This is the fourth segment of AFGE’s 5-part series: The Secret Memo: Inside Trump’s Plan to Destroy Unions.
From the beginning, the American people came together to form a government that provides public resources for things that we individually cannot achieve. From scientific and medical breakthroughs to the armed forces, our government and its workforce exist to create safe and thriving communities across the country. No one, for example, can lead a good life and reach his or her potential without having clean water to drink, clean air to breathe, or clean food to eat. Without our government and these shared responsibilities, the American Dream could quickly turn into an American nightmare.
But President Trump sees our government and its workforce as a “swamp” that needs to be drained. Once in office, he set in motion a comprehensive plan to dismantle it. First, he issued a hiring freeze despite severe staffing shortages at many agencies. Second, he appointed people who stand diametrically opposed to the agencies they lead. Third, he cut budgets and staff to make it harder for agencies to accomplish their missions. Then he issued executive orders targeting federal workers and their families.
The Trump administration may not like the “big” government, but they like the shadow government – for-profit contractors who charge the government two to three times more to do the same jobs. They’re already privatizing major parts of the Department of the Veterans Affairs, and other agencies will be next.
A leaked White House memo prepared in 2017 outlines the administration’s plans to fire federal workers through various means. The memo’s seven bullet points explains how they plan to do it:
Here’s what the secret memo says exactly:
1. Explore the “ Constitutional Option ” for firing federal employees. (WH Counsel) There are legal arguments that Article II executive power gives the president inherent authority to dismiss any federal employee. This implies civil service legislation and union contracts impeding that authority are unconstitutional. If so the President could issue an Executive Order outlining a streamlined new process for dismissing federal employees. This would facilitate the swift removal of poor performers.
2. Extended probationary period. (OPM) Federal law requires OPM to set a “probationary period” during which newly hired federal employees are effectively at will. OPM regulations set that period at one year for most of the federal government. GAO has recommended that OPM increase the length of the probationary period.
3. Expedited dismissal from sensitive positions (OPM and all agencies). Ch. 75 of the CSRA allows streamlined dismissals in matters affecting national security. Under this process employees get a prompt hearing and one appeal within their agency. They may not appeal to an outside body. E.g. An agency can use these procedures to revoke a security clearance. If the clearance is necessary to perform the job, the employee also loses their job. In 2013 the Federal Circuit held in Kaplan v. Conyers agencies may use these streamlined procedures to remove an employee from a "sensitive" position - not just positions that require a security clearance. Agencies have no subsequent obligation to re employ the worker in a non-sensitive position. Hundreds of thousands of federal jobs are rated as “non-critical sensitive.” Agencies can use Ch. 75 authority to swiftly remove poor performers from these positions.
4. Change the Douglas Factors. Have WH Counsel or OLC examine how much authority MSPB has to change the Douglas factors to make it easier to remove poor performers.
5. Issue EO limiting collective bargaining subjects in government. 5 USC 7117(a)(l) states that “the duty to bargain in good faith shall ... extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation.” As the 4th Circuit noted in HHS v. FLRA, 844 F.2nd 1087, 1099 (4th Cir.1988) “Congress specifically intended that that term [rule or regulation] ‘be interpreted as including official declarations of policy of an agency which are binding on officials and agencies to which they apply.’” This seems to suggest POTUS could issue an EO, or OPM/FLRA could issue governmentwide rules, taking subjects out of collective bargaining.
6. Executive Order on Performance Accountability. (EO and OPM) The President should issue a PM or EO saying that he expects high performance of all federal employees, and that he expects agencies to use all lawful powers to remove poor performers from their posts.
7. Civil Service Overhaul. (Legislation) Work with Congress to develop and pass legislation making it easier to fire federal employees, while retaining protections against political based firings.
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