November 17, 2023
VIA FEDERAL eRULEMAKING PORTAL (http://regulations.gov)
U.S. Office of Personnel Management
1900 E Street, N.W.
Washington, D.C. 20415
RE: Professional Managers Association comments on OPM proposed rule, “Upholding Civil Service Protections and Merit System Principles,” RIN 3206-AO56, Docket No. 2023-19806
On behalf of the Professional Managers Association–the non-profit professional association that has, since 1981, represented professional managers, management officials, and non-bargaining unit employees at the Internal Revenue Service (IRS)–I write to express our strong support for the proposed rule “Upholding Civil Service Protections and Merit System Principles.”
PMA has long stood against attempts to undermine the merit system. The previous administration’s attempt to convert thousands of career officials into a “Schedule F”–thereby stripping these employees of their merit protections–was a dangerous affront to the merit system that, under the guise of efficiency, would have deeply disrupted the equitable delivery of taxpayer services. Most problematically, the previous administration’s actions were an affront to Congress, and Congress’s unequivocal pronouncement in the Civil Service Reform Act of 1978 (CSRA) that the administration of the law requires neutral competence on the front line.
The previous administration’s actions exposed an urgent need to “reinforce and clarify longstanding civil service protections and merit system principles, codified in law, as they relate to the movement of Federal employees and positions from the competitive service to the excepted service, or from one excepted service schedule to another.”
At the IRS, like all federal agencies, political appointees already lead high level policy positions answerable to the President. This class is separate from the thousands of IRS employees in career positions, who simply enact the laws of Congress based not on presidential politics, but loyalty to the Constitution and commitment to public service. Already, the American people are provided little transparency into who politically appointed individuals are and what experience they bring to the roles they serve. Nonetheless, it is understood that our civil service requires both political leaders to formulate policy and career managers and employees based with the expertise to implement that policy.
An expansion of the political class is both unnecessary and unwarranted. It threatens the very core ideals of a government accountable to the American people rather than a political party. Indeed, our nation has seen the dangers of injecting partisanship into the IRS. When accusations of partisan tax enforcement rattled the IRS just 10 years ago, the American people were deeply disturbed by the prospect of a partisan IRS targeting tax penalties based on political or religious affiliation. Without merit protections allowing career civil servants to safely raise alarm about abuse, these scandals will become common place with little accountability.
Career civil servants are responsible for the equitable delivery of taxpayer services precisely because they swear to enforce the laws of the Congress as per the Constitution rather than the political will of the President. Converting these individuals to partisan positions and removing them at will when they refuse to serve a partisan agenda is dangerous for our democracy. For these reasons, further detailed below, this rule is critical to our democracy and the proper functioning of the federal government.
II. Civil Service Protections
PMA strongly supports the proposed changes under part 752 to clarify that employees who are moved from the competitive to the excepted service, or from one excepted service schedule to another, retain the status and civil service protections they had already accrued.
If an administration can bypass the civil service framework established by Congress in the CSRA by simply moving employees to a new excepted service, it would undermine the intention of the CSRA and make its extensive employee protections obsolete.
At the IRS, this would also significantly curtail the administration of the nation’s tax system. The IRS is no stranger to accusations of political interference. Generally, these accusations come from both sides of the political aisle, based on complete misconceptions about how the IRS operates. Still, the last thing the IRS needs is more political leaders causing partisan scandals. IRS career leaders have significant knowledge about complex tax laws and vast congressional mandates. Their knowledge expedites the onboarding process for political appointees, provides expert insight into other employees, and ensures timely, accurate information is relayed to stakeholders.
III. Positions of a Confidential, Policy-Determining, Policy-Making, or Policy-Advocating Character
PMA strongly supports OPM’s proposal to define these terms “to make explicit OPM's interpretation of this exception in 5 U.S.C. 7511(b), which is that Congress intended to except from chapter 75's civil service protections individuals in positions of a character exclusively associated with a noncareer, political appointment that is both (a) identified by its close working relationship with the President, head of an agency, or other key appointed officials who are responsible for furthering the goals and policies of the President and the Administration, and (b) that carries no expectation of continued employment beyond the presidential administration during which the appointment occurred.”
Career federal leaders ensure the consistent and reliable application of the law–the central component of the rule of law. Their institutional expertise balances the role of the Commissioner and the Chief Counsel—the only Senate-confirmed political appointees directing administration priorities within the IRS. The Commissioner can pursue the policies of the administration and the Chief Counsel can advise on all matters pertaining to the interpretation, administration, and enforcement of the law, but the civil service keeps those policies within the bounds of the law. This careful balance is rooted in our constitution and necessary for preventing drastic changes in the law from administration to administration. Taxpayers, from individuals to big businesses, rely on this stable application of the law.
The proposed definitions reflect the existing reality on the ground for most of the IRS. Recommendation. While PMA supports OPM’s proposal in its current form, we encourage OPM to consider the unique role of the Senior Executive Service (SES) at the IRS, and agencies across the government. OPM’s rule is notably silent on where career SESers would fall within these definitions. Many SESers, including at the IRS, have explicitly policy-related responsibilities, yet with proximity to political decisions, serve as a vital link between the political and career cadre. OPM should more thoughtfully consider how the SES fits into these definitions.
IV. Agency Procedures for Moving Employees
PMA strongly supports OPM “require that Federal agencies follow specific procedures upon moving positions from the competitive service to the excepted service or, if the position is already in the excepted service, to a different excepted service schedule following a direction from the President, Congress, OPM, or their designees.”
This proposal provides much needed stability and continuity for federal personnel and restricts agencies from taking arbitrary action to undermine employee protections. Federal agencies already struggle to recruit and retain qualified personnel. The IRS has undergone historic hiring initiatives in recent years, but still struggles to find qualified applicants for indemand positions. The constant villainization of IRS employees and calls for mass removals prevents qualified applicants from being driven toward IRS positions. By requiring agencies to follow specific procedures upon moving positions from the competitive service to the excepted service and outline justifications for these moves, employees can have enhanced confidence that the moves are not retaliatory or arbitrary, but out of true mission needs.
V. Additional Recommendations
The merit system is far from perfect. While the proposed regulations will make it harder to undermine employee protections, it will not stop attempts from being made. What will is a real accountability and modernized personnel system.
Many managers at the IRS are frustrated by an antiquated personnel system. To improve accountability in the federal system, PMA recommends:
- Streamlining employee performance and accountability processes and ensuring managers have regular training on how to follow those processes. Extending probationary periods to more accurately reflect the time required to demonstrate competence in a role.
- Enhancing probationary periods by requiring managers to make an affirmative decision that an employee has the necessary skills to retain a permanent position.
- Effectively using the probationary period for new managers, as well.
PMA stands alongside a coalition of management organizations urging civil service reforms to enhance accountability and address poor performance.1 But OPM cannot allow a single president to assert unitary control over the federal workforce, politicizing the system and undermining the role of Congress. These regulations are a positive use of OPM’s regulatory authority to ensure administrative procedures align with the intent of Congress in passing the CSRA.
Civil service protections do not exist for federal employees. They exist for the American people – to ensure the equal, apolitical, and efficient delivery of taxpayer services. The previous administration’s actions exposed a dangerous loophole that these regulations clarify and close. We applaud OPM for taking these vital steps to improve government functions on behalf of the American people.
Thank you for your consideration of PMA’s perspective. Please contact PMA Washington Representative Natalia Castro (firstname.lastname@example.org) to schedule a meeting to discuss this issue.
Professional Managers Association