Following are excerpts from the testimony at a recent Senate hearing of Merit Systems Protection Board chairwoman Susan Tsui Grundmann.
MSPB safeguards, protects, and promotes the merit principles through our three statutory functions: (1) adjudicating cases within our jurisdiction; (2) conducting studies and issuing reports to the President, Congress, and our community on the health and well-being of the Federal civil service; and (3) reviewing significant actions of the Office of Personnel Management (“OPM”) and reviewing OPM regulations to determine whether they would, on their face or in implementation, require an employee to violate 5 U.S.C. § 2302(b).
In FY 2011, MSPB headquarters and the regional offices adjudicated over 8,100 cases. The average case processing time for adjudication of cases in our regional and field offices was 94 days. The average case processing time for matters brought before the Board was 213 days. Though our average processing times are expeditious, we have 4
continued to focus on issuing quality decisions. Accordingly, only 7% of the decisions issued by the administrative judges in the regional offices were remanded back to the administrative judge by the full Board. Moreover, only 2% of the decisions that were issued by the full Board were reversed or otherwise changed by our reviewing court, the U.S. Court of Appeals for the Federal Circuit.
We have continued to explore ways to improve and expedite the adjudication process. In the first quarter of FY 2012, over 50% of appeals were filed online using the agency’s e-Appeal system, compared to 29% in 2007. The use of e-filing for pleadings has increased from 28% in FY 2009 to 48% in the first quarter of FY 2012. In fact, we are piloting a paperless filing system in our Washington Regional and Denver Field offices. Under the pilot program, e-filing is mandatory for agencies and appellants represented by attorneys. Pro se appellants are not required to comply with the e-filing requirement. We have also increased the use of video-teleconferencing for hearings, thereby reducing time and expenses associated with in-person hearings.
I am also happy to report that the Board has improved the effectiveness of its adjudicatory function by issuing nonprecedential orders rather than short-form decisions. We have determined that nonprecedential orders are appropriate when the decision does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but the Board and administrative judges are not required to follow or distinguish them in any future decisions. Like our precedential opinions and orders, nonprecedential decisions are accessible and searchable on the MSPB website.
The MSPB also is currently in the process of a comprehensive review of our adjudication regulations, the first thorough examination and potential revision since our inception in 1978. We are undertaking this endeavor with the support and interactive engagement of stakeholders, sister agencies, and users in our MSPB community.
The Merit Systems Protection Board was established to serve as a guardian of Federal merit systems, assuring that the Federal workforce is managed in accordance with merit system principles and free from prohibited personnel practices (PPPs). To that end, the Civil Service Reform Act of 1978 (CSRA) authorized MSPB to “conduct, from time to time, special studies relating to the civil service and to other merit systems
Role and Impact of the MSPB Studies Function
The prospective nature of the studies function, in conjunction with MSPB’s adjudication of individual appeals and the authority to review OPM significant actions regulations, enables MSPB to fulfill its role as guardian of Federal merit systems and to ensure that the Federal workforce is managed in a manner that is consistent with merit system principles and free from PPPs. Particularly in recent years, MSPB’s studies have had significant impact on how the Federal workforce is being managed through recommendations concerning policy and practice to both OPM and the various Federal agencies that have day-to-day responsibility for recruiting, managing, and retaining Federal employees. Illustrations of that impact include—
Improving Management of the Federal Workforce
Employee Engagement. In 2008, MSPB demonstrated the importance of an engaged workforce to improving Federal agency results and other desirable agency outcomes (such as sick leave use) and outlined ways that agencies could improve the level of engagement in their workforces. Subsequent MSPB research identified the supervisory behaviors that are important for fully engaging Federal employees, and recommended ways that Federal supervision could be improved toward this end.
Impact. OMB planning guidance for the FY 2011 budget and performance plans, which was based on MSPB research, stated that employee engagement is directly linked to achievement of agency missions, and, for the first time, required that agencies submit reports detailing how they promote employee satisfaction and wellness as a means to improving employee engagement. In addition, agencies were able to use MSPB’s engagement scale to determine how engaged their employees are in lieu of much costlier alternatives.
As a result of MSPB’s research, agencies are also determining whether current supervisors or applicants for supervisory positions can demonstrate the supervisory behaviors that foster employee engagement as a basis for selection and development decisions. For example, MSPB consulted with the Department of Defense in their effort to incorporate these concepts into the supervisory regimen of their post-NSPS human resources system.
