Unscrambling Federal Merit Protection

• Author: Major John P Stmson
• Pages: 03

I. Introduction

Career federal civil servants enjoy a wide range of job protections. They obtain their jobs based an merit rather than political patronage;' they can gain tenure, after which they may be removed or disciplined only for such cause as will promote the efficiency of the federal and civil rights laws protect them from job dis-crimination based an race, color, national origin, sex, religion, disability, or age.3 Until 1919, federal employees looked to the Civil Service Commission (CSC) to safeguard all these rights.

Civil Service Reform efforts in 1978 focused on the CSC. President Carter'B Reorganization Plan Number l4 stripped the

.United Stated Yarme Corps. Currently assigned 88 Am~~iste

Counsel for

Labor and Employment Law, Weatern Area Counsel Office. Camp Pendieton, Cahforma B B A,, with distinmmn, 1901, University of Michigan, Y.B A,. 1906, Golden Gate University, J.D, magna cum laude, 1909, University af Michigan, LL.M , with distinction, 1995, Geargetarn Uniueraity. LL.M.. 1990, The Judge Advmate Generd's Schwl, United State8 Army Tiva eliiele WBB baled on B written disaemtion that the avthor subnutted to satisfy m part, th8 Master of Laws degree for the 44th Judge Advocate Ofieer's Graduate Courae, The Judge Advoeate Generals School, United Stateahmy, Charlortesvdle, Yrgulia.

She Lloyd-LsFollette Act pronded far employees m the eompetibve service togam tenure Act of Aug. 24, 1912, ch 309, S 6.37 Stat. 539,656 leod6ed as amended at 5 U.S C. 6 7513 (19941) Certain erceoted sewne emolovees eslned comwtlhve-aedee equivkent tenure opportvnihes f&ouulg the Vet&& RGerence Act'of 1944, Pub L. No 78-359 50 Stat 337. The Cinl Semee Due Praeas Amendmenb. Pub L

8See Eqvd Employment OpprtunlW Act of 1972. Pub. L No 92.261. 86 Stai. 103 lamendmg title Wl of Civil fights Act of 1964 by addmg maion 717 protectmg federal employees and apphcants from dmnmmsbon based on race, color, relipon, 88% 07 national onon): Age Dmnmmauon m Employment Act of 1967, Pub. L. No 90.202, 81 Stat 602 (pmrecring employees age 40 and over from d~asrrrmnahan on

the baeis of age). Act (If No". 0, 1978, 92 Stet 2982 (amendmg Rehabllitarion Act of 1973 u, prohbit dmerirmnatmn on the basis ofdaabhty).

4Reorganiiatlon Plan So 1 of 1978, 3 C.FR. 321 (19701,repnnred zn 6 C S C.

app at 1574 119941, and in 92 Stat. 3791 (1979) The Reergamlabon Act of 1977. h b L. No 95-717, 91 Stat 29, authorized the Resident to prepare imrgarn~anon plans. submit &em to both House8 of Congress for revmv,, and implement them absent B

CSC of 113 reeponaibility far federal sector equal employment oppartunity programs. policies, and complaints, and transferred that jurisdiction to the Equal Emplo!ment Opportunity Commission [EEOCl Reorganmatmn Pian Kurnber z5 effectively eliminated rhe CSC,6 and. m conjmction with the Civil Service Reform Act of 1978' ICSFAI, diatrihured the remaining functions between the new Office 01 Personnel SIaragementa ,OP?.g?r and .\lent Systems Protection Boardg (IISPB, The CSRA also established a statutory hams for union representation of federal created the Federal Labor Relations Authority (FLRAI to administer and enforce the labor relations statute.L1 and authorized represented employees to pursue discrimination complaints and other employment disputes through negotiated grierance procedures l2 The reorganiiahan plans and the CSFA dispersed authority and responsibility that the CSC had accumulated over the previous ninety-five years

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%Ion orarganliaflan Id

'Cnll Senice Rehrm .&if of 1918 Pub L No 95.454, 92 Stat 1111 codified as

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amended Seriire Relorm Arl of 1978 Pub L Po 95 154. 5 201, 92 Sfat 1111, st rca!tered iec:iana of5 U B C I

1119.21

81d 5 202 92 Star 1121-31

DThe Lloyd LaFollette Act firit authorized iederal employee8 to jam unions

L Rri 169 116-66 11990) ldescribing the pro-CSR4 history

*farm Act of 1976. Pub L Xo 95-454, 55 701.704, 92 Stat tiie Order 11.491 spread pnmery enforcement and sdminis-e% among the Assistant Secretary ai Labor ior Labor- rimeratime' Exec OrderYa 11191,§4 3CFR 66111966.19701

