[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
REVITALIZING THE FEDERAL WORKFORCE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON GOVERNMENT OPERATIONS
OF THE
COMMITTEE ON OVERSIGHT AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 23, 2021
__________
Serial No. 117-3
__________
Printed for the use of the Committee on Oversight and Reform
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available on: www.govinfo.gov,
oversight.house.gov or
docs.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
43-715 PDF WASHINGTON : 2021
COMMITTEE ON OVERSIGHT AND REFORM
CAROLYN B. MALONEY, New York, Chairwoman
Eleanor Holmes Norton, District of James Comer, Kentucky, Ranking
Columbia Minority Member
Stephen F. Lynch, Massachusetts Jim Jordan, Ohio
Jim Cooper, Tennessee Paul A. Gosar, Arizona
Gerald E. Connolly, Virginia Virginia Foxx, North Carolina
Raja Krishnamoorthi, Illinois Jody B. Hice, Georgia
Jamie Raskin, Maryland Glenn Grothman, Wisconsin
Ro Khanna, California Michael Cloud, Texas
Kweisi Mfume, Maryland Bob Gibbs, Ohio
Alexandria Ocasio-Cortez, New York Clay Higgins, Louisiana
Rashida Tlaib, Michigan Ralph Norman, South Carolina
Katie Porter, California Pete Sessions, Texas
Cori Bush, Missouri Fred Keller, Pennsylvania
Danny K. Davis, Illinois Andy Biggs, Arizona
Debbie Wasserman Schultz, Florida Andrew Clyde, Georgia
Peter Welch, Vermont Nancy Mace, South Carolina
Henry C. ``Hank'' Johnson, Jr., Scott Franklin, Florida
Georgia Jake LaTurner, Kansas
John P. Sarbanes, Maryland Pat Fallon, Texas
Jackie Speier, California Yvette Herrell, New Mexico
Robin L. Kelly, Illinois Byron Donalds, Florida
Brenda L. Lawrence, Michigan
Mark DeSaulnier, California
Jimmy Gomez, California
Ayanna Pressley, Massachusetts
Vacancy
David Rapallo, Staff Director
Wendy Ginsberg, Subcommittee Staff Director
Amy Stratton, Clerk
Contact Number: 202-225-5051
Mark Marin, Minority Staff Director
------
Subcommittee on Government Operations
Gerald E. Connolly, Virginia, Chairman
Eleanor Holmes Norton, District of Jody B. Hice, Georgia Ranking
Columbia Minority Member
Danny K. Davis, Illinois Fred Keller, Pennsylvania
John P. Sarbanes, Maryland Andrew Clyde, Georgia
Brenda L. Lawrence, Michigan Andy Biggs, Arizona
Stephen F. Lynch, Massachusetts Nancy Mace, South Carolina
Jamie Raskin, Maryland Jake LaTurner, Kansas
Ro Khanna, California Yvette Herrell, New Mexico
Katie Porter, California
C O N T E N T S
----------
Page
Hearing held on February 23, 2021................................ 1
Witnesses
Janice R. Lachance, Executive Vice President, Strategic
Leadership and Global Outreach, American Geophysical Union
Oral Statement................................................... 8
Everett B. Kelley, National President, American Federation of
Government Employees
Oral Statement................................................... 9
Mr. James Sherk, Former Special Assistant to the President for
Domestic Policy, White House Domestic Policy Council
Oral Statement................................................... 11
Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law,
Stanford Law School
Oral Statement................................................... 12
Written opening statements and statements for the witnesses are
available on the U.S. House of Representatives Document
Repository at: docs.house.gov.
Index of Documents
----------
* Statement for the record by The National Treasury Employees
Union; submitted by Rep. Connolly.
* Statement for the record by The National Active and Retired
Federal Employees Association; submitted by Rep. Connolly.
* Statement for the record by The Partnership of Public
Service; submitted by Rep. Connolly.
* Statement for the record by Professor Nina Mendelson;
submitted by Rep. Connolly.
* Statement for the record by Joseph Sax Collegiate Professor
of Law at the University of Michigan Law School; submitted by
Rep. Connolly.
* Statement for the record by Professor David Lewis,
distinguished professor at Vanderbilt University; submitted by
Rep. Connolly.
* A series of charts providing data of what happened to Federal
Employees that past four years; submitted by Rep. Connolly.
* The Federal Employees Viewpoint Survey; submitted by Rep.
Connolly.
* The Federal Employees Viewpoint Survey; submitted by Rep.
Hice.
* OPM Federal Employee Viewpoint Survey; submitted by Rep.
Hice.
* Questions for the Record: to Ms. Lachance; submitted by Rep.
Connolly.
* Questions for the Record: to Ms. O'Connell; submitted by Rep.
Connolly.
* Questions for the Record: to Mr. Kelly; submitted by Rep.
Connolly.
Documents entered into the record during this hearing and
Questions for the Record (QFR's) are available at:
docs.house.gov.
REVITALIZING THE FEDERAL WORKFORCE
----------
Tuesday, February 23, 2021
House of Representatives
Subcommittee on Government Operations
Committee on Oversight and Reform
Washington, D.C.
The subcommittee met, pursuant to notice, at 11 a.m., in
room 2154, Rayburn House Office Building, Hon. Gerald E.
Connolly (chairman of the subcommittee) presiding.
Present: Representatives Connolly, Norton, Davis, Sarbanes,
Lynch, Raskin, Khanna, Porter, Hice, Keller, Clyde, Biggs, and
Herrell.
Also present: Representatives Steny Hoyer (D-MD), Donald
Beyer (D-VA), and Jennifer Wexton (D-VA).
Mr. Connolly. Welcome, everybody, to today's hybrid
hearing. Pursuant to House rules, some members will appear in
person and others will appear remotely via Webex. Both the
ranking member and I, Mr. Hice, a long time ago agreed that
when we're in session, at least he and I are prepared to appear
in person. I've kept that commitment to my friend, and I hope
we can do this going forward safely.
Since some members are appearing in person, like us, let me
first remind everyone that pursuant to the latest guidance from
the House Attending Physician, all individuals attending this
hearing in person must wear a face mask, Ms. Lachance. Members
who are not wearing a face mask will not be recognized.
Let me also make a few reminders to those members appearing
in person. You will only see members and witnesses appearing
remotely on the monitor in front of you when they are speaking
in what is known in Webex as active speaker mode.
A timer is visible in the room directly in front of you.
For members appearing remotely, I know you are familiar with
Webex by now, but let me remind everyone of a few points.
First, you will be able to see each person speaking during the
hearing, whether they are in person or remote, if you have your
Webex set to active speaker view. If you have any questions or
concerns about this, please contact committee staff right away.
Second, we have a timer that should be visible on your
screen when you're in the active speaker with thumbnail view.
Members who wish to pin the timer to their screens should
contact committee staff for assistance.
Third, the House rules require that we see you, so please
always have your cameras turned on.
Fourth, members appearing remotely who are not recognized
should remain muted to minimize background noise and feedback.
Fifth, I will recognize members verbally, but members
retain the right to seek recognition verbally. In regular
order, members will be recognized in seniority, unless
otherwise designated by the ranking member or myself. Last, if
you want to be recognized outside of regular order, you may
identify that in several ways. You may use the chat function to
send a request, you may send an email to the majority staff, or
you may unmute your mic to seek recognition. Obviously, we
don't want people talking over each other, so my preference is
that members use the chat function or email to our committee
staff to facilitate formal, verbal recognition.
We'll begin the hearing immediately enough.
The committee will come to order. Without objection, the
chair is authorized to declare a recess of the committee at any
time.
Without objection, and I've cleared this with the ranking
member, the honorable gentleman from Maryland, Mr. Steny Hoyer,
the distinguished majority leader; Mr. Donald Beyer, the
gentleman from Virginia; and Jennifer Wexton, the gentlewoman
from Virginia, will be permitted to join the subcommittee and
be recognized for questioning at the appropriate time.
I now recognize myself for my opening statement.
Almost exactly two years ago, I sat on this very desk for
my first hearing as chairman of the subcommittee. It focused on
a little known board in the executive branch that ensures our
civil service is vested with knowledge and expertise. That
board is the Merit Systems Protection Board. At the time, the
Board had been without a quorum since January 2017; the longest
ever it's been unable to operate since it was created in 1979.
Despite our efforts to highlight the significant role of
the Board in adjudicating Federal employee appeals of actions
taken against someone when they blow the whistle on waste,
fraud, and abuse, and political retaliation, the Board still
remains without a single board member confirmed by the U.S.
Senate. It has a backlog of, now, of more than 3,000 petitions
from employees who claim they've been retaliated against or
that their leadership has failed to uphold the merit systems
principles that serve as the foundation of civil servants since
1883.
This hearing serves as a critical inflection point--the end
of the Trump administration's four-year assault on the Federal
workforce--and a celebration of the resiliency of those who
served our Nation, despite the constant attacks and
degradation. It's also the beginning of a new administration
that's highlighted the vital role Federal employees play and
will play in making the Nation work, especially during a
pandemic.
We will use what we learn here today to better understand
weaknesses in the Federal laws that are meant to enshrine merit
system principles in perpetuity. We seek to protect the
statutory right to collectively bargain. We want to strengthen
whistleblower protections, to empower those who see wrongdoing
to be able to come forward without fear. We want to prioritize
the health and safety of the workforce that continue to serve
us in the midst of a catastrophic and deadly pandemic; noting
that we reached a tragic milestone yesterday, that 500,000
fellow Americans have succumbed to this virus in less than a
year.
The Trump administration began its attacks on the Federal
workforce from the very start with a hiring freeze. President
Trump quickly followed that freeze with repeated budget
requests to freeze Federal pay. Congress did not agree. It
provided at least a one percent increase in each year of the
Trump administration in terms of compensation for Federal
employees.
President Trump followed up pay freezes with three
executive orders that severely undermined Federal employees'
rights to bargain collectively. He nominated two individuals
who were outright hostile to public sector unions at the helm
of the Federal Labor Relations Authority, and stacked the
Federal Services Impasses Panel with anti-union stalwarts.
The Trump administration also orchestrated an illegal
attempt to abolish the very agency that serves as our Nation's
human resources hub. Without legal justification or analysis,
the Trump administration began to move components of the Office
of Personnel Management into the General Services
Administration and the executive office of the President.
This subcommittee held two hearings and sent multiple
oversight letters on a bipartisan basis. Congress rejected and
defeated the plan to eliminate OPM. This subcommittee led that
effort on a bipartisan basis.
Then the Trump administration went even lower. The
President released an executive order that asked Federal
agencies to strip anyone who could be construed as involved
with policymaking or policy implementation of the statutory due
process rights. This action known as Schedule F struck at the
very heart of what makes our civil service a crown jewel
everywhere in the world.
OPM, the Merit Systems Protection Board, and the FLRA,
established collectively a statute by the Civil Service Act of
1978, are fundamental components to avoid the corrupt patronage
system of our Nation's past. And the Trump administration
unleashed an all-out assault on those very foundations.
I led my colleagues in running the clock out on the so-
called Schedule F initiative, but damage remains. Clearly, we
have a lot of work ahead of us to rebuild our civil service.
I'm supporting the Biden administration's laudable effort to
reverse many of the previous administration's actions by taking
essential steps to revitalize our civil service.
First, today, I'm introducing the Merit Systems Protection
Board Empowerment Act, authorizing the Board through 2026 and
providing an authority to survey Federal employees to find ways
to improve its ability to protect expertise in government.
Today, I'm also reintroducing the National Security
Diversity and Inclusion Workforce Act, which requires each
national and security agency to provide a public report on its
diversity and inclusion efforts, and encourages agencies to
expand development in career advancement opportunities for
everybody in its workforce.
Over the last--past few weeks, I've reintroduced
legislation to prevent any future administration from
attempting something like Schedule F from happening again
without congressional approval. The bipartisan Preventing of
Patronage System Act requires the executive branch to get
explicit statutory authority to establish any categories of
Federal employees outside of the General Schedule. I believe
that's perfectly consistent with American history.
The Pendleton Act was a legislative act by Congress
creating a professional cadre in the civil service, and to
create by executive order a new schedule that actually
undermines that, I think prevents the very basis of the action
taken by Congress back in 1883.
While we overturn the catastrophic policies of the previous
era and nourish a Federal workforce starved of resources, we
must simultaneously find ways to rebuild our civil service and
attract the next generation to public service.
As of December, only 6.8 percent of the Federal workforce
was under the age of 30. In the private sector, by contrast, 23
percent of the workforce is under 30. According to OPM data
from just last week, 29.4 percent or nearly a third of the
Federal workforce is eligible for retirement by the end of
2025. We have an aging workforce and young people aren't
attracted to it and don't want to stay if they are.
In terms of the diversity, the workforce needs improvement.
While women comprise 43.3 percent of the full-time career
workforce, they comprise only 35.5 percent of the senior
executive service--the leadership ranks of our career
workforce. People of color comprise 38.3 percent of our
workforce, but only 22.6 percent of our senior executive
service. You can see the visual on the screen.
I want to show you an analysis from Georgetown University
that uses OPM data to show the net loss of people of color
across several agencies within the Federal Government during
the last administration. If you look at the screen, you'll see
that the green line represents an exodus of Black, African-
American employees from the Social Security Administration, the
Bureau of Prisons, and OPM. Note too that people of American
Indian descent or Alaskan Natives left the Bureau of Indian
Affairs in large numbers during the previous administration.
It's a picture of an aging workforce that's failing to
hire, welcome, and promote young people, women, and people of
color. Strategic human capital management has been on the GAO
High-Risk List presented to this committee every year since
2001.
We're in the midst of record job losses across the Nation.
Now is the time to recruit the best and brightest to Federal
service. And while we're at it, let's also find ways to reduce
the 98.3 days on average it takes to hire a new employee in the
Federal Government. We can and must do better.
I'm here to help get the right talent into the right seats
to solve the country's most pressing and intractable problems.
