If Congress can get away with the dubious constitutional move of cutting due-process rights for senior executives in the Department of Veterans Affairs, why not do the same thing for top civil servants across government?
That’s the approach the House took last week when it approved legislation, primarily along party lines, that would sharply limit the ability of individual Senior Executive Service (SES) members to challenge personnel actions against them.
“There are many hardworking public servants in the federal workforce, but they are often overshadowed by bad actors who abuse their position of power,” said Rep. Tim Walberg (R-Mich.), a sponsor of the legislation. “Instead of continuing to violate the public’s trust, this bill establishes tools to help create a culture of accountability when wrongdoing occurs and provide greater stewardship of taxpayer dollars.”
But at what price? Violating the Constitution?
But too many of them succumbed, inappropriately, to a push to make VA service data look good. The result was a scandal over the cover-up of long patient wait times that erupted in 2014. That led to a bipartisan law, supported by President Obama, that severely undermined VA senior executive employment rights.
Like the VA law, the current legislation, known as the Government Reform and Improvement Act, would prohibit appeals by senior executives to the full Merit Systems Protection Board, the quasi-judicial, presidentially appointed body that hears unfair labor practice cases from federal employees. The bill would allow SES complaints to be heard under a significantly abbreviated timeline by administrative judges whose decisions “shall be final and shall not be subject to any further appeal.”
That’s a problem, belatedly, for the Obama administration. Curiously, it offered praise when Congress approved a similar VA provision two years ago.
Obama’s words of support then are now being turned against his administration by Republicans. He spoke of the need for the VA secretary to “move quickly to remove senior executives” who behave or perform poorly.
“Why won’t the Obama administration defend the reforms that President Obama actively supported and signed into law?” asked Dan Kotman, a spokesman for Walberg.
The White House explains with double-barreled shots at the fast-track firing authority.
The first was a May 31 letter from Attorney General Loretta Lynch telling Congress that the Justice Department would not defend or enforce that section of the 2014 “Choice Act” that includes the expedited firing procedures for VA senior executives.
Under the Choice Act, administrative judges, who are regular federal employees, would have “final authority — unreviewable by any politically accountable officer of the Executive Branch — to determine whether to uphold the removal of a [VA] senior executive, which includes the power to overrule the decision of a Cabinet-level officer,” Lynch wrote. “That scheme, which impairs the President’s ability to supervise the execution of the federal civil service laws, is inconsistent with the Appointments Clause” of the Constitution.
Then, last week, the White House Office of Management and Budget (OMB) issued a veto threat against the bill that now stands approved by the House. It said the president’s senior advisers would recommend he veto the bill in part because it “would weaken the rights of Federal employees.”
Calling the legislation’s “approach to accountability … misguided,” the OMB statement said expedited removal procedures “would raise significant constitutional concerns.” The measure would “significantly alter and diminish important rights and protections that are available to the vast majority of other employees across the government and that are essential to safeguarding employees’ rights. Moreover, these provisions would hamper the Federal government’s efforts to attract and retain top talent committed to serving in the Senior Executive Service.”
So far, there has been no movement on this provision of the legislation in the Senate.
Max Stier, president and chief executive of the Partnership for Public Service, which studies federal workforce issues, said that “while Congress is right to be concerned with the performance of some senior executives, SES reforms should take a broader and more systemic view that seeks to strengthen the SES. We believe in holding executives accountable without driving high performers away from government service.” The partnership has not taken a position on the bill.
Although the federal employee disciplinary process can take too long and needs improvement, there is a danger in being too quick to fire feds. Civil service procedures are in place to protect the public from a government staffed with political hacks who could change after elections.
Small-government conservative Republicans favor the expedited procedures in the legislation, yet it actually would give more power to big-government actions against the rights of individuals, in this case individual federal employees.
“The net effect of the bill is to further politicize the career civil service,” J. David Cox Sr., president of the American Federation of Government Employees, said in a letter to House members. The legislation would “ensure a continuing erosion of a professional and apolitical civil service,” he added, “and the denigration of government, in general.”