CIA AND THE CIVIL SERVICE REFORM BILL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00142R000400010020-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 79
• Document Creation Date: December 12, 2016
• Document Release Date: August 24, 2001
• Sequence Number: 20
• Publication Date: April 7, 1978
• Content Type: MFR

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7 April 1978
MEMORANDUM FOR THE RECORD
Office of General Counsel
SUBJECT : CIA and the Civil Service Reform Bill
1. The purpose of this memorandum is to summarize exactly where CL
stands at this point in time vis-a-vis the recently introduced Civil Service
Reform Bill.
2. The Agency first received a draft of the Civil Service Reform 3 it i fr,
our official comments on 9 February 1978, with a firm deadline of 17 Febru lr' 1978
set for the receipt of our views on the bill. Despite the short deadline. a 1Atcr
of response was developed by the Office of Legislative Counsel in coordina io
with the Office of General Counsel and the Office of Personnel. This respo s~
indicated in great detail the Agency's objections to every provision of the bill
which we felt would be inconsistent with, or could be construed to interfere x vi th
or impair, the special statutory responsibilities and authorities of the Ai er cv
and the DCI.
3. In addition to our written response, representatives of the Agency
vigorously made known our objections and concerns in the course of telepl-om
contacts with officials of the Civil Service Commission and the Office of Max apernent
and Budget at both junior and senior levels . In every instance, the Agenc-,r vas
assured that CIA would be completely exempted from the provisions of the bib _
Before the bill was introduced, efforts were made to obtain a copy of the amerded
version of the bill to study the language which was supposed to exempt the
Agency from the bill. By obtaining an advance copy of the bill, we felt that we
could make sure that the bill the CSC intended to introduce would complete y
exempt the Agency. However, we were informed that advance copies of thf- bill
would not be made available. Furthermore, we were once again assured that
the Agency was completely exempted from the bill.
4. After the bill was introduced, an Examination of its provisions re, ea i ed
that CIA had been given only a partial exemption from the bill. Although ce rt.u a n
language in the bill might be interpreted as exempting the Agency from portions
of the bill, we found this language unclear and confusing at best, and _upp-)rrive
of the Agency's inclusion in the bill at worst. A meeting was then arra_ng>eci v. i th
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Arthur Burnett, Assistant General Counsel, CSC, so that we could personal ly
present our problems with the bill as introduced, in a section by section analy-,us
of it, and ascertain to what extent the CSC intended to exempt us from the b 11
The meeting was arranged with Mr. Burnett because Mr. Burnett participated
in the drafting of the bill at CSC.
5. The meeting took place on 21 March 1978. I attended along with
of OLC. Tom Moyers, Legislative Counsel, CSC, also attended
We discussed the provisions of Titles I, II, 1V, V, and VI, and how they would
severely affect the Agency. Mr. Burnett indicated that the Title I exemptions
were meant to apply to the whole Title, but a mistake restricted the coverage ti'.,
one section of the Title. Mr. Burnett was then informed of our exemption from
all laws regarding preference eligibles when we discussed the provisions of
Title II. Also, it was agreed that if we were exempted from Title I, we .vou d
automatically exempt from the Special Counsel provisions of Title II. It was
acknowledged that the Agency would be exempt from Title II Merit Board Apps jl s
to the extent that it is now exempt from CSC appeals.
6. Regarding Title IV (Senior Executive Service) and Title VI, Mr. ; 3u ?nett
indicated that the bill had been revised to exempt us specifically, pursuant to
our official comments, but that the language of the bill was changed after the hill
left Mr. Burnett. However, Mr. Burnett admitted that though the Commissioners
had focused on exempting us from Title IV, the Commissioners felt that we ,)hc uld
be exempted under the general exemption of subsection (c) . It should be noted
that the Agency had always argued for a specific exemption by name to this T fie,
because the subsection (c) exemption would conflict with Agency and DCI
authorities. As for Title V, Mr. Burnett conceded that the bill gave the Ag,n, v
no exemption from this Title's provisions. The upshot of the meeting was t-ia
Mr. Burnett suggested that we write a letter to the appropriate Committees _A
Congress, requesting a complete exemption from the bill. While the letter 'vo id
have to be cleared by CSC and Mr. Burnett did not want to presume to speak ,or
the Commissioners, he felt that the Commissioners would not oppose a romple
exemption for us.
7. It was learned, subsequent to the meeting with Mr. Burnett, that
Alan Campbell, the Chairman of the Commission, would testify before Congre- s .
OLC, in coordination with OGC, prepared a set of materials for Mr. Campbell.
that would urge him to state for the record the intent of the CSC, as part of tht_
Administration's policy, to exempt the Agency from the bill. The materials w=_ re
designed to be incorporated in Mr. Campbell's testimony and included a fact
sheet describing the nature of the needed exemptions, a summary of the fact
sheet, and a statement to be read by Mr. Campbell which indicated a general
intent to provide the needed exemptions. On the day of Mr. Campbell's testimony,
Mr. Burnett assured us that our views had been cranked into Mr. Campbell's
presentation.
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8. Mr. Campbell testified on 4 April 1978 before the House Post Office _ind
and I were in attendance. The prepared statements of Mr. Campbell (at Tab 1.)
placed in the Committee record made no mention of the status of the Agency urder
the bill. Moreover, in the question and answer period, several exchanges
between the Committee and Messrs. Campbell and Sugarman indicated that -he.
attitude of the CSC on exemptions from the bill is still not settled. The excliai.ces
that follow are based upon notes made by me at the hearing.
Civil Service Committee, along with his Vice Chairman, Jule Sugarman.
9. During the first exchange, Representative Shroeder asked the purp_)se
behind allowing the general subsection (c) exemption in Title IV (SES). Mr.
Sugarman replied to the effect that the subsection (c) exemption was aimed at
the FBI, Foreign Service, and other excepted agencies, and was designed to be
granted on a temporary basis, until the President could get such agencies to
fully conform to SES. A surprised Representative Shroeder stated that this wa.
not the way she read the provisions of the bill. Like Representative Slroeder ,
I was surprised by Mr. Sugarman's statement of intent regarding SES exemptions.
Such an intent makes a specific Agency exemption by name more imperativf .
10. In the second exchange, Representative Harris asked generally abut
the exemptions of Title I. Again it was Mr. Sugarman who replied. He answered
to the effect that there was an intention to extend Title I coverage to all execute. e
agencies. Mr. Sugarman then noted that if an agency like the FBI had securiI v
problems, the problems should be brought to the CSC for resolution. I found
the possible application of this concept to Agency security problems alarming
11. The last exchange took place between Representative Taylor anc
Mr. Campbell. Mr. Campbell was asked how effective oversight could be
achieved over the decentralized personnel systems which the bill allows to be
created. Mr. Campbell responded to the effect that CIA, FBI, and the Fore gr
Service presently operate decentralized personnel systems and have done & fine
job. However, Mr. Campbell went on to state that now decentralized personnel
systems would be subject to careful auditing and monitoring by an outside entity.
It could easily be concluded that Mr. Campbell's intent is to extend the auditirn#
and monitoring provision of the bill not only to newly created decentralizes
personnel systems, but to existing ones as well.
