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	<title> - REVITALIZING THE FEDERAL WORKFORCE</title>
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	[House Hearing, 117 Congress]
	[From the U.S. Government Publishing Office]






	REVITALIZING THE FEDERAL WORKFORCE

	=======================================================================

	HEARING

	BEFORE THE

	SUBCOMMITTEE ON GOVERNMENT OPERATIONS

	OF THE

	COMMITTEE ON OVERSIGHT AND REFORM

	HOUSE OF REPRESENTATIVES

	ONE HUNDRED SEVENTEENTH CONGRESS

	FIRST SESSION

	__________

	FEBRUARY 23, 2021

	__________

	Serial No. 117-3

	__________

	Printed for the use of the Committee on Oversight and Reform




	[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]






	Available on: www.govinfo.gov,
	oversight.house.gov or
	docs.house.gov


	______


	U.S. GOVERNMENT PUBLISHING OFFICE
	43-715 PDF WASHINGTON : 2021



	COMMITTEE ON OVERSIGHT AND REFORM

	CAROLYN B. MALONEY, New York, Chairwoman

	Eleanor Holmes Norton, District of James Comer, Kentucky, Ranking
	Columbia Minority Member
	Stephen F. Lynch, Massachusetts Jim Jordan, Ohio
	Jim Cooper, Tennessee Paul A. Gosar, Arizona
	Gerald E. Connolly, Virginia Virginia Foxx, North Carolina
	Raja Krishnamoorthi, Illinois Jody B. Hice, Georgia
	Jamie Raskin, Maryland Glenn Grothman, Wisconsin
	Ro Khanna, California Michael Cloud, Texas
	Kweisi Mfume, Maryland Bob Gibbs, Ohio
	Alexandria Ocasio-Cortez, New York Clay Higgins, Louisiana
	Rashida Tlaib, Michigan Ralph Norman, South Carolina
	Katie Porter, California Pete Sessions, Texas
	Cori Bush, Missouri Fred Keller, Pennsylvania
	Danny K. Davis, Illinois Andy Biggs, Arizona
	Debbie Wasserman Schultz, Florida Andrew Clyde, Georgia
	Peter Welch, Vermont Nancy Mace, South Carolina
	Henry C. ``Hank'' Johnson, Jr., Scott Franklin, Florida
	Georgia Jake LaTurner, Kansas
	John P. Sarbanes, Maryland Pat Fallon, Texas
	Jackie Speier, California Yvette Herrell, New Mexico
	Robin L. Kelly, Illinois Byron Donalds, Florida
	Brenda L. Lawrence, Michigan
	Mark DeSaulnier, California
	Jimmy Gomez, California
	Ayanna Pressley, Massachusetts
	Vacancy

	David Rapallo, Staff Director
	Wendy Ginsberg, Subcommittee Staff Director
	Amy Stratton, Clerk

	Contact Number: 202-225-5051

	Mark Marin, Minority Staff Director
	------

	Subcommittee on Government Operations

	Gerald E. Connolly, Virginia, Chairman
	Eleanor Holmes Norton, District of Jody B. Hice, Georgia Ranking
	Columbia Minority Member
	Danny K. Davis, Illinois Fred Keller, Pennsylvania
	John P. Sarbanes, Maryland Andrew Clyde, Georgia
	Brenda L. Lawrence, Michigan Andy Biggs, Arizona
	Stephen F. Lynch, Massachusetts Nancy Mace, South Carolina
	Jamie Raskin, Maryland Jake LaTurner, Kansas
	Ro Khanna, California Yvette Herrell, New Mexico
	Katie Porter, California

	C O N T E N T S

	----------
	Page
	Hearing held on February 23, 2021................................ 1

	Witnesses

	Janice R. Lachance, Executive Vice President, Strategic
	Leadership and Global Outreach, American Geophysical Union
	Oral Statement................................................... 8
	Everett B. Kelley, National President, American Federation of
	Government Employees
	Oral Statement................................................... 9
	Mr. James Sherk, Former Special Assistant to the President for
	Domestic Policy, White House Domestic Policy Council
	Oral Statement................................................... 11
	Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law,
	Stanford Law School
	Oral Statement................................................... 12

	Written opening statements and statements for the witnesses are
	available on the U.S. House of Representatives Document
	Repository at: docs.house.gov.

	Index of Documents

	----------


	* Statement for the record by The National Treasury Employees
	Union; submitted by Rep. Connolly.

	* Statement for the record by The National Active and Retired
	Federal Employees Association; submitted by Rep. Connolly.

	* Statement for the record by The Partnership of Public
	Service; submitted by Rep. Connolly.

	* Statement for the record by Professor Nina Mendelson;
	submitted by Rep. Connolly.

	* Statement for the record by Joseph Sax Collegiate Professor
	of Law at the University of Michigan Law School; submitted by
	Rep. Connolly.

