January 11, 2021
The 2021 National Defense Authorization Act (NDAA) has become law following a broad bipartisan override of the president’s veto of the measure.
The National Security Personnel System (NSPS) was the Defense Department’s personnel system that was repealed by Congress after just three years because it discriminated against employees who were non-white or worked outside the Pentagon. But with a new Congress, DoD’s tried-and-failed personnel system may be back, just under another name.
The Senate Armed Forces Subcommittee on Personnel recently held a hearing to discuss DoD personnel reform. A few days earlier, a new report by the so-called Bipartisan Policy Center came out recommending reclassifying DoD civilians as military personnel. The report recommends moving DoD civilian employees from Title 5 of the U.S. Code to Title 10, which primarily covers the military, thereby eliminating most civil service protections and giving the Secretary of Defense total discretion to set and adjust pay.
This is not the first time the idea of reclassifying civilians under military personnel laws has been floated. DoD leaders attempted to resurrect NSPS a few years ago with a plan called 'Force of the Future,' which proposed moving employees to Title 10.
The architects of NSPS never gave up on the dream of a subjective pay system. Their main excuse for a reform is that the current system makes it difficult to fire poor performers. They were wrong then, and they are wrong now. Here’s why:
The Government Accountability Office (GAO), the Merit Systems Protection Board (MSPB), and the Office of Personnel Management (OPM) have all issued reports and analyses that have come to pretty much the same conclusion: When poor performers are not dealt with, it is never because of the civil service laws or procedures are too difficult to navigate, but rather because some managers either do not want to take the time and effort to properly document poor performance and remove or demote poor performers, or they lack the knowledge, skills, and ability to do so.
There are well-established and fully adequate processes and procedures for removing problem federal employees for poor performance or conduct reasons. In fact, removing poor performing employees is easier than removing employees committing conduct-related offenses because the burden of proof is lower – it is only the “substantial evidence” test, so that reasonable supervisors are given enormous leeway to determine what constitutes unacceptable or poor performance.
Everyone should be able to defend themselves when accused of wrongdoing. The same is true in the workplace. To promote justice and fairness, federal managers cannot fire employees without cause. Employees have due process rights to respond to proposed disciplinary actions. Attempts to weaken this due process will encourage discrimination, retaliation, and make it harder for whistleblowers to come forward to report waste, fraud, and abuse. One of the reasons that NSPS was repealed was because it undermined a fair appeal process.
We don’t need a new appeal system. We just need to fully fund the current system so it can handle more workload. The Merit System Protection Board (MSPB), a third-party agency that hears and adjudicates civil service appeals, is highly efficient. Most AJ decisions are rendered within 70 days. If dissatisfied with the AJ’s decision, either the agency or the employee may appeal the decision to the full three-member MSPB. On appeal to the full MSPB from an AJ decision, agencies win 80-90% of the time. Meanwhile, the agency’s decision such as removal remains in effect during the entire appeal process. The MSPB needs to be fully staffed to keep up with the increasing number of cases.
The civil service is not stuck in the past like some people like to claim. Over the past few decades, numerous flexibilities and modernizations have been enacted.
To make the federal government a competitive employer, the General Schedule in the 1990’s went from having one nationwide annual cost-of-living adjustment to a city-by-city, labor market-by-labor market cost-of-labor salary adjustment system. Special rates were authorized as well.
In the 2000’s, Congress passed legislation that introduced broad new hiring authorities, managerial flexibilities in salary-setting, and a program for substantial bonuses for recruitment, relocation, and retention.
Congress enacted legislation to allow new personnel system demonstration projects, student-loan repayment, and phased retirement.
The list of new flexibilities is long, and in many cases, these new authorities have improved the General Schedule. In any case, the list stands as a refutation of the myth that the General Schedule is a relic, untouched by modernity or that Congress has failed to address needed changes in the civil service system for decades on end.
We understand the need to deal with the 1% who may be problem performers, but we must not allow the other 99% to be tarred with the same brush. Improving the lot of the 99% will further reduce the influence and tolerance for the 1% to remain employees. This starts with more proactive management.
That’s why Congress should consider giving DoD supervisors appropriate tools to reward high performers. Freezing their pay, promotions and awards, and cutting their benefits do nothing to improve quality. The hiring freeze also needs to be lifted as it’s the most inefficient method of managing employees and has a tremendous negative impact on morale.
AFGE strongly supports improvements in agency performance management systems such as the DoD New Beginnings approach. We also support better training of both supervisors and employees so that clear expectations are established, performance is measured, and appropriate steps are taken to either remedy performance problems or to remove the small number of poor performers from the workplace.
Federal employees are typical middle class Americans. They work hard and have historically received modest but fair pay from their employer. The government would not be a bottom-of-the barrel employer, paying the lowest possible wages and forgoing health care and retirement benefits like so many of today’s most profitable corporations. It would not be a place where anybody went to get rich at taxpayer’s expense either. That role is already assumed by government contractors like Booz Allen Hamilton, whose revenue in 2016 was $5.41 billion, 98 percent of which is from the federal government.
The bottom line is, managers don’t need new laws or authorities regarding public administration. Agency managers and supervisors need the training and will to implement current rules effectively. AFGE will work with lawmakers to make sure that our civil service system motivates and maintains high quality employee performance at DoD.
“Due process rights, including union rights, for public servants at DoD and other agencies provide accountability to the public for both managers and political appointees,” said AFGE President J. David Cox Sr. “They are a corner stone of our system of democracy and should not be treated as expendable.”
Happy retirement to long-time AFGE Chief-of-Staff Brian DeWyngaert.
AFGE condemns the violent mob of President Trump’s supporters who attacked the U.S. Capitol Jan. 6.