When the rules change, people will change how they work

Terry Gerton There’ve been a couple of really big headlines in the federal workforce. Let’s dig into both of them and start with the Schedule Policy/Career executive order. People have been waiting for this. It finally happened. 8,000 positions moved onto that schedule. When you hear from federal workers who’ve just been reclassified, what are they telling you? What is this feeling like or what does it mean?

John Hatton I think people are worried and anxious and not sure what it means. And we’re still not sure exactly what the administration plans to do with this, right? What this does is change your classification so you have less procedural rights to challenge a termination that is not based on merit, that could be based on political affiliation, whatever they claim to say this is about. The fact is, if you are subject to disciplinary action, you have a different procedure for challenging that. There may be an intra-agency process, but that would be controlled by political. So the concern is that it could just be a rubber stamp for any action as opposed to an independent review through the Merit System Protection Board, which is a board with a Senate-confirmed appointees with removal for cause protections under current law.

Terry Gerton And when you put that together with the changes that OPM has proposed for review in lieu of the Merit Systems Protection Board, what does that tell you about how much leeway folks are really gonna have here?

John Hatton I think it certainly limits the leeway people have and, you know, the administration tries to claim that this is just about keeping people accountable and carrying out their policies. But these protections are in place to ensure that people are following the law, even if somebody is telling them not to, that people were allowed to report waste and fraud and abuse and corruption, that the people are telling the truth to their superiors even if they may not know they may like what that truth is. So, you know, I think it is not really about accountability, and maybe accountability to that person and that political, but it’s not necessarily accountability to the American people, to the rule of law, to good governance.

Terry Gerton One of the things that this administration also puts with accountability is at will employment. They can fire you at will. Most of the positions that have been reclassified are GS-15, some GS-14s. What does moving to an at-will status for these senior folks actually mean?

John Hatton I think we’ll have to see, right? We don’t know what the administration intends to do with the individuals reclassified into these positions. The worst case scenario is they want to wholesale fire them and use the lack of real legal protections to prevent that from happening. I think that’s maybe unlikely, but the next worst thing is kind of selective terminations of people who are good at doing their jobs, professional, nonpartisan, trying to do their best on behalf of the American people, but that goes against some politically motivated or corrupt purpose that somebody is trying to drive. So the next step down the line is that it is just a greater degree of an ax hanging over somebody’s head and when they’re doing their job, a little bit more fear of speaking the truth, a little more bending your views to what your boss wants to hear versus what is best for the agency and the mission. And so. There’s different, I think, scenarios of how this happens. There could be variation among agencies, certainly variation depending on who the political appointee is above you. So you may have some perfectly fine political appointees that are doing a good job on behalf of the American people. They’re following the policies of the administration, but they’re not looking to do anything toward or try to break the law or push policies outside the bounds of what’s legal. So I think it’s, we’ll have to wait and see if this totally moves forward, kind of how it’s implemented by this administration and potentially future administrations.

Terry Gerton I realize we’re in the realm of conjecture here, but one of the examples you just offered, not wholesale firing of these folks, but a few high profile removals of people who’ve maybe offered their best professional opinion in a way that was counter to what the administration hoped, what sort of a chilling effect do you think that would have in the broader workforce?

John Hatton I think it would have a massive chilling effect. I think you terminate one person, and I think everybody else gets the message, and they then have to make a decision. Do they wanna stay with that agency? If they do, are they gonna change their behavior in a way that is detrimental to the mission of the American people? And I think that is certainly a concern and probably one of the most dangerous concerns, because I think the wholesale firing probably gets more political attention, probably gets more pushback. I think this selective firing of people, particularly if they’re doing the right thing, you know, whether that’s, for example, Department of Justice declining to prosecute somebody based on political motives, or prosecuting somebody based on political motives or declining to. So those types of situations, declining a contract award or a grant or giving one based on political motives outside of objective criteria, I think they’re all troubling scenarios that I think we have this merit-based professional nonpartisan civil service to provide a degree of objectivity to government operations. And I think that starts to go away with this new policy.

Terry Gerton John Hatton is the staff vice president for the National Active and Retired Federal Employees Association. John, on that note, let’s turn to the other policy that got a lot of headlines recently, and that is the deployment of a proposed government-wide non-disclosure agreement. Seems like it would apply to everything from internal deliberations to personnel matters. What’s your biggest concern there at NARFE about how broadly this defines classified information or confidential information?

John Hatton Yeah, we’re concerned about the broadness of the definition of confidentiality and going beyond what typically would have been protected. So what is the purpose of this? I think it goes to a similar concern of chilling speech, chilling action by individuals. So people really worried that even if they reveal what is legally permissible to reveal, if they’re highlighting through a whistleblower as a whistle blower, waste, fraud, abuse, corruption. Are there going to be repercussions and retaliation for that? I think that’ll be a concern. I think it’s a concern for the American public in terms of right to have information about what the government’s doing. There is a line somewhere where things should be internal deliberations and should be confidential. But when you make an extremely broad definition of that confidentiality, that’s ill-defined, the federal employees themselves may not know where that line is. That certainly may chill them from speaking out against actions that they find troubling, that they think the public has a right to know legally, but they’re now concerned about the retaliation that would happen if they do speak out.

Terry Gerton The administration says that whistleblower protections still apply. You sound like you might not be so sure.

John Hatton Well, yes, they may still apply, but does this add a new threshold that reduces transparency in the government operations, that is not really needed for pre-decisional involvement, for deliberations, for a functional purpose of the government? And does it define terms like confidential information so broadly as to go beyond what is legally permissible or at least have individual federal employees concerned that they can’t go beyond or to the threshold of what is legally permissible. So the chilling effects from the broadness of the definition and I think the fact that it is adding a new restriction that reduces transparency beyond what we have under current law.

Terry Gerton NARFE has said that current law already restricts this disclosure, that this is not necessary. What is the motivation then do you think behind putting this out?

John Hatton I’m not a psychologist, so I’m not going to look into the motivations of the administration. They have claimed that they want to make sure that pertinent information is not disclosed. And certainly, in certain scenarios, classified information we would agree with, things that would disrupt operations, we understand that motive. But we also think the public has a right to know. And federal employees faced with a certain moral quandary of keeping their job or revealing something that’s really important for the public to know, whether this administration or another administration, I think it’s critical to have some of those protections. I think there’s already a veil covering government operations and difficulty understanding what’s going on. And I think that there’s certainly a balance there between the federal government’s need to have confidentiality and pre-decision involvement in carrying out what they’re doing, but also this is not a privately owned company. This is the federal government and is essentially owned by the American people as represented by Congress so that the executive branch does not have an exclusive right to this information.

Terry Gerton And when you put these two actions together, less job protections on one hand, tighter limits on what you can say on the other, how are federal employees receiving these two messages together?

John Hatton Not very well from what we’ve been hearing. I think this just compounds upon about a year and a half of different policies that give a lot of fear to federal employees. So it was already shown that this administration has been willing to do mass firings, targeted firings in certain cases of individuals. This just starts to sway the legal balance in terms of how this plays out in court battles more towards the administration’s prerogatives and against those rights that protect American civil service or disclosure to the American public of information.