This article appeared on TheHill.com on June 4, 2018.
Civil service reform is long overdue, but you wouldn’t know it from the hue and cry over President Trump’s recent executive orders proposing modest reforms. These reforms, for example, would eliminate the ability of civil servants to file a grievance over the employee’s performance rating. It’s no coincidence that over 99 percent of federal civil servants received a rating of “fully successful” or better, according to a 2016 Government Accountability Office report.
The reflexive distrust to President Trump here is understandable. His administration’s demand for names of Department of Energy employees who worked on climate change, later disavowed, gives credence to fears of politically-motivated firings.
But the reactions by union officials that these executive orders are “democracy busting” are even less credible. By achieving a work culture without accountability — more federal officials die on the job than are dismissed for poor performance — unions have broken the chain of accountability on which democracy depends. “If any power whatsoever is in its nature executive,” James Madison observed, “it is the power of appointing, overseeing, and controlling those who execute the laws.”
Contrary to perceived wisdom about the sanctity of job protection, civil servants did not have tenure until the 1960s. Civil service was designed as a system of neutral hiring; it defanged the spoils system by eliminating political hiring of the rank-and-file. “If the front door [is] properly tended,” as a civil service reformer put it, “the back door [will] take care of itself.”
The only protections against termination were a) to guard against politically-motivated firings (the Lloyd-LaFollette Act of 1912) and b) to protect quasi-judicial officers from executive meddling (the 1935 Humphrey’s Executor decision). Otherwise, as the leading Supreme Court decision held, the president had “the exclusive and illimitable power of removal” of executive branch employees.
This all changed in 1963 when, as a payback for public union support, President John F. Kennedy in Executive Order 10988 authorized collective bargaining. Congress in 1978 then imposed collective bargaining upon the president as a statutory obligation. The Supreme Court never has been asked to rule on whether Congress had constitutional authority under Article II — which states, “The executive power shall be vested in a President” — to effectively remove executive power over personnel performance. An attorney general’s opinion at the time of original civil service reform stated that Congress could not so restrict the president’s authority.
The harm of unaccountable civil service is not lots of shiftless people, but an enervated public culture. No accountability corrodes the spirit of organizations because it eliminates the trust that co-workers will do their share. Energy fades as it becomes clear that it doesn’t matter what you or anyone does.
Without accountability, the only other tool for managing personnel is dense rulebooks, so suffocating bureaucracy is layered on top an already-dispirited workplace. By making civil servants “virtually impregnable” to accountability, Congress might as well have put nerve gas into public offices.
It didn’t take long for the nerve gas to take effect. A 1989 report by the Volcker Commission on Civil Service found a “quiet crisis” in federal civil service, characterized by “an erosion of performance and morale.” The commission found that seven of 10 federal employees who witnessed fraud, abuse or waste did not even bother to report what they saw. A second Volcker Commission in 2003 found deep resentment at “the protections provided to those poor performers among them who impede their own work and drag down the reputation of all government workers.”
The original idea of civil service remains valid — to create a “merit system” where civil servants are hired and retained based of performance. But the current system, as the Partnership for Public Service has concluded, is “a relic of a bygone era.” Attracting good people requires giving them real responsibility, not making them clerks on a bureaucratic assembly line. No one will give officials responsibility, however, unless they can be accountable if they abuse it.
Distrust is the main hurdle to reforming civil service. Personnel decisions require judgment, not objective proof. How do you prove who doesn’t work hard, or isn’t cooperative with co-workers, or is mean-spirited? Someone must make those decisions, and Trump’s appointees are unlikely to be trusted. Union officials defend current procedures as being “just a matter of due process.” But due process is an impenetrable barrier because it puts the burden on the supervisor. Can you prove that this person is so much worse than anyone else? In a public service that aspires to A’s, due process protects people who get D’s and F’s.
Our quandary is this: No president until Trump has been willing to take on public unions, but Trump lacks the trust to achieve the bold civil service overhaul that’s needed. How do we square this circle?
Trump should appoint a small outside committee of credible experts to recommend an entirely new framework for civil service, including a mechanism for safeguarding against vindictive personnel decisions. The president, in my view, can then assert his executive prerogatives to remake civil service without congressional approval. Credibility is key. A serious new framework, proposed by respected experts and implemented by an aggressive president, might actually achieve what no one thought possible — to restore honor and purpose to public service.