This column was initially revealed on Jeff Neal’s weblog, ChiefHRO.com, and was republished right here with permission from the writer.
The current information that Workplace of Personnel Administration (OPM) Director Jeff Pon had been pressured out after solely seven months on the job was fairly a shock to the federal HR group. Jeff Pon is a longtime HR skilled, having served prior to now in key positions at OPM and as Chief Human Capital Officer for the Division of Power. His mixture of presidency HR expertise, mixed with personal sector HR expertise on the Society for Human Assets Administration, made him probably the most technically certified Director OPM has had in its 40 yr historical past.
So what occurred? Neither the White Home nor Dr. Pon are talking publicly concerning the particulars, however sources near Dr. Pon are telling reporters (corresponding to Eric Yoder and Lisa Rein of The Washington Submit), that Pon was “at odds with the administration over its planned revamp of the personnel agency, which would have diminished his role and authority.” Nothing I’ve heard contradicts that view. In my very own conversations with Jeff earlier than his departure, it was clear that he believed some elements of the administration proposal to reorganize the work of OPM into GSA and the White Home (and probably different businesses), would require congressional approval. For instance, OPM was created by the Civil Service Reform Act of 1978. Federal regulation (particularly 5 U.S. Code § 1101) says “The Office of Personnel Management is an independent establishment in the executive branch.” In different elements of america Code, authority over contracting for the Federal Staff Well being Advantages Program rests with OPM, alongside with numerous different points of OPM’s mission.
You could be considering “What is an Independent Establishment?” Might that be an workplace inside the Government Workplace of the President, because the Administration has proposed? In all probability not. 5 U.S. Code § 104 defines an Unbiased Institution as “an establishment in the executive branch (other than the United States Postal Service or the Postal Regulatory Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment.” The variety of legal guidelines that reference OPM because the company with authority over all kinds of civil service-related issues makes it unlikely that OPM could possibly be eradicated by government motion.
The proposal to re-vamp OPM
The truth that eliminating OPM would require congressional approval doesn’t imply that many points of the Administration’s reorganization proposal can’t be carried out. As a reminder, listed here are a number of the key provisions of the proposal:
- Transfer fee-for-service work from OPM’s Human Assets Options (HRS) group to the Basic Providers Administration. HRS offers providers comparable to coaching, government improvement (together with OPM’s wonderful Federal Government Institute), software program (together with USAJobs, USA Staffing, USA Efficiency, and others), and consulting providers in a variety of Human Assets disciplines. Their cash is in a working capital fund. Shifting working capital funds is difficult, however it’s doable. There could also be particulars associated to particular OPM authorities, however a lot of the work HRS does can also be work that businesses can do on their very own, or that OPM can delegate to businesses. It’s doubtless that such points might be addressed efficiently.
- Transfer background investigations to the Division of Protection. Just like the HRS work, that is primarily a working capital fund exercise and there doesn’t look like any statutory requirement that it stay in OPM. Actually, the 2018 Nationwide Protection Authorization Act gave DOD the authority to conduct its personal background investigations (about 70 % of OPM’s background investigation workload). My very own perception is that this work is such a distraction to OPM that the company can be higher off with out it.
- Transfer insurance coverage and retirement packages to GSA or one other company and transfer civil service coverage to the Government Workplace of the President. These are rather more troublesome to do. The Civil Service Reform Act clearly established OPM because the principal Human Assets company for the federal authorities. Key provisions embrace designating OPM as “an independent establishment in the executive branch” and making the OPM Director answerable for “executing, administering, and enforcing the civil service rules and regulations of the President and the Office and the laws governing the civil service; and the other activities of the Office including retirement and classification activities; except with respect to functions for which the Merit Systems Protection Board or the Special Counsel is primarily responsible.” The OPM Director can also be charged with “aiding the President, as the President may request, in preparing such civil service rules as the President prescribes, and otherwise advising the President on actions which may be taken to promote an efficient civil service and a systematic application of the merit system principles, including recommending policies relating to the selection, promotion, transfer, performance, pay, conditions of service, tenure, and separation of employees.”