12. In the day between the House and Senate hearings, Mr. Burnett
suggested that we could get a senator to raise the question specifically as to
whether it is the intent of the CSC to give the Agency a complete exemption. i'he
idea was workable except for the fact that Mr. Burnett indicated that he could
not say in advance what the answer of the Commissioners would be. The Sen,ste
hearings were conducted on 6 April 1978 before the Senate Governmental A.,-fa:--?s
Committee. and I were again in attendance. Besides Mr. Campoe
and Mr. Sugarman, the remaining Commission member Ms. Poston, and Jame.
McIntyre of OMB were also present to give testimony. Mr. Campbell placed two
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more prepared statements in the record (at Tab B), but they made no menJo
of the status of the Agency under the bill either. The question and answe.- l e~r?iod
proved uneventful.
13. Mr. Campbell has been invited to return to the House for further
testimony. I believe that it is necessary for this Agency to get on the reccrd
as a clear statement of Administration policy, that It is the intent of the CSC o
completely exempt us in order to preserve the integrity of the Agency`s mission
and functions. I plan to recommend that a commitment to make such a stater nt
be sought from Mr. Campbell by the DDA, or p rhap t e DDCI.
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ADDITIONAL ORAL STATEME:T ABOUT
H.R. 11280
BY
ALAN K. CAMPBELL
APRIL 4, 1978
I appreciate this opportunity to return to hese hearings on H.R.
11280 to explore further the provisions of hat bill and the relate.+
draft Reorganization Plan No. 2.
In reviewing our previous testimony on Marcl 14, I have found that wF
did not have a chance then to respond fully to some of the important
questions that were raised. If I may, I wo!Id like to mention brie;":
a few issues that we think warrant additional discussion or
clarification; then I would like to turn at'ention to some additional
areas of concern that have been expressed s nce the hearing.
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The first point I would like to discuss concerns the effect of
1.h. 11.280 on veterans reference in the civil service. The proposed
hanees have two basic objectives:
1. To focus the us.: of preference on the disabled and Vietnam
veterans, and
2. To reduce the .i:averse impact of veterans preference on women
ai d minorities.
have tried to balance-- the conflicting equities involved, realizing
that increasing opportutities for any one group necessarily reduce
H.R. 11280 is enactel, we estimate that over 3,000,000 non-disabled
veterans will continue .o be eligible for preference through 1981.
That number should be ~v i.ewed in the context that only about 150,000
,..iect-ions are made frog Civil Service Commission lists each year. If
these provisions are no adopted, an estimated 23,000,000 additional
:rut-disabled veterans U?!uld be eligible for preference in hiring. Most
at them are veterans of earlier wars, have already settled back into
c: ivil ian life, and are ess likely to need extra help in securing jobs.
That is why I believe sa stront.ly it is important to focus on the
disabled and the Vietn :i. era veterans.
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I think you should also know that the proposed changes in veteran's
preference fall far short of what women's organizations have urged.
POLITICIZATION OF CIVIL SERVICE
Several Members of Congress have asked whither the President's
proposals could, in future years, make the career civil service more
vulnerable to political intrusion and manipulation--in effect, to
return to a spoils system.
I think, on the contrary, that H.R. 11280 contains strong, positive
safeguards against such a possibility. A little later, I would like to
comment more specifically on that issue a:: it relates to the proposed
Senior Executive Service.
DISCIPLINING EMPLOYEES
Several Members have asked why managers in the Government find it so
hard to discipline employees. The procedure for firing an employee as
outlined in laws and regulations appears.simple and clear-cut on paper.
Nevertheless, the number of employees discpissed during a year is quite
low, and especially low when the reason i_~ poor performance.
The reason, I think, is the manager's well-founded fear of what will
happen to him or her and to the work unit in the event of an appeal
following an adverse action.
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The pattern includes long delays in resolving adverse actions, multiple
layers of appeal rights with very complex procedures and overlapping
appeals jurisdictions, putting the manager and his or her program on
trial, and, very often, disciplinary actions overturned on narrow
procedural grounds. The process is made even more difficult when the
proposed action is for poor performance because the causes for the
action are often more complex. To avoid all of that, managers
sometimes go to extreme lengths to avoid taking necessary actions
against employees, to the detriment of the morale and productivity of
the work unit and the Government as a whole.
H.R. 11280 proposes some important reforms in the appeals process, but
continues to assure that employees will have due process and protection
of their rights.
ADDITIONAL CONCERNS ABOUT THE PROPOSALS
These points and others relating to veteran's preference,
politicization of civil service, and disciplining employees warrant
more detailed discussion than I have attempted here. However, I have
an additional formal statement on these topics, and with your
permission, I will submit it for the record.
Beyond those issues, however, in the interval since the previous
hearing, a number of critical concerns have been expressed publicly
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about H.R. 11280 and the draft Reorganization Plan No. 2. I believe
these are important, and I would like to spend a few minutes to comment
on four in particular. They are:
1. The proposed Merit Systems Protection Board will not have
the mandate, the resources, or the degree of independence it
will need to prevent or stop abuses of merit principles.
2. Policies for the civil service system will be made by a single
official who is politically appointel and closely related to the
President's office; not by a bipartisan Commission.
3. The proposed authority to delegate examining functions to
agencies will lead to inefficiency, waste, confusion, and
political favoritism in examining.
4. The power of politically appointed o'tficials to transfer,
reward, demote, or remove career executives in the Senior
Executive Service will introduce political influence into the
whole career service and will stifle healthy disagreement based
issues affecting the public interest.
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MANDATE, RESOURCES, INDEPENDENCE OF MSPB
Let me comment first on the issue of the mandate and resources of the
Merit Systems Protection Board. This is really a question of whether
the Board will be strong enough to stand up to agencies, to the Office
of Personnel Management, and to the White House staff to prevent
politicization of the career service.
One line of thinking is that MSPB should have its own corps of
inspectors to review agency programs; that its budget should not go
through the Office of Management and Budget, and that its reports
should be sent to Congress as well as the President.
The mandate of MSPB will be found in the powers that are assigned to
the Board and to its Special Counsel. Under H.R. 11280, the Board and
the Special Counsel will have vastly more authority than the Civil
Service Commission now has to pursue prohibited practices in agencies
or in OPM, and to prosecute those who violate the rules of the system.
As for resources, the fear that OMB or an incumbent Administration will
withhold support from the Board so it cannot function effectively is
mere speculation without foundation in fact or knowledge of real
prospect. Any number of agencies with equally vital and sensitive
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programs could raise the same spector, with an equally slender
relationship to reality. A purposeful attempt to starve the Board
could hardly be kept from public attention or tolerated as being in tn-
public interest.
The Board will have numerous sources to find out about prohibited
practices in agencies or in the OPM without a duplicative inspection
staff of its own. The sources include:
- Specific employee complaints,
- OPM evaluations of personnel managem nt practices in agencies,
- MSPB's own special studies functions,
- MSPB's appeals traffic,
- General Accounting Office audits of agencies and the OPM,
- Equal Employment Opportunity Commission reviews of agencies ann.
OPM,
- Union complaints,
- Congressional committees and individual Members of Congress,
- Public interest and citizens groups outside of Government,
- Whistleblowers from agencies or even within OPM,
- Plus the mere fact that a Special Counsel exists will inspire
some people to come forward with inl=ormation that otherwise
would not surface.
