Thank you Chairman Davis and Chairman Voinovich for holding today's hearing on the proposed regulations establishing a new human resources system for the Department of Homeland Security (DHS).
The Homeland Security Act required DHS and the Office of Personnel Management (OPM) to work together to propose joint regulations for the new human resources system. Director James and Admiral Loy, I want to applaud the manner in which you solicited and gathered input for the joint proposal.
Although I do not agree with all of the provisions in the proposed regulations, I believe that the open, transparent, and accountable manner in which these regulations were developed exemplifies the level of cooperation and interaction expected under the Homeland Security Act and what I would look for in other reform proposals.
The federal civil service is responsible for implementing and managing government programs in an effective and responsive manner. However, defining the proper relationship between the career civil service and elected and appointed officials has always been a critical issue, and we share a common desire to ensure that all employees are able to do their job without undue influence.
I would like to remind my colleagues that the Civil Service Reform Act (CSRA) was passed in 1978 to address the various conflicting responsibilities of the Civil Service Commission, which was charged with providing equal employment opportunity, ethics, protecting the merit system, overseeing labor relations, and personnel management. Congress divided the responsibilities of the Commission because we found that fostering the principles of modern personnel management was inevitably in conflict with the Commission's role in ensuring the application of rules and procedures. The reforms in the CSRA shored up a cornerstone of the federal civil service system by ensuring that federal employees who are charged with protecting the interests of the American people have real and meaningful protections.
The passage of the Homeland Security Act in 2002 was to provide managers with workforce flexibility, not reduce the rights and protections of the civil service. The Act required the new human resources system to be based in merit principles and provide for collective bargaining. For DHS to recombine these responsibilities in the Department suggests that we are no longer on the same page when it comes to employee protections. Some of the proposals appear to be in direct conflict with the fundamental principles of the federal civil service and could substantially erode the rights and protections of federal employees.
Under the proposed regulations, DHS would create an internal appeals process to review certain aggravated offenses which require mandatory firing. This internal appeals panel would be governed by individuals who would be appointed by and removed by the Secretary. There are currently no provisions for judicial review of panel decisions.
In 1996, Congress granted the Federal Aviation Administration similar authority to create an internal appeals system. Despite the inclusion of certain safeguards, Congress reinstated appeal rights to the Merit System Protection Board (MSPB) in 2000 amid concerns that the internal process was unfair and impartial.
The fact that the proposed internal panel at DHS would be selected by the Secretary and would be required to give deference to agency mission and operations fails to assure employees, or me, that the panel would be objective and unbiased. Furthermore, the proposed changes to the MSPB process and the fact that DHS and OPM could eliminate MSPB appeals should MSPB decisions fail to give "due weight and deference" to the Department's critical mission would undermine the effectiveness of the independent quasi-judicial agency.
Likewise, I am concerned that the proposed labor relations system at the Department could strip the bargaining rights of federal employees. Granting the Secretary sole discretion to engage in bargaining to implement agency regulations and select and remove the members of a proposed internal labor relations panel would eliminate the very essence of bargaining and turns labor unions into policy advisors rather than active parties in the bargaining process.
It has been proved time and again that there must be separation of management and oversight, otherwise conflicts exist. The proposed regulations, while preserving some of the basic rights of federal employees, are in effect reinventing a square wheel.
I look forward to our witnesses' testimony and their thoughts on how to best protect employee rights at the Department of Homeland Security.
