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After more than a century of building safeguards against conditions that once sparked a nationwide crisis of faith in the federal government, Congress has started a process that could allow at least part of the federal government to disassemble those safeguards. Among other recent changes to the civil service, Congress has authorized the Department of Defense and the Department of Homeland Security to diminish the quality and nature of the due process protections for more than 800,000 civilian officials. New personnel systems for these employees are just now taking shape, with the Jan. 26 issuance of final regulations by the Homeland Security Department and the Feb. 14 issuance of proposed regulations by the Defense Department. Some in Congress contemplate extending the same authority throughout the government, possibly as soon as this year. Fears about the consequences of this shift away from due process protections reflect more than a mere policy disagreement on the part of career managers and staff on the one hand and political appointees on the other. At stake is the extent of continued public trust in the impartiality and integrity of public officials whose actions increasingly affect aspects of every American’s life. LAW AND MERIT Below the political layer of the federal government, which sets policy, thrives a career civil service, which does the work of government. At issue are the influences that affect this career civil service. Unlike countries where bribes are expected and personal connections are necessary in governmental dealings, citizens of the United States expect that the government’s decisions will be based on law and merit. To the extent possible, we guard against any improper influences in government operations. One of our most effective tools for ensuring that governmental decisions are based on merit is the corresponding requirement that the civil servants who make those decisions are judged solely on merit. Loss of this requirement opens the door to influences on government operations that have nothing to do with the public interest. It is precisely this safeguard that could potentially be diminished by these new personnel systems. The statutory structure underlying due process in the civil service establishes merit systems principles and prohibited personnel practices, which amount to more than a statement of aspiration for principled leadership. These laws lay down rules for what the government must do and must not do with respect to the employment of individual civil servants. The core value in these laws is that all personnel decisions must be based on merit. The structure expressly safeguards individual officials from retaliation for reporting violations of law, abuses of authority, dangers to public safety, dangers to public health, and gross wasting of appropriated funds. It also protects employees from unlawful discrimination based on factors such as race, gender, national origin, and age, as well as from other forms of favoritism, such as promotions based on misplaced loyalty to individual leaders rather than to the public interest. These protections have teeth because the Merit Systems Protection Board, an independent executive branch agency, has jurisdiction to enforce them. The MSPB ensures that the major personnel actions of federal agencies are genuinely based on merit, evaluating whether charges are supported by the record and whether penalties exceed the bounds of reasonableness. This watchdog is successful beyond the cases it hears because the potential for the MSPB’s review stems abusive practices and creates an environment where such practices are less likely to occur. At the same time, a federal agency’s burden before the MSPB is not onerous. The standard of proof in employee misconduct hearings is just a preponderance of the evidence, and an agency need only show that the charged misconduct more likely than not occurred. It is even lower in performance cases, in which the board gives an agency the benefit of reasonable differences of opinion and requires that a poor performance charge be supported only by substantial evidence. The MSPB reports that it is able to close cases in an average of 96 days, and the government can take an employee off the payroll while a case is pending. In emergencies, the employee is not even entitled to advance notice. As to overall outcomes, the MSPB reports that it sustains agencies’ personnel actions in roughly 80 percent of its hearings. ATTACKING THE MSPB Notwithstanding this record, the MSPB has been under assault since Congress passed the enabling legislation for the Department of Homeland Security in November 2002. Congress has now granted the Department of Homeland Security authority to replace board appeals with an internal review process. This process is intended to preserve minimal due process, but it potentially eliminates outside review of employees’ claims of improprieties. For now, the department has decided to subject itself voluntarily to the MSPB’s continued jurisdiction over most types of major personnel actions, but the department has imposed certain restrictions on its employees’ appeals that will diminish the likelihood of the MSPB reversing a disciplinary action. Carving out a significant exception to the MSPB’s authority, the new Homeland Security regulations also create an internal appeal process for disciplinary actions based on certain categories of offenses, and it remains to be seen what categories of offenses the department will designate for this process. The department also continues to have the authority to opt out of