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The Board will have more clout to stand up to agencies, to OPM, and
even to the White House, when necessary, than the Civil Service
Commission has now. The Commission is perceived as being divided in
its interests because it has both an enforcement role and a role of
advising and assisting agency management. The draft Reorganization
Plan No. 2 gives the Board the powers the Commission now has plus a
Special Counsel, which CSC lacks. H.R. 11280 for the first time
defines in law those personnel practices that are prohibited. It will
lengthen the terms of Board Members to seven years and make them
non-renewable. It provides for removal only for reasons of misconduct,
inefficiency, neglect of duty, or malfeasance. Finally, we should not
overlook the fact that MSPB's special studies of the state of merit
systems will be powerful tools for keeping agencies and OPM in line
with merit principles. The total proposal gives the Board more
credibility than the Commission has in acting against merit system
violations.
POLICY-MAKING IN CIVIL SERVICE
Let us turn to the concern about the fact that policies for the civil
service system will be established by the Director of the Office of
Personnel Management instead of by a bipartisan Commission. The fear
is that the Director is too close to Presidential influence and
therefore susceptible to political pressure in policy-making.
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It is simply unrealistic to believe that the Director wilfully may
inject political considerations into the personnel rules for the career
system. The Director is fully subject to the personnel laws.
H.R. 11280 puts the merit principles and prohibited practices into the
law and provides MSPB as a watchdog. The 3oard will comment on
proposed personnel rules and will be free to focus public attention on
any policy matter it regards as contrary to merit principles. It would
be a foolhardy Director indeed who believed, in the face of these
considerations, that he held imperial sway over the policy field.
The close relationship of the Office of Personnel Management to the
President is an advantage for the career service, not a threat. The
President, like the chief executive of any large scale enterprise,
needs the special advice the Director can give about personnel
management matters. This has been a serious defect in organization in
the past. The close relationship will highlight the importance of the
personnel function, in the management of Government programs of all
types. This close relationship, in turn, will emphasize the
President's direct responsibility for the personnel system, including
responsibility to carry out the merit system laws. This identification
`- has not existed in the past.
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DELEGATING EXAMINING FUNCTIONS TO AGENCIES
I would like to turn now to the concern about inefficiency, waste,
CQnfusi,ln, and tlio poseihilit:y of pol iticcl favoritism if exaI 1nind i?L
job applicants is delegated to agencies. Those were some of the
problems in the examining program in the period before 1965 when the
function was decentralized to Boards of Examiners located in Federal
agencies but under the supervision of the Commission.
We are well aware of the deficiencies of decentralized examining in the
past, but we also know about some of the problems of too rruch
centralization, such as delays in filling jobs and poor matching of
people and jobs. We are seeking authority to have a more balanced
program--centralized examining for jobs that are common to many
agencies and clustered at geographic points; decentralized for other
jobs where that would provide better service to agencies and the
public and prove cost effective.
The proposed authority to delegate examining is broad; its use would be
measured and thoughtful. The plan would use performance contracts to
set the standards of proficiency in examining that agencies would have
to meet and to provide OPM a basis for reviewing agency efforts.
H.R. 11280 provides more safeguards against political favoritism in the
examining process than existed. during previous periods of decentralized
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examining, and it provides machinery throug'i the MSPB to investigate
and act against violations. As a key elemeit in this picture, the l l,,,,
if enacted, would hold the head of the agency responsible for
preventing prohibited practices, including those related to examini::-
abuses. That would be a provision of law Chat has not existed
heretofore.
POLITICIZATION OF SENIOR EXECUTIVE SERVICE
Finally, let me comment on the fear that politically appointed
officials will be able to politicize the proposed Senior Executive
Service and, through it, the whole career service, by means of
transferring or removing career executives and substituting political
favorites. The effect, in this view, will spread far beyond the
10 percent of executive positions that H.R. 11280 would make available
for noncareer appointments and will seriously inhibit career people in
expressing their true professional beliefs about program proposals that
would be counter to the public interest.
It is true that the proposed Senior Executive Service is intended to be
a system that will better allow agency heads to use their manageria,`
resources. But the authorities that would be given agency heads do not
constitute a license for political recklessness. The thought that, by
contrast, the present system is better bec-tuse it provides better
protection against politicization is an illusion.
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For example, under the present circumstances:
- There is no statutory limit to the number of non-career
executive positions that can be established.
- There are no generally effective performance evaluation
procedures for executives.
- There is no requirement for a Performance Review Board,
including a career member, to advise on the evaluation of career
executives.
- There is no Merit Systems Protection Board and there is no
Special Counsel.
H.R. 11280 deals with these and other shortcomings in the present
set-up. In addition, the proposed Senior Executive Service provides,
positive features that are badly needed in the Government. These
include:
1. A system of incentives, including compensation, that will
attract good managerial talent and reward good performance,
both individual and organizational.
2. Providing for those who are prepared to undertake the risks
associated with the greater challenges of the SES the buffer of
a fall-back to a job outside the SES at no loss in base pay.
3. Greater flexibility in assignment of executives, allowing agency
heads to make better use of the executive talent available.
4. Allowing individual executives to take on challenging
assignments at the highest levels without giving up career
protections.
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5. Fostering better development of executive talent and providi -s
continuing development during the executive's career.
6, A lb,':tt- b[31Cnce between i%rc1 ran: CO LIruity and olicV advc,:
in the management of public programs through more rational
career/non-career selection options.
7. A heightened sense of accountability based on performance
evaluation as the principal determiner of both job tenure anc
the reward system.
If it be charged that these proposals will stifle healthy controversy
and moderate the urge for excellence, I must strongly disagree. I
believe, on the contrary, that the Senior Executive Service provisions
are necessary to permit the talents of government executives to be
fully exercized.
Mr. Chairman, I and my colleagues will be pleased to answer any
questions you or other members of the Committee may have.
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STATEMENT OF ALAN K. CAMPBELL
CHAIRMAN, U.S. CIVIL SERVICE COMMISSION
ON H.R. 11280
BEFORE THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE
UNITED STATES HOUSE OF REPRESENTATIVES
APRIL 4, 1978
I again want to express my appreciation to Chairman Nix and the
Committee for the prompt initiation of hearings on H.R. 11280. As we
reviewed our notes on the March 14 hearing, there were several points
which appear to be of greatest interest to the Committee. I thought it
might he helpful, in anticipation of furth,!r questioning at today's
hearing, to provide additional information on some of the questions
which were asked then. The points I wish to cover in this way relate
to veterans preference, politicization of the civil service, and
disciplining employees.
The proposals on veterans preference in H.R. 11280 have two basic
objectives: to focus the use of preference on the disabled and Vietnam
veterans, and to reduce the adverse impact of veterans preference on
women and minorities. We have tried to balance the equities involved,
realizing full well that increasing opportunities for any one group
necessarily reduces opportunities for others.
If the President's proposals are approved by the Congress, we
anticipate the following results:
1. Disabled veterans would continue to receive ten point
preference in examinations and to rise to the top of most
civil service lists. In addition, they would continue to
have preference over non-veterans as well as other veterans
in reductions in force.
2. Disabled veterans, unlike other veterans, would be eligible
for noncompetitive Veterans Readjustment Appointments
through grade GS-7, without regard to level of educational
attainment. Further, the fifty percent disabled veteran
would, without time limitation, have statutory eligibility
to be appointed noncompetitively to any position for which
he qualified.
