What’s the right balance between holding employees accountable and helping them succeed?

Terry Gerton There have been a lot of new rules from OPM over the past several weeks, and we can talk about each one of them specifically, but before we do that, I want to step back and have you help us get a forest-level view of what’s going on here. Are we seeing the emergence, do you think, of a new federal personnel management model, one that maybe gives managers more discretion?

John Hatton Yes, we certainly are. I think there’s been pushes from a wide variety of good government groups for improvements in how performance management works, how the government operates for a long time. And so you have at least a recognition that there could be some more expedited review, improved performance management. So a lot of these actions do put a little more hands, a little more power in the hands of the managers, but there’s also this underlying concern around just the basic merit-based principles and whether it shifts the power so much that it’s not just in the manager’s hands, but it’s in political appointee hands in the sense of firing people not because of their merit and because of politics, right? And so I think trying to parse through the details of the various new proposed rules and deciding is this something that is undermining merit system principles or is this just an expedited consolidated improving the efficiency of the merit system? I think it’s kind of how we try to take a look at this. But there are some, you know, and for example, in this new promoting employee accountability rule, you’re trying to lessen the time for review, a shorter time window for improving performance. You know, I think when you talk about a one-day response window, it starts to seem very accelerated versus just an accelerated process a little bit more than it was. And so I think it’s going to be a complicated new system in terms of what the new rules are for both employees and supervisors to understand and how they apply it. I think there’s a trend here about taking essentially real independent review out of the process. So, whether that’s Schedule Policy/Career, you don’t have an appeal to the Merit System Protection Board. There’s a trend towards eliminating removal for cause protections for MSPB members with the previous firing, the MSPB board, the Supreme Court case in Slaughter in terms of the ability of the president to terminate a federal trade commissioner, you have the suitability fitness rule, which allows appeals to OPM, not MSPB for in-service conduct now. That used to be a pre-employment screening. Schedule Policy/Career itself is just an intra-agency process. So the lack of independent review is overall our largest concern with these. The goal to try to improve accountability, improve performance, improve the way the government’s working. I think there’s aspects to some of these that are reasonable within the scope of what good government groups might consider, but I think it’s hard to trust it when you had this underlying lack of independence, underlying lack of respect for the American civil service.

Terry Gerton A lot of the conversations about these rules focus on the implementation from the employee perspective, but I want to ask you to think about the implementation from the manager’s perspective. OPM has argued that the separation practices were so complicated that managers wouldn’t even tackle them. So do you think that these new rules, if they move forward, will actually make it easier for managers and HR offices to address performance problems?

John Hatton I think they will have less constraints that may lead to more arbitrary standards across the government. So the new proposed rule on employee accountability gets rid of the Douglas factors, which try to create at least a standard to measure all different employment actions. So one termination at one agency or within an agency is the same as another termination within the agency or across agencies, now they’re trying to move to totality of the circumstances. And one side of things, you can kind of make up any reason for termination outside prohibited personnel practices. On the other hand, you don’t really have guidance as a manager as to kind of what’s gonna be okay and what’s not. So I think that may lead to lack of uniformity and discipline, and I think that causes some problems. Now, will this, I think, potentially allow managers to move forward with whatever they think is the right decision and they wanna fire somebody? Perhaps, but again, that the lack of check on, is this based on merit or favoritism? Is this based upon politics or merit? Those types of things. Is this, you know, one supervisor being pretty trigger happy versus another and then two different employees in similar situations are not treated the same. But yeah, so it’ll be interesting to see how it, you know, if this fully goes into effect, how it plays out. There is at least some direction for training in this employee accountability rule. Also, That’s a positive. If you’re gonna change a system, you do need to train managers on how to use it and how to do performance management and review.

Terry Gerton John Hatton is staff vice president at the National Active and Retired Federal Employees Association. John, let’s pull that training thread just a bit more. It’s been a longstanding complaint that federal managers don’t get enough training in personnel management and performance management. What would NARFE be looking for here to make sure that the training that’s going to follow these rules is useful and effective?

John Hatton Yeah, I think we’d be looking for a little bit more guidance in terms of the standards, a little more guidance in terms making sure you’re treating everybody based on merit. So at the training level, I think maybe you can try to instill some of that culture of preserving the merit-based civil service. I think just learning any new rule and kind of what can I do now, what could I not do before, I think is always going to be helpful. So. I think both training on the changes in rules, one and training on just how to be a better manager and make sure you’re focusing on performance and you’re not just focusing on your non-management role but you’re really taking the time to work with people in a way that you’re in partnership with your employees to fulfill the mission.

Terry Gerton And from the employee perspective, trying to make sense of all these changes, what are the specific protections or rights or procedures that folks should be paying close attention to over the next few months?

John Hatton Well, so one of the biggest, there’s a few changes, I think that really stand out, where there’s the Schedule Policy/Career where you’re moved, potentially reclassified into this new accepted service system where you don’t have this appeal to the Merit System Protection Board, certainly a concern. You have the non-disclosure agreement that could come out that you’ll be asked to sign, that’s paired with that suitability and fitness rule. So if you decide not to sign the non disclosure agreement, are you determined unsuitable or unfit to hold office? And so that then can be threatened for an agency referral to OPM to then say you’re removed from service based on that and it has nothing to do with performance. So they are really creating an entire framework around their system of re-centering the presidency, this unitary executive theory and undermining kind of what were laws from Congress dictating this, you know, some protections for employees to ensure merit system remained intact.

Terry Gerton Are you expecting that the real understanding of how all of these pieces fit together is gonna require or rely on the outcome of some court cases?

John Hatton Oh, it certainly will. I mean, Schedule Policy/Career is being challenged in court, including by NARFE and other entities. There are going to be challenges on a lot of these rules either because of the process or because of their consistency with the Civil Service Reform Act. And so, you know, where this lands at the end of the day is certainly uncertain. At some point, Congress could step in. I don’t want to anticipate that between now and the end of the year, but we could have a different looking Congress next year, and there could be efforts to put some checks on this. Court cases are certainly relevant. It’s not just are the correct procedures being taken here pursuant to the Administrative Procedures Act. It’s not just, does this conform with the Civil Service Reform Act, but we’re seeing the Trump administration make arguments on constitutional grounds. We saw them on day one say all these laws regarding this senior executive service where we have to have removal for cause. They are unconstitutional and they impede our article to authority. They made that argument in the Slaughter case of the Supreme Court that they could fire the federal trade commissioner, whether that same precedent applies to MSPB heads remains undetermined and how far that goes down the chain to inferior officers as well remains undetermined. So there’s a lot of uncertainty in the court cases, uncertainty with legislation. And so, you know, this may be something people need to learn for six months and then remember the old system, or it could be a mixture of the two. And, you, know, I think we’re seeing this across the board, not just with federal workforce policies, but as we’ve had more partisanship in D.C., it’s really grown since I think early ’90s and bigger swings between the parties. I think you’re seeing much bigger swings in policy. And so this could be the framework we have for the current Trump administration, but there’s a new administration that comes in, it could be a whole different set of policies, whether that’s back to square one and the old policies or somewhere in the middle also remains to be seen, but I think it just, that aspect of it with, you know, the swings in policy created by the partisanship and the different views on how things should work just creates more confusion, more difficulty and its own set of challenges beyond the challenges of a specific policy.