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Firing bad federal government workers should not be difficult
Trust in the federal government today sits at the lowest it has been in two decades. A dismal 35 percent of Americans said they have a "great deal" or "fair amount" of trust in the federal government, according to a recent national poll. One of the consistent drivers of the ongoing lack of faith in government, regardless of which party is in control of Congress, is the bureaucracy in Washington and the workers who never seem to leave, even when they are clearly incompetent or have broken the public trust.
A significant hurdle to getting rid of bad federal employees is the Merit Systems Protection Board. The agency was originally created to ensure the effectiveness of human capital in the federal government, but it has since metastasized into a institutional nightmare that makes it almost impossible to fire any worker for any reason. Through the early 1880s, the federal civil service operated under a spoils system by which the winning political party gave civil service jobs to its supporters. This system caused large numbers of government employees to be replaced every time there was an administration change, and it led to an insecure federal workforce.
It routinely drove thousands of job seekers to Washington who believed they were owed a job based on their political support of the president. The spoils system was abolished after the assassination of James Garfield by a disgruntled federal job seeker. Reforms were enacted over the years to establish principles for handling federal employees and adjudicating appeals of removal. The Merit Systems Protection Board was created in 1978 as an independent authority to manage federal employee appeals of furlough, suspension, retirement, and removal decisions. It can develop its own legal procedures, call witnesses, issue subpoenas, and enforce the compliance of federal agencies with its internal decisions.
Of the two million federal employees within the jurisdiction of the Merit Systems Protection Board, around 200,000 leave the government each year, but only about 10,000 are removed for performance or misconduct reasons. The rest retire, resign, or finish a temporary appointment. This raises questions of whether the Merit Systems Protection Board holds federal employees accountable for misconduct and bad performance. About 41 percent of the permanent federal employees fired were still in their probationary periods from 2000 to 2014. This is not acceptable.
The Merit Systems Protection Board has administrative judges who hear federal employee appeals. The decisions can then be brought before the agency for a final ruling. But since 2016, there has been only one sitting member, Mark Robbins, whose term expires by next month. Attorneys for the Justice Department have said that the Merit Systems Protection Board could be operating illegally once Robbins leaves. The agency would then be forced to dissolve, thereby removing one of the major impediments, however imperfect, to greater accountability in the federal civil service.
As the clock ticks, Congress should take the opportunity to fix the Merit Systems Protection Board. The administrative law judges at its regional offices have had an atrocious track record. In 2014, during a nationwide scandal at several Veterans Affairs facilities, a secret patient wait list was discovered at a Veterans Affairs medical center located in Kansas City. An investigation led to a scheduling clerk failing to properly fulfill her job responsibilities. She was initially put on administrative leave pending the outcome of the investigation and was eventually fired. She appealed to an administrative judge who sided with her and allowed her to keep her job.
The Merit Systems Protection Board has argued that its lack of firings for misconduct and poor performance is a good sign. In 2017, the agency issued a public report that said the "number of employees removed for poor performance should not be used to measure" its commitment to "properly managing the performance of its employees." Because federal employees receive taxpayer funded salaries, each worker should be held to the highest standards. The Merit Systems Protection Board has become a roadblock to accountability and a more competent federal workforce.
As an alternative to appealing cases related to job performance to the agency, decisions can be challenged in federal court. This would provide federal employees with the same legal avenue as disgruntled private sector workers and would be a better venue to hear these appeals. If the Merit Systems Protection Board is dissolved, there would be much faster and fairer decisions on job performance within the federal government.
Tom Schatz is the president of Citizens Against Government Waste.