Sen. Jon Tester, D-Mont., focused Wednesday’s hearing on proposed rules to specify which federal positions are deemed “sensitive."

Sen. Jon Tester, D-Mont., focused Wednesday’s hearing on proposed rules to specify which federal positions are deemed “sensitive." Charles Dharapak/AP file photo

Should Commissary Clerk Jobs be Classified as 'Sensitive' National Security Positions?

Lawmakers challenge proposed rules that could broaden definition of sensitive jobs, and legal ruling stripping those employees of appeal rights.

Lawmakers on Wednesday called for greater specificity in determining which information and federal jobs are designated as sensitive, saying over-classification damages national security.

Sen. Jon Tester, D-Mont., chairman of the Homeland Security and Governmental Affairs subcommittee with oversight of the federal workforce, focused Wednesday’s hearing on proposed rules to specify which federal positions are deemed “sensitive,” as well as a legal ruling that stripped employees in these positions of their right to appeal firings and suspensions with the Merit Systems Protection Board. Tester attempted to pinpoint, without success, whether the new regulations would limit the designation to only positions that truly required it.

If agencies can “arbitrarily determine which positions are sensitive,” Tester asked “are we going to end up with another [Edward] Snowden incident or end up with another Navy Yard shooter incident because there’s too much to do and people are going to cut corners?”

Sen. Rob Portman, R-Ohio, said the same logic applied to classified data. “If everything is classified, then nothing is classified,” he said.

The issue of designating positions as sensitive -- and employees occupying those positions being stripped of their appeals rights -- made waves over the summer with federal employee and good government groups, which claimed guidelines spelling out which positions are sensitive were far too broad and could therefore apply to the entire Defense Department, for example.

The Office of Personnel Management and the Office of the Director of National Intelligence, which issued the proposed guidance, defended their rule Wednesday, saying designation of positions as “sensitive” is nothing new and they were only attempting to bring clarity and governmentwide standardization.

“The proposed rule is not intended to increase or decrease the number of positions designated as national security sensitive,” Tim Curry, an OPM official, told the panel, “but is intended to provide more specific guidance to agencies, in order to enhance the efficiency, accuracy and consistency with which agencies make position designations.”

Tester pointed to an example of a Defense employee, however, who worked as a clerk in a commissary and was terminated because his position was sensitive and he held personal debt.

“It escapes me how a grocery store clerk could be put at the same level as someone at the Defense Department who has access to really important classified information,” Tester said.

Curry said because the employee had access to food, he could have an impact on national security, hence the sensitive designation. He added that while OPM and ODNI set the general standards, each agency is ultimately responsible for determining its own sensitive positions.

These positions do not necessarily overlap with positions that require security clearances. Federal employee groups warned supervisors in national security roles have unilateral power to both designate a position as sensitive and dismiss the employee in that position without offering an explanation, as the employee would not be able to appeal the decision to MSPB.

“That, senators,” said David Borer, general counsel at the American Federation of Government Employees, “is likely to be an irresistible invitation to abuse.” 

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