And I look forward to hearing from the expert panel we have on
how best we can get that done.
I now recognize the ranking member for his opening
statement.
Mr. Hice. Thank you very much, Chairman Connolly, I
appreciate that. And I appreciate this in-person hybrid hearing
as well and for you working with us to make this happen for
those who want to be here in person. I appreciate you calling
this hearing.
Performance in the Federal workforce is no doubt a critical
issue, and it's our responsibility here in Congress to ensure
that Federal employees, the workforce, delivers the best that
it possibly can deliver for the American people.
And I'd like to begin today really by questioning the
premise of this hearing, however, which by the title would
suggest that it's in bad shape. It's not. My majority
counterparts like to rely on recycled talking points and
anecdotes. But the real data, the real information shows that
the Trump administration's Federal workforce reforms made a
positive difference.
According to the Federal Employee Viewpoint Survey, which
is the most reliable and most cited source for data about job
satisfaction in the Federal Government, job satisfaction rose
during the Trump administration. So, let me put that another
way. Federal employees, by their own admission, were happier to
work under President Donald Trump than they were under Barack
Obama. So, clearly, they did not view the Trump administration
as dismantling the Federal workforce. In fact, it's just the
opposite.
They finally saw someone who is taking action to deal with
the real issues that they have to live with every day at work.
They saw someone trying to address the problem of poor
performers, for example, an area that consistently ranks as one
of the lowest areas on the Federal survey.
The majority of Federal employees are good at what they do.
They're proud to do it. And they have chosen the Federal
workforce in large part because it's important and meaningful
work. But many of them, let's just be honest, have to pick up
the slack for poor performers. And managers have little ability
to address these types of poor performers and individuals. That
is demoralizing. That is difficult for any workforce, and it is
difficult for the Federal workforce.
President Trump issued a series of executive orders to
bring common sense back into the Federal workforce and the
workplace by scraping away some of the obstacles that had been
put in place to shield those who are not pulling their weight.
And while the needs of Federal employees are important--we
all agree about that. Their needs are important, but the needs
of the American people come first. President Trump took action
to curtail official time practices. That is a huge thing.
Federal employees on official time spend much of their time
doing union-related activities rather than the work for which
they were hired to do. And it's all the American taxpayer who
pays for that type of thing. And, frequently, at least in my
opinion, official time is misused by paying people not to do
their job.
Under President Trump, official time actually decreased by
over 28 percent between 2016 and 2019. But just as a frame of
reference, that still amounted to over 2.6 million hours at a
cost of some $135 million to the taxpayers.
As the chairman knows, I have focused a lot of my time here
in Congress dealing with official time. In fact, my bill,
Official Time Reform Act, would prohibit Federal employees who
spend 80 percent or more of their time doing--on official time
rather than the job for which they were hired to do. And, I
mean, that's being very generous allowing 80 percent.
But now turning to Schedule F, this was not an attempt to
recreate patronage system or politicize the civil service. This
is a reflection of this reality that Feds in policymaking
positions wield tremendous power to implement or hinder the
administration's agenda, whatever administration that might be.
These were privileged positions, and those serving in those
positions should be held accountable for their performance to
require them to give their best efforts regardless of what
their personal views might be. If they don't like that, then
perhaps they're in the wrong career. Nobody elected them. But
those who were elected and are accountable to the voters, they
should be able to rely upon these civil servants to carry out
their duties.
If President Trump had been trying to create a patronage
system, then all of these positions would have been made
political appointments under Schedule C. So, these were
commonsense reforms--strengthening the Federal workforce, not
weakening it.
Meanwhile, President Biden has given almost no
justification for repealing these efforts and rescinding these
executive orders. He generically claimed he wanted to encourage
union organizing and collective bargaining and that the Trump
administration undermined the civil service. But how? On what
data is--are those kinds of claims based upon? And President
Biden provided none. More importantly, his comments ignored the
American people who actually benefited from President Trump's
reforms.
Finally, with regard to OPM and the proposed merger with
GSA, let's bear this in mind: President Trump inherited an
organization recovering from a reputation-shattering data
breach in which millions, tens of millions of Federal employees
were affected. Congress then shifted a huge portion of its
operation, security background checks, to the Department of
Defense.
So, while I'm aware that members on both sides of the aisle
were concerned about the level of documentation around this
proposal, I think this was a defensible effort to ensure
Federal employees got the level of human resources that they
deserve.
In closing, there were, and, frankly, there are, real
issues within the Federal Government. President Trump took
action to address some of them, many of them, and I'm not
surprised that today he is going to be made and cast the
villain. But if you take a--an honest look under the hood, you
will see the claim that he attempted to dismantle civil service
just does not ring true. In fact, just the opposite is the
truth. His reforms improved the Federal workforce, which is
vividly, vividly, vividly reflected in the Federal Employees
Viewpoint Survey.
Again, Chairman Connolly, thank you for calling this
hearing. I look forward to hearing from our witnesses.
Mr. Connolly. I thank my friend.
Just some items for the record, since my friend asked for
data, I will, without objection, enter into the record a series
of charts providing clear data on what happened to Federal
employees during the last four years, prepared by Georgetown
University and the University of Southern California. I would
also enter into the record the Federal Employees Viewpoint
Survey.
As my friend from Georgia indicated, in some cases, there
was increased satisfaction in Federal agencies, but the median
large agency experienced during these four years, actually, a
decline in satisfaction. And, of course, the worst recorded was
the Department of Education, where satisfaction declined by
16.1 percent. So, I would enter that into the record so we also
have that data.
And without objection, so ordered.
Mr. Hice. Mr. Chairman?
Mr. Connolly. Yes.
Mr. Hice. While we're entering some things in the record, I
likewise would like to enter the Federal Employee Viewpoint
Survey into the record, and along with it, the OPM Federal
Employee Viewpoint Survey preview of the highlights that are in
this. And I would ask----
Mr. Connolly. Without objection, so ordered.
Mr. Hice. Thank you, sir.
Mr. Connolly. Thank you.
Now, I'd like to introduce our witnesses. We're grateful to
have--is Mr. Hoyer on? OK. Can someone find out? Mr. Hice and I
are more than willing to invite him to give an opening
statement, if he has one. Meanwhile, we'll go for it.
Our first witness today is Janice Lachance, who's with us
physically. We're delighted she got through security today.
She's the former director of the Office of Personnel Management
and currently serves as the executive vice president for
Strategic Leadership and Global Outreach at the American
Geophysical Union. We'll then hear from Everett Kelley, the
national president of the American Federation of Government
Employees. We will next hear from James Sherk, who is the
former special assistant to the President, President Trump, for
domestic policy in the White House Domestic Policy Council.
And, finally, we'll hear from Anne Joseph O'Connell, the
Adelbert Sweet Professor of Law at Stanford University Law
School.
If we can unmute all of our witnesses and ask you all--and,
Ms. Lachance, if you can rise and raise your right hand. And if
our other witnesses would raise their right hand, please.
Do you swear or affirm that the testimony you're about to
give is the truth, the whole truth, and nothing but the truth,
so help you God?
Let the record show that all of our witnesses have answered
in the affirmative.
And, without objection, your written statements will be
made part of the full record. We ask each of you to now
summarize your remarks in five minutes.
With that, Ms. Lachance, you're now recognized. Now, I'm
pronouncing it the way we would in Boston. Is it Lachance or
Lachance?
Ms. Lachance. I appreciate it. Over the years, we've
anglicized it, so I will answer to anything. I really love
hearing the accent.
Mr. Connolly. We can do it in French, though, Lachance.
Ms. Lachance. Lachance.
Mr. Connolly. OK. Welcome.
STATEMENT OF JANICE R. LACHANCE, FORMER DIRECTOR, OFFICE OF
PERSONNEL MANAGEMENT, EXECUTIVE VICE PRESIDENT, STRATEGIC
LEADERSHIP AND GLOBAL OUTREACH, AMERICAN GEOPHYSICAL UNION
Ms. Lachance. Thank you.
Mr. Chairman, Ranking Member Hice, members of the
subcommittee, I want to open with a thank you for all of the
work that you've already done to sustain our impartial,
nonpolitical merit system, including your important efforts to
maintain the independence of the Office of Personnel
Management. The programs and services supported by the Federal
workforce impact every American in every congressional
district. So, I also want to thank you for holding this hearing
today about revitalizing the Federal workforce.
This subcommittee, working with the Biden administration,
has a rare opportunity to build consensus, develop a
legislative agenda, and leverage our oversight authority to
modernize the Federal human resources system. I suggest you
start by correcting some of the policies that have been
discussed here this morning of the last four years that could
have gutted the merit-based civil service.
Two of those misguided efforts were the proposal to
dismantle OPM and undermine the foundation of the merit system
by reassigning human resources policy to the Executive Office
of the President, and to the executive order creating Schedule
F, the new accepted service category in the civil service. This
subcommittee succeeded in keeping OPM intact for now, and
President Biden rescinded Schedule F and restored union
organizing rights with his own executive order.
As someone who spent eight years at OPM and who's been a
keen observer of the agency ever since, I recognize areas of
the agency must improve. However, an independent agency
specifically charged with protection of the merit system and
the development of impartial, nonpartisan human resources
policies and practices is vital to the fair and effective
administration of government programs and to the protection of
the civil service from political interference.
My written testimony includes a number of recommendations
for the subcommittee, and I highlight a few here.
Designate the OPM director as a member of the President's
Cabinet. I had the privilege of that status in the Clinton
Administration, and it enabled me to raise the visibility of
personnel matters and to model practices that were ultimately
adopted by the private sector.
Urge the immediate nomination and quick confirmation of the
Senate-confirmable positions at OPM and at the MSPB, an agency
key to ensuring a fair workplace that has not had a quorum for
four years.
Launch a comprehensive assessment of the expertise and
resources it would take to enable OPM to operate the way it
should and the way we all hope it can, as a world-class human
resources operation.
Ensure a strategic whole-government approach to Federal
H.R. by giving OPM authority to oversee personnel matters
across the entire government, not just the agencies under Title
5.
Pass legislation requiring congressional approval for the
creation of any new or expanded excepted service authority.
Significant alterations to the merit system should not be in
the sole purview of any President.
Beyond these, I offer additional recommendations that will
help attract a new generation of workers and those with needed
expertise. First, we must ensure the resources needed to
continue reducing the time it takes to hire. We must invest in
the modernization of USAJobs.gov. We should establish
partnerships with community, Tribal, and minority serving
academic institutions, and union apprenticeship programs to
ensure a continuous diverse pipeline. Leverage and expand where
appropriate internship programs and direct higher authorities
to speed hiring. Consider whether additional compensation
flexibilities can be targeted to hard-to-recruit occupations
and to agencies and programs with perpetually high vacancy
rates.
We should also ask whether the pandemic highlighted needed
changes in benefits, such as expanded work-from-home
opportunities or the need for additional sick leave.
Constructing a personnel system for today is a complex
challenge, even when its foundational elements go back more
than a century. I have focused primarily on what can be done in
a relatively short amount of time, given the urgency of the
societal challenges we face: The pandemic, the resulting
unemployment and economic pain, and the climate crisis which is
causing irreparable harm to our species and our planet.
I look forward to answering your questions and supporting
your efforts going forward.
Mr. Connolly. Wow, a pro. Right on time. Thank you, Ms.
Lachance.
Mr. Kelley, you're now recognized for five minutes.
Mr. Kelley, you are muted. If you could unmute.
STATEMENT OF EVERETT B. KELLEY, NATIONAL PRESIDENT, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES
Mr. Kelley. OK. Thank you so much.
Chairman of the subcommittee, Ranking Member Hice, and
members of the subcommittee, I too want to thank you very much
for holding this hearing to mark this new moment for our
government and its work force.
Like other Americans, I watched the event of January 6 in
horror and then sorrow. I'm grateful and I thank God that none
of you suffered any physical harm and that you were able to
lead in a hearing like this so soon after the Congress and the
Capitol were under direct attack.
Like the apolitical, professional of civil service, Members
of Congress serve the public and are deserving of the highest
level of care and respect. I'm truly sorry that you and your
staff members experienced such a terrible ordeal.
The past four years have been traumatic for Federal
employees and their union as well. President Biden's executive
orders have been a shot in the arm, almost as welcome as
vaccines that we prayed for will soon be available to the
entire population. But it is now up to all of us to make
compliance with these Biden EOs to bring in a top priority
because it will be impossible to move forward to revitalize
Federal labor management relations if that does not occur. Both
the executive orders are protecting the Federal workforce and
COVID-19. And the executive order that revoked the previous
administration's anti-union executive orders proves a profound
charge in labor management relations in Federal agencies.
Once every trace of this previous administration executive
orders is eliminated, and at least three executive order
contracts are restored, I believe that we'll see a vast
improvement in morale, trust, recruitment, and retention.
In addition, to restore of our rights, we're eager to see
attention paid to our paychecks. We're extremely grateful to
the chairman for this continued support for the economic well-
beings of Federal workers with the introduction of, once again,
of the FAIR Act.
We intend to make certain that fair play as well as fair
pay are achieved in the coming year. Both are necessary for the
success of all Federal agencies going forward. Fair play, of
course, means requiring Federal agencies to get on board with
the Biden's executive order, but to make sure that every agency
is held accountable for both the letter and spirit of the
President's executive orders and resist to the efforts to make
the Federal Government a model employer are not tolerated. To
that end, it must immediately come back to the bargaining table
to work with us to eliminate the policies and rules imposed on
us by the last administration.
Fair play will also entail some reforms of two pieces of
legislation that has harmed the VA workforce--the
Accountability Act and MISSION Act. Now, these two laws have
had serious unintended consequences, and we ask that Congress
address the harm that they have done to the VA, its workforce,
and the veterans that they serve. Likewise, it will require
restaffing at agencies as diverse as the Bureau of Prisons, the
EPA, the VA, DOD, and many others.
We're all waiting for the NAPA report on the future of OPM.
