Clash on merit principles raises questions about agency’s management structure.
Frustrated by years of seeking a promotion they feel is deserved, a group of 46 regional task force inspectors for the U.S. Marshals Service has filed a complaint with the Office of Special Counsel, Government Executive has learned.
The GS-12s have unsuccessfully sought promotion to the GS-13 level.
Their case spotlights long-standing tensions at the agency between the government’s system of merit promotions versus elevations achieved through accretion of duties. It shows the influence of a key managers organization on the agency’s handling of the question. And it brings out some ongoing conflicts between field offices and headquarters in a hierarchical law enforcement agency operating without permanent leadership.
The Marshals Service, a part of the Justice Department with 5,100 employees spread over 94 districts, tracks fugitives, provides courtroom security, transports prisoners, seizes illicit assets and partners with local law enforcement in investigations.
The 230-year-old agency in recent years came under tight scrutiny from Sen. Chuck Grassley, R-Iowa, during his tenure as Judiciary Committee chairman, in which whistleblowers exposed cronyism in hiring, mismanagement and a “frat culture,” a lengthy recent report said, providing context for this new employee complaint.
The 46 who recently complained to OSC and have retained outside counsel are among 60-plus nonsupervisory inspectors with the rank of GS-12 who are assigned to the agency’s regional task forces in the Investigative Operations Division.
Around the country since 2000 they have teamed with state and local law enforcement in the dangerous pursuit of fugitives. But the Marshals Service’s other nonsupervisory inspectors—who work in, say, courtroom security or prisoner transport—are paid as GS-13s, “despite performing similar duties,” one complainant told Government Executive. “The duties of a RFTF inspector are different from the duties of a standard district deputy marshal,” the complainant said. “Inspectors are team leaders—essentially supervisors—and run teams of marshals and local law enforcement officers.”
Those inspectors, this complainant added, “have been used as a political football in fights at the managerial and leadership level over how staffing and pay/classifications decisions are made.”
The proposal to elevate these GS-12s has been pursued at the highest levels of the Marshals Service since 2008, this complainant noted, providing copies of correspondence. “Our previous director John Clark found the money to implement the upgrade and obtained the blessing” of the Office of Personnel Management and the deputy attorney general. But it never happened.
Also pushing for the upgrade for the past five years was the Federal Law Enforcement Officers Association. In 2013, “we almost got it done” but for the government shutdown that year, National President Nate Catura, told Government Executive. His group has met with the acting Marshals Service director David Harlow and the attorney generals under presidents Obama and Trump. But with the overall ripple effect, “it will take an act of Congress,” and they’ll have to increase the budget by, according to one study, $50 million, he said.
One argument the law enforcement officers association cites for elevating the GS-12 inspectors is that their work is similar to GS-13 Marshals employees working in the witness and judicial security and sexual offenders apprehension programs. Add to them the other law enforcement agencies such as the FBI, Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives, said Catura, who was a deputy U.S. marshal for eight years in the 1990s. “It was very hard to get promoted to GS-13,” he said. These regional task force inspectors “are just as qualified, but are not getting a chance.”
The Marshals Service, the complainant added, “is the only top-tier federal agency that is not a journeyman GS-13. We have a wider range of duties and arrest more fugitives than all federal agencies combined.”
Kristin Alden, a partner in the Alden Law Group in Washington representing the nonsupervisory inspectors, told Government Executive the problem is that reclassifications can be done either at the request of the individual employee to a human resource specialist, or, more rarely, by OPM. That agency can perform interviews and surveys in a “desk audit” to determine whether a promotion is deserved because of an inaccurate position description or because of an “accretion,” or increase, in duties. A desk audit does not provide back pay and is not appealable.
In the spring of 2017, Marshals Service managers held a conference call with the GS-12 regional fugitive task force inspectors, Alden said. “The agency basically said we recognize there’s a problem here and the agency has ample reason to believe they’re in reality performing GS-13 functions.” That encouraged the inspectors, who were given forms to fill out, Alden said. “But nothing was done.”
Then, with a review from OPM allegedly still in progress, the Federal Managers Association weighed in against the plan, the attorney noted, a chief reason her clients filed complaints with the Office of Special Counsel. The Marshals Service switched its stance and “required that the inspectors compete for a limited number of higher-graded positions.”
OPM referred Government Executive inquires to the Justice Department, and an Office of Special Counsel spokesman said the agency couldn’t comment.
The Marshals Service provided a statement saying the agency “respects the work of the Office of Special Counsel, and is aware of its review of a complaint by non-supervisory inspectors who work with the agency’s regional fugitive task forces. USMS stands ready to engage with OSC and will provide any necessary information on the agency’s position classification and promotion procedures.”
Supervisors or Not?
