In the name of protecting veterans, Democrats on Capitol Hill and in the White House joined Republicans in attacking the due-process rights of top civil servants in the Department of Veterans Affairs almost 18 months ago.
Democrats, who might normally oppose such a measure, told themselves undermining the workplace protections of VA Senior Executive Service (SES) members was necessary to help reform a department that had disgraced itself with a scandal over the cover-up of long wait times.
But it didn’t take much foresight to see what Republicans had in mind – making it easier to fire federal employees across the government, starting with senior executives.
That plan took an important step forward Tuesday when the House Oversight and Government Reform Committee approved legislation that would do just that. The SES “expedited removal” measure was just one of the bills approved by the committee. Together they amount to the advance of a movement toward what passes in some quarters as civil service reform. Another bill, affecting federal construction projects, would overturn one of President Obama’s early executive orders.
The civil service needs some repair. But expedited removal in its current form means slashing workplace rights to get rid of feds faster.
Like the VA law, the current legislation would allow an agency to fire senior executives or demote them from the SES with only five days notice for reasons related to conduct or performance. Employees would have just seven days to appeal to a Merit Systems Protection Board (MSPB) administrative judge, who would then have to render a decision within 21 days or the agency’s decision would be final. No appeal to the full MSPB or the courts would be permitted. Democrats now say the measure could be used to quickly get rid of whistleblowers. Remember, it was whistleblowers who exposed the VA corruption.
“Thanks to scandals at agencies like the IRS and VA, the American people increasingly view the federal government as untrustworthy and encroaching on their personal liberties,” said Rep. Tim Walberg (R-Mich.) “When senior government officials blatantly abuse their position and the public trust, they must be held accountable. Increasing accountability measures when misconduct occurs will go a long way towards restoring public trust and demonstrating greater stewardship of taxpayer dollars.”
This truncated procedure is just a short step away from turning senior executives into employees who can be fired at will. The small window for the abridged appeal process provides them little opportunity to mount a meaningful appeal against a case management could have taken its time to build. Furthermore, the measure denies a role for the presidentially appointed MSPB members and the judiciary. The constitutionality of the VA measure, which has the same provisions, is being challenged in the courts.
Tim Dirks, interim president of the Senior Executives Association, said the bill sends “a dangerous and discouraging message that those who enter or consider entering the SES will be met with a ‘guilty until proven innocent’ style of justice.”
A word here about why civil service due process is necessary for government employees. Without the workplace protections, government workers would be subject to partisan punishment and dismissal with a change in administrations. The civil service is designed to serve the public no matter which party is in office. It protects the government and the nation’s people from partisan whims and witch hunts as much as it does individual employees.
“This committee should examine whether improving the ability of agencies to hold senior executives accountable is necessary,” said Rep. Elijah E. Cummings (Md.), the committee’s senior Democrat. “But, we cannot do so by sacrificing the fundamental right to due process. And, we cannot do so by sacrificing whistleblower rights and protections.”
The Democrats lost that argument, as they did most others at the committee meeting.
A bill introduced by Rep. Ken Buck (R- Colo.) would extend the probationary period for many federal employees from one year to at least two. That two-year clock would not start until after any required formal training is completed or a needed license is granted.
The Government Neutrality in Contracting Act, introduced by Rep. Mick Mulvaney (R-S.C.) would repeal Executive Order 13502, which Obama signed in February 2009, about two weeks after taking office. The order encourages federal agencies to use project labor agreements in large construction projects. These agreements with labor unions set the terms and conditions for employment on the projects. Among other things, the executive order says any agreement shall “contain guarantees against strikes, lockouts, and similar job disruptions” and provide “mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health.”
Another bill, offered by Chairman Jason Chaffetz (R-Utah), says agencies must include adverse findings from a finished investigation in a separated employee’s personnel file. The committee accepted an amendment from Rep. Gerald E. Connolly (D-Va.), who said it would allow employees due-process protection by “providing them an opportunity to respond in writing to the investigation and appeal any decision” to MSPB.
That was about it for bipartisanship at the committee.