We are grateful that the previous administration's attempt to
dismount the agency failed. But we do hope that the committee
will recognize that the people-service model that fund so many
of OPM's operations has been a failed experience. Going
forward, OPM needs to be strengthened by ensuring that it has
direct appropriations to carry out all of the statutory
functions.
On COVID-19, I want to make this opportunity--I want to
take this opportunity to thank the chairman for his leadership
and compassion in ensuring that Federal employees have proper
PPE and safety protocols to prevent additional needless deaths
with the reintroduction of the Chai Act.
We have all learned through bitter experience how fragile
our institutions of democracies are. All were under attack
during the past four years, and so many nearly succumbed.
Apolitical, professional civil service was one such institution
that few outside of this committee and the world of the Federal
Government appreciates. We survived, but barely. And I hope
that going forward we all understand that we must strengthen,
not weaken, the statutory underpinning of the civil service and
the union that represent Federal workers.
Thank you for your time, and I'll be happy to answer any
questions when appropriate. Thank you.
Mr. Connolly. Another pro. Thank you, Mr. Kelley. You still
had 24 seconds. Thank you.
Mr. Sherk, you are now recognized for five minutes.
STATEMENT OF JAMES SHERK, FORMER SPECIAL ASSISTANT TO THE
PRESIDENT FOR DOMESTIC POLICY, WHITE HOUSE DOMESTIC POLICY
COUNCIL
Mr. Sherk. Chairman Connolly, Ranking Member Hice, and
members of the subcommittee, thank you for inviting me to
testify this morning. My name is James Sherk. I'm a formal
special assistant to the President for domestic policy in the
last administration.
I am speaking this morning only in my personal capacity. As
such, while I can discuss the problems the administration
addressed, how it addressed them, my personal views, I am not
authorized to speak on behalf of other administration officials
or to reveal internal administration deliberations.
The Trump administration made the Federal Government better
for both the American people and its own employees. There are
three essential facts that the committee should understand.
First, the government fails to effectively address poor
performers, and this frustrates Federal employees themselves.
Second, excessive removal restrictions undermine the original
vision for the merit service. Third, Federal employees
expressed profound satisfaction with the Trump administration's
management of the Federal workforce.
The first point identified makes it prohibitively difficult
to fire Federal employees for poor performance. The Government
Accountability Office estimates that doing so takes between six
months to a year and sometimes longer. The MSPB reports that,
and I quote, ``many supervisors believe it is simply not worth
the effort to attempt to remove Federal employees who cannot or
will not perform adequately,'' unquote.
Only a quarter of Federal supervisors are confident that
they could remove a poor performer. Consequently, agencies
rarely remove employees for poor performance. This frustrates
Federal employees. Federal Employee Viewpoint Survey, or FEVS,
shows that only a third of Federal employees believe their
agency takes steps to deal with poor performers. Federal
employees consistently give this question some of the most
negative FEVS responses.
Second, removal protections undermine reformers original
vision for the merit service. The Pendleton Act replaced the
spoils system with competitive examinations and merit-based
hiring. But the Pendleton Act did not interfere with the
President's general authority to fire Federal employees. The
creators of the merit service were concerned that removable
protections would, and I quote: seal up incompetence,
negligence, and insubordination, requiring a virtual trial at
law before an unfit or incapable clerk can be removed, unquote.
To avoid that, their reforms focused on merit-based hiring
while leaving the removal process largely unencumbered. As
leading civil service reformer George William Curtis put it,
quote, ``if the front door is properly tended, the back door
will take care of itself,'' end quote.
Federal servants could not appeal removals outside their
agency until Congress let veterans do so during World War II,
two generations after the Pendleton Act was passed.
Now, uninformed coverage of the Schedule F executive order
claimed it broke with the Pendleton Act. Its coverage was
precisely backward. Schedule F returns to the foundations of
the merit service. Apolitical hiring and expeditious removals
were necessary. In fact, Schedule F employees would have
enjoyed far greater removal protections than the Pendleton Act
provided.
Third, Federal employees expressed profound satisfaction
with the Trump administration's management of the Federal
workforce. The Federal Employee Viewpoint Survey shows Federal
employee job satisfaction rose every year through the Trump
administration. FEVS job satisfaction rose to the highest level
ever recorded last year.
Over the course of the Trump administration, positive
responses increased on the FEVS on an incredible 64 out of 71
measures and did not decline on a single measure. FEVS scores
matched or reached their all-time high on over 40 measures.
These include record proportions of Federal workers who are
satisfied with policies and practices of their senior leaders,
who agree their agency does not tolerate coercion for partisan
political activities, and who say that their supervisors treat
them with respect.
Federal employees also specifically approved of the Trump
administration's policies making it easier to fire poor
performers. A poll conducted by Government Executive showed
Federal employees supported these initiatives by a more than 2-
1 margin. And the FEVS shows that the proportion of Feds who
approve of how their agency addresses poor performers rose
every year of the Trump administration.
Industrial and organizational psychologists said OPM
designed the FEVS and career experts conduct it. It is the
definitive measure of the views of the Federal workforce. It
produces hard data used by academics and researchers. To ignore
this data is to ignore the views of Federal workers.
Federal employees strongly approved of the Trump
administration's workforce policies. These gains must be
protected from the assaults of those who seek to return to a
failed status quo and to reverse the gains Federal employees
enjoyed under the Trump administration.
Thank you. I appreciate the opportunity to explain how the
government's failure to effectively deal with poor performers
frustrates Federal employees, how excessive removal
restrictions undermine the original vision for the merit
service, and the profound satisfaction Federal employees
expressed with the Trump administration's management of their
workplaces.
Mr. Connolly. Thank you very much. Another pro right on
time.
Finally, we are going to hear from Professor O'Connell.
You're now recognized for five minutes.
STATEMENT OF ANNE JOSEPH O'CONNELL, ADELBERT H. SWEET PROFESSOR
OF LAW, STANFORD LAW SCHOOL
Ms. O'Connell. Thank you.
Chairman Connolly, Ranking Member Hice, and members of the
subcommittee, thank you for this opportunity to participate in
today's important hearing on revitalizing the Federal
workforce.
In addition to my role at Stanford, I am a proud former
Federal Government employee, having served, among other
positions, as an honors program attorney at the Department of
Justice. In addition, as a then-resident of Fairfax County,
Chairman Connolly, I worked many summers in high school and
college for the U.S. Army at Ft. Belvoir's Research,
Development, and Engineering Center.
Mr. Connolly. God bless you.
Ms. O'Connell. The views I express in this testimony are my
own. In the few minutes I have, I want to make four quick
points.
Point one, agencies and their career employees play
critical roles across the Federal Government. These agencies
and their workers regulate and adjudicate and do so much more.
NASA landed a rover on Mars last week for the fifth time.
At the State Department, career employees advise on foreign
affairs, train diplomats, adjudicate visa applications. FDA and
CDC scientists and many other career officials across different
agencies have been on the battle lines in addressing COVID.
Point two, our agencies' career workers have been
undermined through reorganizations with insufficient buy-in,
constrained budgets and pay, government shutdowns, White House
directives, and the lack of confirmed leaders of the Merit
Systems Protection Board.
In the last administration, the Department of Agriculture
sent most of its economic research surveys and its National
Institute of Food and Agriculture to the Kansas City area. The
Department of Interior moved much of the D.C. headquarters
staff of the Bureau of Land Management from D.C. to Grand
Junction, Colorado. Well, really the agency sent the positions
away, but the people didn't follow. So, at the Agriculture
entities, staff, despite a round of hiring last year, decreased
by about a third since 2016. At the Bureau of Land Management,
close to 90 percent of affected workers quit or found other
jobs. Morale at those agriculture organizations plummeted.
Congress has also largely tamped down meaningful growth and
agency budgets and employee pay, which has also affected
employee morale. The 2011 Budget Control Act with its yearly
limits on discretionary defense and non-defense spending
through Fiscal Year 2021, which were enforced through
sequestration, contributed to downsizing and the freezing of
hiring in some entities. President Trump proposed such minor
pay increases that Congress overruled his recommendations
twice.
In addition, Congress and the White House have increasingly
failed to keep the government open. In the most recent
government shutdown, from December 22, 2018, to January 25,
2019, 380,000 Federal workers were furloughed. And over 400,000
essential workers had to work despite not being paid.
As already noted, President Trump issued many directives
that undermine the career workforce in the Federal Government.
And the MSPB, which adjudicates critical disciplinary actions
against Federal workers and helps to protect whistleblowers,
have been unable to function since 2017 when it lost its
quorum.
Now, of course, these interventions have contributed to
departures, the lower morale of agency workers, but their
consequences go deeper. Governmental operations suffer, and
there are effects outside the government as well. The CBO
estimated that the last government shutdown resulted in a $3
billion cut to GDP, and the Partnership for Public Services
report on the shutdown detailed in a variety of ways how the
shutdown did lasting and sometimes irreparable harm.
Point three, despite these intentional or unintentional
measures of undermining agency workers, the Federal workforce
continues to serve the public in critical ways. And there's one
way I want to flag that gets less attention. That senior career
officials step in, sometimes for long periods of time,
sometimes for shorter stints, to serve in acting roles in
Senate-confirmed positions that are vacant. The Federal Vacancy
Reform Act allows this to occur for certain senior career and
political non-confirmed officials.
And we saw that both Presidents Trump and Biden used career
agency workers at the start of their administrations for the
highest agency jobs, including acting secretaries. We see
career workers stepping in in lower level positions as well.
So, the General Counsel at the EPA, there have been 17
acting general counsels, 10 of them came from the career ranks,
since 1983. We also see career officials in IG offices also
plagued by vacancies, stepping in in critical acting roles. But
we did see in the last administration how President Trump used
the vacancies act to sidestep career officials in these acting
roles and turn to political acting IGs at the State and
Transportation Departments.
Finally, point four, there are many efforts, particularly
by members of this subcommittee, on retaining and promoting
career workers, encouraging younger workers to enter government
service, using faster hiring authorities where possible and
while maintaining merit principles, and helping to reform the
vacancies act to promote expertise and not a workaround to the
appointments process.
I look forward to your questions.
Mr. Connolly. Thank you so much. And, Professor O'Connell,
I believe your mother is my constituent. Give her my best.
The chair now recognizes the distinguished Congresswoman
from the District of Columbia, Ms. Norton, for five minutes of
questions.
Ms. Norton. Thank you very much, Mr. Chairman. Can you hear
me?
Mr. Connolly. Loud and clear.
Ms. Norton. I particularly want to thank you for this
hearing on the impact, as you call it, of the failed pandemic
response on the Federal workforce.
My questions are for Mr. Kelley of the AFGE. But I do want
to know, Mr. Sherk's testimony in which he cited satisfaction
of Federal workers. Yes, Federal workers are generally
satisfied, but this administration did more to undermine that
satisfaction than any administration in recent memory. They are
satisfied with being Federal workers. They are certainly not
satisfied with the ways they were treated during the Trump
administration.
And, Mr. Kelley, I want to begin by going on record to
thank Federal employees for the way they have served the public
during this pandemic. Federal employees have continued to offer
very critical services to--that, frankly, we needed to keep the
country running. Some have served on the front line, and some,
of course, have been teleworking, like Members of Congress.
Now, the previous administration did not offer clear
guidance on COVID-19. As a result, thousands of Federal
employees lost their lives. Yet we do have--we don't have a
central count of how many lost their lives, but, fortunately,
many individual agencies have publicly reported their
infections. And I want to indicate what that was for at least
some of those that kept these records on their own.
The Defense Department, with 750,000 civilian employees,
had 184 deaths. The Veterans Department had 17,000 cases in its
38,000 employees and 128 deaths. The U.S. Postal Service, who
we must remember because our elections themselves depended on
them, 14,000 employees contracted COVID, nearly 640,000
employees, and 119 deaths.
Now, last month, the administration issued new guidance to
the heads of Federal agencies that implements a new executive
order requiring masks and physical distancing--you would think
that that would be achieved, but he had to issue an executive
order--on Federal land by Federal employees and contractors.
So, Mr. Kelley, this is my question to you. If you look at
this guidance, in addition to this guidance, do you have any
recommendations for the Biden administration to ensure that the
Federal Government adequately protects its workforce? Mr.
Kelley.
Mr. Connolly. Mr. Kelley, if you will unmute.
Mr. Kelley. Can you hear me now?
Mr. Connolly. Yes, we can.
Mr. Kelley. I think I understood your question. You were a
little spotty, but it sounds like--but I think that I would
first--I think that----
Mr. Connolly. Mr. Kelley, one second.
Mr. Kelley. [Inaudible.]
Mr. Connolly. I want to add 10 seconds, please, to Mr.
Kelley's response. Thank you.
Mr. Kelley, you may proceed, sorry.
Mr. Kelley. OK. I think I heard the question correctly. It
was a little spotty at times, but I believe that the question
is, do I believe that the Federal Government adequately
protected its workforce. OK? And the answer to that is this.
You know, the guidance that was given was so vague, most of the
agencies could not understand it. And so, therefore, one agency
would say one thing, another would say another.
As it relates to the deaths of, you know--you know, and I
had reports that so many agencies were telling the management
officials not to even report certain infections and certain
deaths. So, the accuracy of the death toll and the infection
rates is absolutely unclear. No one knows what they really are.
And it's because there was an underlying effort, you know, to
keep that information away from the employees and from, I just
say, even Congress.
Mr. Connolly. Thank you.
Ms. Norton, are you done? You've got 20 seconds.
Ms. Norton. [Inaudible] Sent from Mayor Muriel Bowser of
Washington, DC, Governor Lawrence Hogan of Maryland, and
Governor Ralph Northam of Virginia to the Acting Secretary of
U.S. Department of Health and Human Services, and to FEMA,
requesting that the Federal Government provide COVID-19
vaccinations to Federal employees. We must ensure that Federal
employees are among those that get some priority in a
vaccination.
Thank you very much, Mr. Chairman.
