Trump and the Senate have been derelict in their duty to keep the agencies wholly operational. Certainly, the civil servants are continuing to work and some things are getting done.
Yet in both cases, the lack of needed political appointees has stymied the agencies.
FLRA employees are frustrated because Trump has nominated no one as the agency’s general counsel, and the associate general counsel’s office has been empty for more than a year. Does he care at all about the tiny but important agency that boasts of its “labor-management relations program for 2.1 million non-Postal federal employees worldwide?” That includes resolving disputes between unions and agencies.
Things could not get much worse at the Merit Systems Protection Board, because there is no board. The agency exists, but as of last week, there are no board members.
It was only slightly better before then. From just before Trump took office until days ago, the board, which should have three members, had only one. Without a quorum, it was not fully functional for more than two years. Now it can’t function at all.
It doesn’t have to be this way.
The Senate Homeland Security and Governmental Affairs Committee has advanced two nominees, but the Senate Republican leadership refuses, with Democratic acquiescence, to allow a final vote on them until a third is ready for confirmation. Trump nominated a third, but that person withdrew.
Although the board can function with two, an email from Sen. Gary Peters (Mich.), the ranking Democrat on the committee, said: “The best outcome for federal workers is to have a fully operational MSPB, and that will require the Trump Administration sending Congress a third qualified nominee who can gain broad bipartisan support in the Senate.”
The White House did not comment.
Waiting for three when two are ready doesn’t make good sense to John Palguta. His long involvement studying the government’s workforce, both as a federal employee and an outside expert, includes a stint as the director of the MSPB’s office of policy and evaluations.
“In my opinion, there is no logical reason to delay confirmation of the two nominees who are ready for a vote,” he told a House Oversight and Reform subcommittee on government operations hearing last week. “One nominee is a Democrat, and one is a Republican. Presumably, a third nominee will also be a Republican on the bipartisan MSPB. Delaying nomination to ensure the desired political balance is achieved would be understandable if it made a difference in the operation of the agency. However, in the case of the MSPB, it does not make a difference. Two members independently vote on matters before them and, if they agree, the matter is resolved. If they disagree, the matter simply awaits a third member to break the tie.”
The MSPB is an independent, quasi-judicial agency that protects a nonpartisan, merit-based workplace. It hears appeals of employees who have been disciplined and investigates charges of prohibited personnel practices.
“The vacancies of principal officers at MSPB are untenable,” subcommittee Chairman Gerald E. Connolly (D-Va.) at the hearing Thursday. “Federal employees deserve to have their appeals heard by the board. Employees of MSPB deserve to work at a fully functioning agency, and taxpayers deserve to have their government capable of carrying out the nation’s laws. President Trump’s vacancies stand in the way of each of these missions.”
The hearing was on the last day of the last MSPB board member, Mark A. Robbins. His term is done — and for the first time in its 40 years, so is the board, for now.
“The impact of the extended vacancies has been devastating,” Palguta said. “The current situation has substantially undermined MSPB’s ability to fulfill its statutory mandate to provide due process for federal employees and to protect the public interest in a civil service free of prohibited personnel practices, including actions taken for discriminatory or partisan political purposes.”
Among those hit hard by the MSPB’s sad state are feds who fight management retaliation against them for reporting government waste, fraud and abuse.
“The lack of a functioning Merit Systems Protection Board is disastrous for whistleblowers,” said Tom Devine, legal director of the Governmental Accountability Project. “It precludes their main chance to obtain temporary relief for cases that frequently take over five years to decide. Second, it is a loud and clear signal that Congress is not serious about the due process infrastructure” for feds.
Trump also is sending a loud signal to the federal workforce by not nominating — during his entire term — anyone to the FLRA’s general counsel’s seat. Because that position is vacant, the agency cannot rule on unfair labor practices. That hurts labor more than management because more complaints are filed by unions representing employees than agencies.
The president’s lack of a nominee, said Ernest W. DuBester, the Democrat on the three-member bipartisan authority, “suggests to federal employees that the mission of the agency is not important, that the statutory intent to give the employees a voice . . . through the collective bargaining process is neither value nor supported.”
Federal employees are not important. That’s the message sent by their rich uncle — or at least from some of the people running his government.