built on employee accountability. If there are employees in government who are non-performers or who do not obey workplace rules, they should be disciplined and removed from service, promptly and fairly, if they do not improve their behavior. If a supervisor removes an employee for misconduct or performance, that supervisor will be able to replace that employee. All agency discipline and performance advisors will be trained, certified, and continually evaluated by the professionals at FELTG to ensure the adequacy of the service they provide and the possession of the knowledge necessary to hold civil servants accountable.

Separately, we once again put forth our FELTG belief that as long as there is a confrontational redress process available to employees, nothing is really going to change fundamentally until the concept of entitlement to a civil service position is re-evaluated. Last month, we put forward a proposal that we do away with the adversarial taking of an employee’s job via termination and replace it with a concept similar to that known as eminent domain, the right of a government or its agent to expropriate property for public use, with the payment of compensation. In our proposal, when a career employee reaches a point at which he is no longer performing acceptably, instead of firing him and dealing with the resulting appeals, complaints, and grievances, the agency could effectively buy back the job from the employee. The job would be valued based on grade level, years of service, and performance ratings; the agency would pay the employee that amount; and the entire process could not be challenged as it would be non-adversarial.

Some readers who commented on our suggestion thought it to be un-American, devoid of due process, and something Congress would never approve. Well, “Ha!” on you. Have you read the “Holman Rule” that the House of Representatives recently adopted? It makes our FELTG recommendation look downright wimpy in comparison. [email protected]

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