Greater than half of OPM is funded by working capital funds and isn’t particularly required by regulation to exist in its present type. Meaning there’s appreciable leeway in how and the place the work is completed. It’s probably that motion of the working capital fund actions to DOD and GSA is inside the authority of the chief department. The core insurance coverage, retirement and civil service coverage and oversight work seems to be established in regulation as a duty of OPM. It’s far harder to untangle all of these authorized authorities and push them to different businesses. That doesn’t imply there are usually not choices that would work.
Though the president doesn’t have authority to unilaterally disestablish federal businesses, he does have appreciable authority over the Government Workplace of the President (EOP). It’s potential that the Administration might set up an workplace inside EOP that performs a big position in civil service coverage, with OPM persevering with to exist a lot because it does now. Such an workplace would play a task just like the Workplace of Federal Procurement Coverage (OFPP) and its relationship with GSA, DOD and NASA in overseeing procurement coverage. As GSA describes the method, “The Federal Acquisition Policy Division writes and revises the FAR. The Division coordinates with the Office Federal Procurement Policy and other agencies in a highly collaborative and deliberative process to implement laws, executive orders, other agency regulations, and governmentwide policies to support the maintenance of the FAR.” OFPP is permitted by statute and has a Senate-confirmed Director.
Whereas the Civil Service Reform Act designates the OPM Director because the president’s principal advisor on civil service insurance policies, there doesn’t look like something that grants it exclusivity. An association just like that used for procurement coverage might work for civil service coverage as properly and could also be constant with the Civil Service Reform Act provision granting OPM authority to advise the president on civil service issues. For that sort of association to have any longevity past the present Administration, it might ultimately should be codified in regulation.
It’s apparent, OPM is political
So what would occur if civil service coverage was extra overtly managed by the White Home? Wouldn’t it wreck the benefit system and politicize the Civil Service? Would ripping away the facade of nonpartisanship in civil service coverage speed up the decline of the civil service? Perhaps, however that concept assumes civil service coverage is apolitical. Who doesn’t assume civil service politicized has been politicized already? Federal staff have been used as political footballs for therefore lengthy that we should always stamp Wilson® on their foreheads. Listed here are the information:
- The OPM Director and Deputy Director are Senate-confirmed presidential appointees.
- The Director is appointed to a four-year time period, however each officers serve on the pleasure of the president.
- As chief government, the president will get to make coverage to the extent that it’s neither proscribed nor required by regulation.
- OPM doesn’t make main coverage selections in a vacuum
- Any main civil service coverage initiative it undertakes is completed in coordination with the White Home (particularly with the Workplace of Administration and Finances).
Moderately than pretending that there isn’t any political facet to civil service coverage, one might argue that it might be higher to get that political facet of it out within the open. Are there advantages? Perhaps. The chief grievance towards OPM is that it’s sluggish and unresponsive to company wants. Former Director Pon even joked that he did need it to be seen as NoPM or SlowPM. My expertise as a CHCO taught me that OPM has some actual strengths and a few actual weaknesses. The strengths embrace a number of the segments that may be realigned to GSA. The chief improvement work, particularly, is sort of good. The Federal Government Institute is very regarded and provides exceptionally good coaching. OPM’s administration of well being and life insurance coverage can also be wonderful. I additionally discovered that some elements of OPM’s coverage store and basic counsel’s workplace have been very OPM-focused on every thing, and needed a one-size-fits-all strategy to issues the place that strategy didn’t work. Do we actually need the identical 80-day hiring mannequin for a WG-5 Supplies Handler, a GS-14 Cyber Safety professional, a GS-15 Analysis physicist, and a Secret Service Agent? Once I defined that the American individuals needed DHS to have the proper individuals for our cyber safety mission and to maintain air journey safe, I used to be advised that what the American individuals need most is a civil service that follows benefit system rules. The concept these necessities are in battle was maddening. Guidelines don’t equate to benefit and benefit doesn’t require that each hiring supervisor be handled as if s/he needs to rent their cronies.