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3. The non-disabled Vietnam veteran would have two new benefits.
First, through September 30, 1980 he would have statutory
eligibility for a noncompetitive Veteran's Readjustment
Appointment, including positions at grades GS-6 and GS-7,
as well as the current grades GS-1 through GS-5.
Secondly, he and all other veterans could reopen any
closed examination for which there is a register at any
time.
4. All non-disabled veterans would continue to have five point
preference until October 1, 1980. At that time, non-disabled
veterans would be divided into four groups.
A. Military officers at the rank of Major or higher who
retired after October 1, 1980 would no longer have a
five point preference in examinations. In our view
their superior qualifications and pension rights
mean they have no real need for preference.
B. Enlisted personnel and lower grade officers who retired
after October 1, 1980 would have preference of 5 points
in examinations for only three years. Their lesser
qualifications and limited pension benefits demonstrate,
in our view, that they have a need for assistance in
readjusting to civilian life, but only for a limited
period of time.
C. Non-disabled veterans who have been out of the military
service for ten years or more by October 1, 1980, as well
as those who reach a ten-year anniversary after that date,
would no longer have five point preference in examinations.
They would have had ample opportunity in ten years to
readjust to the civilian economy even if a portion of that
time was used for education.
D. The remaining non-disabled veterans who have been out
of the service less than ten years would continue to
have five point preference in examinations until they
reach the tenth anniversary of their discharge.
With all of these changes we estimate that over 3,000,000 non-disabled
veterans will continue to be eligible for preference through 1981.
That number should be viewed in the context.that only about 150,000
selections are made from Civil Service Commission lists each year. If
these provisions are not adopted, an estimated 23,000,000 additional
non-disabled veterans would be eligible for preference in hiring. Most
of them are veterans of earlier wars, have already settled back into
civilian life, and are less likely to need extra help in securing jobs.
That is why we believe so strongly that it is important to focus on the
disabled and the Vietnam era veterans.
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An important point to note is that, when a non-disabled veteran's
preference expires under these proposals, it would not in any way mean
the veteran could not get a Federal job. It simply means the veteran
would compete without the advantage of extra points.
Through at least the next five years, women will continue to be
considerably disadvantaged by veterans preference in hiring. But we
feel that there should be a stated objective in reducing that
disadvantage and in reducing it at an expressed point in time in the
near future. There are too many women of superior qualifications who
have no realistic possibility of serving the Government without action
by the Congress to reduce the effects of veterans preference.
Several Members of Congress have inquired whether the President's
proposals could in future years lead to a return to the spoils system.
We think, to the contrary, that H.R. 11280 contains strong, positive
safeguards against such a possibility. It does that by:
1. Establishing political intrusion in personnel matters,
political coercion by Federal employees and use of
political recommendations for employment as prohibited
personnel practices.
2. Creating a Special Counsel to prosecute those who engage
in prohibited personnel practices and authorizing
penalties which can be imposed by the Merit Systems
Protection Board.
3. Authorizing MSPB, an organization quite independent of
the President, to conduct special studies of agency
compliance with merit principles.
4. Authorizing the Comptroller General to conduct compliance
investigations.
5. Clearly fixing legal responsibility on agency heads and
their delegatees to carry out the personnel laws
properly.
For the first time there would be in place a truly effective system of
checks and balances, a separate and independent office to which people
can bring their complaints and which is not the same office being
charged with abuse of the merit system, and a fixing of responsibility
for merit system abuses.
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4
The protections against politics described above pertain to the entire
civil service system including the proposed Senior Executive Service.
It is worth saying a few extra words about that Service because it will
operate in different ways than we have been accustomed to. The Senior
Executive Service would be limited to about 9,200 managerial positions
at grades GS-16 and higher levels. Incidentally, about 3,200 of those
positions are not presently in the general civil service system. They
are mostly in other merit systems, such as the FBI, the Foreign Service
and NASA.
The first point to note is that there would be a statutory requirement
that 90 percent of the jobs be filled by career people. To achieve the
status of a career senior executive, an individual will first have to
pass a rigorous review of his or her managerial qualifications by a
Qualifications Review Panel within the Office of Personnel Management.
The individual must then be selected by the agency through a merit
staffing process. That is, the agency must evaluate the relative
qualifications of those interested in the particular job. The agency
may not limit consideration to those in the agency, but may look either
Government-wide or at people both inside and outside Government. OPM
is to audit the agency's staffing operations.
In addition to the limit on the percentage of jobs which may be filled
on a non-career basis, the law allows OPM to prescribe which types of
jobs should be filled only by career employees. We anticipate these
would include those jobs in which the public expects complete political
impartiality; e.g. tax collection or law enforcement. These types of
jobs will be called career reserved.
Finally, H.R. 11280, includes a series of restraints on the political
executive's ability to displace a career executive. A new agency head
may not separate, reassign involuntarily or give a performance
evaluation to a career employee within 120 days after taking office;
thus providing time for a fair appraisal of the career employee's
ability and capacity to function under new leadership. Secondly, a
career employee may not be removed from SES unless his work is found by
the agency head to be unsatisfactory or alternatively to be found
marginal for two out of three years. Such a finding must be preceded
by a performance evaluation against established standards of
performance. The evaluation recommendation is made by an agency
Performance Review Board, which must include at least one career
employee.
Agency heads may reassign career executives within the organization,
but only to a position classifiable above grade GS-15. They may
replace a career executive with a non-career employee only if that will
not increase the proportion of non-career jobs authorized for the
agency.
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The net results of all these provisions, it seems to us, is that
political appointees do have greater authority to utilize career senior
executives where the needs of the organization will best'be served anti
can remove those who are less than fully satisfactory in performance,
but are constrained by the fact that they must staff their
organizations preponderantly through career .appointments.
ON DISCIPLINING EMPLOYEES
Several Members of Congress have asked why managers in the Government
find it so hard to discipline employees. Th, procedure for firing an
employee as outlined in laws and regulations appears simple and
clear-cut. Nevertheless, the number of employees dismissed during a
year is quite low, and especially low when the reason is poor
performance.
At this point, it may be useful to clarify the facts about the number
of employees who were dismissed in calendar year 1976. The total was
17,157. This figure includes:
226 who were separated for inefficiency based on unsatisfactory
performance of duties.
2,287 who resigned in lieu of adverse action, some of whom may
have done so because of poor performance.
4,261 who were terminated during their probationary periods.
240 who were removed because of some condition that existed
before they were hired.
3,164 who were dismissed for some form of misconduct.
413 who were separated for suitability reasons.
4 who were separated under the Foreign Service system.
6,557 who were discharged for a variety of additional reasons
that the data do not differentiate. (These were not
subject to appeal to CSC).
We think it is significant to distinguish between discharges of
employees who had appeal rights and those who did not. Approximately
2 million Federal employees had completed th-ir probationary year and
had thus acquired appeal rights. The overall discharge rate for these
employees was about 0.3 percent and the discharge rate for
unsatisfactory performance was less than 0.02 percent.
During that year, 4,261 employees were terminated during their
probationary periods, before they had acquired civil service appeal
rights. That was about 5 percent of the total number of people
receiving career-conditional appointments that year.
