DOD CIVIL SERVICE REFORM

The federal civil service system was established more than a century ago to replace a patronage system that was characterized by favoritism and abuse. As we evaluate the possible reform of that system, we must take care that we do not allow those abuses to resurface.

On April 11, 2003, the Bush administration submitted a legislative proposal to Congress that would fundamentally alter the federal civil service system by authorizing the Secretary of Defense to waive provisions of law governing employee performance, pay and allowances, labor relations, hiring and firing, training, pay administration, oversight and appeals.

The administration proposal did not include any specific legislated procedures and processes for the new civilian personnel system, other than the requirement that the new system be "flexible" and "contemporary."

The Defense Department proposal would give the Secretary of Defense extraordinarily broad license to hire and fire employees and to set employee compensation virtually without legislated restrictions or constraints.

This proposal was included in the version of the annual defense bill for fiscal year 2004 passed by the House of Representatives.

This would not only be the greatest shift of power to the executive branch in memory, it would also put us at risk of a return to some of the abuses of the past. While it is true that this proposal would preserve the merit systems principles, it is not just the principles that are important, but also the processes and procedures by which these principles are implemented and enforced. If these processes and procedures are toothless, the merit systems principles could become an empty letter.

In short, Senator Levin believes that we need to build some protections into any new system to avoid a return to the patronage, political favoritism and abuse that characterized federal employment before the advent of the civil service system. It is our responsibility to counterbalance the natural temptation for future DOD officials to reward loyalty over quality of performance, and to provide pay and promotions to those who tell senior officials what they want to hear.

Senator Levin joined in the proposal of Senator Susan Collins, R-Maine, because he believes that it would go a long way toward building these critical protections into a new system. The Levin-Collins bill was designed to give DOD the flexibility it seeks to establish pay banding, rapid hire authority, a streamlined appeals process, and national-level bargaining, without giving up the employee protections that are needed to prevent abuse and make the civil service system work. The Levin-Collins bill was approved by the Senate Governmental Affairs Committee on a bipartisan 10-1 vote.

Unfortunately, the bipartisan Levin-Collins approach met with opposition from the Administration at every turn. At times, it appeared that Administration officials and their congressional allies were less interested in enacting sound human capital provisions than they were in providing as much power as possible to the Secretary of Defense.

Nonetheless, Senator Levin was able to build some important protections into the new National Security Personnel System (NSPS) authorized by the legislation. These include provisions from the Collins-Levin bill that would:

• preserve the right of individual employees to appeal adverse personnel actions to the Merit Systems Protection Board and, if necessary, the courts;
• ensure that the new personnel system cannot be used as a basis for reducing the amount of money allocated to civilian pay accounts;
• provide specific guidance and direction on the implementation of a pay-for-performance system;
• ensure that the Office of Personnel Management will play a central role in developing a new personnel system for the Department of Defense; and
• provide for the orderly phase-in of the new personnel system.

The outcome on collective bargaining issues was less favorable. Senator Levin believes that the right of employees to participate in labor organizations of their choosing, and to engage in collective bargaining through such organizations, is a fundamental one in our society. This view does not appear to be shared by the White House or the Department of Defense.

At the insistence of the Bush Administration, the NSPS legislation authorized the Secretary of Defense to �establish and from time to time adjust a labor relations system for the Department of Defense to address the unique role that the Department's civilian workforce plays in supporting the Department's national security mission.� The Department of Defense has taken the position that this provision gives it the authority to waive any and all of the provisions of Chapter 71 of Title 5, which governs labor-management relations for federal employees.

In late 2005, the Administration proposed to implement the new personnel system in a manner that would deprive its civilian employees and their representatives of many of the rights that they enjoy today. Over the last year and a half, the courts have determined that these regulations, and similar regulations issued by the Department of Homeland Security, deprive federal employees and their representatives of meaningful participation and render collective bargaining negotiations �illusory.� As a result, court orders have been issued enjoining either Department from implementing the proposed new labor relations system.

Senator Levin will continue to fight to ensure that NSPS is implemented in an fair and even-handed manner, and does not result in a return to the patronage, political favoritism and abuse that characterized federal employment before the advent of the civil service system. In his view, meaningful collective bargaining and effective appeal rights remain a prerequisite for fair and even-handed implementation of any new personnel system.