Administration already has homeland security flexibility, union says
The current federal personnel system already provides the flexibility the leaders of a proposed Homeland Security Department would need to hire, fire and manage employees, the leader of the largest federal employee union said Wednesday.
"President Bush says he needs more flexibility for the secretary of Homeland Security to be able to act quickly in times of national emergency," said Bobby Harnage, president of the American Federation of Government Employees, at a news conference. "We see the administration's use of 'flexibility' as a code word for denial of due process to federal employees."
AFGE released a report Wednesday outlining more than 80 existing managerial flexibilities under Title 5 of the U.S. Code, including provisions that allow agencies to reassign employees, offer them recruitment and retention bonuses, eliminate jobs through reorganizations and outsourcing and fire employees in their first year on the job without cause.
Bush has said that he wants the authority to waive union rights for employees shifted into the new department in cases of national security.
Under the federal labor-management statute, which became law during the Carter administration as part of the 1978 Civil Service Reform Act, the president can issue an executive order blocking employees from organizing under a labor union in any agency or part of an agency that "has as a primary function intelligence, counterintelligence, investigative, or national security work." However, it would first have to determine that collective bargaining would get in the way of national security. Every president since Carter has issued executive orders eliminating collective bargaining rights at certain agencies.
The House version of the homeland security legislation, passed in July, would let Bush keep his power to shut down or block unions at the Homeland Security Department, while the Senate version would limit such authority.
Even if the House version is approved, the president has said that employees still would retain protections under existing civil rights laws, the 1938 Fair Labor Standards Act and the 1935 Social Security Act, as well as whistleblower protections.
But Harnage said the House legislation gives the administration the authority to curtail important employee rights, including whistleblower protections, for national security reasons. The kind of flexibility that the administration wants "means nothing less than gutting the civil service merit system and busting employee unions," Harnage said.
Office of Personnel Management Director Kay Coles James defended the administration's plan for more managerial flexibility in the new department, and said the president is not trying to eliminate Title 5 civil service protections. "While the administration is seeking some civil service reforms, contrary to AFGE assertions, major issues such as collective bargaining rights are actually enhanced by the legislation passed by the House," James said. "That legislation guarantees those rights when employees are transferred to DHS [Department of Homeland Security]." John Palguta, vice president of policy and research at the Partnership for Public Service, a Washington advocacy group, said the debate over civil service protections in the new department is rooted in trust: Employees want to know in advance what the ground rules will be, while the administration says it needs the flexibility to determine what regulations will be the most effective for the new department. "I am sensitive to both points of view," he said.
While Palguta agreed with AFGE's statement that the administration already has substantial managerial flexibility, he said parts of Title 5-including the "rule of three" hiring law-need to be changed. The rule of three stipulates that employees hired into competitive service jobs must be selected from among the three most eligible candidates. The debate over civil service protections is a "good opportunity" for government leaders to fix parts of Title 5, he said.
"I am optimistic that when they put the final homeland security legislation together, they will use that opportunity to make some changes to Title 5," Palguta said. Observers need to "keep our fingers crossed and hope they get the people stuff right," he said.