	* Statement for the record by Professor David Lewis,
	distinguished professor at Vanderbilt University; submitted by
	Rep. Connolly.

	* A series of charts providing data of what happened to Federal
	Employees that past four years; submitted by Rep. Connolly.

	* The Federal Employees Viewpoint Survey; submitted by Rep.
	Connolly.

	* The Federal Employees Viewpoint Survey; submitted by Rep.
	Hice.

	* OPM Federal Employee Viewpoint Survey; submitted by Rep.
	Hice.

	* Questions for the Record: to Ms. Lachance; submitted by Rep.
	Connolly.

	* Questions for the Record: to Ms. O'Connell; submitted by Rep.
	Connolly.

	* Questions for the Record: to Mr. Kelly; submitted by Rep.
	Connolly.

	Documents entered into the record during this hearing and
	Questions for the Record (QFR's) are available at:
	docs.house.gov.


	REVITALIZING THE FEDERAL WORKFORCE

	----------


	Tuesday, February 23, 2021

	House of Representatives
	Subcommittee on Government Operations
	Committee on Oversight and Reform
	Washington, D.C.

	The subcommittee met, pursuant to notice, at 11 a.m., in
	room 2154, Rayburn House Office Building, Hon. Gerald E.
	Connolly (chairman of the subcommittee) presiding.
	Present: Representatives Connolly, Norton, Davis, Sarbanes,
	Lynch, Raskin, Khanna, Porter, Hice, Keller, Clyde, Biggs, and
	Herrell.
	Also present: Representatives Steny Hoyer (D-MD), Donald
	Beyer (D-VA), and Jennifer Wexton (D-VA).
	Mr. Connolly. Welcome, everybody, to today's hybrid
	hearing. Pursuant to House rules, some members will appear in
	person and others will appear remotely via Webex. Both the
	ranking member and I, Mr. Hice, a long time ago agreed that
	when we're in session, at least he and I are prepared to appear
	in person. I've kept that commitment to my friend, and I hope
	we can do this going forward safely.
	Since some members are appearing in person, like us, let me
	first remind everyone that pursuant to the latest guidance from
	the House Attending Physician, all individuals attending this
	hearing in person must wear a face mask, Ms. Lachance. Members
	who are not wearing a face mask will not be recognized.
	Let me also make a few reminders to those members appearing
	in person. You will only see members and witnesses appearing
	remotely on the monitor in front of you when they are speaking
	in what is known in Webex as active speaker mode.
	A timer is visible in the room directly in front of you.
	For members appearing remotely, I know you are familiar with
	Webex by now, but let me remind everyone of a few points.
	First, you will be able to see each person speaking during the
	hearing, whether they are in person or remote, if you have your
	Webex set to active speaker view. If you have any questions or
	concerns about this, please contact committee staff right away.
	Second, we have a timer that should be visible on your
	screen when you're in the active speaker with thumbnail view.
	Members who wish to pin the timer to their screens should
	contact committee staff for assistance.
	Third, the House rules require that we see you, so please
	always have your cameras turned on.
	Fourth, members appearing remotely who are not recognized
	should remain muted to minimize background noise and feedback.
	Fifth, I will recognize members verbally, but members
	retain the right to seek recognition verbally. In regular
	order, members will be recognized in seniority, unless
	otherwise designated by the ranking member or myself. Last, if
	you want to be recognized outside of regular order, you may
	identify that in several ways. You may use the chat function to
	send a request, you may send an email to the majority staff, or
	you may unmute your mic to seek recognition. Obviously, we
	don't want people talking over each other, so my preference is
	that members use the chat function or email to our committee
	staff to facilitate formal, verbal recognition.
	We'll begin the hearing immediately enough.
	The committee will come to order. Without objection, the
	chair is authorized to declare a recess of the committee at any
	time.
	Without objection, and I've cleared this with the ranking
	member, the honorable gentleman from Maryland, Mr. Steny Hoyer,
	the distinguished majority leader; Mr. Donald Beyer, the
	gentleman from Virginia; and Jennifer Wexton, the gentlewoman
	from Virginia, will be permitted to join the subcommittee and
	be recognized for questioning at the appropriate time.
	I now recognize myself for my opening statement.
	Almost exactly two years ago, I sat on this very desk for
	my first hearing as chairman of the subcommittee. It focused on
	a little known board in the executive branch that ensures our
	civil service is vested with knowledge and expertise. That
	board is the Merit Systems Protection Board. At the time, the
	Board had been without a quorum since January 2017; the longest
	ever it's been unable to operate since it was created in 1979.
	Despite our efforts to highlight the significant role of
	the Board in adjudicating Federal employee appeals of actions
	taken against someone when they blow the whistle on waste,
	fraud, and abuse, and political retaliation, the Board still
	remains without a single board member confirmed by the U.S.
	Senate. It has a backlog of, now, of more than 3,000 petitions
	from employees who claim they've been retaliated against or
	that their leadership has failed to uphold the merit systems
	principles that serve as the foundation of civil servants since
	1883.
	This hearing serves as a critical inflection point--the end
