MINAHAN AND SHAPIRO, P.C. Attorneys at Law

Phone: 303.986.0054

FAX: 303.986.1137

165 S. Union Blvd. Suite 366 Lakewood, CO 80228

LAW FIRM NEWS

June 10, 2005

Special Edition: The Other Shoe Drops- Proposed CSMA

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 Administrationís 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.

This is a draft of a bill that would do to the rest of the federal government what the Administration has already done to the Dept of Homeland Security (DHS) and to the Department of Defense (DOD-NSPS). Weíre assuming it has either been sent to Congress or will soon be sent to Congress. Upon arrival, it will be introduced by a loyal Republican and will most likely be referred to the House Committee on Government Reform and Oversight, Subcommittee on Federal Workforce and Agency Organization. John C. Porter is the chairman of the subcommittee and the chairman of the committee, Tom Davis, is also a member of the subcommittee. The ranking Democratic member of the committee is Henry A. Waxman of California and the ranking Democratic member of the subcommittee is Danny K. Davis of Illinois. Its never too early to start writing to these folks and to your own congressional representatives to let them know what you think about this. You can get the address, phone, fax and e-mail of any senator or house member at www.senate.gov and www.house.gov.

General Comments

The good news is that there is not much here we havenít seen before. After 3 years of DHS and NSPS proposals, theyíre 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 donít like, to ensure that the window for collective bargaining is closed so far that you canít 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 isnít 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." Whatís 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 arenít 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 youíd 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. Itíll be pretty radical. Unlike most of what we do, there may be some agencies that like it and some unions that donít. Shoot-nobody will probably read it anyway. Weíll e-mail all our clients an advance copy so the tomato-throwing can begin!

Specific Comments

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 canít 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. [Donít they already do this?]

Section 201: "Pay for performance" (a/k/a pay for popularity). Youíve 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 veteransí 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 donít like and preserving all the idiotic "choice of forum" rules where youíd better file in the right place at the right time or you canít go back and fix it. Narrows the scope of the grievance process. Limits the power of arbitrators. Our favorite part: the proposed amendment to managementís rights in 5 USC 7106: "to prepare for, practice for or prevent any emergency, or to prevent any fiscal or budgetary exigency." Canít wait to see how Justice Scalia (now thereís 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 whoís been around less than 3 years or anyone on an appointment that doesnít 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 canít 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, youíd think there would be more to say, but there isnít. Its just the old, broken down, brain-dead Civil Service Reform Act of 1978 on artificial life support.