By Natalia Castro

Introduction

Corey Coleman spent years creating a toxic work environment on the taxpayer’s dime. Despite receiving complaints regarding Coleman’s hostility toward female employees and inappropriate behavior since 2015, the Federal Emergency Management Agency (FEMA) maintained Coleman’s employment until he chose to resign in April 2018. Coleman, who led the agency’s personnel department, made the decision to resign to avoid testifying as part of an internal investigation. [1] While this is one instance of abuse, stories like Coleman’s permeate the U.S. civil service industry.

Our civil service is comprised of over 2.79 million employees, or 2.19 million excluding the postal service, working to run the “fourth arm” of the U.S. government: the bureaucracy. [2]

Career bureaucrats implement federal policy via central offices in Washington, D.C. and regional offices across the country. As an unelected body, these workers are not accountable to the American people and due to the structure of our civil service are seemingly unaccountable to anyone. This system encourages poor performance, breeding corruption, waste, and abuse.

Historical context

The bureaucracy was created to implement the laws as written by Congress, but since its establishment government leaders have feared that a partisan civil service would serve its own interests rather than the interests of the country.

On January 16, 1883, President Chester A. Arthur’s solution to this dilemma was the Pendleton Civil Service Reform Act. The Pendleton Act abolished the spoils system- a system by which government employees were hired and fired based on their political affiliations alignment with the current administration. [3] The Act replaced this hyper partisan system with a merit-based process that maintained an individual’s right to compete for a government job regardless of political ideology, religion, race, or national origin. While at the time of its passage only 10 percent of government positions were awarded based on this new merit system, today over 90 percent are covered under the Pendleton Act. Still, this was only a small step toward creating the civil service industry we have today.

The Pendleton Act aimed at removing partisanship from the hiring process; nearly 30 years later, Lloyd-La Follette Act passed through Congress in 1912 to remove partisanship from the firing process. This Act created the “just cause” standard for removing public servants. Under Lloyd-La Follette employees can only be removed if a supervisor has just cause to believe the employee no longer promotes the “efficiency of the service…” [4] An employee cannot be removed for inappropriate or even illegal activity, only if they fail to promote the efficiency of the service.

Additionally, the Act allowed government employees to organize together to fight for their rights as workers, establishing the first federal employee unions. Once again, this element of civil service reform was intended to eliminate partisanship, but in effect, has built a fourth arm of the federal government that has become extremely powerful with no accountability.

Throughout the early 20th century, unions received increased power to bargain collectively and dispute firing claims. This was a great fear of President Franklin D. Roosevelt, a traditional advocate for workers rights. In an August 1937 letter, [5] Roosevelt noted, “The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.”

Later in 1978, Civil Service Reform Act [6] moved through Congress and became law. The Civil Service Reform Act created the Office of Personnel Management (OPM), the Merit Systems Protection Board (MSPB), and the Federal Labor Relations Authority (FLRA) which all work to monitor employee activity and protect workers against unfair hiring and firing practices. This began an era of hyper protectiveness for government employees. Over the next 40 years, unions engaged in intense litigation to defend any employee removed from office. As unions increased their ability to defend employees, managers lost their ability to discipline employees.

Today, the U.S. Government Accountability Office reports, it takes an average of 170 to 370 days to remove a poor performing employees.[7] This leaves supervisors without the “effective skills, such as the ability to identify, communicate and help address employee performance issues”, according to the report.

In order for the American people to trust the effectiveness of the bureaucracy, protections were put in place to eliminate partisanship. Unfortunately, empowering unions has also meant disempowering leadership and creating an ineffective process for removing poor performers.

Negligible Rates of Dismissal

The public sector maintains a termination rate significantly below that of the public sector. Data compiled via the Office of Personnel Management’s FedScope [8] reveals the public sector maintains a separations rate of 3.37 percent. Conversely, data from the Bureau of Labor Statistics JOLTs Survey[9] reveals the private sector separations rate averages 17.27 percent annually. Even more shocking, FedScope reveals the termination for cause rate within the public sector is a mere 0.53 percent. This means public sector employees have a 99.47 percent chance of never being fired for cause.

As previously mentioned, timely and complex union litigation attached to removing employees dissuades management from moving forward with a firing process. Instead, many managers opt to work around these employees or transfer them to a different area of the agency. This creates additional work burdens for well performing employees and wastes taxpayer money on salaries for employees who are not serving the needs of the American people. Ultimately, public employees experience nearly complete job security despite abuse.

Of the 18 federal departments and agencies reporting data to FedScope, only five maintained a termination for cause rate over the federal average. Thus far in 2018, the Department of Education has had the lowest termination for cause rate at 0.14 percent after only 10 employees were terminated for cause within the Department last year. Meanwhile, the Department of Homeland Security had the highest termination for cause rate at 1.04 percent last year, 1,810 employees were terminated for cause.