	of the Trump administration's four-year assault on the Federal
	workforce--and a celebration of the resiliency of those who
	served our Nation, despite the constant attacks and
	degradation. It's also the beginning of a new administration
	that's highlighted the vital role Federal employees play and
	will play in making the Nation work, especially during a
	pandemic.
	We will use what we learn here today to better understand
	weaknesses in the Federal laws that are meant to enshrine merit
	system principles in perpetuity. We seek to protect the
	statutory right to collectively bargain. We want to strengthen
	whistleblower protections, to empower those who see wrongdoing
	to be able to come forward without fear. We want to prioritize
	the health and safety of the workforce that continue to serve
	us in the midst of a catastrophic and deadly pandemic; noting
	that we reached a tragic milestone yesterday, that 500,000
	fellow Americans have succumbed to this virus in less than a
	year.
	The Trump administration began its attacks on the Federal
	workforce from the very start with a hiring freeze. President
	Trump quickly followed that freeze with repeated budget
	requests to freeze Federal pay. Congress did not agree. It
	provided at least a one percent increase in each year of the
	Trump administration in terms of compensation for Federal
	employees.
	President Trump followed up pay freezes with three
	executive orders that severely undermined Federal employees'
	rights to bargain collectively. He nominated two individuals
	who were outright hostile to public sector unions at the helm
	of the Federal Labor Relations Authority, and stacked the
	Federal Services Impasses Panel with anti-union stalwarts.
	The Trump administration also orchestrated an illegal
	attempt to abolish the very agency that serves as our Nation's
	human resources hub. Without legal justification or analysis,
	the Trump administration began to move components of the Office
	of Personnel Management into the General Services
	Administration and the executive office of the President.
	This subcommittee held two hearings and sent multiple
	oversight letters on a bipartisan basis. Congress rejected and
	defeated the plan to eliminate OPM. This subcommittee led that
	effort on a bipartisan basis.
	Then the Trump administration went even lower. The
	President released an executive order that asked Federal
	agencies to strip anyone who could be construed as involved
	with policymaking or policy implementation of the statutory due
	process rights. This action known as Schedule F struck at the
	very heart of what makes our civil service a crown jewel
	everywhere in the world.
	OPM, the Merit Systems Protection Board, and the FLRA,
	established collectively a statute by the Civil Service Act of
	1978, are fundamental components to avoid the corrupt patronage
	system of our Nation's past. And the Trump administration
	unleashed an all-out assault on those very foundations.
	I led my colleagues in running the clock out on the so-
	called Schedule F initiative, but damage remains. Clearly, we
	have a lot of work ahead of us to rebuild our civil service.
	I'm supporting the Biden administration's laudable effort to
	reverse many of the previous administration's actions by taking
	essential steps to revitalize our civil service.
	First, today, I'm introducing the Merit Systems Protection
	Board Empowerment Act, authorizing the Board through 2026 and
	providing an authority to survey Federal employees to find ways
	to improve its ability to protect expertise in government.
	Today, I'm also reintroducing the National Security
	Diversity and Inclusion Workforce Act, which requires each
	national and security agency to provide a public report on its
	diversity and inclusion efforts, and encourages agencies to
	expand development in career advancement opportunities for
	everybody in its workforce.
	Over the last--past few weeks, I've reintroduced
	legislation to prevent any future administration from
	attempting something like Schedule F from happening again
	without congressional approval. The bipartisan Preventing of
	Patronage System Act requires the executive branch to get
	explicit statutory authority to establish any categories of
	Federal employees outside of the General Schedule. I believe
	that's perfectly consistent with American history.
	The Pendleton Act was a legislative act by Congress
	creating a professional cadre in the civil service, and to
	create by executive order a new schedule that actually
	undermines that, I think prevents the very basis of the action
	taken by Congress back in 1883.
	While we overturn the catastrophic policies of the previous
	era and nourish a Federal workforce starved of resources, we
	must simultaneously find ways to rebuild our civil service and
	attract the next generation to public service.
	As of December, only 6.8 percent of the Federal workforce
	was under the age of 30. In the private sector, by contrast, 23
	percent of the workforce is under 30. According to OPM data
	from just last week, 29.4 percent or nearly a third of the
	Federal workforce is eligible for retirement by the end of
	2025. We have an aging workforce and young people aren't
	attracted to it and don't want to stay if they are.
	In terms of the diversity, the workforce needs improvement.
	While women comprise 43.3 percent of the full-time career
	workforce, they comprise only 35.5 percent of the senior
	executive service--the leadership ranks of our career
