Proposals Would Broaden Sensitive Positions and Change Appeal Rights

The Obama administration has proposed a rule to expand the definition of federal positions designated as “sensitive,” causing backlash among whistleblower advocates who say the change will deny rights to those who speak out against bad governance.

The Office of Personnel Management and Office of the Director of National Intelligence issued the rule to clarify which civil service jobs are considered national security positions. That designation would be expanded to include positions that are labeled sensitive but filled by employees who do not have access to classified information. The Government Accountability Project criticized the proposal, saying the guidelines could “rebrand virtually any federal government position” as sensitive.

The result, GAP explained, would strip many employees of the rule of law currently provided under the civil service system, which does not extend appeal rights to employees in sensitive jobs. It would eliminate recourse for federal workers who are fired or demoted -- including whistleblowers -- if they are deemed to have a national security role.

Administration officials say they are not expanding the number of sensitive positions, but merely adding clarity.

“The current regulations governing the designation of national security sensitive positions are now 20 years old and provide only general guidance,” OPM and ODNI officials said in a joint statement to Government Executive. “The new regulations will clarify the requirements and procedures agencies should follow when designating national security positions by providing more detail and concrete examples. This regulation is not intended to increase the number of positions designated as national security sensitive or to affect the rights of employees.”

Specifically, the rule calls for the sensitive designation for positions “not requiring eligibility for access to classified information, but having the potential to cause significant or serious damage to the national security."

It also places the national security label on overarching titles, such as “positions involving independent responsibility for planning or approving continuity of government operations” and “senior management positions in key programs.”

The administration is simultaneously fighting in federal court to protect a separate rule that would restrict options for workers in sensitive positions who are relieved of duty, including the right to appeal to the Merit Systems Protection Board. The U.S. Court of Appeals for the Federal Circuit heard the case Friday, and a decision is still forthcoming. GAP submitted an amicus brief, saying “only Congress has authority for this fundamental structural change.”

Tom Devine, GAP’s legal director, said in a statement that the proposed rules would reverse 130 years of federal employee protections.

“Combined with litigation, this is the latter of a one-two attack against the civil service rule of law that has kept the federal labor force professional and nonpartisan since 1883,” Devine said. “If the Obama administration succeeds, its legacy will be vulnerable to a national security spoils system controlled by the Director of National Intelligence."

Devine said often whistleblowers are the victims of adverse actions at work and would be particularly vulnerable should these rules go into effect.

The proposals also have faced bipartisan criticism in Congress.

“Providing agencies with complete discretion to strip federal workers of whistleblower and other civil service protections would undermine congressional intent and would be patently unjust,” Rep. Elijah Cummings, D-Md., ranking member of the House Oversight and Government Reform Committee, told Politico in April.

At the court proceedings Friday, a Justice Department lawyer estimated about a quarter of the nearly 800,000 Defense Department employees -- and an unknown number at other agencies -- are in “noncritical, sensitive positions.”

The Office of Special Counsel, the independent agency tasked with protecting whistleblowers, also submitted an amicus brief with the court. “A sweeping extension of this narrow exception to all sensitive positions, even those that do not require access to classified information, would endanger the rights of federal employees,” OSC wrote.