By Kellie Lunney
February 11, 2013
The pay of public health service officers should be protected in the event of a government shutdown, according to the group that represents them.
Lawmakers earlier this month introduced a bill that would ensure military members as well as supporting civilian and contractor personnel continue to receive pay and allowances if there’s a lapse in government funding. The Commissioned Officers Association of the U.S. Public Health Service is asking the legislation’s sponsors to amend the language to include all seven uniformed services. The commissioned corps of the Public Health Service is considered part of that group, along with the Army, Air Force, Coast Guard, Marine Corps, Navy and the commissioned corps of the National Oceanic and Atmospheric Administration.
Members of the uniformed services are not subject to furlough if the government shuts down. Udall’s bill would ensure that their paychecks aren’t delayed during a shutdown by requiring the Defense and Homeland Security departments to appropriate funds specifically for salaries and allowances.
“While the intent of S. 171 is laudable, as written the language inadvertently excludes the two smallest of the seven uniformed services -- commissioned corps of the U.S. Public Health Service and NOAA,” said a Feb. 1 letter from Jerry Farrell, executive director of the group representing the PHS officers, to the four senators shepherding the legislation.
Farrell said he hasn’t received a response yet to his letter. The office of Sen. Mark Udall, D-Colo., did not immediately respond to questions seeking comment about modifying the legislative language to include all the uniformed services.
The PHS Commissioned Corps, housed in the Health and Human Services Department, is made up of about 6,600 medical and public health employees who work throughout government at agencies including the Indian Health Service, Bureau of Prisons, Homeland Security Department and the Environmental Protection Agency. Overseen by the U.S. Surgeon General, they work on a range of issues such as disease control and prevention, biomedical research, and food and drug regulation. The corps has been deployed to handle public health emergencies after natural disasters like Superstorm Sandy and Hurricane Katrina, as well as to areas hit with flu outbreaks.
“The threats to public health never go away,” said Farrell.
The constant threat of a government shutdown seems here to stay too. The current continuing resolution keeping the government running expires March 27, which has the federal workforce on edge. Because they fall under the uniformed services, the PHS Commissioned Corps was not furloughed during previous government shutdowns, most recently in the mid-1990s. But when the federal government was on the verge of closing in April 2011 before the White House and Congress made a last-minute budget deal, guidance from HHS leadership said PHS Commissioned Corps were not exempt from furloughs, citing a “change in the legal analysis” from the Office of Management and Budget and the Justice Department.
“OMB and DOJ have recently ruled that Corps officers cannot be exempted from furlough based solely on their status as active duty members of a uniformed service,” stated an April 5, 2011 email to all non-HHS commissioned corps liaisons from Deputy Surgeon General Boris Lushniak. “Instead, exceptions for Corps members must be decided on the same basis as exceptions for civil service employees -- if they are involved in obligations authorized by law, or involved in the safety of human life or the protection of property.”
Since then, Farrell has sought clarification on the issue from HHS, OMB and the Justice Department and has even filed a Freedom of Information Act request, but hasn’t received a definitive response yet. “The other uniformed services have never been furloughed when the government shut down in the past,” Farrell said by email. “And neither has the PHS. For reasons unknown and unknowable, HHS changed their view in 2011. We’ve been trying to find out why ever since.”
A July 2012 response from Justice to the Commerce Department further muddied the waters. Commerce, the parent agency of the NOAA Commissioned Corps, also sought clarification on whether those officers were exempt from furloughs during a government shutdown. Justice found that the NOAA Commissioned Corps could continue to work during a lapse in funding. “Commerce has represented to us that it has no statutory authority to place NOAA Corps members on furlough, or in any other status in which they would not be entitled to pay, based on a temporary funding lapse. Moreover, although we have not performed a comprehensive search, we have not located any statute that provides such authority,” wrote Karl Thompson, deputy assistant attorney general in Justice’s Office of Legal Counsel in a July 2012 email to Commerce’s Office of General Counsel.
Farrell said that DOJ analysis should apply to the PHS Commissioned Corps as well.
HHS referred questions from Government Executive to OMB on all matters pertaining to budgets and furloughs. “At this point, it’s impossible to speculate on what actions or plans might be put in place since it’s still unclear as to how things might unfold in the future,” said Bill Hall, director of the news division at HHS.
OMB did not immediately respond to a request for comment.
By Kellie Lunney
February 11, 2013