	workforce. People of color comprise 38.3 percent of our
	workforce, but only 22.6 percent of our senior executive
	service. You can see the visual on the screen.
	I want to show you an analysis from Georgetown University
	that uses OPM data to show the net loss of people of color
	across several agencies within the Federal Government during
	the last administration. If you look at the screen, you'll see
	that the green line represents an exodus of Black, African-
	American employees from the Social Security Administration, the
	Bureau of Prisons, and OPM. Note too that people of American
	Indian descent or Alaskan Natives left the Bureau of Indian
	Affairs in large numbers during the previous administration.
	It's a picture of an aging workforce that's failing to
	hire, welcome, and promote young people, women, and people of
	color. Strategic human capital management has been on the GAO
	High-Risk List presented to this committee every year since
	2001.
	We're in the midst of record job losses across the Nation.
	Now is the time to recruit the best and brightest to Federal
	service. And while we're at it, let's also find ways to reduce
	the 98.3 days on average it takes to hire a new employee in the
	Federal Government. We can and must do better.
	I'm here to help get the right talent into the right seats
	to solve the country's most pressing and intractable problems.
	And I look forward to hearing from the expert panel we have on
	how best we can get that done.
	I now recognize the ranking member for his opening
	statement.
	Mr. Hice. Thank you very much, Chairman Connolly, I
	appreciate that. And I appreciate this in-person hybrid hearing
	as well and for you working with us to make this happen for
	those who want to be here in person. I appreciate you calling
	this hearing.
	Performance in the Federal workforce is no doubt a critical
	issue, and it's our responsibility here in Congress to ensure
	that Federal employees, the workforce, delivers the best that
	it possibly can deliver for the American people.
	And I'd like to begin today really by questioning the
	premise of this hearing, however, which by the title would
	suggest that it's in bad shape. It's not. My majority
	counterparts like to rely on recycled talking points and
	anecdotes. But the real data, the real information shows that
	the Trump administration's Federal workforce reforms made a
	positive difference.
	According to the Federal Employee Viewpoint Survey, which
	is the most reliable and most cited source for data about job
	satisfaction in the Federal Government, job satisfaction rose
	during the Trump administration. So, let me put that another
	way. Federal employees, by their own admission, were happier to
	work under President Donald Trump than they were under Barack
	Obama. So, clearly, they did not view the Trump administration
	as dismantling the Federal workforce. In fact, it's just the
	opposite.
	They finally saw someone who is taking action to deal with
	the real issues that they have to live with every day at work.
	They saw someone trying to address the problem of poor
	performers, for example, an area that consistently ranks as one
	of the lowest areas on the Federal survey.
	The majority of Federal employees are good at what they do.
	They're proud to do it. And they have chosen the Federal
	workforce in large part because it's important and meaningful
	work. But many of them, let's just be honest, have to pick up
	the slack for poor performers. And managers have little ability
	to address these types of poor performers and individuals. That
	is demoralizing. That is difficult for any workforce, and it is
	difficult for the Federal workforce.
	President Trump issued a series of executive orders to
	bring common sense back into the Federal workforce and the
	workplace by scraping away some of the obstacles that had been
	put in place to shield those who are not pulling their weight.
	And while the needs of Federal employees are important--we
	all agree about that. Their needs are important, but the needs
	of the American people come first. President Trump took action
	to curtail official time practices. That is a huge thing.
	Federal employees on official time spend much of their time
	doing union-related activities rather than the work for which
	they were hired to do. And it's all the American taxpayer who
	pays for that type of thing. And, frequently, at least in my
	opinion, official time is misused by paying people not to do
	their job.
	Under President Trump, official time actually decreased by
	over 28 percent between 2016 and 2019. But just as a frame of
	reference, that still amounted to over 2.6 million hours at a
	cost of some $135 million to the taxpayers.
	As the chairman knows, I have focused a lot of my time here
	in Congress dealing with official time. In fact, my bill,
	Official Time Reform Act, would prohibit Federal employees who
	spend 80 percent or more of their time doing--on official time
	rather than the job for which they were hired to do. And, I
	mean, that's being very generous allowing 80 percent.
	But now turning to Schedule F, this was not an attempt to
	recreate patronage system or politicize the civil service. This
	is a reflection of this reality that Feds in policymaking
	positions wield tremendous power to implement or hinder the
	administration's agenda, whatever administration that might be.
	These were privileged positions, and those serving in those
	positions should be held accountable for their performance to
