Sunday, May 26, 2013

We need employment-at-will for most government employees

In theory, it is almost impossible to fire federal government employees because we want to insulate them from politics. More here. The idea is that otherwise politicians would terminate civil servants who crossed them, perhaps to fill the jobs with loyalists, or cronies that needed their own sinecure.

Unfortunately, we have learned since we expanded the administrative state seemingly irretrievably during the Nixon administration that there are several great flaws with "tenure" for civil servants.

  • It does not seem to insulate them from political pressure. We have been reminded of this again and again, most recently with the IRS scandals. Instead, the natural inclination to win the approval of one's immediate peers without the fear of an adverse job action seems to determine the behavior of civil servants as often or more so than the reverse. This is not surprising -- professors have tenure, for example, but very few of them are willing to use that tenure to buck the majority view because, like all people, what most professors (and civil servants) crave is approval.
  • Of course, it makes it very hard to improve any function of government, because actual performance or lack thereof does not have great consequences, or at least not short-term financial consequences (which is the main device for motivating most employees most of the time). Not surprisingly, the lack of a true at-risk merit system makes it very challenging to attract highly skilled Americans to most government jobs, except perhaps for those that are uniquely governmental in the first place (police officer, foreign service officer, United States Marine, and so forth).
  • Finally, and worst of all, presidents in particular use civil service tenure as an excuse for their own failings. How can they be expected to change the bureaucracy if they cannot actually fire people who will not comply? How can they make government function more effectively without changing the bureaucracy? Most importantly, how can the "most powerful" person on the planet be held accountable for the incompetence or criminality of civil servants that are almost impossible to discipline?
  • We would be far better off giving our president and governors the ability to fire government employees at will, just like anybody else, and then holding them accountable at the polls for the results.


    1. American newspaper publisher Eugene C. Pulliam (1889-1975) said the U.S. has a three-party system: the Republicans, the Democrats, and the Bureaucrats. The Bureaucrats, he said, are the strongest and most powerful because they are accountable to neither politicians nor public opinion.

      - DEC (Jungle Trader)

    2. I would argue that the crony system is preferable. Yes, it means that the guy at the top is hiring loyalists. On the other hand, if the guy at the top gets a bad reputation (possibly due to the incompetence or bad attitude of his loyalists) and gets voted out they all lose their jobs because the new guy will appoint his own loyalists. I think that gives more incentive for them to be polite to the public and competent at their jobs, not less.

    3. I wouldn't have a problem with a contract system along these lines:

      1) new hires get a two-year contract, during the first six months of which they can be terminated at will--they're on probation.
      2) contracts are renewable in three-year increments.
      3) contracts are not guaranteed renewable; they're recompeted, and potential new hires compete on an equal footing: no openings advertised first internally (this won't eliminate the old boy networks or grapevine advance notice, but it'll mitigate the damaging effects of them)
      4) if veterans get a slight consideration preference for their veteran status, so should incumbents get a slight consideration for their experience status and to the same degree--that is, an incumbent competing on his fourth renewal competition has the same experience preference he had on his first renewal competition.
      5) under all contracts, the incumbent can be terminated for substandard performance or outright malfeasance at the employer's discretion. A union rep can accompany the incumbent at such discussions, but only to ensure the incumbent isn't simply being railroaded.

      This is a bare-bones outline, and that's generally deliberate: specifying the rules of termination--which just by their existence generally is an overspecification--simply eliminates the ability of an employer to terminate an unsatisfactory employee, and it's important to keep in mind that it's the employer who must be satisfied, not the employee.

      Some employers will abuse this, but not as many as the unions will insist, and not nearly as badly as the unions already are abusing the present situation, as the Lois Lerner situation illustrates. However, those employers also work for someone up their chain, and so are subject to the same termination rules. Ultimately, we get to an employer who is a political appointee--and that man's performance reflects on the elected...employer...who nominated him.

      Eric Hines

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