Mr. Connolly. Thank you, Ms. Norton. And I was pleased to
join that effort with you.
Mr. Hice, the ranking member, is recognized for his five
minutes of questions.
Mr. Hice. Thank you very much, Mr. Chairman.
Mr. Sherk, let me just come directly to you. The OPM
Federal Employee Viewpoint Survey that I referenced earlier has
consistently showed that Federal employees----
Mr. Connolly. If the gentleman would suspend one second.
Could we ask everybody please to mute so that the gentleman can
be heard.
Mr. Hice. Thank you, Mr. Chairman. Can I have my 15 seconds
back just because it was noisy, and I appreciate you taking
care of that.
Mr. Sherk, I'd like to direct my questions to you. The
OPM's Federal Employee Viewpoint Survey consistently shows that
Federal employees were happier under President Trump than they
were under the Obama-Biden administration. Is that fair to say?
Mr. Sherk. That's entirely correct, sir. Last year, in
2020, Federal employee job satisfaction rose to 71.6 percent.
That is the highest that the Federal Employee Viewpoint Survey
has ever recorded. It goes back to 2002. It used to be called
the Federal Human Capital Survey. You've never had that high
proportion of Federal employees saying they're satisfied with
their jobs.
The FEVS measures 71 different metrics of, basically, work
in the Federal workforce. And across 64 of those 71 metrics,
these scores improved. There was 7 where they were flat. On no
metric did they decline. And on over 40 of those scores, you
saw Federal employees recording all-time record high
satisfaction under the Trump administration. Simply put,
Federal employees liked what we were doing.
Mr. Hice. Thank you, Mr. Sherk. That's amazing. It's really
stunning information.
Quite frankly, if there was a war on Federal workers, as is
the accusation against President Trump, then evidently someone
forgot to mention that to the Federal workers. Because in every
category, they gave overwhelming approval with the direction
it's going. And why should that be a surprise? They are--many
of them having to carry the load of poor performers.
Now, you were heavily involved in drafting President
Trump's executive orders on the Federal workplace. Can you
summarize the top reasons that those orders were needed,
primarily for the purpose of assuring a merit-based Federal
workforce system?
Mr. Sherk. Thank you. Yes, the reason--and, again, I can't
divulge internal deliberations, but I can discuss my views on
why I think the orders were a good idea. And simply put,
Federal employees are frustrated with the lack of
accountability for poor performers. Survey after survey shows
this is one of the most negative scores that Federal employees
give their agencies on the Federal Viewpoint Survey, is it
doesn't do a good job of addressing poor performers. And right
now, it's a third. That's a record all-time high. But only a
third of Federal employees saying that is pretty miserable. And
it's a huge burden on the Federal workforce.
I am a former Federal employee. I live in Northern
Virginia. I'm now one of Chairman Connolly's constituents. A
number of my friends and neighbors are Federal employees. And,
yes, it's not just the survey data. Anecdotally, you talk to
Federal employees, they all know that guy Bob who sits in the
office and plays solitaire all day. And they're sick of having
to pick up the work that that person's not doing.
New Government Executive magazine did a survey, a
scientific survey of Federal employees. I don't know how many
Americans they had to survey to get the, you know, two percent
who are Federal workers and have a scientifically valid
response, but they did it. And they found 2-to-1 support for
the Trump administration initiatives making it easier to fire
poor performers.
Simply put, if you've got a poor performer in your work
unit, it's a drag on morale, it's a drag on the agency's
sufficiency, and a lot of Federal employees themselves are
really frustrated with it. And we were trying to respond to the
voice of the Federal workers and say, Look, you deserve better.
Mr. Hice. Thank you. Now, I've only got about a minute and
a half left here, and I've got at least a couple more
questions, so if you could be concise here. I want to zero in
on President Trump's F schedule, the Schedule F. How
significant is that when, particularly in reference to--without
these reforms, how easy is it to thwart the implementation of a
President's voter-approved agenda?
Mr. Sherk. There are some civil servants who had a
tremendous amount of power and ability to either, you know,
facilitate the implementation of the President's agenda or to
block it. There's only about 4,000 career political appointees
in the entire executive branch that add up to 2.1 million.
There are some senior civil servants who were given a lot of
authority in terms of the drafting and, you know, the writing
regulations. And if those guys don't like a policy, they have a
considerable amount of ability to stop it.
Now, when it comes to the Senior Executive Service, we
already have a fairly high degree of performance
accountability, that if you get one negative performance
rating, you can be fired. And the SES members can be reassigned
more or less at will. But that's not true for the General
Schedule employees.
So, what Schedule F was doing is for that very small
portion of Federal employees who exercised this pretty
substantial policy influence in power, treating them fairly
similarly to the way the Senior Executive Service is currently
treated.
Mr. Hice. All right. My time has expired. I have one other
question that I wanted to get out, but we'll get that to you.
If you would answer us in due time.
Thank you, Mr. Chairman.
Mr. Connolly. Thank you, Mr. Hice.
Mr. Davis is recognized for five minutes.
Mr. Davis. Thank you very much, Mr. Chairman. And I want to
thank you for calling this very timely hearing. I also want to
thank all of the witnesses for coming to share their expertise
and thoughts with us.
It's a very important hearing, because as I was
recollecting a little bit and reading, I noticed that in the
Federal Service Labor Management Relations statute, Congress
declared that collective bargaining is in the public interest,
contributing to effective and efficient government operation.
Yet the Trump administration has repeatedly undermined
collective bargaining rights, weakening them unilaterally
through executive action.
For example, a series of executive orders in 2018 sought to
remove unions from the workplace, allowing managers to dictate
contract terms without independent review, impose arbitrary
deadlines for the collective bargaining process, and
drastically limit the ability of unions to represent employees
in discipline and other matters.
Ms. Lachance, several years ago, I had the good fortune to
serve as a member of this subcommittee, and I am delighted to
be back on it under the leadership of our chairman.
Let me ask you, as a professional in personnel management
business--I had a lot of wonderful relations and interactions
with OPM back in those days--how important is it for agencies
to engage in meaningful, collective bargaining with unions?
What does it really do? What----
Ms. O'Connell. Well, Congressman, thank you very much for
that question. There should be a very strong commitment to
working with the unions as they represent the rank-and-file
employees across governments, across very important programs.
During the Clinton administration, I chaired the National
Partnership Counsel, where we took a more cooperative and open
approach to union relations, smoothed things over quite a bit.
It does not have to be an adversarial relationship. This is
about what our employees need to get the work done and get the
work done efficiently. And I think you'll find that if you sit
down with any of the leaders of the unions across the
government, that will be their concern. Of course, they're
going to look out for the people they represent, but that
benefits everybody. And having a good solid relationship with
your union, with your bargaining unit at OPM, I worked very
closely with local 32, it gave me an insight into what was
getting in the way of our members and how--our work and helped
me solve problems.
Mr. Davis. Thank you. Thank you very much.
Mr. Kelley, if I could ask you, how have collective
bargaining rights and labor management relations been affected
by the Trump administration and his executive order?
Mr. Connolly. Mr. Kelley, if you can unmute.
Mr. Kelley. OK. Can you hear me now?
Mr. Davis. Yes.
Mr. Connolly. Yes.
Mr. Kelley. OK. Thanks for that question. Let me just say
that, first of all, these executive orders, you know, has
created such a hindrance for the labor and management to work
cohesively to try to resolve issues at the lowest level. I
mean, as you all know. You know, it actually, you know,
hindered us, didn't give us opportunity to speak with the
management about issues, even then with the pandemic, this
executive order has been more or less of a wink to the
management officials saying, look, do not talk with the
employer, do not talk with the union, you know, and whatever
issues that they bring up, just ignore it.
And prior to these executive orders, you know, we didn't
have that. We had cohesiveness. We had working together. We
had, you know, coming to the table and talking about issues,
resolving them at the lowest level that kept us out of
litigation. So, it hindered us in so many ways. That's just
one.
Mr. Davis. Thank you very much, Mr. Chairman. And I yield
back.
Mr. Connolly. Thank you, Mr. Davis.
The gentleman from Pennsylvania, Mr. Keller, is recognized
for five minutes.
Mr. Keller. Thank you, Mr. Chairman.
President Trump's executive order that was issued last year
that created a new classification within the Federal workforce
called Schedule F for employees serving in positions considered
confidential, and they were confidential with policy
determining, policymaking, or policy advocating authority that
are not subject to the change as a result of Presidential
transitions. This order made it easier to hold accountable,
remove employees, or remove employees who refuse to help the
new administration or a President of any party implement
policies that were mandated by the American voters.
That's why I introduced the Federal Workforce
Accountability and Modernization Act, which would codify the
Schedule F classification and hold accountable this--and
codified into law as written in President Trump's executive
order.
So, when we look at this, government agencies are currently
forced to comply with a large number of lengthy and complicated
procedures when it comes to taking favorable or adverse actions
against employees. This puts high performers at a disadvantage
and allows poor performers to easily remain in their position
with no consequence.
A 2016 Merit Principle Survey revealed that less than a
quarter of Federal employees believe their agency addresses
poor performers effectively. Additionally, the Government
Accountability Office have reported that it takes six months to
a year to remove Federal employees for poor performance. It's
clear that Federal employees and American taxpayers deserve a
more modern, efficient, and accountable government.
So, I have a question for Mr. Sherk. And, Mr. Sherk, thank
you for being here today. And in what way does rescinding the
Schedule F order improve accountability in the Federal
workforce?
Mr. Sherk. It doesn't. It actually moves in the opposite
direction. The reality is that the founders of the merit
service were very concerned that you had to have accountable
employees who could be removed, and they were concerned that,
look, if you put in a whole bunch of removal protections and
you've got to have a trial at law before you can fire someone,
then you're going to have a lot of incompetence and negligence
that is going to be sealed up. And they wanted none of that.
They wanted a merit service.
Any screening system--yes, the reforms were based on
hiring, but they know that any screening system is going to let
some bad apples through, and they believed it was very
important to be able to remove that.
Merit System Principle No. 6 says that poor performers
should be separated from the Federal service. And what happens
right now with the extensive appeal rights Federal employees
have, it almost never happens. It takes about a quarter of a
Federal manager's time for a year to fire a Federal employee.
So, you can do it, but there's not that many employees who
are so awful that you're going to spend 25 percent of your time
for a year to fire, and the guy just sits in his office and
plays solitaire two hours a day. That's the cost. But Federal
employees hate the system. Again, the surveys show that by a 2-
to-1 margin, they approved of the President's efforts to make
it easier to fire poor performers.
Schedule F was an attempt to return the civil service to
its original vision, that of apolitical hiring, but where
necessary and where there's bad performance, removing people on
the basis of their merit.
Mr. Keller. Thank you for that. Before President Trump's
actions related to Schedule F--and you talked a little bit
about how it was hard to deal with employees that weren't
carrying out the agenda and the policy mandated by the American
voters. Just for a matter of scope, the Schedule F, that's a
very small percentage of the workforce, isn't it?
Mr. Sherk. That's correct. My estimates are that Schedule F
would have applied to between 1 and 3 percent of the Federal
workforce. A very, very small fraction. There was another
executive order in 2018 that said let's streamline, make more
efficient the entire removal process, get rid of some
unnecessary impediments that are making it take much longer
than Congress ever intended. That would've applied to basically
everyone, but Schedule F was a small, small fraction.
Mr. Keller. So, we're just talking about a small portion of
employees that are tasked with policymaking decisions, correct?
Mr. Sherk. That's right. Individuals--you can think about
regulation writers in agencies, the folks who do the yeoman's
work of drafting the regulations. You can think about people
who--Congress gives agencies different functions, gives
discretion by law, anyone tasked with discretion to decide how
the agency will exercise that power. Some of these folks are in
the Senior Executive Service, but some are in the General
Schedule, and the idea is we need accountability if you're
wielding this incredible power Congress has delegated.
Mr. Keller. And with President Biden having rescinded the
order and the ongoing efforts to ensure no President may take
similar action ever again, how helpful is this for the current
and future administrations to deliver results for the American
people?
Mr. Connolly. The gentleman's time has expired.
Mr. Sherk, you may briefly respond.
Mr. Sherk. If you've got poor performers in your workplace,
it's going to make it harder for the diligent Federal employees
to get the job done. So, I think this is going to hurt most
Federal employees.
Mr. Keller. Thank you. And I yield back.
Mr. Connolly. Thank you very much.
If I can just ask a factual question you may know the
answer to, Ms. Lachance, before I call on Mr. Sarbanes. Mr.
Sherk just indicated that Schedule F only applied, despite this
apparent broad problem of firing people, it only applied to
about three percent of the workforce, meaning that it actually
doesn't address the problem he has ostensibly identified, but
it disproportionately affected one agency, OMB. So, it might be
three percent total, but it's like 87 percent of OMB. Is that
accurate?
Ms. Lachance. That was, as far as I know, the one agency
that moved very, very quickly to identify the employees that
would be moved to Schedule F, and I believe they identified
some 80 percent of their workforce.
Mr. Connolly. Thank you.
Ms. Lachance. And so how somehow or other this can be 1 to
3 percent is questionable in my mind. Also, the example of--if
I could, the example of these are regulation writers and people
with a lot of authority, regulations don't come from one person
in the Federal Government----
Mr. Connolly. I'm going to come back to that on my own
time, but I just wanted to clarify for the record that number.
Mr. Sarbanes, the gentleman from Maryland, is recognized
for five minutes.
Mr. Sarbanes. Thanks very much, Mr. Chairman. Appreciate
the opportunity.
Wanted to talk about telework, and I want to thank the
chairman, Chairman Connolly, for all his work on telework over
the last few years. It's been a passion of mine as well in
terms of trying to make that option more available for the
Federal workforce. And over the last four years, the Trump
administration has really waged an assault on telework. In
fact, in one case, a secretary, I guess, had a temper tantrum
and reportedly cut the entire agency's telework program because
the secretary couldn't talk in person to the individual that he
was seeking. But we know, during the pandemic, that telework
has been absolutely critical to ensure continuity of government
operations to protect the health and safety of workers. And
during the pandemic, 75 percent of the Federal workforce has
been in a telework status of one kind or another. Nearly half
of these employees are teleworking for the first time.