	require them to give their best efforts regardless of what
	their personal views might be. If they don't like that, then
	perhaps they're in the wrong career. Nobody elected them. But
	those who were elected and are accountable to the voters, they
	should be able to rely upon these civil servants to carry out
	their duties.
	If President Trump had been trying to create a patronage
	system, then all of these positions would have been made
	political appointments under Schedule C. So, these were
	commonsense reforms--strengthening the Federal workforce, not
	weakening it.
	Meanwhile, President Biden has given almost no
	justification for repealing these efforts and rescinding these
	executive orders. He generically claimed he wanted to encourage
	union organizing and collective bargaining and that the Trump
	administration undermined the civil service. But how? On what
	data is--are those kinds of claims based upon? And President
	Biden provided none. More importantly, his comments ignored the
	American people who actually benefited from President Trump's
	reforms.
	Finally, with regard to OPM and the proposed merger with
	GSA, let's bear this in mind: President Trump inherited an
	organization recovering from a reputation-shattering data
	breach in which millions, tens of millions of Federal employees
	were affected. Congress then shifted a huge portion of its
	operation, security background checks, to the Department of
	Defense.
	So, while I'm aware that members on both sides of the aisle
	were concerned about the level of documentation around this
	proposal, I think this was a defensible effort to ensure
	Federal employees got the level of human resources that they
	deserve.
	In closing, there were, and, frankly, there are, real
	issues within the Federal Government. President Trump took
	action to address some of them, many of them, and I'm not
	surprised that today he is going to be made and cast the
	villain. But if you take a--an honest look under the hood, you
	will see the claim that he attempted to dismantle civil service
	just does not ring true. In fact, just the opposite is the
	truth. His reforms improved the Federal workforce, which is
	vividly, vividly, vividly reflected in the Federal Employees
	Viewpoint Survey.
	Again, Chairman Connolly, thank you for calling this
	hearing. I look forward to hearing from our witnesses.
	Mr. Connolly. I thank my friend.
	Just some items for the record, since my friend asked for
	data, I will, without objection, enter into the record a series
	of charts providing clear data on what happened to Federal
	employees during the last four years, prepared by Georgetown
	University and the University of Southern California. I would
	also enter into the record the Federal Employees Viewpoint
	Survey.
	As my friend from Georgia indicated, in some cases, there
	was increased satisfaction in Federal agencies, but the median
	large agency experienced during these four years, actually, a
	decline in satisfaction. And, of course, the worst recorded was
	the Department of Education, where satisfaction declined by
	16.1 percent. So, I would enter that into the record so we also
	have that data.
	And without objection, so ordered.
	Mr. Hice. Mr. Chairman?
	Mr. Connolly. Yes.
	Mr. Hice. While we're entering some things in the record, I
	likewise would like to enter the Federal Employee Viewpoint
	Survey into the record, and along with it, the OPM Federal
	Employee Viewpoint Survey preview of the highlights that are in
	this. And I would ask----
	Mr. Connolly. Without objection, so ordered.
	Mr. Hice. Thank you, sir.
	Mr. Connolly. Thank you.
	Now, I'd like to introduce our witnesses. We're grateful to
	have--is Mr. Hoyer on? OK. Can someone find out? Mr. Hice and I
	are more than willing to invite him to give an opening
	statement, if he has one. Meanwhile, we'll go for it.
	Our first witness today is Janice Lachance, who's with us
	physically. We're delighted she got through security today.
	She's the former director of the Office of Personnel Management
	and currently serves as the executive vice president for
	Strategic Leadership and Global Outreach at the American
	Geophysical Union. We'll then hear from Everett Kelley, the
	national president of the American Federation of Government
	Employees. We will next hear from James Sherk, who is the
	former special assistant to the President, President Trump, for
	domestic policy in the White House Domestic Policy Council.
	And, finally, we'll hear from Anne Joseph O'Connell, the
	Adelbert Sweet Professor of Law at Stanford University Law
	School.
	If we can unmute all of our witnesses and ask you all--and,
	Ms. Lachance, if you can rise and raise your right hand. And if
	our other witnesses would raise their right hand, please.
	Do you swear or affirm that the testimony you're about to
	give is the truth, the whole truth, and nothing but the truth,
	so help you God?
	Let the record show that all of our witnesses have answered
	in the affirmative.
	And, without objection, your written statements will be
	made part of the full record. We ask each of you to now
	summarize your remarks in five minutes.
	With that, Ms. Lachance, you're now recognized. Now, I'm
	pronouncing it the way we would in Boston. Is it Lachance or
	Lachance?
	Ms. Lachance. I appreciate it. Over the years, we've
	anglicized it, so I will answer to anything. I really love
	hearing the accent.
	Mr. Connolly. We can do it in French, though, Lachance.
	Ms. Lachance. Lachance.
	Mr. Connolly. OK. Welcome.