Perhaps extra White Home course would velocity the tempo of reforms within the civil service and drive OPM to make use of its rule-making authority for hiring and different important processes. Appearing Director Margaret Weichert’s announcement final week of expanded direct rent authority and pay flexibility is an effective begin. The pay flexibility is an authority OPM has had for years, however not used. It isn’t the one authority OPM has sat on. Once I was at DHS and requested OPM for essential place pay authority for a key job, the primary response was that OPM didn’t like to make use of that authority. It had existed for 20 years and allowed as much as 800 positions authorities large, however OPM had granted it for fewer than 30 jobs. OPM doesn’t have a historical past of shifting out shortly on coverage points.
That results in the actual drawback that many people have with this proposal. They don’t like what they assume this specific White Home would do with it. Change the get together controlling the White Home, and the Republicans wouldn’t like the best way they assume the Democrats would deal with it. We apparently assume White Home management is OK when our social gathering runs every part, however not when the opposite guys do. The phantasm of OPM as an unbiased guardian of the benefit system is reassuring to some.
Don’t get rid of issues OPM does properly
I feel the thought of OPM as an unbiased entity that’s simply operating a merit-based civil service is just not actual. If that have been true, I might argue that something that seems to politicize the civil service ought to be prevented in any respect prices. The civil service is what makes the federal government work, and it’s the place large quantities of institutional and technical information reside. We don’t want something to jeopardize that. However, OPM just isn’t an unbiased entity that’s free from political involvement and it was not structured by the CSRA to have any sort of bipartisan management construction. It has political management now and has because it was created.
Clearly the White Home needs extra overt management over civil service insurance policies. Following the OFPP/GSA mannequin is one thing that would in all probability be executed successfully and may, if accomplished nicely, truly enhance civil service policymaking. OPM takes too lengthy to go from concept to revealed coverage. It tends to be solely partly aware of company wants. A policymaking board comprising a mixture of an workplace within the EOP, OPM, and representatives from the Departments and enormous unbiased businesses, may have the ability to drive workforce insurance policies in a simpler method. Such an association would additionally make it much less doubtless that White Home involvement in civil service coverage would end in politicizing the civil service any greater than it has already been politicized. It might additionally be sure that civil service coverage was pushed by what is required for expertise administration in authorities and never simply by what sells politically. The Director of OPM is established in regulation by 5 U.S. Code § 1102, which says “No individual shall, while serving as Director or Deputy Director, serve in any other office or position in the Government of the United States except as otherwise provided by law or at the direction of the President.” Meaning the president might set up an workplace inside EOP with the Director of OPM dual-hatted as its Director. Doing so would accomplish the Administration’s said objective of elevating the position of the OPM Director. An alternative choice can be to grant Cupboard standing to the Director of OPM as President Clinton did.
The very last thing we’d like to remember is that OPM just isn’t the first guardian of the merit-based civil service. The actual guardian is Congress. The benefit system rules will not be OPM laws — they’re regulation. The prohibited personnel practices are regulation. The protections from removing with out due course of are regulation (and constitutional). Reorganizing OPM or creating the civil service equal of OFPP doesn’t change that.
We’ve had 40 years of OPM because it presently exists. Earlier than that we had 93 years of the Civil Service Fee (not counting the two years the CSC existed within the 1870s). Neither OPM nor the Civil Service Fee have been good and each had their critics. Is the Administration’s proposal what I might select if it have been as much as me? In all probability not. Is it the dying knell of the Civil Service? No. As a matter of reality, having civil service coverage reside in EOP was one of many approaches that was thought-about in writing the Civil Service Reform Act of 1978.
I say let the Administration attempt their proposed association. If it really works, Congress can codify it and make it everlasting. If not, Congress can extra clearly codify the position of OPM and undo it. There’s little probability that it’ll create any issues that can’t be fastened.
Jeff Neal is a senior vice chairman for ICF and founding father of the weblog, ChiefHRO.com. Earlier than coming to ICF, Neal was the chief human capital officer on the Homeland Safety Division and the chief human assets officer on the Protection Logistics Company.