New Executive Order Seeks to Reduce Worker Turnover on Service Contracts

In his article on the critical debate over the future of the federal workforce, Donald Kettl argues that despite disagreeing, Sherk and Howard have nonetheless laid out important problems in the civil service largely ignored by their opponents on the left. Too often, the public service has become the front lines of a proxy war over the size, shape, goals, and performance of government itself. This debate is not about how to use the public service to fight partisan right v. left partisan or ideological battles. If we disagree about those mega-issues, we ought to contest them directly, instead of fighting them out over the desks of those who go to work trying to do the public’s business. What matters most is creating a system that improves the government’s ability to do the public’s work. 

 In October 2019 Former president Trump signed an executive order to make it facile to fire federal workers. When President Biden, in January rescinded that executive order, some were relieved that federal workers were protected from political impinging. While others were despondent, they could no longer fire poor performers. The critical debate over the future of the federal workforce raised questions among right reformers. Questions that speak to the character of administrators in our constitutional system of governance and, indeed, the Constitution itself. The debate isn’t being joined by the left, besides blocking efforts to cut the number of federal employees. However, both sides are missing the important matter: how to make provisions in the federal government, so that services can be delivered to the public in the best way possible.

 Right reformer Philip K. Howard’s on his Op-ed in USA Today argued that “Public union power is largely an accident of ancient history.” and guaranteed a “Republican Form of Government”. In other words, “elected officials lack the ability to run government.” Trump administrator official James Sherk developed the details of Howards theory in a memo written in 2017. He argued that “There are legal arguments that Article II executive power gives the president inherent authority to dismiss any federal employee.” that created the legal foundation for the president to issue an executive order to dismiss any federal official without cause.

 The schedule F debate is far from over, pressing at state level. These arguments compound to create a true constitutional crisis about the ability of voters to shape government through the decisions of the people they elect. Since the dilemma won’t subside, we need to dig deeper into the four problems at play: the constitutional debate; the question of firing feds; the problem of accountability; and the challenge of agile government.

Sherk and Howard’s contention based on Article II of the Constitution that holds that the executive power should be vested in the president. It so profoundly happens that the article they cited does not say what they say it says. That part of the Constitution was vague, and the founding fathers were far more concerned with creating the chief executive that they knew and ensuring that the power of the president could be checked by the other branches. In Federalist 70, Alexander Hamilton wrote about the president’s connection with citizens, the power to appoint ambassadors, and his power with respect to the legislature. There’s nothing about the ability to fire federal employees. In truth, the founders didn’t explore how to remove federal bureaucrats.

“At the center of the case for a radical change in the civil service system is the argument that, over time, it has evolved from a system that hires the best and brightest to one that protects the lame and the lazy.”  The protections provided to employees has evolved since the 2,600-word long Pendleton Act in 1883. Title V of U.S Code that contains the regulations to administer the civil service system, is more than 1,000 pages. The current merit system covers 80% more feds than the original act. Title V, in fact, covers only half of all the federal employees. There’s a very important discussion to be had about the need to figure out which policies ought to apply to all feds and the agencies they work for, and what flexibilities ought to be allowed to agency managers. According to Sherk and Howard we do a poor job of managing federal workers performances even though there is an initial probationary period and long-established due process protections. This issue arose from the assumption about the private sector: that private managers can fire employees with less hassle and do so often. There aren’t any records of private sectors firing employees at a faster rate than in the federal government, but there are anecdotes about outrageous behavior by both private sector workers and federal employees.

There’s evidence that, during the Trump administration, members of the career civil service slowed, obstructed, or sometimes ignored the policies laid out by superiors to undermine the Trump agenda. They were understandably enraged, but more fundamentally it framed the central battle: how much authority political appointees should have in pursuing the president’s agenda, and what responsibility career officials should have in repelling on issues they believe are immoral or illegal. 

Trump administration officials are angst with their inability to force a policy agenda through a federal bureaucracy they viewed as obstructionist, at best. Scholars have uncovered substantial evidence that political meddling in the work of government would “reduce the effectiveness of government and increase corruption,” There are laws that stop federal employees from blocking the legal decisions of their political superiors, based on political differences. The issue here is how best to ensure that the federal bureaucracy acts professionally on the political choices made by voters. What the debate does not need is an executive order that hides the big questions in the fog of an ideological war. It needs an out in the open debate.

We need a way forward that builds a government and a merit system that fits the needs of the 21st century. Before the creation of the civil service system, the federal government was plagued by incompetence, corruption, and political favoritism. Mission matters most. The fundamental purpose of the public service is to do the public’s business. Merit is key. The basic principle of hiring people for what they know, not who they know, has been the foundation of the public service since the very start. So, of course, is the principle of separating people who don’t effectively serve the public’s mission. Accountability lies at the core. Like every other element on American government, we need effective accountability for public employees. Human capital ought to drive the pursuit of performance. Viewing government employees as the government’s most important assets and creating a system that finds and nourishes those most important to achieving its mission. 

When it comes to federal employees, it’s unclear about how much partisan bias there might be. In any event, every public servant swears an oath to serve the country, not their partisan beliefs. It’s time to shift the debate about the public service from partisanship to pragmatism: how best to accomplish the work of the people, with a workforce expert enough to do the job.

By: Tanezha Mingo