Workforce Executive Orders Miss the Mark, Observers Say

Although the Trump administration said its recent executive orders on the federal workforce will make agencies more efficient and solve age-old performance management difficulties, good government observers said the measures will do little to alleviate the problem.

An order aiming to streamline the disciplinary and firing process for federal workers instructs agencies to standardize the length of performance improvement plans at 30 days, shorten the time frame for other adverse personnel decisions, and exclude adverse personnel actions from the internal grievance process.

But while observers applauded the administration’s recognition that agencies do not do enough to deal with poor performers, they were less enthusiastic about the proposed solution. Max Stier, president and CEO of the nonprofit Partnership for Public Service, said process tweaks like those prescribed in the recent executive order will have at best a marginal impact.

“In trying to address performance issues, I think the executive order is not focused on what is really or what really will change the problem,” he said. “The fundamental observation that we have a real imperative to improve the management of government, such that poor performers who are not responding to efforts to improve their performances are removed, is a real one, and the data speaks for itself. But simply firing people faster isn’t the mechanism for fixing the problem—managing them better is.”

Stier said the firing process order likely will produce similar results to the VA Accountability and Whistleblower Protection Act, which the White House has cited as a model for performance management improvements but so far has produced mixed results. In January, statistics showed that firings at the Veterans Affairs Department actually fell by nearly 5 percent after Trump took office last year, and in March, Democratic senators raised concerns about reports of “unacceptable” firings.

A more effective reform would be to change how managers use the existing performance management system, Stier argued. Agencies must empower managers to use the tools already at their disposal, particularly probationary periods for new hires, to weed out poor performers and reward hard workers.

“The right way to go about improving the situation is, first and foremost, having more qualified people in management positions, who are given the tools to do their jobs effectively as managers,” he said. “They need to be supported by their leadership to focus on good and sometimes tough decisions. That doesn’t happen, by and large, in government.”

The partnership’s solution to performance management is a mix of cultural changes and legislative proposals. Stier said managers must make an affirmative decision whether to keep an employee at the end of their probationary period, rather than simply let people become tenured because they passed the one- or two-year deadline. And Congress should develop a new, bifurcated career track that allows for high performers, who aren’t necessarily strong candidates to become managers, to be promoted in their current field.

“Today, in most instances, the only way to be promoted is to become a manager,” Stier said. “A better way would be to create two tracks: one for excellent subject matter experts, and another for people who would be exceptional managers, who want to be in management positions and have that capability.”

Donald Kettl, professor and academic director at the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs, said he thought the firing executive order was a step in the right direction, although one that is hamstrung by the White House’s accompanying orders on federal employee unions, which he described as “poisoning” discussions on civil service reform.

“One [executive order] is a collection of fairly arcane, but important, pieces to improve the ability to fire poor performers by streamlining the process,” Kettl said. “But the other is a set of policies and procedures to make it much easier to crack down on union power within the federal workforce . . . This administration has had a series of opportunities to roll things out that could create a foundation for bipartisan consensus, or to do things in a way that makes it look partisan. And by coupling these EOs . . . they have made it virtually impossible to imagine a world where bipartisan agreement is possible.”

Robert Tobias, a former president of the National Treasury Employees Union and a distinguished practitioner in residence at American University’s School of Public Affairs, said the solution to the federal sector’s performance management woes lies in better training and empowerment of managers to “do the work.”

“The basis of proof [in a performance-based dismissal case] is ‘substantial evidence,’ not even the preponderance, which is the standard for a conduct discharge, so if an employee fails their performance improvement plan, this is the basis for their discharge,” Tobias said. “Now I suggest to you that that’s a very easy standard to meet if the following is true: the employee has been issued performance standards, which often is not the case; the standards are understandable and applied to the position the employee has; and the employee has failed to meet them.”

Tobias said that simply shortening the firing process, or removing steps from the firing process, without addressing the fundamental cultural issues where managers aren’t trained well enough, will make government less effective, not more so. He pointed to a 2009 study from professors at the University of Texas at Dallas and the University of Georgia, which found that after the state of Georgia implemented at-will employment for public sector workers, the productivity of employees fell, while the number of poor performance discharges only increased slightly.

“The fear of discharge had a substantial dampening effect on the productivity public employees, but only a slight uptick [in firings],” Tobias said. “I explain it this way: If I’m a supervisor, I need to be confident that I know what the rules are, that I am supported by the rules in my decisions, and I have to have the confidence to successfully talk to those I lead. If all of that isn’t in place, it doesn’t matter what the process for discharge is. I’m not going to use it.”

Kettl, who wrote in Government Executive about the promise of President Trump’s management agenda, said the White House’s recent actions have imperiled the prospects of transformational civil service reform in the near term.

“This makes it a lot harder, for sure, because it fundamentally raises questions about the motives of the players,” he said. “On the other hand, the management agenda is the only game in town, so it at least has the potential to move things forward. I wouldn’t say I’m optimistic, but I’m still hopeful.”