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The Success of Government

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

By Anna Marie Schuh
October 13, 2019

In 1978, Congress identified the values that underlie federal employment in legislation as the Merit System Principles (MSP). While not previously written down, these values had been developing since the presidency of George Washington and had become a clearer part of federal employment after the passage of the Pendleton Act in 1873. Unfortunately, in today’s atmosphere, some of these tenets have been seriously dishonored. The purpose of this column is to review a few of these standards and identify how they have been stressed recently.

MSP 1 states that recruitment should be based on the knowledge and skills the individual brings to the position. A recent Executive Order moving administrative law judges out of the competitive system to the excepted system tests this value. Administrative law judges affect the lives of all citizens in areas such as social security, immigration, labor law, veteran benefits and federal employment.  Putting the administrative law judge positions in the excepted service gives agencies the right to set qualifications and pay without a requirement for a common standard.

It also means that administrative law judges are essentially at will employees. The consequence of putting administrative law judges in excepted positions is that individuals who decide questions related to issues such as asylum, contracts, veterans benefits or social security appeals can be appointed based on factors other than the knowledge and skills related to the position. Those other factors could be partisanship, a pro or anti-business focus or a pro or anti-immigration focus. In addition, these administrative law judges could be fired based on similar factors. Consequently, a judge who decides cases correctly, but who is inconsistent with the current administration philosophy, is subject to immediate removal. A second, more particular example, involves appointment of under-qualified individuals at the Department of Agriculture (USDA) hired based on their expressed loyalty to the current President.

The above examples are problematic because citizens cannot use law or past practice to forecast the outcome of an appeal or request for service. Instead, individuals, whose appointments are made based on support of the current administration rather than job related skills, are likely to decide issues on the basis of the view of the current elected official. Decisions by individuals who have loyalty to a person rather than an institution result in unpredictable conclusions.

MPS 2 requires fair and equitable treatment of employees and applicants for federal employment. A current instance highlighting the challenges to this MSP is a Department of Labor proposal to provide broad freedom in hiring and firing to federal government contractors that are religious organizations. This proposal means that religious organizations that provide services paid for by United States citizens through federal government contracts can legally discriminate in employment based on prohibited characteristics (e.g., religious affiliation, sexual orientation or marital status) as long as the employment decision has a religious explanation.

MSP 4 focuses on high standards of integrity, conduct and concern for the public interest. Examples of lack of concern for the public interest involve the Department of Housing and Urban Development, the Treasury Department, the Environmental Protection Agency and the Department of Veterans Affairs, which have been identified in scandals related to extravagant spending on furniture and travel.

Another test of MSP 4 is when political concerns override decisions based on regulation and past practice based in law. This occurred recently when the current administration issued a new rule that allows a political appointee, who is not confirmed by the Senate, to overrule decisions of immigration judges. A number of immigration stakeholders raised concerns about this rule that included collapsing policymaking and adjudication into a single individual, substituting policy directives for legal analysis and undermining the independence of judges again raising questions about the public interest.

MSP 5 relates to the efficient and effective use of the federal workforce. There are a number of ways this MSP can be strained. One way is to use transfers for other than organizational needs. Two examples highlight this situation: the move of a national park superintendent because of a disagreement over the technical issue of how many bison can be sustained in the park; and the movement of USDA research scientists from Washington  to Kansas City to eliminate research inconsistent with the administration’s perspective.

Inappropriate interference by those connected to elected officials can also undermine MPS 5. One example involves members from a private resort with political connections. According to ProPublica, these unelected and unappointed individuals have influenced Department of Veterans Affairs (VA) staffing and policy decisions while remaining hidden from everyone except a few VA insiders.

Since 1978, the Merit System Principles have articulated the American values that guide federal government political appointees and careerists. In the words of John F. Kennedy, “The success of this government, and thus the success of our nation, depends in the last analysis upon the quality of our career services.” The Merit System Principles are intended to insure a high quality civil service. Dishonoring them reduces the success of government. 


Author: Anna Marie Schuh is currently an Associate Professor and the MPA Program Director at Roosevelt University in Chicago where she teaches political science and public administration. She retired from the federal government after 36 years. Her last Federal assignment involved management of the Office of Personnel Management national oversight program. Email: [email protected]; Twitter: profschuh.

 

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