Mr. Kelley, could you give me a sense of what you're
hearing from your members about the importance of being able to
perform their jobs remotely during the pandemic?
Mr. Kelley. Can you hear me now?
Mr. Sarbanes. Yes.
Mr. Kelley. Thank you for that question because I think it
is a very important question to ask. And, you know, I will say
this. Our members are very engaged and energized for the fact
that they have opportunity to telework, because what we have
seen is that productivity has grown up tremendously. OK.
They're getting opportunities to work during the time that they
would spend commuting to work. They're given an opportunity to,
you know, perform their duties, you know, during the time that
they would take lunch break and these types of things. It has
helped, you know, the family situation. It's helped all around.
So, I could just say for a fact that the members that I
represent are very excited about telework. It has proven that
it is benefit to the agency as well as, you know, the employee.
Mr. Sarbanes. Thank you very much. Let me state some
statistics. Seventy-nine percent of the Federal workforce
stated that telework during the pandemic has made them more
committed to their agency's mission, 76 percent say they are
more motivated to meet expectations, and 70 percent say
telework has given them more trust in their colleagues.
In addition, as you just indicated, many agencies are
reporting increases in productivity. For example, the
Department of Transportation surveyed its managers, and 55
percent said the work units were more effective during the
pandemic than before the pandemic.
Ms. Lachance, this uptake around telework suggests that on
the other side of the pandemic, we may want to relook at the
opportunity for telework to be used and enhanced. Can you talk
about how telework could begin to represent a new normal for
the Federal workforce going forward?
Ms. Lachance. Thank you so much. I do think telework is a
critical component of attracting and retaining the kind of
talent that we need in the Federal Government and, frankly,
across all employers. The pandemic has made it very clear that
many, many jobs can be performed at home, and it's helped keep
people safe. And so I believe it's going to have to be part
of----
Mr. Connolly. Excuse me. If I could ask people to mute.
It's hard to hear the gentlelady. Thank you.
Ms. Lachance. I believe it has to be part of a strategy to
attract and retain the talent that we need going forward. We
have shown it can be done. Supervisors who are reluctant can be
trained, coached, whatever it takes, to know how to supervise
and work with people that they don't see every day, and I
believe it's the way of the future. And now we have experience,
we have information that we can apply across the board going
forward.
Mr. Sarbanes. Thank you very much. You've touched on the
importance of it in terms of recruiting and retaining talent.
That's going to be critical, particularly as we try to build
back up these agencies that have been hollowed out by the Trump
administration. That's just a reality. So, telework can help us
there. It's something that's here to stay. The benefits of it
in terms of cost savings, productivity, stress reduction,
worklife all speak for themselves.
Look forward to working with you, Mr. Chairman, to advance
telework as we move forward. And I yield back.
Mr. Connolly. Thank you so much, Mr. Sarbanes, and I look
forward to working with you as well.
Mr. Hice. Mr. Chairman?
Mr. Connolly. Yes.
Mr. Hice. Just real quickly, I wanted to ask if Mr. Sherk
could respond to the question that you gave to Ms. Lachance a
while ago, if he could--about OMB, if he could have a----
Mr. Connolly. About OMB?
Mr. Hice. Yes, sir.
Mr. Connolly. Very briefly, Mr. Sherk. And the question was
purely a factual one, not an opinion.
Mr. Sherk. I'll just point out, you know, public reports
say, did indicate, yes, that a large portion of OMB's workforce
was proposed for Schedule F. However, OMB is a very unique
agency in that pretty much all that they do is policy. And so
if you've got an executive order that's, you know, basically
aimed at folks who have a heavy role in policy, a lot of the
OMB career staff have a greater influence on policy than
Schedule C political appointees in the agency. They're very
much the exception and, government-wide, my estimate was
between 1 and 3 percent of the total Federal workforce.
Mr. Connolly. Thank you.
Mr. Hice. Thank you, Mr. Chairman.
Mr. Connolly. The gentleman from Arizona, Mr. Biggs, is
recognized for five minutes. And then I'm going to interrupt
the order after your questioning is finished and recognize the
distinguished majority leader who has joined us, Mr. Hoyer.
Mr. Biggs. Thank you, Mr. Chairman. I very much appreciate
today's discussion because our Federal workforce is in dire
need of reform.
In an ideal world, our government would be smaller, more
efficient across the board. And as a believer in cooperative
federalism, it greatly alarms me that Washington, DC.
bureaucrats have enormous authority over so many issues that
can be much better handled in state capitals. But,
unfortunately, we won't be able to simply slash the size of the
Washington bureaucracy any time soon, so we need to continue to
think of ways to, at the very least, improve the apparatus we
have already created.
In today's discussion, there's been a lot of criticism of
Schedule F. In particular, there's an assumption among many
members across the aisle that Schedule F was merely a nefarious
move on the part of the Trump administration to ensure
political loyalty, even though we have no proof that this was
the intention.
Ultimately, arguing that Schedule F is simply political
conveniently allows us to evade a more sensitive but
nevertheless critically important issue that many career
Federal bureaucrats are simply not very good or not very
committed workers. I don't disparage everyone in the Federal
workforce or even most, because I know there are plenty of
career bureaucrats who take their oaths seriously and committed
to public service, and do a really, really good job. But I've
also heard way too many horror stories since coming to
Washington about career bureaucrats who do not perform well.
And, even worse, it is extraordinarily difficult to fire poorly
performing or foot-dragging bureaucrats.
In fact, there's a bureaucracy within the bureaucracy
dedicated solely to this H.R. headache, and many managers who
wish to take action against an underperforming Federal worker
are so worried about being sued that they pay out of pocket for
liability insurance. Collective bargaining is a big part of the
problem, and this trend has unofficially driven up the
compensation of Federal workers over the decades.
Today, Federal workers earn considerably more than
comparable private sector workers with similar skills,
especially when nonsalary benefits like paid leave, retirement
compensation, et cetera, are factored in. When I hear about an
often overpaid and underperforming workforce being funded by
the American taxpayers, my natural inclination is to cut wages
and positions, but a sledgehammer approach such as that would
make bureaucracy a less desirable career option for talented
candidates, as well as punishing exemplary civil servants
already in the system.
And so I like many of the reforms you proposed, Mr. Sherk.
Adding more performance-based metrics into Federal promotion
and compensation decisions would certainly be an improvement.
If you could summarize in a few top points, how would Federal
employee unions undermine the merit basis of the Federal
workforce system, Mr. Sherk?
Mr. Sherk. Thank you. I'd say there's two big effects they
have. One is, of course, they try and make it harder to fire
Federal employees. The Federal sector unions actually don't
represent that many Federal workers outside the post office,
which does get to negotiate pay and benefits. The unions
represent about 20 percent of the Federal workforce. And when
you think about it, General Schedule sets pay, Federal
workforce's right to work, why do you join a union? What's the
value of proposition? What's the sales pitch?
Some folks are sort of, you know, committed philosophically
to the labor movement, but for most Federal employees, the
sales pitch the unions make is, basically, we will protect your
job. We're an insurance policy if your boss ever tries to fire
you or give you a negative performance evaluation. And that's
why they react with such horror every time anyone proposes
taking actions against poor performers. That undermines their
value of proposition to their members. Their sales pitch is,
we'll make sure they can't hold you accountable. And so the
union grievance process makes it very, very difficult for
agencies to separate poor performers.
If an agency jumps through all the hoops and they wind up
before the Merit Systems Protection Board for firing someone,
if the manager spends that 25 percent of their time for a year,
they prevail about 90 percent of the time. But if you bring
that same individual before a union grievance arbitrator, about
60 percent of the time, the grievance arbitrator orders the
employee reinstated. So, it makes it very hard to hold the
agencies accountable.
Also, because the unions can grieve over performance
ratings, it crops the entire performance evaluation process. If
you try and give a poor performer an honest performance rating
and give them less than fully successful, well, you know you're
going to be in just a world of hurt and spending a ton of time
grieving this with the union. And so what do the managers do?
They give everyone at least a fully successful.
Congress intended the Civil Service Reform Act to
meaningfully tie pay and performance to the Federal workforce,
but that hasn't happened because the performance appraisal
system has been corrupted. It's just too much work and too much
effort for a manager to give someone an honest rating, so they
give everyone flying colors.
Mr. Biggs. Mr. Sherk, OPM reported last October that from
2016 to 2019, the number of hours Federal employees spent on
union activities actually declined almost 30 percent. Isn't
that a good thing? And why--go ahead.
Mr. Sherk. I think it's an excellent thing. It shows that
the Trump administration was serious about cracking down on
waste in government. We basically said, look, some agencies use
union time more effectively than others. Agencies adopt the
best practices of agencies, like the Department of Defense,
Interior, State Department, be as efficient as they are, and we
saw savings to the effect of tens of millions of dollars.
Mr. Connolly. The gentleman's time has expired. Thank you.
We now recognize the distinguished majority leader of the
House, Mr. Hoyer.
Mr. Hoyer. Thank you very much, Mr. Chairman. I'm glad to
be with you, and I thank you for holding this hearing and that
there are so many participating. I want to thank Ranking Member
Hice as well for allowing me to participate in today's hearing
on revitalizing the Federal workforce.
As you may be aware, Mr. Chairman, like you, I proudly
represent a very large number of Federal employees in
Maryland's Fifth congressional District. Obviously, therefore,
I pay attention to those issues and spend a lot of time looking
at what's right and what's wrong, and I'd like to speak to some
of those items today.
Mr. Kelley, who is here to testify today on behalf of the
American Federation of Government Employees, not only
represents many of them, but is a constituent of mine. So,
Constituent Kelley, I welcome you to this hearing. I want to
thank you for participating in this hearing, Mr. Kelley, along
with Ms. Lachance and Dr. O'Connell, as well as others.
Mr. Chairman, too often, as you and I both know, Federal
employees have been treated as though they're expendable, even
though they are indispensable to the operations of our Federal
service. That has been particularly true over the last four
years. Perhaps the most vivid example of that was--and, of
course, I disagree with the previous speaker--the Schedule F
categorization that jeopardized the nonpartisan civil service
and sought to intimidate Federal workers. It was to turn a
merit system into a political system.
Thankfully, as all of you know, President Biden reversed
that misguided action, protecting our Nation's civil service as
well as our civil servants.
That wasn't the only threat, of course, Mr. Chairman, to
our nonpartisan civil service over the past four years. As many
of you know, I've been working with Chairwoman Maloney----
Mr. Connolly. Would the gentleman yield just for one
second?
Mr. Hoyer. Sure.
Mr. Connolly. I share your view, thank God, that President
Biden has overturned the executive order, but I hope to engage
you, Mr. Hoyer, in codifying the legislative role. If new
schedules are to be created that cannot be done unilaterally by
the chief executive, they must, moving forward, require
legislative approbation, and I have legislation to do that and
I would welcome your involvement in that issue.
Thank you for yielding.
Mr. Hoyer. Chairman Connolly, thank you for your leadership
on that. Obviously, if you have a system that allows the
President unilaterally to change it and turn civil servants
into political appointees who serve at the will of the
President, then you have undermined the whole point of having a
merit system civil service. And, therefore, I look forward to
working closely with you to making sure that the legislative
body that makes policy, and that's employee policy as well,
should be the final arbiter of whether or not we change and
modify that system. So, thank you for your leadership on that
effort.
Mr. Chairman, as many of you know, I've been working with
Chairwoman Maloney, as well as yourself and Representative
Lynch, to pass legislation to protect inspectors general across
the executive branch from being fired as a result of political
retaliation. We've seen that frequently in the last four years,
unfortunately, and it has undermined the integrity and the role
of the inspector generals.
Independent inspector generals are a critical component,
Mr. Chairman, as you well know, in ensuring that the Federal
workforce is able to serve the American people in a nonpartisan
professional manner. And a nonpartisan professional civil
service is precisely what the 1881 Civil Service Reform Act and
the 1978 Civil Service Reform Act intended it to be. From pay
freezes and benefit cuts to shut downs and even denigrating
comments from political leaders, our Nation's Federal leaders,
our Nation's Federal employees have continued to face difficult
conditions as they perform the jobs serving the American
people.
One of the issues, Mr. Chairman, that I've been working on
for a long time, as you know, and working with you, is
promoting pay parity for civilian Federal employees. Now, the
previous speaker indicated that the Federal employees were
largely overpaid. That is simply not a fact and very, frankly,
through four or five administrations, Republican and Democratic
administrations, I've said if you don't like the Pay
Comparability Act, change it. Show us a better way to determine
how we can pay Federal employees for comparable work,
comparable skills, comparable qualifications with the private
sector. Very, frankly, we don't do that.
If we wish to recruit and retain the best and brightest to
serve in the Federal workforce, we must ensure that pay and
benefits are competitive with the private sector. That is not
the case at this point in time.
Right now, the most recent report on pay comparability from
the Federal Salary Council issued in May 2020--that's not when
we were in charge, but when the Trump administration was in
charge--showed that Federal employees earned, on average, 26.7
percent less--less--less than their counterparts in the private
sector. That is abysmal, and if we want to remain competitive
with the rest of the world, if we want to have the best civil
service in the world, we need to change that.
One of the ways to correct this is to set Federal civilian
pay increases at parity with pay increases for our military.
Frankly, Mr. Chairman, you and I know we did that for many
years, but, recently, that has been the exception, not the
rule.
At the same time, we need to focus on finding ways to bring
competitive retirement and healthcare benefits in line with the
best private sector plans. Now very frankly, in terms of
retirement and healthcare, we are competitive, but we must make
sure that that advantage does not erode, lest we are less
competitive with the private sector in recruiting and retaining
the kind of people we need to serve the American people and to
run complex, complicated, difficult enterprises.
