A Bureaucracy with a Difference? Hopes and fears for the "homeland" force.

National Review Online ^ | July 2, 2002 | Kate O'Beirne

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With his plan for a new conglomerate federal agency dedicated to domestic defense, President Bush has reignited an old battle — with higher stakes than the predictable turf fights over the 22 agencies slated for new management. The president's proposal anticipates a wholly new personnel system for the new agency, instead of placing it under the same rules as the rest of the federal civil-service system. If the administration succeeds in elevating the need for domestic security over federal workers' desire for ironclad job security, Bush officials will have the authority to create a unique workforce of 170,000 accountable — which is to say, fireable — government employees.

George W. Bush is only the latest chief executive to see how a president's fury is often no match for the rules and regulations governing the divine rights of federal workers. When the INS notified a Florida flight school, precisely six months after the September 11 attacks, that student visas had been approved for two of the hijackers, Bush was steamed — telling reporters, "I was stunned and not happy. Let me put it another way, I was plenty hot . . . I could barely get my coffee down when I opened up my local newspaper." He explained that he had expressed his outrage to attorney general John Ashcroft, who "got the message — and so should the INS."

Under the present rules, however, Bush will be a former chief executive long before the INS employees responsible for the embarrassing episode are former federal workers. Two days later, it was reported that the four responsible INS career employees were reassigned to other jobs in the INS and the Justice Department, but wouldn't face any disciplinary action. That same day, Ashcroft, who is responsible for enforcing all federal laws, petitioned Congress for the fundamental managerial control over the INS he currently lacks.

Ashcroft explained to the chairmen of the Justice appropriations subcommittees that there could be no effective oversight of the INS "during this crucial period" without the authority "to quickly discipline or terminate individuals for acts of negligence, mismanagement, or disregard for [DOJ] policies." For the previous four years, the subcommittees had provided limited authority to discipline derelict INS employees; this year the authority lapsed.

The president's proposal for the Department of Homeland Security, which will have the third-largest federal workforce, would grant the new secretary the authority to waive the civil-service rules that frustrate the most powerful government official in the world. Without the reform, the new agency's managers would have to live with the current cumbersome system that demoralizes high performers and protects bad employees.

As a former Reagan appointee at the Office of Personnel Management and former Republican staff director on the House civil-service subcommittee, George Nesterczuk is a veteran of two decades of battles over federal personnel reform. He agrees with the Bush administration that changes in personnel policy are fundamental to the success of the new department. Without reform, managers responsible for protecting American lives from lethal danger will be hamstrung by a personnel system that, Nesterczuk explains, has four basic problems.

First, it can be terribly difficult to hire federal workers; the process frequently takes three to four months. Several years ago, a Congressional Research Service report identified 180 federal race and gender preferences that govern much of the hiring. Second, negotiated union contracts prevent the efficient use of resources by dictating assignment policies for covered workers; this will undermine the president's effort to establish what he calls an "agile organization" capable of meeting "a new and constantly evolving threat."

Third, the ability to discipline federal workers is virtually theoretical. The ordeal federal managers face should they be among the few who attempt to discipline derelict employees provides the horror stories that frustrated reformers trade among themselves. Nesterczuk recalls the case of a federal employee found to be dealing drugs who couldn't be fired because an administrative law judge held that his illegal activity wasn't job-related. No fewer than four independent agencies are available for appeals from disgruntled employees, creating an environment designed to intimidate federal managers. In these friendly forums, federal employees file workplace-discrimination claims at roughly ten times the rate of workers in the private sector. At a hearing a few years ago, an official of a public-employee union acknowledged that most federal agencies house "turkey farms" for workers no one is able to get off the payroll. Federal managers have testified about having to contend with the "frequent filers" in the ranks who initiate phony grievances against supervisors who even hint that disciplinary action might be taken against them.

A recent study found that of the 100,260 to 124,650 federal workers identified as poor performers, about 3 percent were removed, less than 0.1 percent demoted, and 88 percent given pay raises. The civil service's rigid pay system — which guarantees automatic pay increases for all federal workers — is the fourth fundamental problem preventing the creation of a responsive workforce. Because compensation is based on seniority, there is little money to reward newer, better-performing employees. The decision of whether to seek employment elsewhere — which private-sector employees face when they aren't promoted and don't receive salary increases — is never confronted by a federal employee who just has to keep showing up in order to be rewarded. This merit-free pay scheme is so sacrosanct that Nesterczuk predicts "unions will die over automatic pay increases."

The chance that this system might be reformed by a cabinet secretary with broad authority has unhinged the civil service's most dedicated Capitol Hill defenders. Democratic congressman Steny Hoyer, who represents Maryland suburbs heavily populated with federal workers, accuses the Bush administration of creating the new department "as a ruse" to undermine his constituents' job rights. Sen. Ted Kennedy has reportedly (and unnecessarily) advised the unions to prepare for battle, and Rep. Tom Lantos, California Democrat, has warned that preservation of the status quo system is "non-negotiable." With the White House insisting that management flexibility is crucial to the effectiveness of the new department, Senate majority leader Tom Daschle has declared, "There is unanimous [Democratic] opposition to the administration's proposal to circumvent the civil-service laws of the country, as they are contemplating. We can't do that. We're not going to rewrite or totally exempt this or any federal agency from the laws pertaining to civil service."

But, on that last part at least, Daschle was mistaken: Congress has already granted the Internal Revenue Service the authority to waive civil-service rules in favor of a new personnel system. And last fall, in exchange for federalizing the workforce of airport screeners, Daschle's Democrats agreed to allow the Transportation Security Administration to adopt new personnel rules. (Feeling threatened, the American Federation of Government Employees and its congressional allies have been aggressively lobbying the agency to retain the status quo personnel policies.)

Whether the new Department of Homeland Security will merely represent an expensive reshuffling of dysfunctional agencies depends on the president's willingness to take Tom Daschle to task for putting his party's solicitude for public-sector unions over the need to protect the country against terrorism. Will Bush do it? Following reports that homeland-security director Tom Ridge intended to reassure unions that collective-bargaining rights would be honored, an administration source insisted that Ridge was walking the administration's approved fine line. When OMB director Mitch Daniels was asked recently whether the administration "will go to the mat" over the need for flexible managerial control over the reshuffled workforce, he replied: "The safety of Americans demands it."

If the president agrees, he can look forward to signing pink slips for those INS employees.