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There must be reasons why the number and percentage dismissed after
they acquired appeal rights is so much lower than the number and
percent dismissed before. There must be reasons why the number
dismissed for unacceptable performance is so much lower than the number
dismissed for other reasons.
The reason, we think, is the manager's well-founded fear of what will
happen to him or her and to the work unit in the event of an appeal
following an adverse action against an employee.
The pattern includes long delays in resolving adverse actions, multiple
layers of appeal rights with very complex procedures, overlapping
appeals jurisdictions, putting the manager and his or her program on
trial, and, very often, disciplinary actions overturned on narrow
procedural grounds. The process is made even more difficult when the
proposed action is for poor performance because the causes for the
action are often more complex. To avoid all of that, managers
sometimes go to extreme lengths to avoid taking necessary actions
against employees, to the detriment of the morale and productivity of
the work unit and the Government as a whole.
In 1912 Congress established a standard that disciplinary actions
should "promote the efficiency of the service." Later, the Veteran's
Preference Act established certain procedural requirements to be
followed in discharges for misconduct or non-performance. Still later
the President extended these requirements to non-veterans in the
competitive service.
On their face, both the standard and procedural requirements seem fair
and workable. However, as we have learned and as the overwhelming
proportions of managers and supervisors have told us, that isn't the
way the system functions. Over the years a series of decisions by
appellate bodies within the Commission and by the courts has steadily
shifted the meaning of these words so as to favor the rights of
employees and to erode the ability of managers to do their jobs. What
was originally thought to be a simple, balanced, and fair procedure and
standard, is no longer any of these.
Consider, if you will, two examples from decisions made by the Federal
Employee Appeals Authority and Appeals Review Board.
1. An employee appealed to the Federal Employee Appeals
Authority in 1973 on the basis that she had been
fired because of discrimination. FEAA denied her
complaint. She then appealed to the Appeals Review
Board.
ARB
agreed that there was no discrimination.
However,
ARB
noted that the wrong job title had been
used in
the
original dismissal. On that basis, ARB
restored
her
to duty with back. pay.
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Here is a case where the individual had two independent reviews of her
complaint, suffered no real impairment of her rights, and yet, on a
minor technicality, was restored to duty.
2. An employee was removed for submitting false information.
The agency erred in not giving sufficient notice of the
action it intended to take. Realizing the mistake, the
agency amended the action to allow a full thirty-days'
notice. When the employee was actually removed, FEAA
restored him on the grounds that the agency should have
started the process all over again with a new thirty-day
notice period, rather than merely correcting the original
mistake.
This is a case where the Government was forced to restore an apparently
untrustworthy employee even though the individual had, in fact, been
given every right to which he was entitled.
It has been suggested that H.R. 11280 does not guarantee a hearing for
an individual in an adverse action situation. It is true that the bil
does not require an agency to hold a pre-termination hearing. In fact.
no such requirement now exists. Only two agencies, the Department of
Health, Education and Welfare and the National.Labor Relations Board,
provide such hearings; and HEW is preparing to change its policy. I
am, of course, aware that this Committee has voted for pre-termination
hearings. I simply believe that this goes in the wrong direction and
will ' further complicate the process of taking those actions which are
in the best interests of the public.
The right to a hearing in cases appealed to the Civil Service
Commission was granted only to veterans by law. An Executive order
extended it to other employees not very many years ago. Less than half
of the employees who file appeals request a hearing; the majority rely
on the examiner to make a decision based on the records.
Section 7701 of the bill guarantees the employee a hearing by the Merit
Systems Protection Board whenever there is a material issue of fact
between the agency and the employee. This provision directly parallels
the practice in Federal civil courts where a full evidentiary hearing
is available only if there is a material question of fact. Section
7701 provisions for a hearing apply to adverse actions based on either
unacceptable performance or unacceptable conduct. If the agency and
the employee agree on the facts of what happened, there is little need
for a hearing. The examiner can determine whether action taken against
the employee was proper.
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STATEMENT OF ALAN K. CAMPBELL
CHAIRMAN, U.S. CIVIL SERVICE C II S SI ON
ON H.R. 11280
BEFORE THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE
UNITED STATES HOUSE OF REPRESENTATIVES
APRIL 4$, 1")78
ERRATA
Page 2. Paragraphs 4A and 4B are corrected to read:
A. Military officers who retired at the rank of Major or
higher would no longer have a five point preference
in examinations after October 1, 1980. In our view
their superior qualifications and pension rights mean
they have no real need for pr~ference.
B. Enlisted personnel and lower grade officers who retired
would have preference of 5 points in examinations for
only three years after their separation from active
duty effective October 1, 1980. Their lesser quali-
fications and limited pension benefits demonstrate,
in our view, that they have a need for assistance in
readjusting to civilian life, but only for a limited
period of time.
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3
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ORAL STATEMENT OF
ALAN K. CAMPBELL
CHAIRMAN, U.S. CIVIL SERVICE COMMISSION,
ON
CIVIL SERVICE REFORM AND REORGANIZATION
BEFORE THE
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
APRIL 6, 1978
RECYCLED
PAPER
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ORAL STATEMENT OF ALAN K. CAMPBELL,
CHAIRMAN, U.S. CIVIL SERVICE COMMISSION,
ON CIVIL SERVICE REFORM AND REORGANIZATION
BEFORE THE COMMITTEE ON` GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
APRIL 6, 1978
Mr. Chairman, I am pleased to be here this morning to discuss S. 2640,
the proposed Civil Service Reform Act of 1978 and the proposed Reorgan-
ization Plan No. 2 of 1978, covering the Civil Service Commission and
the Federal Labor Relations Council. With me are my colleagues, Vice
Chairman Jule Sugarman and Commissioner Ersa H. Poston.
I have a written statement that describes in some detail the intended
purposes and features of S. 2640 and Reorganization Plan No. 2. With
your permission I would like to submit that formal statement for the
record.
I would like at this point to make some brief introductory remarks
expressing what I believe to be the importance of this Bill and
Reorganization Plan to the Federal service and to the ability of the
Government to fulfill its purpose of serving the people of this nation.
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In our view, the Plan and the Bill are of equal importance in carry?.ng
forward the effort for civil service reform. Reorganization Plan No.
2 will establish a greatly improved organizational structure for
personnel management and labor management relations at the top echelons
of Government. The Civil Service Reform Bill provides substantive
improvements in the Government's system of employment that are needed
to make the system work better for managers, to give greater protection
to employee rights, and to provide increased protection to the merit
system as a whole against political intrusion.
This Reorganization Plan and Bill are the direct results of months of
intensive study of the Federal personnel management system and of
discussion and analysis of its perceived problems in a wide variety of
forums. Hundreds of individuals, inside and outside of Government,
contributed to the design of solutions to the problems. This has been
the most comprehensive study of the Federal civil service in our
national history.
The President's proposals for reorganization and reform of the Federal
civil service are in line with a quiet revolution that has been taking
place in public services throughout the Nation. At all levels of
government--local, State, and Federal--concerned citizens, chief
executives, and legislators have been- taking a new look at established
civil service systems to see why they are so heavily weighted with
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outmoded procedures and inappropriate organizational arrangements.