I'm pleased, Mr. Chairman, that we're able to extend 12
weeks of paid parental leave for Federal employees last year as
do so many folks in the private sector, but we need to finish
the job by extending that to full family and medical leave. Our
Federal employees work hard, contrary to public perception and
political rhetoric, and they deserve the pay and benefits
commensurate with their talent, education, experience,
technical skills, and contributions. And we need to make
certain that we're not driving talented employees away by
failing to compete with the private sector.
Again, let me emphasize, Mr. Chairman, I've challenged
Democratic and Republican administrations, if you don't like
how the pay council comes to its conclusion, then send us a new
system, send us another way to determine the relationship
between the private and public sector pay. And very frankly,
none of them have done that.
I know that our Federal workers cherish the opportunity to
serve their country and want to stay with their agencies, but
many will leave, Mr. Chairman, because they find more lucrative
opportunities outside of government. And while there is a
certain kind of security working for the Federal Government,
which everybody points to, the too frequent threat of shutdown
and pay interruptions is extraordinarily inefficient, costly,
and traumatizing to our employees.
So, one thing we need to do, Mr. Chairman, is to make sure
that we stop this silly business of failing to do our duty and
funding government on time, so that we do not confront these
false threats of shutting down the government of the United
States. It makes no sense, it's irresponsible, and we ought to
stop it.
I hope this subcommittee will continue to explore ways to
address the challenges and promote pay and benefit policies
that attract and retain the best Federal workforce possible.
Now, Mr. Chairman, in closing, let me refer to something
that Ms. Lachance and I think John Sarbanes----
Mr. Connolly. If I could address the distinguished majority
leader. If he could do it quickly, we would appreciate it,
because we've got a long list of other people to be recognized.
Mr. Hoyer. Thank you very much, Mr. Chairman.
I would just reference on the telework issue, I worked with
Frank Wolf from your state, Republican, for many, many years in
the eighties on teleworking, which I think is efficient. And
what I was going to say is, what COVID-19 has taught us, there
is a way not to be in physical place, but to virtually do one's
job, do it efficiently and effectively. And I think you're
going to see a lot more than that in the private sector and in
the public sector.
Thank you, Mr. Chairman.
Mr. Connolly. Thank you, Mr. Hoyer. And thank you for your
impassioned advocacy and protection of Federal employees and
always infusing their work with dignity and respect. Thank you
for your leadership. We look forward to working with you on a
package of good government initiatives coming out of our
subcommittee.
Mr. Hoyer. Thank you, Mr. Chairman.
Mr. Connolly. Thank you, Mr. Hoyer.
The gentlelady from New Mexico, Ms. Herrell, is recognized
for five minutes.
Ms. Herrell. Thank you, Mr. Chair. And I'm glad we're
holding this important hearing about our Federal workforce, and
we must be serious about confronting the issues. I'm glad that
I have an opportunity to ask a few questions to Mr. James
Sherk.
I wanted to ask him if he could discuss in more detail
meaningful government workforce reform. What does that look
like? Also, can you discuss what the Trump administration
compared to the Biden administration should keep and why?
Mr. Sherk. Sorry. Could you clarify the last question
there?
Ms. Herrell. Did you hear the question?
Mr. Sherk. No, it didn't quite come through.
Ms. Herrell. OK. I'm just asking you, can you discuss what
you think meaningful government workforce reform would look
like? And also, can you discuss what from the Trump
administration versus the Biden administration should be kept
and why?
Mr. Sherk. All right. I think you've got a few big problems
in the Federal workforce. The biggest, which we've spent a lot
of time today discussing, is just the complete failure of the
performance management system. Federal employees are
frustrated. The FEVS scores show that again and again and again
that this is either the single biggest pain point or one of the
biggest pain points in the Federal workforce, that it's simply
too hard to remove a bad employee. And not just that, you also
don't have a good system in place for recognizing good
employees.
There is Civil Service Reform Act, the text of the statute
talks a lot of great things about recognizing or rewarding
performance, but the entire performance evaluation process is
just being corrupted, because it's just such a litigious
nightmare for a Federal supervisor to actually give someone a
negative grade that you only have a few thousand employees each
year at most getting anything less than a fully successful
rating.
And so all the--Members of Congress of both parties have
talked about, yes, we should, of course, pay the top performers
more, we should connect bonuses and pay raises to performance,
but if you can't meaningfully give someone a good performance
evaluation, an honest performance evaluation, then all of that
means nothing, because you're basing it on sand, so to speak.
So, I think those are two of the biggest problems, giving
the agencies the ability to expeditiously remove poor
performing employees and to reward those workers who are
working hard and diligent.
I think it was something that the majority leader said and
members of the committee have said that's entirely correct.
While on average the Federal pay and benefits exceed those in
the private sector, especially for the most skilled and the
most productive employees, they do not. There are a number of
occupations and positions where the Federal Government is not
competitive and in positions and occupations where people are
making 50 percent, again, more what they would in the private
sector.
The government should be, rather than a one size fits all
sort of General Schedule approach, things like with the Bush
administration drive with the National Service Personnel
System, connect pay banding, connecting pay to performance
would make a lot of sense, and where the government's
undercompensating, it should pay more, where it's
overcompensating, it should pay less. You should have equity in
parity between the Federal sector and the private sector.
With regards to what the government should be keeping
versus should not be keeping from the Trump administration,
look, I think all of the reforms were good reforms. I think
Schedule F would've held those senior employees who do have a
hand and control in making policy, held them more accountable
for the awesome government power that they wield. I think the
streamlining
[inaudible] executive order, whatever it was, making it a
lot easier for agencies to take appropriate and warranted
personnel actions against employees. I think it made just a lot
of sense to renegotiate the collective bargaining agreements to
get a better deal for the American people.
There were some lousy contracts out there with provisions
that were not helping the agencies. To date, one example, the
Department of Veterans Affairs, the union contract required
them to post vacancies for 15 calendar days. That's three weeks
before hiring--15 business days. OPM recommends five calendar
days.
So, this union contract was just unilaterally making it
harder for Veterans Affairs to hire needed personnel and slow
down the process. It made a lot of sense to revisit those
contracts and negotiate better deals for the American people.
And I think union time is just used very wastefully. There's
not a lot of accountability for how its used and how its spent.
Saying agencies adopt best practices, employees, you've got to
spend the majority of your time working for the agency that's
paying you so that your skills don't erode, all of these were
good reforms.
We haven't talked much about the competency-based
assessment, but the President was working hard to make sure we
weren't overlooking employees for hiring into the Federal
service simply because they don't have a college diploma, but
instead require agencies to look at the skills that employees
had. All of these were good reforms and I think they should
have been kept.
Ms. Herrell. Thank you.
And, quickly, your written testimony highlights the success
stories in states that have reformed their civil service
frameworks. Can you tell us more about those success stories?
Mr. Sherk. Very briefly----
Mr. Connolly. Just one second, Mr. Sherk. The gentlelady's
time has expired, but you may respond briefly.
Ms. Herrell. Thank you, Mr. Chair.
Mr. Sherk. Very briefly, there've been a number of states,
including Georgia, Arizona, Florida, Texas, Missouri, that have
reformed their civil service systems to basically eliminate
removal protections for all state government employees, and
those states continue to have highly, successful professional
civil service systems that work well for their state residents.
Ms. Herrell. Thank you.
I yield back, Mr. Chairman.
Mr. Connolly. Thank you very much.
Let me see. Mr. Lynch. The gentleman from Massachusetts,
Mr. Lynch, is recognized for five minutes.
Mr. Lynch. Thank you, Mr. Chairman. Thanks to the ranking
member as well for holding this hearing.
I want to make several points. First of all, we recently
had an oversight hearing in this subcommittee where we brought
in the Federal managers, Postal Service and several others, and
we asked the management and the department heads if official
time was a problem. Every one of them said it's not a problem.
It's not a problem. It's not abused and it's not a problem.
They had other issues that they had problems with, but that
wasn't one of them.
Second, I would refer everyone to Government Executive
magazine that about two months ago said, basically, on an
analysis of Schedule F, hundreds of thousands of Federal
employees would be included under Schedule F, based on the
broad language of that change, of that executive order.
So, they're saying hundreds of thousands. Government
Executive magazine knows a little bit about how our government
works, and I tend to believe what they have asserted.
Third, we're forgetting here there's a gap in what my
colleagues across the aisle are saying. They're saying they're
going after bad performance. The problem is that Schedule F
adopts a termination for no cause standard. So, whereas of now,
people can be fired for cause, for nonperformance, Schedule F
moves us to a standard where performance doesn't matter. You
can fire a person for no cause, nothing at all.
I'm a former employment attorney, so I have dealt with this
for a long time. And the standard that Schedule F applies is
that we can terminate an employee for no reason at all. No
reason at all. No cause. So, it doesn't get at the people who
are not performing; it just allows the executive to fire a
person for no reason at all. And that--that invites very
subjective measurement of employee performance. It allows you
to fire a person for no reason at all. It opens up the system
to abuse because of political leanings. You never have to
explain why you're firing a person, as long as it's not for a
bad cause, as long as you're not firing a person because of
their race or their gender, but you can fire them for no cause
at all.
So, it puts the lie to the idea that we're just going after
these nonperformers because under Schedule F, performance
doesn't matter. You can fire them for no cause. That's the way
this standard works in the private sector and that's how it
would work in the public sector.
Ms. Lachance, I do want to ask you a question. So, we've
had a situation in the previous--in the Trump administration
where at times in DOD, we've had 24 out of the 60 top level
managers, and these are Senate-confirmed positions, vacant,
either vacant or temporary employees, people in an acting
status. Ms. Lachance, what does that do to the efficacy, the
efficiency of those departments when you have 40 percent of the
civilian vacancies that are Senate confirmed are vacant, not
filled, and then, like I say, 24 out of the 60 top level
positions are filled by acting positions? What does that do to
the morale and to the efficiency of those operations?
Ms. Lachance. Well, it's very hard to make progress under
those circumstances, Congressman, and you're absolutely right
to highlight those. People have a tendency in acting positions
to be cautious, to hold back, to think twice, three times, four
times, or it's the other extreme where they think they have
nothing to lose, they're not accountable to anyone, they're not
accountable to the Senate or this Oversight Committee.
So, the acting situation seems to play out at the extreme,
and I think that brings us to situations where there are
inefficiencies where people are wondering what to do. There's
not clear direction, and the programs essentially stop. And if
you have frequent changes, over time, that leadership, that
continuity, that vision that a good, strong leader provides,
who's been through a confirmation process, a nomination
process, just is absent. And while you may get the basics done,
you're not going to be able to operate at the highest possible
levels that you'd like.
Mr. Connolly. Thank you. The gentleman's time has expired.
Mr. Lynch. Thank you. I yield back.
Mr. Connolly. Thank you, Mr. Lynch.
The gentleman from Georgia, Mr. Clyde, is recognized for
five minutes.
Mr. Clyde. Thank you, Mr. Chairman.
I'm a Navy officer and a small business owner, and one of
my first influencers in my Navy career was my fighter
squadron's commanding officer, Commander Al Gorthy at the time.
He had three words painted in 3-foot high letters in the hangar
bay where our F-18 Strike Fighters were parked. Those three
words were ``performance, not excuses.'' And those words have
stayed with me over these last 30 years.
So, my questions are for, individually for Ms. Lachance and
Mr. Kelley and Professor O'Connell, in that order. Do you
support a merit-based system for Federal employment? Just
please answer yes or no.
Ms. Lachance. Yes.
Mr. Clyde. You do? Thank you, Ms. Lachance.
Mr. Kelley?
Mr. Connolly. Mr. Kelley, if you can unmute. Mr. Kelley?
Mr. Clyde. Then how about Professor O'Connell?
Mr. Connolly. Professor O'Connell?
Ms. O'Connell. Sure.
Mr. Kelley. OK. I'm sorry. Can you hear me now?
Mr. Connolly. All right. Yes, Mr. Kelley, go ahead.
Mr. Clyde. Mr. Kelley, do you support a merit-based system
of Federal employment?
Mr. Kelley. Yes, I do. Can you hear me? Yes, I do.
Mr. Clyde. Thank you. Thank you very much.
And, Professor O'Connell?
Ms. O'Connell. Yes, I do, for many positions. Of course----
Mr. Clyde. Thank you. I appreciate that.
When it is difficult to deal with a poor performer, then
it's unfair to other Federal employees who are doing a good
job, and that's kind of the way I see it.
I yield back the balance of my time to Ranking Member Hice.
Mr. Hice. I thank the gentleman from Georgia.
Mr. Sherk, let me go back and ask you. You'd mentioned in
your opening statement about removal protections. I was very
intrigued by that and what specifically you mean by that. You
refer to it as a means by which some of these poor performers
actually are able to seal up incompetence and insubordination.
What are you referring to when you talk about the current
scenario where, in essence, poor performers have removal
protections?
Mr. Sherk. So, if an agency wants to remove an employee,
they have to demonstrate that they have cause to remove them.
And there's a burden of proof that they have to meet. There's
two basic procedures that most removals happen under. One is
Chapter 75 of the United States Code--or, sorry, Title 5 United
States Code. The other is Chapter 43. And, basically, there's a
process where they have to gather sufficient evidence to
support the removal. That process can take many months, and
then the employee then can appeal to the--well, they've got
many appeals roads. One is the Merit System Protection Board.
One is through a union grievance and arbitration. And another
would be, in some cases, they can file an EEO complaint.
Now, 97 percent of EEO complaints are decided in favor of
the agency. So, I think we all agree that discrimination is
abhorrent, but many employees use the EEO complaints as an
alternative form of civil service protection to basically put
the manager on trial. And so the agency has to go through and
litigate this, and it's a very time consuming, expensive
process. It's about a quarter of a manager's time for a year to
litigate from start to finish one of these removals.