1211 1213

12Ciill Sewice Reform Act of 1976. Pub L So 95-454 5 701, 92 Slar 1111,

What inspired such dramatic change? President Carter established the Personnel Management Project in 1977 to undertake a comprehensive ieriew of federal employment Kine task forces studied all aspects of the civil eerwce, including personnel management organization and functions, employee disputes processes, labor relations, staffing, performance evaluation, pay and benefits, and employee development Task force recommendations became the basis for President Carter's reorgannation plans and his proposed reform legislation 15

Task force findings articulated concerns about the state of the federal cwil sewm Nixon Admimstratmn efforts to stack the career civil service with political allies had created doubts about the integrity of the merit system.16 The CSC's responeibhtiee as the personnel policy arm of the executive branch undermined Lts credb bility as an impartial adjudicator of employment disputes A ''bewildering array of complex protective procedures" presented a burdensome obstacle for employees with ]estimate claims while providing "refuge and protection [for] the incompetent and the problem employee ."18

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'BLOlne poinl %ab 'en much I" the minds ai eenm personnel people and program manager% at the Lime ofthe reform That -8s the fact that *e had recently emerged from the Watergate penad dvrmg uhich the mfegnly ai the career iewm WBJ heady undermined by a ryriemafir pditicsl B J J B Y ~ ~

The magnitude ai that BPIBUI~exceeded anything that

we had seen ~n many years. and the full story of this has really never been told lhe 8fory lor example, about the excent 10 which the Uhle House used 'must hire' list6 LO lome people om agenc~es Their pnmpal obieelwe UBS the gaining oieonfrol over the cmer rewm uilh agency

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J SLGWAXA. PROTCCI~C

THE I N T E G R I ~

OF THE MFR~T

Reformers sought to eliminate organizational conflicts of inter-est. simplify procedures, expedite cases. enhance effmenq and accountabhty. and ''[aI1Iow c w 1 servants to be able to be hired and fired more easily, but for the right As we approach the twentieth anmbersaly of these reforms, it is painfully apparent that they have not met expectations or goals

OverlappingiuriEdictlan IS more the mle than the exceptm for the potential combinations of the MSPB, the EEOC, the F L U and the negotiated grievance procedure Forum selection determines the relief and corrective mtmn available and the scope of administrative and judicial remew Procedures are inconsistent and confusing, and delay infects administrative processes. Representatives from both labor and management express dissatisfaction with the status qua. albeit from direrent perspectives 2o

The exit from this procedural quagmire E a return to basics wa the intersection of the mmt system and the civil rights laws The CSM, after all, considered civil rights part of the merit system

All employees and applicants for employment should receive fair and equitable treatment in all aspects of per-sonnel management without regard to political aftiliation. race. color, reli@on, national origin, sex, marital status, age. or handicapping condition, and with proper regard far their privacy and constitutional nghts.2'

.pS REI NO 969, 95th Cong. 2d SDSS 2-4 197BI. reprinted tn 1978

z"See. e B , Sireamlining Federal Appeals Pmedurea Hean L S C C A N 2723, 2724-26

Go~emmml

Roiorm and Ovrraighr 104th Cong, 1st Seas (Oct 26. 19951 lirsrement of Robert M Tobias. Ssflansl President. National Treasury Employee% Unionl iys-fem pmblems m e management's iault. me remod) 16 ta make the negotiated grieu- ble LO federal employee8

mend. or approre m y personnel action, shall not with respect io such axthonty- 11 d:scrmmate for or against an) emplojee 01 appl~anr for

on the b a s of race color, religion sex. or nations1 orwn, ndeisecrioni17oftheCiviIRighriirtaf19641~2USC

Discrimination-free employment 1s a merit principle The MSPB 1s the designated guardian of merit, yet the EEOC has juri$-diction over most federai employment discrimination complaints. Effort8 to share and balance power between the EEOC and the MSPB have undermined one of the primary goals of reform, which was to create a fair, understandable, and responsive system for resolving employment disputes.z2

Part I1 of this article describes the current organization and procedures for resolvmg federal employment disputes This discus-sion dustrates the overlap, compiexity, and delay designed into the present system. Part 111 traces the origins of this system and evalu-ates its performance in light of the concerns and policies that motivated reform efIorts in 1978. The MSPB has been a EUCCBSS; it IS fair, proficient, and efilcient within its jurisdiction. On the other hand, the EEOC complaints process struggles to deal with the flood offederal.sectar discrimination complaintszs that bog down in the very procedures for which the reformers criticized the CSC. Artificial dm. tinctions between discrimination complaints and other merit cases exacerbate the problem, with ill.advmd jurisdictional boundaries creating the sort of complexity, overlap, and delay that inspired the 1978 reforms. Meanwhile, arbitrators, deciding the same types of cases as the MSPB and EEOC, operate with greater powers than administrative judges and administrative law judges (ALJI, and in certain cases enjoy unwarranted insulation from administrative and judiciai review.

(0) on the basis of age. as prohibited under reetions i2 and 15 af the Age Discriminstian in Employment Act of 1967 129 C S C 631, 633a), (C)on the basis of sex, ae prohibited under...