Advocates, Experts Urge More Protections for Feds Following Trump Workforce Initiatives

Democrats, union officials and good government experts on Tuesday said Congress needs to take action to better codify protections designed to preserve the nonpartisan civil service in the wake of the Trump administration’s efforts to sideline labor groups and politicize a significant portion of the federal workforce.

At a meeting of the House Oversight and Reform Committee’s government operations subcommittee on “revitalizing the federal workforce,” Democrats asked union officials and personnel policy experts what is needed to repair the damage done by a series of Trump-era directives aimed at making it easier to fire federal workers, undermine the civil service’s merit systems principles and reduce the role of unions. Meanwhile, Republicans called on one of the architects of those policies to defend their value.

Janice Lachance, who served as the director of the Office of Personnel Management during the Clinton administration, said the failed efforts to dismantle OPM by sending most of its operations to the General Services Administration and its policy shop to the Executive Office of the President and to create a new Schedule F job classification of federal workers without civil service protections was “misguided.” Instead, the Biden administration should empower the leadership of the agency.

“I recognize areas of the agency must improve; however, an independent agency charged with protection of the merit system and the development of impartial, nonpartisan human resources policies and practices is vital to the fair and effective administration of government programs and the protection of the civil service from political interference,” she said. “[Designate] the OPM director to be a member of the president’s cabinet. I had the privilege of that status in the Clinton administration, and it enabled me to raise the visibility of personnel matters and to model practices that were ultimately adopted by the private sector.”

Anne Joseph O’Connell, a professor at Stanford Law School specializing in administrative law, described the rationale behind Schedule F, that employees in so-called “policy-making” positions are not accountable to voters and too difficult to fire, was “disingenuous.”

“If you’re concerned about the difficulty in getting badly performing employees removed, then you should want a fully staffed Merit Systems Protections Board to help process those deserved firings more quickly. To go from a system of all these protections to no protections at all seems like the wrong answer to various concerns.”

James Sherk, who served as special assistant to President Trump for domestic policy and was the architect of many of the former president’s most controversial workforce initiatives, including the three executive orders seeking to make it easier to fire federal workers and reduce the role of unions at agencies, as well as the Schedule F directive, said the measures were needed because it is too difficult to fire federal employees. He chafed at “uninformed coverage” that Schedule F conflicted with the 1883 Pendleton Act that first set up the nonpartisan civil service, arguing falsely that Schedule F only affected policies related to how federal employees are fired.

“This coverage was precisely backwards,” Sherk said. “Schedule F returned us to the foundations of the merit service: apolitical hiring, and then expeditious removals when necessary. There were far greater removal protections for Schedule F employees than the Pendleton Act provided.”

But counter to Sherk’s claims, in addition to stripping existing General Schedule employees of most of their civil service protections, Schedule F also allowed agency leaders to bypass the competitive merit-based hiring process.

“Pursuant to my authority under [Title 5 of the U.S. Code], I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the federal service of a confidential, policy-determining, policy-making or policy-advocating character,” Trump’s executive order stated. “These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive service selection procedures.”

Sherk also accused federal employee unions of acting as an “insurance policy” for poor performing employees to avoid being removed from their positions. He cited the statistic that only around 20% of non-Postal Service employees are union members, although federal employee unions are required to represent all employees in their bargaining units, regardless of whether or not they are dues-paying members.

“That’s why they react with such horror whenever you try to make it easier to fire federal workers—it undermines their value proposition,” Sherk said. “Their sales pitch is, ‘We’ll make sure they can’t hold you accountable.’”

American Federation of Government Employees National President Everett Kelley bristled at the accusation, and argued that many of the problems associated with disciplining poor performers actually result from poor training of and performance by managers.

“Excuse me if I have a hard time taking lectures on performance from the administration responsible for the terrible pandemic response that has left 500,000 Americans dead,” Kelley said. “The problem is not the system, the problem is management. If you take the time not to be lazy and document the actions of a poor performer, it’s very easy to fire someone. If you document someone coming into work late 10 times in a row, nobody can argue that. If someone is working on their private business during duty time and you document it, no one can argue that. I, too, believe that’s poor performance.”

Republicans on the committee frequently referred to the annual Federal Employees Viewpoint Survey, where the Trump administration made modest gains in employee satisfaction its first three years, as proof that federal workers actually preferred Trump’s workforce initiatives.

“According to FEVS, job satisfaction rose during the Trump administration,” said Rep. Jody Hice, R-Ga. “Federal workers, by their own admission, were happier to work under Donald Trump than under Barack Obama. So clearly, they did not view the Trump administration as trying to dismantle the federal workforce, just the opposite.”

Lachance said that while it is “hard to argue with data,” one should not make such sweeping conclusions.

“A survey can’t ask the opinion of people who have left, who have been demoralized, or who have given up, so they’re probably not filling out the survey at all,” she said. “I’m not surprised that satisfaction increased over four years. When a new administration comes to power, there’s always a lot of concern on both sides—who are these new people, are the civil servants going to be loyal to the past administration? But over time humanity comes to play and people get to know each other . . . Over the last administration, I’m just sorry that the level of trust and cooperation exemplified by those FEVS results never reached the White House.”