Lesson from the Shutdown: A Need to Clarify Who’s Furloughed

Though nearly everyone unites around the goal of avoiding future government shutdowns, some key players coming off of the 2013 version offer varying ideas of how to improve the executive branch’s guidance for determining who stays home and who continues to work as the crisis unfolds.

In interviews with Government Executive, lawmakers and employee groups recommended changes ranging from a more consistent centralized taxonomy of which jobs are “excepted” to a new vocabulary more sensitive to the morale problems of employees tagged as “nonessential.”

The Office of Management and Budget, in response to a query, stressed that it put out long-established guidance two weeks before this year’s shutdown, identical to what it had released in 2011, when lawmakers narrowly headed off a threatened shutdown.

“OMB and the Department of Justice have longstanding guidance on the applicable legal principles that govern decisions about what activities are authorized to continue during a lapse in appropriations,” said OMB press secretary Emily Cain. “Consistent with this guidance, which OMB provided to agencies once again on September 17, 2013, agencies determine which activities are ‘excepted’ and can thus continue during the lapse, and which employees are ‘excepted’ in order to carry out those activities.”

Such flexibility for agency managers draws its legal basis from a pair of memos written in the final months of the Carter administration by Attorney General Benjamin Civiletti. It was followed by a series of memos expanding on his interpretation of the 19th-century Antideficiency Act from OMB directors in the Reagan and Clinton administrations. (Those documents were all cited recently in the Defense Department’s brief successfully arguing for authority to call back many of its furloughed civilians before the shutdown ended.)

The thrust of the standing guidance is that agencies are required to prepare shutdown plans in advance of annual appropriations (programs under multiyear funding are spared), and that a core of employees may be excepted based on the need to protect health, safety, property, national security, benefits payments and the orderly process of closing an agency.

Yet the inconsistent (some say chaotic) way in which the shutdown was executed on Oct. 1 incensed many. Some employees were reportedly surprised at their designation or saw their initial instructions overturned, but they had little recourse.

As the American Federation of Government Employees told its members on Oct. 1, “While AFGE disputes the legal basis for the shutdown, we are urging all our members to follow the orders of management at their agency with respect to who should or should not report to work…. Just like in the normal, day-to-day operation, we must all ‘obey now, grieve later.’ ”

The Senior Executives Association in the middle of the shutdown put out a plea to news media and Congress to cease using the non-legal term nonessential. “The word concerned SEA members because of its implications,” said Jennifer Mattingley, SEA’s legislative director. “Just because programs have been suspended does not mean that they do not impact individual well-being or the bottom line of many businesses.”

Current events, such as a hurricane or a salmonella outbreak, can influence determinations on which employees work during a shutdown, Mattingley noted. “Someone who was excepted last time may not be this time,” she said. One problem with the current system, she added, is that “some employees were deemed excepted and came to work, but couldn’t do everything because other employees they needed to deal with were not there.”

Rep. Gerry Connolly, D-Va., said, “To simply have two classifications, euphemistically called essential and nonessential, is unhelpful and very demoralizing. There seems to be at the 26 major agencies, 26 different approaches to who’s essential and who’s not.”

Connolly lamented that agencies such as the National Park Service lost most of their employees during the shutdown, and that furloughs hit NASA scientists working on the Mars Rover program and Treasury officials working on sanctions against Iran. “For a crowd that says we ought to run government more like a business,” he said, referring to Republicans in Congress, “what business would trash its workforce, announce it was shutting down operations indefinitely and threaten not to pay its bills? Who would do that and stay in business?”

The remedy for the federal workforce, Connolly said, is for the Office of Personnel Management, which dovetailed with OMB in distributing shutdown information, “to go back to the drawing board and maybe establish categories of exempt personnel and certain grades of it, so that people can, in an orderly way, know what their status is.”

But his fellow suburban Virginia Democratic colleague, Rep. Jim Moran, said agency program managers “need that flexibility that can’t be provided through legislation, and is even difficult to address regulatorily. Managers have to make that decision on their own.”

Moran, who was critical of the chaos during the 1995-96 shutdown, added that he harbors “a great deal of resentment toward people who forced the federal workforce into that position of requiring program managers to make those decisions between who is essential and nonessential. The reason I feel so strongly [is that] I know what happens in too many homes, [is that the shutdown is] an intangible but important thing that affects the status and morale and dignity of the family’s provider, to whom the children and spouse look up to not only because they provide food and a roof over their heads, but because they perform important work that the family is proud of.”

Moran said he would like to see more employees considered essential, and he recommended OMB and agency controllers put aside contingency money for use in the event of a shutdown, even though “holding back this money will hurt contractors and other initiatives,” he acknowledged. No one on Moran’s own staff, he added, was furloughed during the 16-day shutdown, while other members of Congress handled the decision differently.

Rep. Frank Wolf, R-Va., along with Moran, co-sponsored a bill introduced at the height of this year’s shutdown by Rep. Jack Kingston, R-Ga. It would have declared all federal employees “essential and furlough-exempt” and brought them back to work immediately. The idea became unnecessary when the White House and congressional leaders reached a three-month budget deal on Oct. 16.

Sen. Ben Cardin, D-Md., has approached Sen. Tom Carper, D-Del., chairman of the Senate Homeland Security and Governmental Affairs Committee, about holding hearings on the effects of the shutdown on the federal workforce.

“Shutting down the federal government and threatening default cost our nation billions of dollars and has severely shaken consumer confidence,” said his national communications director Sue Walitsky. “It also has shaken the federal family and our local communities. The most important question now is how do we avoid future shutdowns? It’s a waste of money. It set back our economic recovery, demoralized the federal workforce and generally eroded faith in government.”