the MSPB’s jurisdiction altogether. Having received similar statutory authority, the Defense Department has just issued proposed regulations that will retain MSPB appeals, but with a twist. If an MSPB official overturns the department’s disciplinary action, the Defense Department can invoke a national security exception and overrule the MSPB official. Following such action, an employee can seek appellate review by the full board at the MSPB. However, the Defense Department’s proposed regulations would lower the standard for the MSPB’s final review to a substantial evidence standard, in place of the preponderance-of-the-evidence standard the MSPB has always employed for misconduct cases. The unanswered question is how this potential reduction of procedural protections, including the elimination of fully independent review for some offenses, will ultimately impact the impartiality and integrity of government. Federal officials are subject to standards of conduct that are stricter than those imposed on their private sector counterparts. They may not, for instance, accept courtesies that are commonplace in the private sector, and their personal financial holdings are subject to rigorous divestiture requirements unlike anything in the private sector. Enforcement can be tougher, too, with entire agency offices devoted largely to investigating allegations against employees. Balanced against such restrictions and investigations are the due process protections that prevent abuse. The coupling of these protections and restrictions was formalized in the late 1970s, when Congress enacted the Civil Service Reform Act in the wake of Watergate, but their origins date back much further. SPOILS SYSTEM These civil service protections are logical outgrowths of bipartisan revulsion at the excesses of the “spoils system.” When Andrew Jackson was president in the 1830s, there were only about 20,000 federal employees and the work required few skills. The entire workforce faced possible replacement at each election, and newly installed politicians doled out jobs to reward campaign workers, donors, and party operatives. Corruption flourished under a de facto patronage system through which applicants were known to pay for government posts. The 1881 assassination of President James Garfield by a mentally unstable political supporter who failed to reap any spoils of that victory turned the tide in favor of reformers who wanted to create a meritocracy in the federal government. Two years later, Congress passed the Pendleton Act, which established a merit-based civil service system. Over the following century, the meaning of the merit principles underlying that system has been fleshed out through legislation and executive order, with appeal rights for veterans dating back to the 1940s and appeal rights for nonveterans dating back to the 1960s. BACK TO THE PAST Now, after more than 120 years, Congress is considering allowing the civil service to drift back to earlier times when federal employees lacked these rights. In November 2002, when Congress passed the legislation involving the Homeland Security Department, the Government Accountability Office cautioned Congress against further enactment of laws allowing personnel flexibility to additional agencies until a “business case” is made for such flexibility. The GAO added that most agencies are not fully using the flexibility that already exists. While GAO struck the right chord by signaling caution, a business model is not necessarily the right model in connection with inherently governmental activities. Discarding due process protections in favor of a private business model jeopardizes the public’s confidence in the integrity and impartiality of decisions by career officials. Unlike business decisions, governmental decisions must be made in the public interest. In this context, the abridgment of due process is unlikely to enhance either efficiency or effectiveness. Instead of inspiring excellence, it could foster a risk-averse workforce of officials whose responsibilities are inevitably risky. As a result, officials may factor into decision-making the threat of being penalized with disciplinary actions for any decisions that may later prove unpopular. The inability to have a full and fair review of those disciplinary actions will affect not only the decision-making process, but also the likelihood that an unfounded action will be proposed against an employee. The very worst of dire predictions is probably premature, especially since the initial trend seems to favor keeping the MSPB for most Homeland Security and Defense employee appeals. Even at the height of civil service protections, it was not unheard of for political appointees to choose outside acquaintances over experienced career officials for senior nonpolitical posts and for other abuses motivated by partisan politics to occur. We should be mindful that the federal government enjoys a good reputation for impartiality because its institutions are solidly based on a respect for the law and the merit system. As the Departments of Homeland Security and Defense implement their new personnel systems and as the rest of the civil service prepares to follow, the role of the MSPB should be fully retained to ensure the independence and thoroughness of review that provides integrity and credibility to our government. William L. Bransford is a partner in the D.C. firm of Shaw, Bransford, Veilleux & Roth. He represents federal executives, managers, and employees. Walter M. Shaub Jr. is an associate at the firm. The firm’s Web site is www.shawbransford.com.

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