Public service employment at all levels has become an increasingly
important influence in American society. It has grown greatly in size,
scope, specialization, complexity, and economic importance. It has
also come to have a strong impact on the lives and activities of our
citizens.
As the public focuses more attention on this growing impact of public
employment in our society, it demands greater scrutiny of the
philosophies and structures that govern public service employment
systems. The ultimate aim of this public concern is to see that public
service employment systems are well managed and are designed to permit
speedy and effective services to the people at reasonable costs.
President Carter, in submitting these measures to Congress, described
them as the "centerpiece" of his broad program to reorganize the
Executive Branch. Changes in the structure of Government and
realignment of programs and functions can succeed in bringing about
real and lasting improvement in the performance of Government programs
only to the extent that managers in that structure are permitted to
manage and employees are aided in doing their work.
S. 2640 and draft Reorganization Plan No. 2 make major and badly needed
changes to improve managerial capability in the Federal civil service.
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They give managers in all Federal agencies and programs the tools and
the incentives they need to carry out their responsibilities
effectively and economically.
The Reorganization Plan and the Bill together provide greater
flexibility in the management of virtually all Government programs.
Our studies indicated that managers feel very strongly they are not
able to carry out their program responsibilities because they are
hemmed in and tied down by personnel procedures that are too rigid and
complicated as the result of some features of the present laws,
customs, and court decisions.
Let me cite a few of the measures to improve management capability that
are in the Bill and the draft Reorganization Plan:
Both the Plan and the Bill provide, when it is efficient to do
so, for further delegation of personnel authority to agency
managers, so the authority to hire, promote, train, and separate
employees will be located where the work is done.
- The Bill establishes a Senior Executive Service in which both
tenure and rewards are based on performance of the individual
manager and of the work unit.
- The Bill sets up clear-cut procedures to deal with workers
whose performance is unacceptable.
- The Bill establishes merit pay for key managers based on
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performance, rather than automatic pay increases based on time
served.
- The Bill gives more reasonable range of selection among
qualified applicants in filling _jobs.
- The Bill provides a new probationary period to try out
newly-selected supervisors.
- The Plan and the Bill establish a new Office of Personnel
Management to provide vigorous leadership to agencies and advice
on policies for personnel management.
- The Reorganization Plan establishes a neutral third party
Federal Labor Relations Authority to oversee relations between
government agencies and employees.
While the public is concerned about the effectiveness of its civil
service, it also expects and demands fair treatment and proper
conditions of employment for its workers. S. 2640 and the draft
Reorganization Plan attempt to ensure that the proper and legitimate
needs of employees are met and that the Federal civil service will be
based on merit and equity. Assurances of merit and equity are made
clear throughout the proposals:
- The proposals establish (initially through Reorganization Plan
No. 2) a strong and independent Merit Systems Protection Board
to consider and act on appeals and to conduct special studies
of merit system operations.
- The Bill states in law the merit principles that should govern
the Federal personnel system.
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- The Bill specifies those personnel practices that are
prohibited.
- The Bill assigns responsibility to the agency head and all
subordinate officials to whom personnel authority is delegated
for complying with the personnel laws.
- The proposals provide within the Merit Systems Protection Board
a Special Counsel to prosecute those who violate provisions cf
the system and to protect "whistleblowers" from agency
reprisals.
- The Bill extends to nonveterans by law appeal rights that now
rest only on the base of regulations.
The Bill ensures due process rights in adverse actions,
including those relating to work performance.
The Bill places greater emphasis on employee performance as Cite
basis for advancement, training, and other personnel actions.
The Bill provides greater equity tc' nonveterans, particularly
women, in reductions in force.
The public also demands that the Federal civil service be free of
improper partisan political influences. 1 would like specifically to
address this point because of recent publicly expressed concern that
certain features of the Reorganization Plan and the Reform Bill might
lead to politicization of the Federal service.
First, let me point out that the present checks and controls in the
civil service system have not been fully effective in deterring
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deliberate efforts to undermine the merit system for political reasons.
Adding more layers of procedures and review processes simply does not:
provide more protection against partisan political intrusion into the
merit system.
There are no absolute guarantees against politicization of any public
employment system. But to the extent that we were able to propose
effective safeguards within a system that permits the Government to get
its work done effectively, we have done so. I believe these safeguards
are important, because they represent structural and legislative
changes rather than mere exhortations.
I will mention a few of the safeguards built into Reorganization Plan
- The Reorganization Plan gives the Merit Systems Protection Board
more independence from the President than the Civil Service
Commission now has in cracking down on violations of merit
principles.
- The Bill gives the Board the added strength and power it needs
to withstand political pressures and to protect the merit system
against improper political intrusions.
- The Bill establishes statutory prohibitions against making
personnel decisions, such as appointments, promotions,
disciplinary actions, and decisions concerning pay, on the
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basis of political affiliation or other unlawful discrimination.
- The Bill for the first time limits by law the proportion of
political jobs in the senior executive category and prohibits
conversion of noncareer executives to career status without
competition.
- The Bill provides for identifying executive jobs that require
public confidence in their impartiality and reserving them tor
career appointees.
I believe this important Bill and Reorganization Plan go far in
addressing the major problems confronting today's Federal personnel
management system. Enactment will, I believe, be a giant step toward
a civil service system for tomorrow that is better able to serve this
Nation's needs.
I and my colleagues will be glad to answer any questions the Comn=iLtee
might have.
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STATEMENT OF
ALAN K. CAMPBELL
CHAIRMAN, U.S. CIVIL SERVICE COMMISSION,
ON
CIVIL SERVICE REFORM AND REORGANIZATION
BEFORE THE
April 6, 1978 1
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STATEMENT OF ALAN K. CAMPBELL,
CHAIRMAN, U.S. CIVIL SERVICE KK,OMMISSION,
ON CIVIL SERVICE REFORM AND REORGANIZATION
BEFORE THE COMMITTEE ON GOVERNMENTAL APFAIRS
UNITED STATES SENATh
April 6, 1978
Pa
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Federal Personnel Management Project . . . . . . . . . . . . . 2
Problems in Personnel Management . . . . . . . . . . . . . . . . . 3
Overview of the Reform Proposals . . . . . . . . . . . . . . . . . 5
REORGANIZATION PLAN NO. 2 OF 1978 . . . . . . . . . . . . . . . . 6
Problems in the Organizational Structure
for Personnel Management . . . . . . . . . . . . . . . . . . . .