So what is the resistance to the plan?
The most detailed explanation came from Federal Managers Association. Letters in recent years from its then-president David Barnes to acting Marshals Service Director David Harlow are included in Grassley’s lengthy compendium of the agency’s management troubles. Barnes argued for “posting all jobs competitively, and that the No. 1 candidate on each Certificate of Best Qualified should be selected to reduce complaints and the perception of favoritism.”
Grassley’s staff members in their own narrative were unenthusiastic that upgrading the GS-12s was even being considered. “It is troubling that the agency was ready to expend the funds to promote 60 people with no competition, while ignoring pleas to replace body armor with a 13 percent failure rate currently worn by thousands of operational employees across the agency whose daily job it is to apprehend violent fugitives,” their report said.
What the GS-12s seeking elevation aren’t considering, according to Jason Wojdylo, the Interim Chief Deputy U.S. Marshal in Chicago speaking as the Federal Managers Association’s Vice President for Law Enforcement Operations, is that “they don’t supervise,” by OPM’s definition.
The partnering state and local task force officers “do not qualify as individuals that federal agents may supervise to gain the supervisory criteria,” he told Government Executive. In fact, the local officers working with them could be reassigned by their sheriff or police chief at any time, and there is nothing federal marshals can do, Wojdylo added. Nor do these regionally based federal deputy marshals “conduct performance evaluations, grant leaves of absence or discipline employees.”
Some 3,000 other GS-12 deputy U.S. Marshals assigned to district offices “are doing the very same work as” the regional task force inspectors, Wojdylo said. “The ill-conceived plan sought to elevate the smaller group of inspectors who are assigned to a headquarters’ unit, rather than also include all deputy U.S. Marshals assigned to the districts.” That goes against the principle of “equal pay for equal work.”
Such warnings against favoritism were expressed in the letters the Federal Managers Association’s leaders sent to both the Marshals Service and Congress, including one in April 2017 in which the estimated cost of elevating the complaining GS-12 inspectors was put conservatively at $300,000.
Wojdylo acknowledged “some truth” to the charge that among the Marshals, “it’s sometimes not what you know, it’s who you know in an organization that leads to a promotion,” as demonstrated by a history of “patronage” being used to fill certain “coveted positions.”
HQ Versus the Field
While opposing the plan to elevate the group of 60-plus inspectors, the managers association has also criticized a “structural” problem: “the unsustainable depletion of staff in districts compared with what appears to be disproportional growth of headquarters,” Wojdylo said. “The attempt to elevate just 2 percent of the workforce added to the strife between Deputy U.S. Marshals assigned to the 94 district offices and 218 sub-offices, and those assigned to 14 headquarters’ units.
“There have been repeated recommendations by the Federal Managers Association, as well as from peers within the agency, to improve staffing levels in district offices,” Wojdylo said. His organization cites statistics that reflect a bigger bureaucracy at U.S. Marshals Service headquarters year after year, with net losses to district offices resulting from merit promotion of 201 positions over the last three calendar years (44 operational positions in 2016, 86 in 2017, and 71 in 2018).
One data set comparatively reflects growth of nearly 150 percent in headquarters’ units since 2000, prompting the association to call for “an immediate moratorium on hiring at the headquarters level.” Yet, upcoming merit promotion career boards scheduled in March and April have 22 positions announced for district offices and 27 for headquarters’ units, he said via email. “History shows we most often see positions assigned to headquarters filled from district office candidates in far greater numbers. We again should anticipate another net loss to our district offices,” he warned.
Everyone in the service is for “one badge, and we all wear the silver star,” Wojdylo said. But the “silo-building in Washington” shortchanges field offices in resources. Headquarters’ units, the association notes, are not subject to a staffing model that caps district offices at 76 percent of what is considered the maximum for a safe work environment for managing core missions involving detention operations, and judicial security. “The latter includes the protection of federal judges and prosecutors,” the managers association said.
Any resolution to the fight over upgrading the GS-12s on the Regional Fugitive Task Forces will impact the service’s larger efforts to honor both fairness and merit principles for promotions. A 2017 Government Accountability Office study credited the Marshals Service with taking steps to improve its programs “to ensure a systematic means of selection for promotion based on merit.” But it concluded that the agency lacked documented evidence and “does not adequately monitor” the ratings process for applicants seeking promotions.
“After analyzing the results of the 2016 Federal Employee Viewpoint Survey responses,” GAO wrote, “USMS headquarters staff acknowledged employees’ negative perceptions of the merit promotion process as an internal agency challenge.”
Catura, of the law enforcement group, said the outcome has to wait for a new, Senate-confirmed director. After the retirement of acting director David Harlow, President Trump last October nominated Louisiana attorney Donald Washington for the challenging post.