Probationary Period. In 2005, MSPB reported that OPM’s regulations regarding the appeal rights of individuals serving in probationary or trial periods were 8
6 These hearings are listed in MSPB’s Annual Reports for fiscal years 2007 and 2008.
misleading. Federal agency misuse of the probationary and trial periods was also discussed, and recommendations were offered to ensure these management tools were used as intended—as the final hurdle in the hiring process.
Impact. In 2008, OPM finalized regulations clarifying the appeal rights of individuals serving on a probationary or trial period.
Improving Federal Hiring—Openness, Transparency, and Reform
MSPB Research. In research taking place over a number of years, MSPB has demonstrated that the hiring process is too long, too complicated, and not applicant-friendly. These problems create barriers to attracting and hiring a high-quality workforce. MSPB has issued a number of reports calling for reform of this process and its component parts
Impact. Many MSPB recommendations have been included first in OPM’s End-to-End hiring process improvement effort, and more recently in the Administration’s hiring reform initiative. Additionally, MSPB has on issues in Federal hiring in hearings held by both the House of Representatives and the Senate in 2007 and 2008. 6
Improving Federal Hiring—Merit-Based Selection
Category Rating. In 1995, MSPB recommended eliminating the rule of three in favor of category rating—a more flexible requirement for merit-based hiring that allows selection from among an adequate number of well-qualified candidates.
Impact. Category rating was enacted into law in 2002 and agencies were specifically directed to adopt category rating by the Administration’s hiring reform initiative.
Outstanding Scholar Hiring Authority. In 2000, MSPB brought attention to the non-merit aspects of the Outstanding Scholar hiring authority, including: its grade point average eligibility criterion, which was a highly questionable predictor of future job performance; its denial of consideration to individuals who otherwise met basic job qualification requirements, contrary to the merit principle of and openness and selection based on ability; and its function as a primary hiring tool, contrary to the intent that the authority merely supplement competitive hiring.
Impact. OPM advised agencies against further use of the Outstanding Scholar authority in 2007.
Federal Career Intern Program (FCIP). In 2005, MSPB noted several shortcomings with how some agencies were implementing FCIP, including: 9
7 This public meeting was held on December 8, 2010, pursuant to the Government in the Sunshine Act (5 U.S.C. §552(b)) and in accordance with MSPB’s regulations at 5 CFR §§ 1206.1-12.
recruiting strategies that limited FCIP applicant pools; reliance on weak assessment tools to make distinctions between applicants; failure to use the trial period as an intended final hurdle of the hiring process; and failure to provide required training to career interns once selected.
Impact. In 2010, the Board ruled that FCIP violates veterans’ preference rules and unfairly blocks veterans from being considered for some Federal jobs. OPM is developing a successor to the FCIP program.
Improving the Management of Federal Contracts
MSPB Research. In 2005, MSPB advocated for agencies to better manage their Contracting Officer Technical Representatives—the experts who help ensure that contractors are meeting a contract’s technical requirements. Our research
showed that better daily management of these employees was empirically related to more positive contract outcomes in terms of the quality, completeness, timeliness, and cost of deliverables.
Impact. In 2007, OMB issued guidelines for the selection, training, and management of Contracting Officer Technical Representatives referencing MSPB’s research on managing these employees.
Development of MSPB’s Research Agenda—2010
Studies conducted by MSPB are typically Government-wide in scope and take a long-term perspective on merit systems and effective management of the Federal workforce. To use resources most effectively and to respond to changes in policy and practice in the Federal Government, MSPB undertook a review of its research agenda in 2010.
To assure that the research agenda focused on those merit system issues that are most timely and important, and consistent with the Administration’s initiatives to increase transparency in government, MSPB took an inclusive and open approach to developing the agenda that included—(1) solicitation of ideas from Federal employees, the general public, and institutional stakeholders; (2) staff review to consider the ideas received and reduce them to a manageable number, considering factors such as centrality to MSPB’s mission and availability of resources; (3) a public meeting7 to formally present the draft research agenda to MSPB’s three Board Members and hear 10
8 U.S. Merit Systems Protection Board, 2011-2013 Research Agenda, March 2011, available at www.mspb.gov/studies.
comments from key stakeholders; and (4) an invitation to the stakeholders and the public to make further post-meeting comments.
