MINAHAN AND SHAPIRO, P.C. Attorneys at Law

Thanks to Travis Brock, President of the United Power Trades Organization (best president by a dam site) for being the first to send me a copy of a draft of the Bush Administration’s proposed "Civil Service Modernization Act of 2005" (CSMA). For those of you who need some bedtime reading, we are attaching a copy to a separate e-mail to all of you. Watch out, its over 100 pages! It does not yet have a House Bill or Senate Bill number.

The good news is that there is not much here we haven’t seen before. After 3 years of DHS and NSPS proposals, they’re out of new ideas. The bad news is that we seen it all before: just a bunch of unrelated ideas cobbled together to reverse MSPB and FLRA case decisions the Republicans don’t like, to ensure that the window for collective bargaining is closed so far that you can’t even feel a draft of fresh air, and to ensure that the limited opportunities federal employees have for fair treatment in the workplace are all but eliminated. The proposed bill preserves the existing structure of title 5 of the U.S. Code. It retains FLRA, MSPB, and all the other usual suspects, plus adds some more new boards and commissions. To prove the Administration isn’t serious about comprehensive civil service reform, it also preserves the separate systems now created or about to be created for DHS and DOD. [The term "Human Capital" is really getting on our nerves. Real people have gone from "employees" to "personnel" to "human resources" and now to "human capital." What’s next? "Sentient tools"?]

The tragedy in all this is that civil service reform is long overdue. The system that Congress set up in 1978 has never worked, for federal employees or for federal agencies. It is a crazy-quilt of different laws administered by different agencies with overlapping jurisdiction over things that aren’t that important and with no jurisdiction over things that are important. Twenty-seven years on, they all have their little fiefdoms and their peculiar customs- FLRA, FSIP, MSPB, EEOC/OFO, OPM, OSC, GSBCA, labor arbitrators and their various reviewing courts. Meet the new boss . . .

The Administration wants to keep the crazy-quilt but just loosen up the stitching! It reminds us of the days before word processors (yup, we are getting old!) when you’d try to fix up a document you typed with white-out, cover-up tape, new typing, copying and re-copying- anything to avoid having to do the whole thing over again. This Administration has no interest in anything "modern" or "contemporary" (the buzz words that pollute every new personnel system they propose). If they did, they would turn on the computer, open up title 5 of the U.S. Code on the word processor, take out the bad stuff, add the good stuff and be done with it.

Well somebody has to do it, or at least try. Within the next month or so, we are going to come up with our own outline for civil service modernization. It’ll be pretty radical. Unlike most of what we do, there may be some agencies that like it and some unions that don’t. Shoot-nobody will probably read it anyway. We’ll e-mail all our clients an advance copy so the tomato-throwing can begin!

Its hard to give a page-by-page description of this beast, but here are what we think are the main features of the bill:

Section 2: Starts with the familiar promises to protect merit system principles and not to waive any of the laws or regulations for whistleblower protection and EEO complaints, and to ensure that employees retain the right to collective bargaining through labor organizations of their choice.

Section 101: Pages and pages of pablum. Main point seems to be to allow OPM or the president to exempt any agency or group of employees from title 5 of the U.S. Code. Also establishes the Chief Human Capital Officers Council and the Federal Pay Council, who will have lots of power to do something. Makes it clear that unions can’t be members of these councils.

Section 104: Pretty much abolishes the present salary and wage systems and classification systems. OPM would define and describe all occupational series in the civil service. [Don’t they already do this?]

Section 201: "Pay for performance" (a/k/a pay for popularity). You’ve seen it all before. Would require at least 3 rating levels: not met, met and exceeds (no more pass/fail, except for trainees). Lots of vague principles about employee compensation and classification, with no less than 26 agencies and positions that are exempt. Pretty much wipes out all premium pay, except as specifically preserved. Bans collective bargaining on pay or classification, but requires "collaboration." [Ask the DOD union folks what they think of "collaboration."] Preserves the prohibition on any agency or court overruling OPM on a classification appeal.

Section 301: Billions and billions of "appointing authorities." Main purpose seems to be to allow the government to hire as many temporary employees as possible. Would reinstate written civil service examinations. Preserves existing veterans’ preference rules in the initial hiring process. Allows for probationary periods of up to 3 years.

Section 401: Labor-management relations. Keeps FLRA. Keeps 5 USC Chapter 71 (the labor relations laws) but shoots it full of holes. Its déjà vu: just like the DHS and DOD statutes: overruling all the case decisions Republicans don’t like and preserving all the idiotic "choice of forum" rules where you’d better file in the right place at the right time or you can’t go back and fix it. Narrows the scope of the grievance process. Limits the power of arbitrators. Our favorite part: the proposed amendment to management’s rights in 5 USC 7106: "to prepare for, practice for or prevent any emergency, or to prevent any fiscal or budgetary exigency." Can’t wait to see how Justice Scalia (now there’s an oxymoron) interprets this.

Section 402: Adverse actions (5 US Code, Chapter 75). Looks like the only big change is tightening up on who is a "non-career" employee and cannot challenge an adverse action at MSPB or in the grievance process: probationary, temporary, term employees, probably anybody who’s been around less than 3 years or anyone on an appointment that doesn’t last at least 3 years will be an "at-will" employee.

Section 403: Appeals (5 US Code, Chapter 77). Keeps MSPB. Would allow MSPB to issue decisions without a hearing ("summary judgment"), which is almost certainly unconstitutional since the courts have ruled for decades that "due process" requires a hearing. But Justice Scalia (those two words can’t possibly go together) will tell us that "due process is an evolving concept." Contains the now-familiar language on "forget the Douglas factors; MSPB must uphold any penalty unless the deciding official was psychotic."

For something that drones-on for 119 pages, you’d think there would be more to say, but there isn’t. Its just the old, broken down, brain-dead Civil Service Reform Act of 1978 on artificial life support.