	STATEMENT OF JANICE R. LACHANCE, FORMER DIRECTOR, OFFICE OF
	PERSONNEL MANAGEMENT, EXECUTIVE VICE PRESIDENT, STRATEGIC
	LEADERSHIP AND GLOBAL OUTREACH, AMERICAN GEOPHYSICAL UNION

	Ms. Lachance. Thank you.
	Mr. Chairman, Ranking Member Hice, members of the
	subcommittee, I want to open with a thank you for all of the
	work that you've already done to sustain our impartial,
	nonpolitical merit system, including your important efforts to
	maintain the independence of the Office of Personnel
	Management. The programs and services supported by the Federal
	workforce impact every American in every congressional
	district. So, I also want to thank you for holding this hearing
	today about revitalizing the Federal workforce.
	This subcommittee, working with the Biden administration,
	has a rare opportunity to build consensus, develop a
	legislative agenda, and leverage our oversight authority to
	modernize the Federal human resources system. I suggest you
	start by correcting some of the policies that have been
	discussed here this morning of the last four years that could
	have gutted the merit-based civil service.
	Two of those misguided efforts were the proposal to
	dismantle OPM and undermine the foundation of the merit system
	by reassigning human resources policy to the Executive Office
	of the President, and to the executive order creating Schedule
	F, the new accepted service category in the civil service. This
	subcommittee succeeded in keeping OPM intact for now, and
	President Biden rescinded Schedule F and restored union
	organizing rights with his own executive order.
	As someone who spent eight years at OPM and who's been a
	keen observer of the agency ever since, I recognize areas of
	the agency must improve. However, an independent agency
	specifically charged with protection of the merit system and
	the development of impartial, nonpartisan human resources
	policies and practices is vital to the fair and effective
	administration of government programs and to the protection of
	the civil service from political interference.
	My written testimony includes a number of recommendations
	for the subcommittee, and I highlight a few here.
	Designate the OPM director as a member of the President's
	Cabinet. I had the privilege of that status in the Clinton
	Administration, and it enabled me to raise the visibility of
	personnel matters and to model practices that were ultimately
	adopted by the private sector.
	Urge the immediate nomination and quick confirmation of the
	Senate-confirmable positions at OPM and at the MSPB, an agency
	key to ensuring a fair workplace that has not had a quorum for
	four years.
	Launch a comprehensive assessment of the expertise and
	resources it would take to enable OPM to operate the way it
	should and the way we all hope it can, as a world-class human
	resources operation.
	Ensure a strategic whole-government approach to Federal
	H.R. by giving OPM authority to oversee personnel matters
	across the entire government, not just the agencies under Title
	5.
	Pass legislation requiring congressional approval for the
	creation of any new or expanded excepted service authority.
	Significant alterations to the merit system should not be in
	the sole purview of any President.
	Beyond these, I offer additional recommendations that will
	help attract a new generation of workers and those with needed
	expertise. First, we must ensure the resources needed to
	continue reducing the time it takes to hire. We must invest in
	the modernization of USAJobs.gov. We should establish
	partnerships with community, Tribal, and minority serving
	academic institutions, and union apprenticeship programs to
	ensure a continuous diverse pipeline. Leverage and expand where
	appropriate internship programs and direct higher authorities
	to speed hiring. Consider whether additional compensation
	flexibilities can be targeted to hard-to-recruit occupations
	and to agencies and programs with perpetually high vacancy
	rates.
	We should also ask whether the pandemic highlighted needed
	changes in benefits, such as expanded work-from-home
	opportunities or the need for additional sick leave.
	Constructing a personnel system for today is a complex
	challenge, even when its foundational elements go back more
	than a century. I have focused primarily on what can be done in
	a relatively short amount of time, given the urgency of the
	societal challenges we face: The pandemic, the resulting
	unemployment and economic pain, and the climate crisis which is
	causing irreparable harm to our species and our planet.
	I look forward to answering your questions and supporting
	your efforts going forward.
	Mr. Connolly. Wow, a pro. Right on time. Thank you, Ms.
	Lachance.
	Mr. Kelley, you're now recognized for five minutes.
	Mr. Kelley, you are muted. If you could unmute.