The Merit Systems Protection Board . . . . . . . . . . . . . . . . 8
The Office of Personnel Management . . . . . . . . . . . . . . . . 10
The Federal Labor Relations Authority . . . . . . . . . . . . . . 11
CIVIL SERVICE REFORM ACT OF 1978 . . . . . . . . . . . . . . . . . 12
TITLE II - CIVIL SERVICE FUNCTIONS; PERFORMA14CE
APPRAISAL; ADVERSE ACTIONS . . . . . . . . . . . . . 14
Protection of Employee Rights . . . . . . . . . . . . . . . . . . 14
Improvements in Adverse Action Procedures
and Appeal Rights . . . . . . . . . . . . . . . . . . . . . . 15
New Systems of Performance Appraisal and
Actions Based on Performance . . . . . . . . . '. . . . . . . . . 17
Delegation of Personnel Authorities . . . . . . . . . . . . . . . 20
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 AW Ask
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Page
TITLE III - STAFFING . . . . . . . . . . . . . . . . . . . . . . . 22
Staffing Flexibility . . . . . . . . . . . . . . . . . . . . . . . 22
Modifications in Veterans Preference in
Examining, Selection, and Retention . . . . . . . . . . . . . . 23
Veterans Preference in Examing and Appointment . . . . . . . . . . 23
Veterans Preference in Reduction in Force . . . . . . . . . . . . 25
Probationary Period for Supervisors and Managers . . . . . . . . . 26
Other Changes . . . . . . . . . . . . . . . . . . . . . . . . . . 26
TITLE IV - SENIOR EXECUTIVE SERVICE . . . . . . . . . . . . . . . 28
Control of Number and Distribution of
Executive Personnel . . . . . . . . . . . . . . . . . . . . . . 28
Career-Noncareer Relationships at the
Executive Levels . . . . . . . . . . . . . . . . . . . . . . . . 29
Career Opportunities . . . . . . . . . . . . . . . . . . . . . . . 29
Assignment Flexibility . . . . . . . . . . . . . . . . . . . . . . 30
Managerial Competence . . . . . . . . . . . . . . . . . . . . . . 31
Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Multiplicity of Authorities and Laws . . . . . . . . . . . . . . . 32
More Efficient Procedures . . . . . . . . . . . . . . . . . . . . 32
Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Minorities and Women and Executive Development . . . . . . . . . . 34
TITLE V - MERIT PAY . . . . . . . . . . . . . . . . . . . . . . . 35
TITLE VI - RESEARCH, DEMONSTRATION, AND OTHER PROGRAMS . . . . . . 37
Public Management Research . . . . . . . . . . . . . . . . . . . . 37
Demonstration Projects . . . . . . . . . . . . . . . . . . . . . . 38
Intergovernmental Personnel Program Improvements . . . . . . . . . 39
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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STATEMENT OF ALAN K. CAr1PBELL,
CHAIRMAN, U.S. CIVIL SERVICE COMMISSION,
ON CIVIL SERVICE REFORM AND REORGANIZATION
BEFORE THE COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
April 6, 1978
Mr. Chairman, I am grateful for this opportunity to testify on behalf
of the Administration about civil service reform and reorganization of
the Civil Service Commission and the Federal Labor Relations Council.
My colleagues on the commission, Jule Sugarman and Ersa Poston, are
here with me today. My remarks today are addressed principally to
S. 2640, the Civil Service Reform Act of 1978. However, I will also
comment on Reorganization Plan No. 2 of 1978, which will shortly be
submitted by the President for your consideration. That Plan provides
the framework for carrying out several provisions in this Reform Bill.
The Federal civil service system is in trouble. Most people view the
Federal Government as a greater source of problems and red tape than )r
solutions to the needs of this Nation. This lack of public confidence
has sapped the strength of many Government programs and depressed the
morale of civil service employees and managers alike.
Many factors account for the current crisis in the civil service, but
the most important relate to the accumulatio:i of laws, regulations, and
policies which have grown up over the last 9`5 years. Complaints about
the civil service system are shared by managers and employees as well
as the general public.
Managers in charge of Government programs clim that personnel
management procedures seriously impede their efforts to be good
managers. Employees believe they are not adequately protected from
partisan pressures, will not get much recognition if they do good work,
and can not get a fair shake if they register legitimate complaints.
Much of the public believes that Federal employees are overpaid and
underworked and have too much tenure.
Some of these beliefs - particularly those of the public - are
exaggerated. But the complaints about the civil service system are
held widely enough, and sufficiently based in fact, as to demand
immediate attention.
Soon after our confirmation last year, the other two Commissioners and
I, in cooperation with the Office of Management and Budget, began a
r
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serious study of the charges being made by managers, employees, and the
public. We found that some of these complaints could he traced to the
layers of controls and procedures that have been added over the years
to correct problems as they developed in the civil service system.
While each such control may be defensible, their aggregation has
produced a semi-paralysis in administration. Thus, it now may take six
to eight months to fill many important jobs; nearly two years to
resolve a discrimination complaint rather than the statutorily mandated
180 days; and many months to resolve an adverse action appeal. Other
complaints are related to the present organizational structure for
Federal personnel management. The central personnel agency - the Civil
Service Commission - has had major new functions and responsibilities
heaped on it that have caused serious stresses in its structure.
Our early analyses convinced us that the problems go back to the
fundamental laws, rules, regulations, and organization that govern
Federal personnel management. We further concluded that these problems
are so pervasive and fundamental that merely patching the existing
system will not solve them.
The Federal Personnel Management Project
We decided it was time to step back, look at the whole picture, see
what the problems really are, and then try to devise lasting, system-
wide solutions. To this end, the President set up the Federal
Personnel Management Project in May, 1977 as part of his reorganization
effort. This was a full-scale review of Federal personnel management
laws, principles, policies, processe-3, and organization.
Leadership for the Project was drawn jointly from the Civil Service
Commission and the Office of Management and Budget. I served as
Chairman of the Project and Wayne Granauist of the Office of Management
and Budget served as Vice Chairman. The Project was advised by a
Working Group made up of the Assistant Secretaries for Administration
of the Federal departments and their counterparts in major independent
agencies. The Co-chairmen of the Working Group were Jule Sugarman,
Vice Chairman of the Commission, and Howard Messner, Assistant Director
of the Office of Management and Budget.
The Project had nine subject-matter task forces which worked under the
day-to-day management of Dwight Ink and Thomas Murphy, the Project's
Executive Director and Deputy Executive Director. The task forces were
staffed primarily by experienced careerists drawn from many Federal
agencies. The task force managers were selected from among
highly-respected Federal executives, from industry, and from the
academic world.
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The Project scoured the Government for ideas about personnel mana E,r-en
problems and what could be done to solve them. The Civil Service
Commissioners, together with representatives of the Office of
Management and Budget, personally went to all regions of the countr?c
and listened to the views of managers, unions, individual employees.,
personnel officials, equal employment opportunity officials, and Stat_,
and local government officials.
We held hearings in Washington, D.C. and in nearby Virginia and
Maryland to get the views of the large Federal employee population, in
this area. Some members of Congress participated in those hearin%-.
In all, we heard from over seven thousand people who had ideas about
the civil service system.
The Project then developed option papers on seven broad topics and sen
them out for comments to some 800 organizations and individuals.
Typically we received 150 to 200 replies on each paper. By this r E ;ins
the Project obtained the views of an enormous range of knowledgeahe
people with widely varying concerns about the system.
This outpouring of ideas confirmed our earlier hypothesis: the
problems of the civil service system will not yield to patchwork
repairs. Some of the problems can be solved by administrative act on
within the context of the present personnel laws, and we will move ro
deal with those. Other major problems need changes in the fundam~~rtal
laws governing the civil service. Still others need changes 1-1 tl,E
organizational structure for personnel management.
Problems in Personnel Management
And that is why we are here today. The need for reform may be
illustrated by outlining ten of the most salient problems confrontin,>
the Federal civil service system.
1. Supervisors, employees, political leaders, and others are
confused about what they may and may not do without violati^:_
essential merit principles.
2. Employees feel they cannot get a fair hearing when they
believe political, arbitrary, discriminatory, or illegal
personnel actions have taken place.
