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Civil Service Tune-Up

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Benajmin Paley
August 21, 2023

The civil service, made up of many agencies, is the backbone of the federal government. They are the subject-matter experts who take the words Congress has put to paper and implement them.

But the civil service, like a car, is prone to malfunctions. And like a car, the civil service needs regular tune-ups to stay in working order.

Here are the major malfunctions in the civil service’s history:

At the nation’s founding, the president had exclusive control over determining criteria for agency job appointments. Three criteria emerged: fitness of character, commitment to the constitution and political party affiliation. At first, this system worked because it appeared to balance itself out. Notably, President Thomas Jefferson only appointed Democrat-Republicans to balance out the Adams administration’s appointment of Federalists. While President John Quincy Adams refused to remove agency appointments for purely political purposes.

But soon enough it became apparent this approach wasn’t without its faults: although agency personnel were qualified for the job, they came exclusively from the political and social elite.

So the first tune-up took place in 1820 with the Tenure of Office Act (1820). Ironically, this tune-up did more harm than good because the Tenure of Office Act limited agency officials to four-year terms that corresponded with the president’s four-year term. Hence, the proliferation of the spoils system. In 1867, a second Tenure of Office Act was passed in an attempt to fix the problems with the first. But the Supreme Court declared that law unconstitutional.

In response, the second tune-up occurred in 1883 with the passage of the Pendleton Civil Service Reform Act of 1883. The act specified that merit—scores on a test—would be the basis for hiring and promotion in the federal government.

The post-World War II reforms in collective bargaining and civil rights ushered in the next tune-up. And in 1978, President Jimmy Carter signed the Civil Service Reform Act (CSRA) of 1978 into law. This was the final result of seven arduous months of planning and drafting. Indeed, President Carter charged Congress with bringing “efficiency and accountability to the Federal Government.”

At the time, these were necessary reforms. National Journal reporter Joel Havemann wrote in October 1977 that federal agency management was bogged down in processes for every little decision; they could not make hiring decisions without having to cut through multiple rows of red tape.

The CSRA fixed that. Congress abolished the Civil Service Commission, replacing it with three separate boards/offices responsible for managing civil service: the Office of Personnel Management, the Merit Systems Protection Board and the Federal Labor Relations Authority. The CSRA also created a class of senior federal employees shielded from political intimidation, recast the federal pay scale and started to put into place protections for federal employees.

Flash forward to today, and Congress is looking to give the civil service yet another tune-up. Representative Chip Roy, (R-Tx), has introduced the Public Service Reform Act, amending the civil service reform act to designate all federal employees as at-will. This will ensure, at least in theory, that agency employees can’t abuse their positions by forcing their employer to go through legal and administrative hoops to terminate an employee. Government agencies should operate like private businesses: poor performance means termination of employment.

On his bill, Representative Roy has written:

“My bill would make all federal bureaucrats at-will employees — just like private sector workers — and claw back the inordinate protections some federal employees grossly abuse while helping legitimate whistleblowers and victims of discrimination get the justice they deserve. This would empower federal agencies to swiftly address misconduct and remove underperforming employees, creating a workforce that once again serves the American people.”

At-will employment remains a staple in private businesses. And for good reason. In the business management field, management is defined as accomplishing a purpose through the organized efforts of others. For businesses, the accomplishment of that purpose is often profit. So if employees in a business are not achieving profit, it makes sense the business can just fire them, allowing changes to happen when necessary.

But many in the public management field state business management concepts cannot and should not govern how public agencies are managed. They don’t want the civil service to be run like a business, because the government serves a higher goal than profit.

In addition, many Americans have seen over time what happens when private sector management practices are used in the civil service. Notably, in the years after the Watergate scandal, Americans were still trying to come to terms with the extent to which President Nixon tried to run his White House like a business. This included his enforcement of many draconian style policies: no leaks, absolute loyalty, tight leadership structure and hierarchy and speaking in a single voice. And now many see the post-Trump era similarly.

Representative Roy’s goals are noble and harken to the earlier tune-ups of the civil service. He wants to ensure that members of the public are not abused by corrupt civil servants. But it is difficult to impose a business practice in the civil service. For one thing, the goal of the government is not to achieve profit. It is not impossible, though, and perhaps it may be necessary in a future tune-up.

So while this bill is not likely to make it through Congress, it still raises questions about what the next tune-up of civil service should look like, and what direction we want it to take.

Author: Benjamin Paley is a board member of the South Florida Chapter of the ASPA. He graduated in 2022 from the Shepard Broad College of Law in 2022 with a J.D. and in 2018 from Florida Atlantic University with a Master of Public Administration degree. He can be reached at [email protected].

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