	STATEMENT OF EVERETT B. KELLEY, NATIONAL PRESIDENT, AMERICAN
	FEDERATION OF GOVERNMENT EMPLOYEES

	Mr. Kelley. OK. Thank you so much.
	Chairman of the subcommittee, Ranking Member Hice, and
	members of the subcommittee, I too want to thank you very much
	for holding this hearing to mark this new moment for our
	government and its work force.
	Like other Americans, I watched the event of January 6 in
	horror and then sorrow. I'm grateful and I thank God that none
	of you suffered any physical harm and that you were able to
	lead in a hearing like this so soon after the Congress and the
	Capitol were under direct attack.
	Like the apolitical, professional of civil service, Members
	of Congress serve the public and are deserving of the highest
	level of care and respect. I'm truly sorry that you and your
	staff members experienced such a terrible ordeal.
	The past four years have been traumatic for Federal
	employees and their union as well. President Biden's executive
	orders have been a shot in the arm, almost as welcome as
	vaccines that we prayed for will soon be available to the
	entire population. But it is now up to all of us to make
	compliance with these Biden EOs to bring in a top priority
	because it will be impossible to move forward to revitalize
	Federal labor management relations if that does not occur. Both
	the executive orders are protecting the Federal workforce and
	COVID-19. And the executive order that revoked the previous
	administration's anti-union executive orders proves a profound
	charge in labor management relations in Federal agencies.
	Once every trace of this previous administration executive
	orders is eliminated, and at least three executive order
	contracts are restored, I believe that we'll see a vast
	improvement in morale, trust, recruitment, and retention.
	In addition, to restore of our rights, we're eager to see
	attention paid to our paychecks. We're extremely grateful to
	the chairman for this continued support for the economic well-
	beings of Federal workers with the introduction of, once again,
	of the FAIR Act.
	We intend to make certain that fair play as well as fair
	pay are achieved in the coming year. Both are necessary for the
	success of all Federal agencies going forward. Fair play, of
	course, means requiring Federal agencies to get on board with
	the Biden's executive order, but to make sure that every agency
	is held accountable for both the letter and spirit of the
	President's executive orders and resist to the efforts to make
	the Federal Government a model employer are not tolerated. To
	that end, it must immediately come back to the bargaining table
	to work with us to eliminate the policies and rules imposed on
	us by the last administration.
	Fair play will also entail some reforms of two pieces of
	legislation that has harmed the VA workforce--the
	Accountability Act and MISSION Act. Now, these two laws have
	had serious unintended consequences, and we ask that Congress
	address the harm that they have done to the VA, its workforce,
	and the veterans that they serve. Likewise, it will require
	restaffing at agencies as diverse as the Bureau of Prisons, the
	EPA, the VA, DOD, and many others.
	We're all waiting for the NAPA report on the future of OPM.
	We are grateful that the previous administration's attempt to
	dismount the agency failed. But we do hope that the committee
	will recognize that the people-service model that fund so many
	of OPM's operations has been a failed experience. Going
	forward, OPM needs to be strengthened by ensuring that it has
	direct appropriations to carry out all of the statutory
	functions.
	On COVID-19, I want to make this opportunity--I want to
	take this opportunity to thank the chairman for his leadership
	and compassion in ensuring that Federal employees have proper
	PPE and safety protocols to prevent additional needless deaths
	with the reintroduction of the Chai Act.
	We have all learned through bitter experience how fragile
	our institutions of democracies are. All were under attack
	during the past four years, and so many nearly succumbed.
	Apolitical, professional civil service was one such institution
	that few outside of this committee and the world of the Federal
	Government appreciates. We survived, but barely. And I hope
	that going forward we all understand that we must strengthen,
	not weaken, the statutory underpinning of the civil service and
	the union that represent Federal workers.
	Thank you for your time, and I'll be happy to answer any
	questions when appropriate. Thank you.
	Mr. Connolly. Another pro. Thank you, Mr. Kelley. You still
	had 24 seconds. Thank you.
	Mr. Sherk, you are now recognized for five minutes.

	STATEMENT OF JAMES SHERK, FORMER SPECIAL ASSISTANT TO THE
	PRESIDENT FOR DOMESTIC POLICY, WHITE HOUSE DOMESTIC POLICY
	COUNCIL