3. The dangers of exposing wrongdoing in Government may deter
employees from "blowing the whistle," although it would hE in
the public interest for them to do so.
4. Excessive centralization of personnel authorities takes many
types of day-to-day personnel decisions out of the hands cf
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line managers who nonetheless are held responsible for
accomplishment in major program areas. Managers must go
through extensive paperwork justifications to obtain Civil
Service Comwiission approval of relatively minor decisions.
5. Over-centralized and restrictive systems for examining and
selecting employees make it hard for managers to hire
expeditiously the best qualified people and to meet their
equal employment opportunity responsibilities.
6. Managers find a confusing array of regulations and procedures
standing in their way when they seek to reward good work
performance, to discipline employees, or to remove employees
whose performance is clearly inadequate and cannot be
improved.
7. The jumble of laws, regulations, and special provisions
affecting executive positions makes it very difficult for
agency heads to utilize their top staff most effectively, to
hold managers accountable for program accomplishment, and to
reward or remove them on the basis of performance. There is
virtually no mobility of senior executives among Federal
agencies.
8. Present laws provide pay increases prim:-irily based on length
of service and do not allow adequately for granting extra pay
for better performance or for withhclding pay increases when
performance is less effective.
9. Research it civilian personnel management is completely
inadequate, and statutory restraints prevent experimentation
in new management approaches. Therefore, new ideas are not
encouraged and, when developed, are often ignored, or are
installed on a large scale without adequate testing.
10. The Federal agencies involved io grant-in-aid programs impose
conflicting personnel requirements on State and local
agencies, thereby unreasonably complicating their work.
Analysis of these problems reveals two central challenges to Federal
personnel management. One is to build a stronger foundation for the
protection of employee rights and the application of the merit concept.
The other is to develop new approaches to personnel operations and
administration, so that they may become aids rather than obstacles to
effective management of the Government workforce.
At first glance these challenges appear contradictory, because we are
accustomed to equating merit and employee protection with complex
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procedural requirements, centralized review and approval processes, an
intricate checks and balances. Too often, however, these measures r,av,
become the refuge of the unsatisfactory employee or the excuse tor
managerial failure to act.
The fundamental reforms proposed in the reorganization plan and CL-ail
Service Reform Bill attempt to stake out the foundation points of 'i
sound public merit system and the rights and manner of fair treatm-+t
of individuals in the system, while also providing those tools that are
essential for public managers who are responsible for the efficient an[
effective accomplishment of the missions of the Federal Government.
Overview of the Reform Proposals
Before beginning my discussion of the proposed Civil Service Reform Act
of 1978, let me mention a related matter.
The proposed Reform Act is the centerpiece of the civil service relorr
legislation that we will be proposing. It encompasses many of the
basic features of civil service that are of central importance to the
system.
The President will formally submit the reorganization plan for the
Civil Service Commission, a draft of which he has sent to Congress for
information, at a time convenient to the Governmental Affairs
Committee. We believe that early approval by the Congress of the
reorganization plan will enable us to put the new organizational
structures in place in time to carry out the substantive reforms
embodied in the Civil Service Reform Act
Since the legislative proposal to reform the civil service is cloFfly
related to the reorganization plan, I would like to comment briefly. or
the contents of the plan.
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REORGANIZATION PLAN NO. 2 OF 1978
The reorganization plan will divide the present functions and
responsibilities of the Civil Service Commission between two new
agencies, an Office of Personnel Management and a Merit Systems
Protection Board. In addition, it will create a Federal Labor
Relations Authority to replace the Federal Labor Relations Council and
other organizational components of the Government's labor relations
p rog rain.
The Office of Personnel Management will. be headed by a Director,
Executive Level II, and a Deputy Director, Execnr.ive Level I[I,
appointed by the President and confirmed by the Senate. Provision is
also made for five Associate Directors. The plan transfers to the
Office of Personnel Management all the personnel policy making,
operating, advisory, assistance, and evaluation functions previously
assigned to the Commission. The Merit Systems Protection
Board consists of a Chairman at Executive Level III and two members at
Executive Level IV. They are appointed by the President and confirmed
by the Senate. The Board will exercise almost all of the adjudication
and appellate functions now vested in the Commission by law. The Board.
replaces the Civil Service Commission's Federal Employee Appeals
Authority and Appeals Review Board. The new Board will handle matters
formerly handled by those organizations except that, under the proposed.
Reorganization Plan No. 1 of 1978, most discrimination complaints under
Title VII of the Civil Rights Act of 1964 would be heard by the Equal
Employment Opportunity Commission. Reorganization Plan No.
2 establishes an Office of Special Counsel within the Board to
investigate and prosec:ite officials who engage in prohibited personnel
practices and to enforce the Hatch Act. The Special Counsel is an
Executive Level IV position appointed by the President and confirmed by
the Senate.
The Federal Labor Relations Authority replaces the existing Federal
Labor Relations Council. The latter was established by Executive Order
11491 and consists of the Chairman, Civil Service Commission; Director,
Office of Management and Budget; and the Secretary of Labor. The new
Authority would have an Executive Level III Chairman, two Executive
Level IV Members, and an Executive Level V General Counsel appointed by
the President and confirmed by the Senate. Certain duties now
performed by the Assistant Secretary of Labor for Labor-Management
Relations would be performed by the Authority. The existing Federal
Service Impasse Panel would operate as a distinct organizational entity
within the Authority.
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Problems in the Organizational Structure for Personnel Management
The basic problems in the present structure for Federal personnel
management are worth specifying here, because the proposed Civil
Service Reform Act has been framed in the context of a new structure.
First, the Civil Service Commission currently has so many conflicting-
roles that it is unable to perform all of them adequately. At one and
the same time it is expected to serve the President in providing
managerial leadership for the positive personnel management functi ns
in the Executive Branch - that is, establishing personnel policies and
advising and assisting agencies on personnel management functions
while also serving as a "watchdog" over the integrity of the merit
system, protecting employee rights, and performing a variety of
adjudicatory functions. As a direct result, the Commission lacks
credibility in performing its merit protection functions with both
employees and managers who recognize the inherent conflicts amonc :`es
functions.
Second, the President lacks an appropriate staff organization for
directing the positive personnel management responsibilities inherent
in his position as Chief Executive. Whereas an industrial manager, a
military commander, or subordinate Federal executive normally assit,ns
personnel management responsibility to a key member of his executive
staff, the President must rely on a semi-independent body separated by
structure and tradition from the Chief Ex,~cutive. As a consequence.
Presidential effectiveness in directing F.~deral personnel management i!;
weakened and problems do not receive the attention they should.
Third, as made painfully evident in recenr years, The Civil Service
Commission, despite its presumed political neutrality, has not been an
effective deterrent to partisan political or other abuses of the merit
system. Further, there is insufficient protection for employees -
so-called "whistle-blowers" - who are harassed far calling attention to
violations of laws and regulations within their agencies.
Fourth, the existing machinery for administering the Federal
labor-management relations program is not fully integrated nor fully
acceptable to employee organizations. The functions are fragmenter
among the Federal Labor Relations Council, the Federal Service Impasses
Panel, the Department of Labor, and the Civil Service Commission, whicl
has a special third-party role. The Coun