Furthermore, a February 2015 Government Accountability Office[10] report noted that of the 2,001 employees receiving an “unacceptable” performance rating in 2009, 55 percent remained at the same agency in 2013, a full four years later. By retaining poor performing employees, the U.S. civil service perpetuates waste on the taxpayer’s dime.

Rampant Abuse

One might argue the public sector simply hires better employees, but stories of abuse shed light onto a systemic lack of accountability which stalls progress and rewards poor behavior.

The Environmental Protection Agency (EPA) has suffered from particularly egregious acts of abuse and waste. A March 2018 Heritage Foundation panel discussion [11] revealed several unaddressed problems within the agency. In one case, a GS-12 EPA Public Affairs Specialist from Atlanta stole a video camera from their office and attempted to pawn the item. Despite receiving a felony conviction, the employee returned to their position after a brief suspension. Another EPA employee was arrested for growing a marijuana plant in her home and received seven months of paid leave for her time absent from the office.

In both cases, the employees were not condemned for their behavior, some of which clearly affected their office activity, but instead received government benefits for their crimes.

A May 2016 Office of the Inspector General (OIG) investigation [12] into a Dallas GS-13 EPA employee detailed a 10-year battle to remove the employee. The report explains, “In March 2006, the OIG Dallas Field Office was informed that a GS-13 EPA Enforcement Officer was cited by the Dallas Police Department for the improper use of emergency lights on his personal vehicle while also being a registered sex offender… The EPA employee also possessed a makeshift badge, which accompanied his administrative EPA Enforcement Officer credentials, which were displayed by the employee to the police officer. This led the police officer to believe that the employee was an EPA law enforcement officer. The EPA employee also used emergency lights affixed to his personal vehicle at an accident scene.”

The OIG investigation continued to uncover that the EPA employee had created at least 20 similar “EPA enforcement badges” and a bulletproof vest. This was the second time the employee had to be counseled by EPA officials for using emergency lights on his personal vehicle. Unfortunately, the U.S. Attorney’s office still declined to prosecute the employee, instead moving him to an administrative position within the office.

It was not until August 2013 when the employee was arrested again for violating his parole that he was indefinitely suspended and, in January 2014, terminated. But that was only until the decision was overturned on appeal and the EPA was forced to re-hire the employee. The employee continued working for the agency until January 2015, a full year after the employee’s initial termination, when a settlement was reached. The employee agreed to resign in exchange for an undisclosed consideration.

These examples from the EPA note how a convoluted firing process allows poor performers and even illegal performers to maintain positions despite clear evidence of impropriety.

Other examples of improper behavior at the Department of Interior shed light onto ways in which our civil service punishes whistleblowers while protecting poor performers. An October 2017 report from the House Committee on Oversight and Government Reform [13] detailed how decades of mismanagement allowed sexual misconduct to become a norm within the National Park Service (NPS).

The report explains, “On June 14, 2016, the Committee held a hearing on oversight of the NPS… The investigation followed complaints from 13 current and former NPS employees from the River District. They wrote to then-Secretary of the Interior Sally Jewell and submitted declarations describing incidents taking place over a period of 15 years, which they believed showed evidence of ‘discrimination, retaliation, and a sexually hostile work environment.’ The OIG investigation corroborated the claims of the complainants and found evidence of a long-term pattern of sexual harassment and a hostile work environment in the [Grand Canyon National Park’s] River District. It also identified an additional 22 other individuals who reported experiencing or witnessing sexual harassment and hostile work environments while working in the River District.”

Following an initial investigation several employees were forced to resign from the NPS, unfortunately, subsequent investigations revealed that the NPS River District rehired several of the employees who had previously been forced to resign. Meanwhile, the NPS failed to renew the employment contracts of the complainants who sent the letter to Secretary Jewell accusing their supervisors of misconduct. It was during a second hearing regarding sexual harassment, misconduct, and a lack of accountability within the NPS that it was discovered that many employees forced to resign simply switched parks. One employee moved parks continually, with several allegations of sexual misconduct being reported at each park, this perpetual offender retired from the NPS with benefits after a full career.

The story coming from the Department of Interior mirrors closely the story recently coming forward from the Federal Emergency Management Agency (FEMA) discussed earlier. This is the irony of union insulatory policies. While they are intended to protect employees, they have protected poor performers and created a toxic work environment for those who truly want to serve their country through public service.

Model for Reform

Perhaps the most shocking stories of abuse have arisen from the Department of Veteran Affairs (VA). Consistent mismanagement left our nation’s veterans without care in their moments of need.

