Transfer Tribulations (Sidebar to "Going Out of Business")By Anne Laurent
When agencies close or reorganize and bases shut down, their work doesn't simply disappear. In most cases, whole chunks of work are transferred elsewhere within the parent department or out to other departments and agencies. Woe to the executive running a closure who fails to master the rules for transferring functions.
"An important thing to understand about any closure situation is that you may be closing agencies, but in virtually all cases that we've seen, there were some transfers," said Ed McHugh, chief of the Office of Personnel Management's Workforce Restructuring Office. "That puts a real burden on you to make sure who are the people who are going, how they are going, and will the other agency take them."
The regulations are complicated and filled with nuance. Transfers affect your staff and unions, if you have them; the other agency and its staff and unions; your lawyers; their lawyers; and the customers who rely on whatever service is being bundled off to another home. The rules apply primarily to the right of employees to bail out of a sinking operation and follow their work to a new home.
The transfer of function rules apply only when a function moves to a new organization that isn't already carrying out the same general type of work. The rules don't apply if the function will cease immediately upon arrival. Figuring out who gets to accompany the work to a new home is a puzzle in itself. Two methods are used. Method 1 says those who spend the majority of their time working on the transferring function, or whose grade levels are supported by work on that function, can move with it. Method 2 usually is applied to support jobs associated with the transferring function. The agency first determines how many positions are needed to perform the function to be moved. Using that number, officials create a retention register of all employees performing the function and not already identified for transfer under Method 1.
If that's not confusing enough, nowadays, transfers of function are liable to have a good deal of legislative involvement. "What you typically have is Congress getting into these kinds of situations. They put all kinds of specific things into the law. And that drives the lawyers crazy: `Do we have to do it according to this bill or according to regulation?' You just spend a lot of time trying to sort that out," said McHugh.
For example, in the conference report on the Interior Department appropriations bill that shut down the Bureau of Mines, conferees explicitly permitted transfer of health and safety functions from some Bureau offices to the Energy Department. But they firmly forbade transfer of identical functions from other offices. Not coincidentally, the lucky offices were either located in the home states and districts of influential House and Senate conferees or were favorites of those legislators.
As if transferring functions isn't vexing enough, chances are, if you're in charge of a closure, you'll be transferring amid layoffs and congressional meddling under a deadline that seems impossible to meet.
Linda Morgan, who closed the Interstate Commerce Commission over the 1995 winter holidays, recited a litany of woes. "In my case, you had the elimination of certain functions, the elimination of the commission, a transfer of some functions to the Department of Transportation, a transfer of other functions to the Surface Transportation Board, and then a separation of remaining employees. And that had to all go on in less than three weeks."
Morgan said the effort challenged her, ICC staffers, and the rules. "We worked closely with OPM and others in working through the transfer of function law. But that has not been tested to its fullest and so we probably tested it a little bit."
That testing spawned employee appeals now making their way through the Merit Systems Protection Board and likely to set the tone for agency closures to follow.
"If an individual is not identified for transfer, you always run the risk that there will be an appeal because he or she feels they should have transferred and didn't," Morgan said. "Then in my case, the other wrinkle was that once I transferred people to the Surface Transportation Board, I didn't have enough money to pay all of those who had the right to transfer. So I had to run a RIF at the Board the first week."