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:
- Interpret the Constitution to give the president authority to dismiss any federal employee. The president should issue an executive order to shorten the firing process.
- Extend the probationary period from one year for most of the government to three years so agencies can fire new hires easily (never mind the time and money spent to hire and train people)
- Prohibit hundreds of thousands of employees in a “sensitive” position to appeal their dismissal to an independent third party.
- Change the Douglas Factors, the rules that make sure there is fairness and due process for employees facing discipline, to make it easier to remove employees. Douglas Factors are important because they ensure that the punishment is reasonable and fits the circumstances.
- Limit the unions’ scope of bargaining to exclude termination appeals and disciplinary action processes, taking away employees’ due process and protections against unfair firings.
- Encourage and educate managers on how to remove “poor performers.” (Don’t fall for the disingenuous talk of firing “poor performers.” Their real goal is to get rid of most employees, as admitted by acting White House Chief of Staff Mick Mulvaney who recently said they’re relocating agency headquarters outside the D.C. area to encourage federal workers to quit).
- Work with Congress to pass legislation to make it easier to fire federal workers.
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.
- White House Counsel should conduct a thorough analysis of these legal arguments and report back on whether this is a constitutional exercise of Presidential power under an originalist interpretation of the constitution.
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.
- OPM should issue new regulations extending the probationary period to three years. This will give agencies more time to identify and remove poor performers.
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.
- OPM should educate federal agencies about their expanded dismissal powers under Kaplan v. Conyers.
- The White House or OPM should direct all agencies to setup streamlined Ch. 75 panels for the prompt dismissal of poorly performing employees in sensitive positions.
- The White House and OPM should direct agencies that they are expected to use these powers to remove poorly performing employees from sensitive 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.
- WHCO should do legal research to determine if this is correct, and the extent of this authority.
- Consider an EO setting forth governmentwide standards for subjects currently subject to bargaining to take them out of the realm of negotiability, e.g.
- Performance appraisals;
- Termination appeals;
- Disciplinary action processes;
- Contracting out.
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.
- Pursuant to this EO, OPM will educate all federal agencies about the dismissal· authorities they possess (in addition to the streamlined Ch. 75 procedures) and how they can be effectively use to remove workers who are failing the high standards POTUS expects.
- Agencies will be directed to educate their line managers about these authorities, and the directive communicated that POTUS expects them to put in the time and effort necessary under existing procedures to remove poor performers.
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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