Florida Senator Marco Rubio explained in a May 2017 press release, “To list just a few examples, one VA employee was arrested and spent time in jail for armed robbery. Another employee was caught watching pornography on the job. In my home state of Florida, there have been several instances of prescription drugs being diverted, gone missing from VA facilities… In all of these cases, the employees involved were ultimately allowed to keep their jobs, or resign with their benefits intact… It is clear that under existing civil service rules and pressure from unions and others, VA leaders have not been able to hold individuals accountable for their actions. Over and over again, we’ve seen the VA attempt to take disciplinary action against an employee, only to see the appeals process prove so complex, lengthy and lenient that real accountability was virtually impossible to achieve.” [14]

In April 2016, the Washington Times [15] broke news that three senior officials working at the Phoenix VA, whom were responsible for the death of over 300 veterans who died while awaiting medical care, took over two years to be fired. When it was the lives of our veterans on the line, Congressional actions came quickly once the abuses were discovered.

Senator Rubio led the VA Accountability and Whistleblower Protection Act [16] through Congress and into law in 2017. This law expedited the removal process for poor performing employees and enhanced protections for whistleblowers reporting problematic employee conduct. Passing with vast bipartisan support, at the time, Montana Democrat and cosponsor John Tester correctly claimed the bill would, “crack down on bad employees who jeopardize veterans’ health care while also protecting the hardworking folks who dedicate their careers to those who served.” [17]

The common sense reforms gave management practical authority to remove poor performing employees. In the months following the legislation’s passage, FedScope data reveals that terminations for cause within the agency rose by 26 percent. The VA reform followed through on its mission to remove bad actors and increase the efficiency of the service. There is no doubt from both sides of the aisle that our veterans and the American taxpayers deserved this reform.

Currently, the Modern Employment Reform, Innovation, and Transformation Act [18] (MERIT Act) is moving through Congress to expand upon the VA reform by implementing it into every federal department and agency. The MERIT Act would:

Increase agency management’s power to remove poor employees;

Expedite timelines; 7 – 21 days’ notice of action; simple presentation of cause with employees given opportunity to respond;

Cap appeal decision time at 30 days, after which the dismissal is upheld, unless declared otherwise;

Require that if the 30-day deadline is not met the U.S. Merit Systems Protection Board (MSPB) must report to Congress and the oversight committees in the House and Senate and explain non-compliance; and

Uphold whistleblower protections.

In the private sector, a manager’s ability to remove poor performing employees is unquestioned. In the public sector, that ability is constantly questioned by unions and forced into lengthy litigation processes. Reforms must be made to allow the public sector to work with comparable efficiency as the private sector to eliminate waste and abuse.

Conclusion

Abuse is rampant within the federal civil service, supervisors are left powerless, and agencies are burdened with inefficiency. Reforms which empower management while protecting honest employees must be implemented to prevent the waste of taxpayer funds. Unions have gone against their original purpose to protect employees and, instead, have protected poor performers. Our civil service cannot function properly with the abuse and toxicity that poor performers create. Only by increasing accountability can the American people have their faith restored in the federal bureaucracy.

Correction: The civil service excluding postal workers is 2.19 million according to BLS data.

Natalia Castro is the multimedia manager at Americans for Limited Government.

[1] https://www.washingtonpost.com/politics/fema-official-harassed-women-hired-some-as-possible-sexual-partners-for-male-employees-agency-chief-says/2018/07/30/964da518-9403-11e8-80e1-00e80e1fdf43_story.html?utm_term=.a0a97bceffbd

[2] https://data.bls.gov/timeseries/CES9091000001 and https://data.bls.gov/timeseries/CES9091100001

[3] https://www.britannica.com/topic/Pendleton-Civil-Service-Act

[4] https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/lloyd-la-follette-act

[5] http://www.presidency.ucsb.edu/ws/?pid=15445

[6] https://www.eeoc.gov/eeoc/history/50th/thelaw/civil_service_reform-1978.cfm

[7] https://www.gao.gov/assets/670/668339.pdf

[8] https://www.fedscope.opm.gov

[9] https://www.bls.gov/bls/news-release/jolts.htm#2018

[10] https://www.gao.gov/assets/670/668339.pdf

[11]https://www.heritage.org/event/improving-the-federal-workforce-through-commonsense-hiring-and-firing-practices

[12]https://www.epa.gov/sites/production/files/2016-05/documents/_epaoig_statement_of_sullivan_hogr_hearing_5-18-16.pdf

[13] https://oversight.house.gov/wp-content/uploads/2017/10/Tables-of-Penalties-Majority-Report.pdf

[14] https://www.rubio.senate.gov/public/index.cfm/press-releases?ID=FDB66DCD-CC76-4B98-8453-0EDA63DA240D

[15] https://www.washingtontimes.com/news/2016/apr/3/va-still-plagued-by-problems-two-years-after-scand/

[16] https://www.congress.gov/bill/115th-congress/senate-bill/1094

[17] https://www.tester.senate.gov/?p=press_release&id=5293

[18] https://www.congress.gov/bill/115th-congress/house-bill/559