Op-Ed From Peter Broida
Leadership Vacancies at Federal Personnel Agencies
Some federal departments and agencies receive extensive media coverage of policy failures or their leaders' alleged peccadillos. The remaining bureaucracy generally operates without fanfare. Two minute, obscure federal agencies, created by the 1978 Civil Service Reform Act, have become dysfunctional, not by dereliction or chicanery, but by neglect: absence of presidentially-appointed, senatorially-confirmed leaders. The Merit Systems Protection Board adjudicates civil service appeals of employees or applicants who have been fired, suspended, furloughed, or who assert violations of laws intended to protect veterans or whistleblowers in the federal workplace. The Federal Labor Relations Authority resolves disputes over statutory collective bargaining obligations and it adjudicates unfair labor practices charged against federal agencies or their employees' unions. Through fewer personnel than are employed by many small businesses, these agencies have long operated with a sufficient complement of term-limited, politically-appointed officials supported by headquarters and regional staff.
They operated until early 2017. The three-member Merit Systems Protection Board then lost its quorum. The remaining Board member runs the agency, but he cannot issue final decisions on civil service appeals from initial adjudications by administrative judges. Not until March of this year were nominations offered for the three Board members' positions. Although a hearing occurred before a Senate oversight committee in July, it appears that no further action will be taken on the nominations when the Senate adjourns later this year. Nominations can again be submitted to the Senate in 2019. Meanwhile, for many months the Federal Labor Relations Authority has lacked a presidentially-appointed general counsel-without whom unfair labor practice complaints cannot be issued or adjudicated-and there's been no nomination at all.
That these two agencies cannot properly function is of significance. Through the Board's decisions in civil service appeals, and through the Authority's adjudication of unfair labor practice complaints, statutory rights are defined and protections enforced for agencies and unions in the collective bargaining process and for agencies and employees or applicants covered by civil service, equal employment, retirement, and veterans preference laws. Delay in nominations and confirmations of Board members and the Authority General Counsel advances no interest, but the delay prevents development of the law affecting the nation's largest employer, destabilizes federal labor relations, and subjects government employees to unreasonable delay in adjudication of statutory appeals or claims, while the delay subjects the government to increasing liability for backpay and costs associated with those cases-costs borne by the taxpayers.
Over the four decades since establishment of the Board and the Authority, civil service adjudication processes have become complex, inefficient, unwieldy, and in need of revision, consolidation, and streamlining. Systemic improvements are impeded through continuing vacancies disabling these entities. The President and the Senate should expeditiously perform their constitutional mandate to nominate, confirm, and appoint the leaders both agencies require.
Mr. Broida is an attorney engaged in federal civil service litigation, teaching and writing.