Mr. Hice. OK. Thank you. I'd also like for you to have the
opportunity to reply to Mr. Lynch when he was painting the
picture of a no cause termination in Schedule F. There are,
likewise, protections not to fire people for political reasons
or things along those lines. Would you like to respond to what
Chairman Lynch was--or Mr. Lynch was saying a while ago?
Mr. Sherk. Certainly, and thank you. He is partially
correct and partially incorrect. He's correct in that you don't
have the same agency has the burden of proof that they have to
overcome and has to demonstrate by a preponderance of the
evidence and so on and so forth. At the same time, the agencies
are absolutely prohibited from terminating someone because of
their race, their sex, their religion, or their political
activities. That was in the executive order itself, and the
order required the agencies to put together a system and agency
rules to ensure that there were no terminations on the basis of
politics or anything like that.
And so under Schedule F, employees would have had
considerably greater removal protections than the Pendleton Act
of 1883, which did not require these internal agency rules and
procedures. This was something going back to the foundations of
the civil service saying, yes, you're going to have discretion;
yes, there's an element of subjectivity in someone's
performance, so we're not going to put you on trial, but you're
trying to go into politics and this is just not allowed.
And if you look at the FEVS survey, it shows that all-time
record high agreement that there was no political coercion in
the Federal workplace under the Trump administration.
Mr. Hice. Thank you very much.
Mr. Chairman, I appreciate it too, and I would like to have
submitted to the record really what Mr. Sherk was just now
referencing regarding the survey. Some of the arguments that
you presented a while ago, good arguments, but it was a select
group of agencies kind of like cherry picking to say that--and
we all know that when you pick certain agencies, you can paint
almost any picture.
I would like to submit to the record the report agency by
agency. And there's a whole list of questions here, but two of
them in particular, how satisfied are you with your job, every
single agency, and how satisfied are you with the organization.
Mr. Connolly. Without objection, it so ordered.
Mr. Hice. Thank you.
Mr. Connolly. The gentleman from Maryland, Mr. Raskin, is
recognized for five minutes.
Mr. Raskin. Good afternoon, Mr. Chairman, and thank you for
calling this very important hearing.
There are really two different philosophies of government
that are on view around the world today, and one is that the
government belongs to the leader of the government, the
President, for his own self-enrichment and profit making and
self-aggrandizement and the enrichment of his personal family
and his friends in corporations. And you can be a very poor
performer in terms of public effectiveness. As long as you're
making money for yourself and enhancing your own private
interests, then it's OK.
The other theory is the old-fashioned theory that
government must be an instrument of the public interest and the
common good, and you must be serving the people. And it should
not be an interest of private self-enrichment.
Now, I'm delighted that we are moving in America from one
model to the other. I'm surprised to hear about the fact that
public employees have been thrilled with the leadership of the
last President in the government, and I'm going to be very
interested to read about that.
I mean, perhaps it's all of those workers who are filling
out the forms who are the so-called poor performers who play
solitaire, watch TV, and spend their day on social media
fighting with people rather than doing their jobs that may
explain those results, but I don't know. I've got an open mind
as to what's going on there.
In any event, the happiness of the Federal workforce is not
really the controlling metric of the effectiveness of the
Federal workforce, which is really what we should care about.
And as a Representative who has more than 70,000 Federal
workers in my district, I've heard nothing but complaint about
the way that the last administration undermined the Federal
workforce at every turn, beginning with the longest government
shutdown in American history, 35 days; massive furloughs
accompanied with that, the imposition of a hiring freeze, which
is a completely arbitrary random way of figuring out where to
make cuts in the Federal workforce; pay freeze; authoritarian
executive orders that accomplish union busting and the
nullification of collective bargaining agreements and on and
on, all the way up to the incitement of a violent insurrection
against the union, the Congress, and all of the Federal workers
who were there to defend us.
But I want to go back to this question F. We know that
President Trump tried to pull the plug on having a professional
expert workforce with an executive order at the very end of his
Presidency. And, Professor O'Connell, I wonder if you would
briefly state what this executive order sought to do and why it
is diametrically opposed to the principles of the civil
service.
Ms. O'Connell. Yes, Representative. So, the executive order
would have created a new line in the accepted service, a
Schedule F, for employees involved in confidential policy
determining, policymaking, or policy advocating rules. Many
estimates are quite different than Mr. Sherk's of that it
would've taken many more employees from the competitive service
into this new step, would've stripped those employees of their
civil service protections.
Of course, our civil rights legislation would still apply,
but many of the protections that the civil servants now have,
those would go, and this would have many detrimental effects.
Mr. Raskin. OK. Thank you.
Ms. Lachance, let me ask you, is President Biden's
executive order reversing President Trump's Schedule F
executive order enough to repair the damage of what was done?
Should we just stick with that executive order by President
Biden?
Ms. Lachance. Thank you, Congressman. I think it was a
great start, and it had to be done immediately. We had to send
a signal right away to say that this sort of cherry picking of
deciding who stays and who goes had to end and it had to end
immediately. However, I do think that the Congress should take
a very, very careful look at whether those decisions should be
the purview of a single President, of either party, of any
party.
Shouldn't this process be subjected to and be a part of the
deliberations that occur in this body and in the Senate? And
shouldn't we think about these things carefully, rather than
doing something with the stroke of a pen, removing people's
protections, and, in my view, actually undermining an evidence-
based and data-based decisionmaking----
Mr. Raskin. Thank you. I've got to cut you off because I
have one more question for President Kelley. What can we do to
restore the morale of the workforce after these serial assaults
on it over the last several years?
Mr. Connolly. The gentleman's time has expired. Mr. Kelley,
you may respond briefly.
Mr. Kelley. Well, first of all, you know, I will say that,
you know, we have to concentrate on getting the morale of the
workforce back up. We have to concentrate on pay, making sure
that employees are paid adequately.
Now, you know, every corporation in America has figured
this out, right? You know, if you want to attract and retain
better talent, pay more and offer better benefits. The Federal
Government is the only place where the idea is entertained that
to attract better talent you are to offer less.
Mr. Raskin. Thank you.
Mr. Connolly. Thank you, Mr. Kelley. And thank you, Mr.
Raskin.
The gentleman from Kentucky, Mr. Comer, is recognized for
five minutes.
Mr. Comer. I want to thank the chairman and Ranking Member
Hice for having this committee and having a hybrid committee.
My questions will be for Mr. Sherk. I know that several of
my colleagues have quoted the OPM 2019 Federal Employee
Viewpoint Survey, but I wanted to read four of the questions
that had the lowest percentage of agreement. Of course, this
survey was for our Federal employees. And one question was, pay
raises depend on how well employees perform their jobs. Only 28
percent of Federal employees agreed to that.
The next question: In my work unit, steps are taken to deal
with a poor performer who cannot or will not improve. Only 34
percent agreed with that.
Next, promotions in my work unit are based on merit. Only
39 percent of Federal employees agreed with that.
And last, in my work unit, differences in performance are
recognized in a meaningful way. And, again, only 39 percent of
Federal employees agree with that.
So, I think these questions raise a problem that we have in
delivering a merit-based Federal workforce for the American
taxpayer.
My question is, have the limitations on Federal manager's
rights to remove or discipline poor performers contributed to
these views that an overwhelming majority of Federal employees
share?
Mr. Sherk. The short answer is yes, and decades of study
back up that conclusion. Studies by the Merit Systems
Protection Board itself, which demonstrates that most Federal
employees just believe it's--or sorry, most Federal supervisors
don't believe that it's worth the time and the effort to remove
a poor performer. It might not succeed and most of them won't
even try. We've seen that for decades.
If you want to rate people on performance and pay on
performance and promote on performance, you need a system where
managers can accurately rate people on performance, and if you
got a poor performer, get rid of them. And that is not the
system we have now, unfortunately.
Mr. Comer. Now, our friend in the last question--or Mr.
Raskin's concluded that the morale was low because of President
Trump. But before I came to Congress, I worked in state
government. I was a state representative, and I was
commissioner of agriculture, so I had a government agency with
about 300 employees. And I would say those survey questions
would have been pretty consistent with how state employees feel
as well.
So, do you agree that these responses show we have a
problem in delivering a truly merit-based system of Federal
employment for the benefit of the American taxpayers or is it a
problem with the personality of the last administration or the
management of the last administration? In other words, has this
been a problem for a long time or was this just a problem over
the last four years?
Mr. Sherk. Well, if you go back and look at the FEVS survey
results, Federal employees, in general, have been satisfied
with the work writ large, but where they find the biggest pain
point is the lack of accountability for performance that
they're not promoted, they don't get raises based on
performance no matter how hard they work, and then they look at
their fellow employees who are poor performers and they just
stay there day after day. This is being a consistent pain
point. You go back year over year, that question on does your
work unit get rid of poor performers is always either the first
or the second most negative response in all of FEVS. So, this
has been a consistent problem going back a long time.
Overall, Federal employees like their jobs and think
they're doing good work, but this really irritates them, and
this is something the Trump administration was trying to
address to respond to the voice of the Federal employees who
want us to do better.
Mr. Comer. Well, I'll agree with everything you said. And
there's nothing worse for a good government employee than to
have to work beside a bad government employee, one that doesn't
work, one that doesn't perform, one who is tardy. And there's
really oftentimes no incentive for that good employee to
continue doing good work above and beyond.
So, I appreciate the fact that we're having this hearing. I
hope that we can move forward some day and agree on reforms
that will not only benefit the morale of the Federal workforce,
but also benefit the American taxpayers with creating a system
where the best government employees can be rewarded accordingly
and the ones that are poor performers can be terminated.
With that, Mr. Chairman, I yield back.
Mr. Connolly. I thank the gentleman.
The gentlelady from California, Ms. Porter, is recognized
for five minutes. Ms. Porter.
Ms. Porter. Thank you.
Professor O'Connell, we've worked together in the past on
my Accountability for Acting Officials Act that closes
loopholes that allow the President to go around Congress to
appoint unqualified acting agency heads, effectively leaving
top positions vacant. And the effect of this is that many
agencies were left without real leadership during President
Trump's tenure and during the COVID-19 crisis. Other agencies
were completely unable to function, like the Merit Systems
Protection Board.
Can you tell me very, very briefly, what the Merit Systems
Protection Board does and what is its purpose?
Ms. O'Connell. Sure, Congresswoman. The MSPB is an
independent, quasi-judicial agency that was established in the
Civil Service Reform Act of 1978 to protect Federal merit
systems against partisan political practices and to ensure
protection for Federal employees against abuses by agency
management. So protecting people like whistleblowers.
Ms. Porter. Great. And tell me, what has the Merit Systems
Protection Board been up to the last few years?
Ms. O'Connell. Not much. It's been without a single board
member for two years, a first for the agency, and it's lacked a
quorum required for operations for roughly four years.
Ms. Porter. So, the Board has no board members. Is that
correct?
Ms. O'Connell. That's right. It's supposed to have five
Senate-confirmed appointees, and it has zero.
Ms. Porter. OK. I have a question, and I don't know if you
know these things, but I think it's good for the committee to
learn. Does the Merit Systems Protection Board have staff?
Ms. O'Connell. Yes, it does have staff.
Ms. Porter. Do you know about how many?
Ms. O'Connell. I do not know how many staff it has, but I
know that it just issued a report about direct hiring
authorities.
Ms. Porter. OK. It has 235 staff members.
How about offices? Do they have offices that we're paying
for as taxpayers?
Ms. O'Connell. Oh, yes.
Ms. Porter. Yes, they have nine offices, actually,
including one in D.C., and regional offices.
Do you know about what the budget is that we the taxpayers
are paying for the Merit Systems Protection Board?
Ms. O'Connell. Millions of dollars.
Ms. Porter. Correct. Their request for Fiscal Year 2021 was
$42 million. So, we're spending $42 million, have 235 people in
nine offices.
How many cases has the Board adjudicated over the last four
years?
Ms. O'Connell. Zero. So, there's a backlog of over 3,000
cases.
Ms. Porter. So, we spent $42 million, have operating nine
offices, with 235 Federal employees, we have adjudicated zero
cases, and 3,000 Federal cases are waiting to be adjudicated,
but we were unable to do them.
Ms. O'Connell. That's right.
Ms. Porter. How is this good government?
Ms. O'Connell. It's not good government.
Ms. Porter. So, how are we spending taxpayer dollars wisely
here?
Ms. O'Connell. We're not. We need to get the agency staffed
with Senate-confirmed appointees, and we need to clear that
backlog, which is going to take--even the most aggressive
estimates is that it would take 6 to 8 months. Other estimates,
that it could take far longer. And we have----
Ms. Porter. So, we're going to have to spend even more to
catch up to deal with the backlog that we've allowed to be
created.
Right now, if somebody--right now, who is protecting a
whistleblower when they call out a Federal worker who calls out
fraud, waste, and abuse? If they're attacked or fired or
demoted for that, who's protecting them? Who's adjudicating
that case?
Ms. O'Connell. Some cases, if the employee can pay, can go
to the Federal circuit. But, generally, employees don't have
protection. Their protection is the MSPB.
Ms. Porter. Which, to go back, has adjudicated zero cases.
So, essentially, by not appointing and confirming people to the
Merit Systems Protection Board, we've wasted taxpayer dollars,
we've neutered the agency from being able to do its work
effectively, and we've left Federal employees who are stepping
up to be whistleblowers to protect against race, fraud, and
abuse. I'm just surprised there hasn't been a whistleblower
from the Merit Systems Protection Board calling out the waste,
fraud, and abuse that we're allowing to go on there without
appointed board members.
You said that we should definitely get these board seats
filled as soon as possible. You've also shown support in the
past for this subcommittee and Chairman Connolly's Merit
Systems Protection Board Empowerment Act. What would that Act
do, and why is it important to addressing this wasteful
situation we have now?
Ms. O'Connell. Well, we need to get members in. We also--in
the case of vacancies, there was also legislation in the last
session that was not enacted in the last session of Congress to
perhaps delegate a certain work to the general counsel of the
MSPB, which would also be critically important. And, of course,
MSPB administrative judges need to be trained in whistleblowing
and whistleblower protection as well before they adjudicate
these critical cases.
