NATIONAL REVIEW ONLINE
December 30, 2013 4:00 AM
You’re Not Fired, Ever
How civil-service laws reward bad actors
By James Richardson
Job security in America’s civil service is so remarkably strong that employees in more than a dozen federal agencies are statistically more likely to die in the course of their work than to lose their jobs for poor performance or misconduct.
These days, even advocating genocide doesn’t immediately qualify you for a pink slip. This might seem like a free-speech issue, but in 1942 the Supreme Court carved our four categorical exemptions to the constitutional protection of speech: “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words — those by which their very utterances inflict injury or tend to incite an immediate breach of the peace.” Call me old-fashioned, but urging the mass murder of all non-blacks should qualify.
The current civil-service regime, installed in part in the late 19th century as a response to rampant political patronage, makes the process of removing underachievers from the government’s massive 2.1-million-person payroll so tedious that most federal managers rubber-stamp deadbeat employees rather than pursue a year-long termination process.
Even so, no period in the 35 years since Congress last augmented federal civil-service protections to provide for administrative tribunals has produced as many instances of gross employee misconduct, from lavish employee conferences to the targeting of political groups deemed hostile by tax officials, as the previous twelve months.
In August, the Southern Poverty Law Center, which has been criticized for its intentional neglect of the “extreme Left,” exposed a Department of Homeland Security employee as a militant black supremacist whose website urged the mass “ethnic cleansing” of whites and “black-skinned Uncle Tom race traitors.” The worker, Ayo Kimathi, a procurement specialist who had worked for the DHS-nested Immigration and Customs Enforcement since 2009 and earned $115,731 in 2012, was not fired but instead placed on paid leave pending administrative review.
A full five months had expired before he was finally purged from the payroll, according to a vague admission in mid December by ICE, but even now it remains unclear whether Kimathi’s employment was actually terminated or he resigned willingly with a golden parachute. Pressed by a reporter at National Journal to clarify whether Kimathi was terminated or resigned, an agency spokeswoman demurred, the magazine said, “citing government-wide employment privacy policies.”
The precise nature of Kimathi’s departure remains unknown, but this much is clear: The federal government unwittingly subsidized a radical hate forum (by giving him a handsome paycheck, the federal government provided Kimathi the resources necessary to evangelize violence and hate) for three years and was forced to grapple for another half year with outmoded regulations even after the employee’s violent aims were revealed.
In other corners of the government complex, employee misbehavior is less outwardly homicidal but no less appalling.
The government official responsible for running up an $822,000 taxpayer tab for a General Services Administration employee conference at a luxurious resort was not fired but instead allowed to retire with benefits.
A second agency executive deemed partly responsible was axed in the ensuing scandal, but ultimately managed to reclaim his job and recoup eleven months of back pay after winning in an appeals process established by Congress.
But frustration with the government’s inability to terminate its employees at will reached a new high with the revelation that federal tax officials had singled out conservative advocacy groups for special scrutiny.
Even as a bipartisan chorus of federal lawmakers demanded the firings of all those involved, few responsible lost their jobs. Fewer still were actually fired. In fact, the top civil servant who oversaw the IRS’s tax-exempt division resigned only after withering treatment by the press and federal lawmakers.
Despite the myriad abuses suffered this year by taxpayers, there’s little hope that next year will prove any better unless Congress takes action to overhaul the nation’s civil-service laws.
What began as a safeguard against capricious, politically motivated firing has devolved into a system whose foremost concern is protecting a bureaucracy at the expense of taxpayers it serves.
According to numbers from the Office of Personnel Management, which serves as the federal government’s human-resources agency, the government-employee dismissal rate for poor performers last year was less than one half of 1 percent. That’s one-sixth the annual rate measured in the private sector, where employers are empowered to fire at will.
As happens with most of the country’s better policy prescriptions, states have begun the legislative process of moving towards at-will personnel systems to simplify the process of eliminating poor performers from government payrolls.
Redesigning the federal workforce on the model of private-sector business, as Tennessee and Arizona have done with their civil servants, will finally make government employees like Kimathi, as well as Congress and the White House, responsible for misconduct and taxpayer abuse.