Our Accountability System is Broken. Fix It First
The way we hold federal employees accountable for meeting reasonable standards of performance and behavior is badly broken, and it must be fixed before we can talk about additional reforms, argues one former federal leader.
Our accountability system—the way we hold federal employees accountable for meeting reasonable standards of performance and behavior—is badly broken. It takes too long, is bureaucratically byzantine and legalistic, and at least in the public’s jaundiced eye, seemingly shields those who’d be out on their ear in the private sector. As a result, it’s become a political albatross around the neck of other civil service reform efforts.
The evidence? In the latest of what has become a series of “same old stories,” the MSPB has just held that the Air Force must reinstate a woman it fired in 2013—that’s right, she was fired over 10 years ago—because the agency didn’t fully inform her of her legally-irrevocable choice to pursue grievance arbitration to appeal her removal
I was always taught that ignorance of the law was no defense, but apparently this case is an exception. Despite pretty clear language in the law, not to mention the likely advice from a knowledgeable union representative, the Board allowed this appellant to revoke what is (or was) plainly an irrevocable choice. And they allowed it a decade after she made it. In other words, this appellant was given a pass by MSPB.
Unfortunately, this isn’t the first or only time we have seen our accountability system “at work.” The pages of Government Executive are peppered with these kinds of stories. Cases that have been years in the making, with outcomes that boggle the mind. Space limitations prevent me from listing them all, but just do a search and you’ll find them. These cases all point to an accountability system that over-protects federal civil servants, at least in the public’s eye, especially those few that may not deserve it.
The Numbers Don’t Tell the Whole Story
Now, I know someone will challenge this, citing the statistics that say agencies win most of the cases before the Board, and that the number of “notorious” cases is infinitesimally small compared to those wins. Those are true, but they suffer from three weaknesses.
First, those MSPB wins often come after years of complex, legalistic, typically arcane procedural wrangling, something most citizens don’t understand when it comes to workplace justice. Second, while federal employee appellants are usually off the payroll during those years, the few that are reinstated become caricatures, symbols of excessive protections for the poorly performing or behaving—indeed, many critics will say, “See, I told you so,” when those cases are publicized. And finally, whatever the merits of the current system, it can be too easily thwarted by administrative sabotage, such as we saw when the Trump administration deliberately failed to nominate MSPB members to prevent a quorum.
So, the years-later wins don’t do much for real-time workplace justice and accountability. The notorious “one-off” excesses get exploited by critics far beyond their actual impact, such that when the public reads about these excesses, they groan. Most U.S. citizens work for organizations that can fire them at will. Some of them are protected by union contracts and/or state courts, but even in such cases, it’s a “one-and-done” process, and it typically turns on the merits! But in the case of federal civil servants, every adverse action can be appealed all the way to federal court, in a convoluted process that can take years, all potentially at the taxpayer’s expense.
That’s not accountability, at least as defined by my neighbors!
So, while there may not be many cases like the Air Force one, those that exist have an impact far beyond their numbers, and they are thus too easily publicized by those (like the drafters of Schedule F or the oxymoronically named Public Service Reform Act) who seek to dilute or remove even necessary civil service protections for partisan political reasons.
But it’s what the numbers don’t reveal that’s just as important. While the evidence is inevitably anecdotal, without exception the executives and managers that I’ve talked to will say that they avoid today’s accountability system—embodied in the procedural morass that is chapters 43 and 75 in title 5 of the U.S. Code—like the plague. It’s just too complex, too legalistic, and too time consuming to navigate. Most are not trained in its nuances, and as a result, they have found other ways to make a poorly performing or behaving employee someone else’s problem by reassigning them to a “turkey farm” or in some cases, promoting them out of their hair.
The problem of course is that this cannot easily be teased out in surveys, so it remains as much an administrative secret as hard, statistical evidence. But the fact remains that many poorly performing or behaving federal employees escape accountability because of the myths and the realities of today’s system.
Accountability is the Key…and the Gateway to Reforms.
As I have argued, this has implications beyond accountability. In my view, the efficacy of this convoluted system—whether based on myth or reality, or more likely, some combination of both—is key to other civil service reform efforts…indeed, I contend that it’s the gateway to those reforms, all of which are desperately needed.
But those who propose to make it easier to hire and pay more to federal civil servants (both entirely legitimate goals) are putting the cart before the horse. Their proposals require an Act of Congress, but no self-respecting GOP Member is going to support these measures until it is clear that those who reap their benefits—that is, individual civil servants—can be held accountable for doing their jobs.
Thus, in my opinion, the notorious excesses have an impact far beyond the workplace. They contribute to a general (and exceedingly cynical) view amongst most of my fellow citizens and those that represent them in Congress that federal civil servants are employed for life, paid by seniority, untouchable when it comes to how they perform or behave once on the job, and protected by mind-numbing procedural protections.
To be sure, I believe federal civil servants, most assuredly the conscientious ones, deserve at least some of those procedural protections. They should be able to do their jobs—which means administering the laws and regulations duly enacted by elected officials, including the exercise of their good judgment when those laws and regulations authorize it—without interference (or fear) from political appointees who may want to put their thumbs on that scale.
I will argue for those protections with my last breath. Indeed, I resigned from the Trump administration over the issuance of Schedule F because I concluded that it was a thinly veiled attempt to make political loyalty the litmus test for thousands of politically neutral civil servants. But there is such a thing as too much: too much protection, too much delay, too little accountability –and too little attention to the merits of a particular case.
To be sure, Schedule F and legislative proposals like the PSRA complicate matters. Ostensibly, they are intended to do exactly what I’m advocating: Holding federal employees accountable. Indeed, both include that word in their titles and/or summaries, and a quick read—especially by the vast majority of citizens—suggests that what they propose is just. But we know different. They were motivated by a desire to make the bureaucracy more responsive, not to the public but to partisan politics.
First Things First: Fix Accountability
To be clear, my beef is not with federal employee unions. Nor is it with deserving appellants. They are simply playing by the rules they’ve been given. However, the fact is that “the system” has put excessive federal civil service protections over common sense workplace accountability, and Congress is not going to reform the civil service system unless and until they can be assured that poorly performing and/or behaving employees—perhaps very small in number but overly large in terms of notoriety—can be held accountable for doing the jobs that they were hired and paid to do. Nothing more, nothing less.
And until Congress—and more importantly, the citizens they represent—can be assured of that simple truth, other civil service reform proposals are DOA.
Ron Sanders, a member of the American Society for Public Administration's National Council, is a 2006 Fellow of the National Academy of Public Administration. Among other things, he also served as IRS’s first chief human resources officer; associate director of OPM; chief human capital officer for the intelligence community; and later, chairman of the Federal Salary Council. Concurrently, he headed the University of South Florida’s School of Public Affairs and later, served as staff director for its Florida Center for Cybersecurity.