Ms. Porter. Thank you so much, Professor O'Connell.
I yield back.
Mr. Connolly. Thank you, Congresswoman Porter. And thank
you for that whiteboard. I love it.
Mr. Hice. Mr. Chairman?
Mr. Connolly. Yes. Thank you.
Mr. Hice. Earlier in the hearing, I believe it was Ms.
Norton and Dr. Kelley, a statement was made to the effect that
there was no guidance from the Trump administration or it was
so vague regarding the COVID response. And I would just like to
submit to the record that that is not accurate. There was
guidance for a COVID response that followed CDC guidelines and
that Federal agencies have PPE, and I would like to submit for
the record that guidance.
Mr. Connolly. So, you are submitting that for the record?
Mr. Hice. Yes, sir.
Mr. Connolly. Without objection, so ordered.
Mr. Hice. Thank you.
Mr. Connolly. The gentleman from Virginia, Mr. Beyer, is
recognized.
Mr. Beyer. Chairman Connolly, thank you very much. And
thank you for allowing me to waive on. Ranking Member Hice
also.
Chairman Connolly, as you know, we go back and forth as to
who represents the most Federal workers, but I have about
87,000, and I've been listening to four years of extreme
unhappiness from state Department employees, EPA, U.S.
Department of Interior, the IRS, Social Security, about how
they are treated. And, in fact, there's one easy way--I know
people mentioning again and again the Federal employee survey,
which I respect.
There's another survey which was held on the second or the
first Tuesday in November. Eighty percent of the employees--of
the voters in my district did not vote for the outgoing
President, which I think is pretty telling about what they
thought about how they were treated by that President.
By the way, this notion that you can't fire a Federal
employee, 24 Federal employees are fired every day in America.
Ten thousand last year. And this is after every Federal
employee has a one-year probation period. In the Department of
Defense, it's a two-year probation period. So many of them are
let go before there's any of these, you know, ways to protest
it.
In fact, Government Executive magazine had suggested that
the rigors of the Federal hiring process that weed out the poor
performers before they start may be one reason why that only
10,000 are fired every year.
But, Chairman Connolly, I've been a boss for a long time,
and I know that the most important thing as the leader is to
create a culture where workers are valued, are respected, where
the work is important. And, instead, what I have heard, first
from Ronald Reagan who's told us that I'm here from the
government, I'm here to help you, and from my dear Republican
colleagues over the years who have talked about the nameless,
faceless bureaucrats, and now we learn that they played video
games and social media all day long.
You know, Chairman Connolly, the ratio of Federal workers
to American citizens right now is the lowest it's been since
1960. We have fewer workers serving more Americans more
effectively than ever before.
But I'd like to give my--Mr. Kelley an opportunity to
respond to Mr. Sherk's notion that the only purpose of a
Federal employee union is to keep bad people from getting
fired. Don't you think you might have a different selling
proposition, Mr. Kelley?
Mr. Connolly. Mr. Kelley.
Mr. Kelley. Thank you. Can you hear me?
Mr. Connolly. Loud and clear.
Mr. Kelley. OK. Great.
Well, thank you for that question. You know, I've listened
to this testimony about poor performers, you know, and Mr.
Sherk testified that Federal employees jobs satisfactory roles,
you know, under Mr. Trump. And I represent several hundred
thousand of government--D.C. government employees. I've heard a
lot of stories, but never did I hear someone say that they were
better off as a Federal employee under the Trump
administration, especially, you know, not after the pandemic
hit.
Now, he also said that Federal employees are worried about
poor performance. He's right. I remember the word that the
Trump administration create a whole new class of Schedule F
employees and filled those positions with unqualified,
political flunkies. Now, thankfully, Mr. Trump was forced from
office before he could finish this particular scheme.
Now, a lot has been made about poor performers in Federal
Government, but for many of my members and most Americans, some
of the worst performers of the last few years were agency heads
under the Trump administration. He appointed people who were--
who had dedicated their entire careers to undermining agency
mission. Then they were allowed to corrupt them from the
inside.
These poor performers left a mess, and the dedicated career
public servants I represent are now working with the Biden
administration to clean it up. Now, excuse me if I had a hard
time taking lectures on performance letters from the
administration responsible for the pandemic response that left
500,000 Americans dead.
Now, when it comes to the performance, we believe in due
process. We believe that the problem is not the system; the
problem is the management. Because if you would take time and
not be lazy, take time and document the actions of a poor
performer, then it's not hard to find. As a matter of fact,
it's very easy to find them.
If a person is constantly coming in late and you document
it, you document that, and then you present that, and no one
can argue that if you got documentation this person's been late
10 times specifically. No one can argue that. If someone is--
and this is the first time I'm learning that, you know, a
Federal employee is sitting around, you know, selling their
businesses or during duty time, if that's the case, why the
supervisor is not documenting that. Because if they document
that, that is absolutely an opportunity to get rid of that
employee. Because I too believe that's poor performance.
Mr. Connolly. Thank you.
Mr. Beyer. Thank you, Mr. Kelley.
Mr. Connolly. The gentleman's time has expired.
The gentlelady from Virginia, Ms. Wexton, is recognized for
five minutes.
Ms. Wexton. Thank you, Mr. Chairman. And thank you, Ranking
Member, for allowing me to waive on to the committee today. And
thank you to the witnesses for testifying.
Like many of my colleagues from the National Capital Region
who are on this committee, I hear directly from state and
Federal workers almost every day because they are my
constituents. So, I'm really happy to be discussing these
issues that are so important for a functioning civil service.
In particular, thank you for bringing up agency relocations
in your testimony, Professor O'Connell.
When the Trump administration sought to relocate several
executive branch agencies during their tenure, hundreds of
Federal employees were told if they wanted to keep their jobs,
they would need to move out of the Washington, DC. area. Some
in as little as 30 days. That included employees at USDA's
Economic Research Service and National Institute of Food and
Agriculture to Kansas City, and the Bureau of Land Management
Headquarters to Grand Junction, Colorado.
When I started looking into how to help my constituents, I
was surprised to hear that--to learn that Federal agencies
currently are not required to conduct a cost-benefit analysis
in advance of their relocations. For example, the USDA, their
move was opposed by Congress, by scientific stakeholders, by
land-grant universities, and even by the labor unions
representing the farmers, all of whom the agency is supposed to
be serving. Only about 25 percent of ERS and NIFA's workforce
relocated, and the USDA is still trying to fill open positions
to replace these employees.
So, how exactly did this relocation serve the agency's
mission? It's unclear because the USDA only produced an 11-page
summary of a cost-benefit analysis that they paid a third party
to conduct. But we know that fulfilling the agency's missions
was not a priority for the Trump administration and, in fact,
making it easier to fire employees was, which is why Mick
Mulvaney, who was then acting White House chief of staff,
praised the move because Federal employees quitting was, quote,
a wonderful way to streamline the government.
My legislation, the COST of Relocations Act, will ensure
that agencies seeking to relocate conduct an analysis in
accordance with the Federal guidelines and best practices for
conducting that cost-benefit analysis. These standards include
quantitative data, such as the cost of real estate and
staffing, and they also include qualitative metrics, such as
employee attrition and the impact on the agency's ability to
fill its mission. The analysis would be made public, and the
agency's IG would quickly audit it and submit a report to
Congress. That way Congress and taxpayers know exactly how a
proposed move serves the American people, which should be the
goal of all agencies.
Professor O'Connell, can you talk about how the threat of
relocation affects agency employees at their agency?
Ms. O'Connell. Yes, Congresswoman. The threat of
reorganization and relocation produces a lot of uncertainty.
That uncertainty, especially with lack of buy-in, lowers
morale. And lower morale typically undermines agency
performance. So, these Federal Employee Viewpoint Surveys we're
talking a lot about, those agricultural organizations sat at
36.5 and 20.3. That's the Economic Research Service was the
first one, and the National Institute of Food and Agriculture
was the second one. And those were drops of more 30 points in
each of those agencies since 2016.
Ms. Wexton. So, if the agency has to rehire positions,
often losing people that we have with many years of experience
and, you know, institutional knowledge, what does that do to
the functioning of that agency? And how does that impact the
ability of that agency to serve the American people?
Ms. O'Connell. It does in several ways. First, the
departures of longstanding expert career workers, that
represents years, if not decades of expertise that go out the
door, and that hurts the performance of the agency. Second,
when the jobs then are vacant, the agency then has to spend
time and resources in filling those slots, and that's time and
resources that could have been devoted to the agency's mission.
And there's a cost to the taxpayers as well.
Ms. Wexton. And specifically with regard to the relocation
of the operations at the Department of Agriculture, how has it
impacted their operation of the employee engagement considering
that the majority of employees did not make the move?
Ms. O'Connell. Yes, Representative. Various news reports
have indicated that at the Economic Research Service, for
example, its productivity dropped by half, if you measure by
the research reports, which is a predominant action of that
agency. Also, news reports indicated that sponsored research by
the National Institute of Food and Agriculture is receiving
less supervision and less oversight. So, those are concrete
examples of consequences in those two USDA entities.
Ms. Wexton. So, it's safe to say that their missions have
been impaired by this news. Would you agree.
Ms. O'Connell. Yes, definitely.
Ms. Wexton. Thank you very much.
I see my time is up, and I yield back.
Mr. Connolly. Right on the nose. Thank you, Ms. Wexton.
The chair recognizes himself for the last line of
questioning.
Ms. Lachance, to listen to Mr. Sherk and others,
apparently, despite the longest Federal Government shutdown in
history, 35 days, relocation of whole offices to other parts of
the country, pay freezes, hiring freezes, lack of due process
because of the unwillingness to fill board positions as an
organization like the Merit Systems Protection Board, and then
the creation of a whole new schedule that actually allows the
executive branch--the executive in the executive branch to
bypass the entire civil service protection system, we're
supposed to believe that people come to work happier than ever
and whistle while they work.
Do you believe that that's an accurate assessment of where
the Federal workforce is in terms of morale and productivity
and attitude toward their jobs?
Ms. Lachance. It's hard to argue with data. On the other
hand, a survey can't ask the opinion of people who have left,
people who've been demoralized, people who have given up.
They're probably not filling out the survey.
And, actually, I'm not surprised that the satisfaction
increased over four years. Typically, when a new administration
comes to power, there's a lot of concern on both sides. Who are
these new people? Are the civil servants going to be loyal to
the past administration? And over time, the humanity comes into
play, and people get to know each other, they start to trust
each other. So, the satisfaction rates can increase.
In the past administration, I am just sorry that that level
of trust, cooperation, that seems to be exemplified by the
Federal Employee Viewpoint Survey, never reached the White
House. And we heard constant attacks on Federal employees
throughout the last four years. It started during the campaign
with the Deep State and with issues--with people who have been
discredited in their jobs and not listened to, not paid
attention to. They've been stifled. Their research has been
limited and not been allowed to--to play a part in policy
setting. And so it is hard for me to believe that if you talk
to everybody who worked over the past four years, that we would
be----
Mr. Connolly. You obviously are familiar with the FEVS, the
Federal Employee Viewpoint Survey, right?
Ms. Lachance. Yes, sir.
Mr. Connolly. And I am looking at data. And although some
would like us to believe that everybody's just happy as clams,
I'm looking at six Federal agencies that had relatively
significant declines in satisfaction: Labor, the Environmental
Protection Agency, Justice Department, State Department,
Agriculture, and Education. Education being the most
pronounced, 16 percent. In fact, it's the only Federal agency
that had a double-digit change of any kind, and it was
negative. So, it's not like everybody's whistling to work and
happy as clams.
Ms. Lachance. Right.
Mr. Connolly. There have been consequences from the--now,
Professor O'Connell, you--we were--we heard testimony here
today that Schedule F is really kind of--even though it was
purely by executive order, which I object to on principle,
whether it's Democrat or Republican. Congress needs to be
involved. And I'm hopeful I can engage my friends from the
other side of the aisle in looking at that from a purely
separation of powers issue.
But if I look at the merits of Schedule F, some of the
testimony we've heard today, Professor O'Connell, would have us
believe that this was a good government measure. But then we
heard that, actually, it's not based on performance at all.
What's the story from your point of view?
Ms. O'Connell. I think Schedule F largely was disingenuous.
I mean, I think if you're concerned about the difficulty in
getting bad performing employees removed, well, then you won a
fully staffed Merit Systems Protection Board to help process,
you know, those deserved firings quicker. And to go for a
system of all of these protections to no protections seems like
the wrong answer to various concerns, right.
The head of this Federal Salary Council resigned because of
the Schedule F executive order and said he simply could not be
part of an administration that seeks to replace apolitical
expertise with political abeyances.
Mr. Connolly. Thank you. My time is up.
In closing, I want to thank our witnesses for their
remarks. I want to commend my colleagues for participating in
this important conversation. By the way, this is a timely
hearing because we are told that within a half hour or so, the
new head of OPM will be announced by the White House, or the
prospective new head. So, that--it's a timely hearing.
I also want to insert into the record statements from the
National Federation of Federal Employees and the National
Whistleblower Center in support of the MSPB Empowerment Act,
which was discussed earlier, which we are also reintroducing
today.
I also want to insert into the record statements in support
of our hearing from the National Treasury Employees Union; the
National Active and Retired Federal Employees Association; the
Partnership of Public Service; Professor Nina Mendelson, Joseph
Sax Collegiate Professor of Law at the University of Michigan
Law School; and Professor David Lewis, Rebecca Webb Wilson
University, distinguished professor at Vanderbilt University.
With that, without objection, all members will have five
legislative days within which to submit additional written
questions for the witnesses through the chair which will be
forwarded to the witnesses for their response. We ask all
witnesses, should such questions come to you, please respond as
expeditiously as possible.
With that, this hearing is adjourned. Thank you.
[Whereupon, at 1:31 p.m., the subcommittee was adjourned.]