How Many Ways to Drain a Swamp?

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Hassan A. Kanu

Dec. 13 — President-elect Donald Trump’s calls to “drain the swamp” seem focused on the highest offices in the federal government, like term limits for congressional members and lobbying restrictions for executive branch officials. But it’s likely there will be attempts at a major overhaul of the federal civil service during his administration.

Trump has sent signals that he intends to shrink the size and reach of the federal government generally. A number of federal labor practitioners and a public policy professor interviewed by Bloomberg BNA all said they expect attempts at major reform of the federal civil service over the next four or more years.

Lawmakers have made proposals, and stakeholders expect them to try to make it easier to fire government workers, to curtail their benefits and to reduce the number of federal employees through hiring freezes and attrition.

“It’s fair to say federal employees have a big target on their back, and the Republican Congress, perhaps even more so than the President-elect’s administration, is going to be aiming at that target,” Washington, D.C., federal employment lawyer Joe Kaplan told Bloomberg BNA. Kaplan is a founding principal of Passman & Kaplan P.C.

Would Reducing Number of Employees Cut Spending?

There’s an “overarching sense that the bureaucracy is too large and unresponsive,” Don Kettl, a professor at the University of Maryland’s school of public policy, told Bloomberg BNA.

Republican lawmakers and conservatives have for years bemoaned the size of the federal government, which currently has about 2.1 million civilian workers. But the concern over a too-large government may be misguided, Kettl said.

“If you asked people on the street whether the number of government employees has gone up or down, almost anyone would say it’s exploded, but in fact it’s about the same size as during the Kennedy and Johnson administrations,” Kettl said. “The number of federal employees is about the same; it's the amount of money we’re spending that is, of course, much, much more.”

If lawmakers want to tackle the issue of an oversized government, the driver isn’t the number of employees but how government funds are spent, the professor said. “If you start slashing away at capacity, you run the risk of having a government even more out of control, so we need to be careful that we take aim at the right problems as we try to implement reform,” he said. Kettl is a senior fellow at the Partnership for Public Service and the Brookings Institution and has written several books on this issue.

Hiring Freeze Proposed

The president-elect has already proposed shrinking the size of the government through attrition and a hiring freeze, and he can effect such a policy by executive order.

It’s likely that a hiring freeze will indeed be enacted, with exceptions for the intelligence agencies, the Departments of Veterans Affairs and Defense, Peter Broida, a civil service attorney in Arlington, Va., said. Broida has written several legal treatises on federal sector law and provides training to federal agencies.

The strategy comes with other drawbacks. Federal agencies currently have more information technology workers who are older than 65 than they do under the age of 30. A hiring freeze could hamper the government from improving efficiency and skill in certain vital areas.

A freeze also “comes into conflict with the question of how government does its job better,” Kettl said. “The more you focus on shrinking and firing, the harder it is to motivate people inside or to get the workforce you need to accomplish what you want.”

Easier to Hire and Fire

“What’s going to be very interesting in the next couple years is the incoming administration’s approach to how the civil service is hired and fired,” Broida told Bloomberg BNA. Trump’s incoming administration has taken the position that it should be easier to hire and fire federal workers. Conservative lawmakers had taken up the issue of the arduous process of firing federal employees long before the election.

There are laws that protect federal employees from discrimination or retaliation for exposing wrongdoing; federal workers also have significant rights to appeal discipline or termination to administrative boards and federal courts. This allows employees who suspect they are disciplined or fired unfairly to challenge such actions. The appeal process is often time-intensive and sometimes expensive, and the Trump administration could well attempt to enact some major changes.

“All the appeal rights federal workers have are by statute, and with both houses of Congress, the White House and the Supreme Court leaning Republican, it really depends how far they want to take this,” Washington, D.C., federal practitioner John Mahoney told Bloomberg BNA. It’s “theoretically possible” that the incoming administration could repeal the civil service statute and start from scratch to reform termination and appeal rights.

“Is it practically possible? That’s less clear,” Mahoney said. “It’s certainly not the highest priority of the administration, but it's something the Republicans in Congress has been kicking around for a while.”

Return to ‘Spoils System’?

Congress passed a bill this year that gave the secretary of the VA the power to fire senior executives and limited employees’ right to appeal. A provision in that legislation that makes an administrative judge’s decision on appeal final—instead of vesting final deciding power in the presidentially appointed Merit Systems Protection Board—is currently being challenged on constitutional grounds in federal court. The Justice Department said it wouldn’t defend against that challenge, saying a regular federal employee can’t have final authority to fire without review by a politically accountable officer of the executive branch. The case is ongoing.

Another bill—part of a defense authorization bill that took effect in November 2015—extended the probationary period for Department of Defense workers from one year to two years. Probationary workers are essentially “at will” employees with few protections in the event of discipline, whether warranted or not.

Kettl said there’s likely to be a much more “sweeping and far-reaching effort” to expand these sorts of policies to the rest of the government.

But there’s a risk of overreach that “could potentially return the government to a political spoils system,” Mahoney said. This would mean “positions are filled by people who pay for it, and are politically beholden to the administration and can be fired at will for political reasons.”

Avoiding those problems in the federal workforce “is part of the reason the [Civil Service Reform Act of 1978] was passed in the first place,” he said.

Unions Will Be Targeted

Republicans have also indicated a desire to curtail federal workers’ rights to collectively bargain and to unionize.

Kaplan noted that many of these rights started under President John F. Kennedy’s administration and were strengthened during President Richard Nixon’s administration, all by executive order.

“That’s been a bipartisan matter for 55 years or so, but looking at this administration’s appointees so far, and looking at the kind of anti-federal employee sentiment in the Republican Congress, it could well be that they’ll seek to curtail collective bargaining rights as well,” Kaplan said.

Past Efforts Failed or Were Insignificant

Civil service reform isn’t a new idea. The Partnership for Public Service and management consultant Booz Allen Hamilton issued a detailed report and plan for civil service reform in April 2014. President Barack Obama in 2011 called for a commission to study the matter, and the George W. Bush administration attempted to revamp the federal personnel system.

The last effort that actually produced significant change across a broad swath of the federal workforce was in 1978, during the Carter administration, Broida said.

“The Civil Service Reform Act has certainly been amended—there’s been several whistle-blower amendments, for example—but the structure has been around for a long time,” Broida said. “People have been able to look and say this has worked well or that hasn’t, but it hasn’t been considered for serious restructuring by any incoming administration, and I suspect now might be the time.”

Most of the past efforts at major reform didn’t go very far, largely due to the “whole set of real complicated and interrelated issues” that surround the federal employment system, Kettl said.

If appeal rights are curtailed, for example, by shortening the period the worker has to file an appeal and for the administrative board to review the petition, a question arises about the administrative board itself.

The board has been understaffed for years, so a policy that it should process appeals faster raises a question of whether it needs to be larger—in other words, whether to increase staff.

“There are very tough questions here, and in practice they have tremendous impact on the ability of any administration to go down this road,” Kettl said. “If we’re really going to be thinking about how to get government to do its job better, then we have to be thinking about what kind of job we want it to do and how best to do it.”

“The real trick here is the people who evaluate this have to have some idea how the system is structured before they make changes, and there’s critical nuances,” Broida told Bloomberg BNA. “I hope the incoming administration has a sense, and I think they will, to realize there’s more to this than what they know and to get more information from people within the system they might want to restructure.”

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law