Would your employer fire you for moonlighting on the clock? Not necessarily _ if you work for Uncle Sam.
A few years ago, investigators caught a Department of Housing and Urban Development employee spending a third of his working time conducting private business deals. He remains on the job with a six-figure salary. HUD did not even attempt to fire him.
Such laxity is common in the federal government. One survey found just 8 percent of federal managers with bad employees tried to demote or fire them.
Why so little discipline? Probably because four-fifths of those who attempted discipline reported their efforts had no effect. Except in extreme circumstances, bad employees remain on the federal payroll. They also get virtually automatic seniority-based raises. America's Civil Service rules now protect the bureaucracy, not the public.
Congress did not intend the Civil Service to work this way. Congress wanted to end the spoils system _ administrations using federal jobs to reward supporters. So Congress passed extensive rules regulating federal hiring and firing.
These rules prevent federal employees from getting fired for political reasons. The problem is, they also prevent them from getting fired for almost any other reason.
Federal managers trying to remove an employee must extensively document poor performance. They usually must also give that employee a chance to improve. Then they must document their failure to improve. Then the employee gets a month's notice to prepare a defense before an administrative review board.
The agency must prove to that board the evidence justifies dismissal. If the agency prevails, the employee can appeal. If they lose that appeal, they can file charges with other agencies (such as the Equal Employment Opportunity Commission) alleging illegal discrimination. The entire process takes a year and a half.
Few federal managers want to spend over a year firing someone. They have an agency to manage. An employee would have to be truly awful for them to even attempt it.
The Merit Systems Protections Board, or MSPB, enforces the Civil Service rules. Even the MSPB concludes that "many supervisors believe it is simply not worth the effort to attempt to remove Federal employees who cannot or will not perform adequately." Unless managers absolutely want an employee gone, they seldom fire them.
That's why HUD didn't try to fire its moonlighting employee. It's why the Treasury Department didn't fire the employee who spent a quarter of his working hours surfing dating websites. And it's why the Environmental Protection Agency didn't fire the employee who sold agency equipment at pawn shops.
Unfortunately Congress cannot simply repeal these Civil Service rules. The Supreme Court ruled in Cleveland Board of Education v. Loudermill that civil service regulations effectively give government employees a property right to their job. The 14th Amendment says Americans cannot be deprived of property without due process. The Court held that Congress does not have to give government employees a property right to their job. But once it does, it cannot just take it away.
Rep. Todd Rokita has proposed a solution to this problem. He recently introduced the Promote Accountability and Government Efficiency, or PAGE, Act. This bill makes all new federal hires at-will employees, while keeping in place all federal anti-discrimination laws.
Under his proposal, federal agencies could not fire newly hired workers for their political views, religious beliefs or ethnic background. But they would not have to prove anything more to fire someone. The rest of the hoops they have to jump through would disappear.
This change eliminates the "my job is my property" defense. New hires would expressly have no property interest in their job. As existing federal employees retire, the Civil Service would become entirely at will.
The PAGE Act simplifies removing current employees, too. While Congress cannot eliminate their civil service protections, it can streamline them. So the PAGE Act limits current federal employees to only one appeal of their dismissal. No longer could they drag out the firing process by filing consecutive appeals to different agencies.
The Act also turns the current seniority-based raises into performance-based pay. These changes would create real accountability for federal workers, while keeping the spoils system at bay.
Such reforms are long overdue. Every workplace has a few bad apples. In the federal government they stick around, holding their agencies back. Americans can _ and should _ get more from their taxes.