The outcome was a published research agenda8 that lists 6 issues and 29 associated research topics of particular importance to the viability and effective implementation of Federal merit systems. MSPB uses that agenda to guide its current and planned research, including the studies I will discuss today.
Recently Completed Merit System Studies
Since my appointment as Chairman in November 2009, MSPB has issued eight studies on important issues affecting the Federal service. These include three studies related to PPPs, including retaliation for whistleblowing, issues that are central to maintaining the public’s confidence in government, and protecting the public’s interest in a civil service that is free of PPPs, for which MSPB has special responsibility.
Whistleblowing Protections for Federal Employees
Blowing the Whistle: Barriers to Federal Employees Making Disclosures
Prohibited Personnel Practices: Employee Perceptions
Telework: Weighing the Information, Determining an Appropriate Approach
Women in the Federal Government: Ambitions and Achievements
Making the Right Connections: Targeting the Best Competencies for Training
A Call To Action: Improving First-Level Supervision of Federal Employees
Prohibited Personnel Practices: A Study Retrospective
Merit System Studies Currently in Progress
You requested that I address studies in progress and how they will contribute to an efficient and effective Federal Government. Here, I will limit my testimony to those studies for which research is fully or nearly complete, with plans to issue a report in fiscal year 2012 or 2013.
Violence in the Federal Workplace
Fair and Open Competition for Federal Government Jobs
Performance Motivation in the Federal Government: Potentials, Linkages, and Performance
Preserving the Integrity of Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism
Using Training and Experience Measures to Assess Applicants
Managing Public Employees in the Public Interest
REVIEWING SIGNIFICANT ACTIONS OF THE
OFFICE OF PERSONNEL MANAGEMENT (OPM)
MSPB has devoted increased attention to this role, as reflected in MSPB’s revised 2012-2013 Annual Performance Plan (which includes a commitment to conduct an after-action review of MSPB’s actions on a major OPM rule or regulation) and our forthcoming 2011 Annual Report, which will provide a more comprehensive review of OPM’s significant actions than previous annual reports. For example, in addition to describing specific actions that OPM has taken in support of hiring reform, the report also discusses systemic challenges facing OPM in this initiative. Also, the report outlines trends and issues that may affect OPM’s ability to exercise policy leadership for Federal merit systems.
Looking ahead, further use of MSPB oversight of OPM’s significant actions (under 5 U.S.C. §1206) and regulations (under 5 U.S.C. §1204(f)) will depend on both the scope and substance of OPM’s actions and the resources that MSPB can devote to this function without compromising performance in adjudication and merit system studies.
MSPB is a small agency, but it provides tremendous value to the Federal workforce, Federal agencies, and the American taxpayer in terms of a more effective and efficient merit-based civil service that ensures high quality service to the public. Fulfilling our responsibilities to protect merit, improve adherence to merit system principles, and prevent PPPs requires a fully-funded and staffed MSPB. MSPB’s greatest challenge is ensuring we have the resources and staff needed to accomplish our statutory functions now and in the future. To ensure the continued success of the agency, this year we implemented new agency strategic and performance plans that encompass our full mission and better track our performance. We have also implemented management initiatives that promote the best use of resources to facilitate the achievement of annual administrative goals, such as program evaluation and cost-saving measures as a regular part of business.
However, even with these tremendous improvements to our internal operations, challenges remain as annual budgets shrink while operating requirements remain the same or increase. Despite our best efforts to cut operating costs, we are still forced to delay or freeze hiring each year. As of today, we have more than 18 critical vacancies that we are not able to fill this year. In addition, one-third of our employees and 47% of our administrative judges (AJs) will be retirement eligible in the next two and one-half years. Bearing in mind that the typical AJ receives two years of training and oversight before becoming a fully independent judge, the agency may suffer dramatic increases in case processing times if judges retire in significant numbers.
We must also be prepared to manage the effects of several Government-wide factors that will likely increase our adjudication and enforcement workload, and increase the importance of our studies and OPM review functions. These factors include—(1) an increase in cases involving veterans due to the increase in employees and applicants with veterans’ employment rights; (2) an increase in Government-wide retirements which may increase retirement cases; and (3) an increase in Reduction-in-Force and other cases related to structural changes in the workforce driven by budget constraints. 13