	Mr. Sherk. Chairman Connolly, Ranking Member Hice, and
	members of the subcommittee, thank you for inviting me to
	testify this morning. My name is James Sherk. I'm a formal
	special assistant to the President for domestic policy in the
	last administration.
	I am speaking this morning only in my personal capacity. As
	such, while I can discuss the problems the administration
	addressed, how it addressed them, my personal views, I am not
	authorized to speak on behalf of other administration officials
	or to reveal internal administration deliberations.
	The Trump administration made the Federal Government better
	for both the American people and its own employees. There are
	three essential facts that the committee should understand.
	First, the government fails to effectively address poor
	performers, and this frustrates Federal employees themselves.
	Second, excessive removal restrictions undermine the original
	vision for the merit service. Third, Federal employees
	expressed profound satisfaction with the Trump administration's
	management of the Federal workforce.
	The first point identified makes it prohibitively difficult
	to fire Federal employees for poor performance. The Government
	Accountability Office estimates that doing so takes between six
	months to a year and sometimes longer. The MSPB reports that,
	and I quote, ``many supervisors believe it is simply not worth
	the effort to attempt to remove Federal employees who cannot or
	will not perform adequately,'' unquote.
	Only a quarter of Federal supervisors are confident that
	they could remove a poor performer. Consequently, agencies
	rarely remove employees for poor performance. This frustrates
	Federal employees. Federal Employee Viewpoint Survey, or FEVS,
	shows that only a third of Federal employees believe their
	agency takes steps to deal with poor performers. Federal
	employees consistently give this question some of the most
	negative FEVS responses.
	Second, removal protections undermine reformers original
	vision for the merit service. The Pendleton Act replaced the
	spoils system with competitive examinations and merit-based
	hiring. But the Pendleton Act did not interfere with the
	President's general authority to fire Federal employees. The
	creators of the merit service were concerned that removable
	protections would, and I quote: seal up incompetence,
	negligence, and insubordination, requiring a virtual trial at
	law before an unfit or incapable clerk can be removed, unquote.
	To avoid that, their reforms focused on merit-based hiring
	while leaving the removal process largely unencumbered. As
	leading civil service reformer George William Curtis put it,
	quote, ``if the front door is properly tended, the back door
	will take care of itself,'' end quote.
	Federal servants could not appeal removals outside their
	agency until Congress let veterans do so during World War II,
	two generations after the Pendleton Act was passed.
	Now, uninformed coverage of the Schedule F executive order
	claimed it broke with the Pendleton Act. Its coverage was
	precisely backward. Schedule F returns to the foundations of
	the merit service. Apolitical hiring and expeditious removals
	were necessary. In fact, Schedule F employees would have
	enjoyed far greater removal protections than the Pendleton Act
	provided.
	Third, Federal employees expressed profound satisfaction
	with the Trump administration's management of the Federal
	workforce. The Federal Employee Viewpoint Survey shows Federal
	employee job satisfaction rose every year through the Trump
	administration. FEVS job satisfaction rose to the highest level
	ever recorded last year.
	Over the course of the Trump administration, positive
	responses increased on the FEVS on an incredible 64 out of 71
	measures and did not decline on a single measure. FEVS scores
	matched or reached their all-time high on over 40 measures.
	These include record proportions of Federal workers who are
	satisfied with policies and practices of their senior leaders,
	who agree their agency does not tolerate coercion for partisan
	political activities, and who say that their supervisors treat
	them with respect.
	Federal employees also specifically approved of the Trump
	administration's policies making it easier to fire poor
	performers. A poll conducted by Government Executive showed
	Federal employees supported these initiatives by a more than 2-
	1 margin. And the FEVS shows that the proportion of Feds who
	approve of how their agency addresses poor performers rose
	every year of the Trump administration.
	Industrial and organizational psychologists said OPM
	designed the FEVS and career experts conduct it. It is the
	definitive measure of the views of the Federal workforce. It
	produces hard data used by academics and researchers. To ignore
	this data is to ignore the views of Federal workers.
	Federal employees strongly approved of the Trump
	administration's workforce policies. These gains must be
	protected from the assaults of those who seek to return to a
	failed status quo and to reverse the gains Federal employees
	enjoyed under the Trump administration.
	Thank you. I appreciate the opportunity to explain how the
	government's failure to effectively deal with poor performers
	frustrates Federal employees, how excessive removal
	restrictions undermine the original vision for the merit
	service, and the profound satisfaction Federal employees
	expressed with the Trump administration's management of their
	workplaces.
	Mr. Connolly. Thank you very much. Another pro right on
	time.
	Finally, we are going to hear from Professor O'Connell.
	You're now recognized for five minutes.

	STATEMENT OF ANNE JOSEPH O'CONNELL, ADELBERT H. SWEET PROFESSOR
	OF LAW, STANFORD LAW SCHOOL

	Ms. O'Connell. Thank you.
	Chairman Connolly, Ranking Member Hice, and members of the
	subcommittee, thank you for this opportunity to participate in
	today's important hearing on revitalizing the Federal
	workforce.
	In addition to my role at Stanford, I am a proud former
	Federal Government employee, having served, among other
	positions, as an honors program attorney at the Department of
	Justice. In addition, as a then-resident of Fairfax County,
	Chairman Connolly, I worked many summers in high school and
	college for the U.S. Army at Ft. Belvoir's Research,
	Development, and Engineering Center.
	Mr. Connolly. God bless you.
	Ms. O'Connell. The views I express in this testimony are my
	own. In the few minutes I have, I want to make four quick
	points.
	Point one, agencies and their career employees play
	critical roles across the Federal Government. These agencies
	and their workers regulate and adjudicate and do so much more.
	NASA landed a rover on Mars last week for the fifth time.
	At the State Department, career employees advise on foreign
	affairs, train diplomats, adjudicate visa applications. FDA and
	CDC scientists and many other career officials across different
	agencies have been on the battle lines in addressing COVID.
	Point two, our agencies' career workers have been
	undermined through reorganizations with insufficient buy-in,
	constrained budgets and pay, government shutdowns, White House
	directives, and the lack of confirmed leaders of the Merit
	Systems Protection Board.
	In the last administration, the Department of Agriculture
	sent most of its economic research surveys and its National
	Institute of Food and Agriculture to the Kansas City area. The
	Department of Interior moved much of the D.C. headquarters
	staff of the Bureau of Land Management from D.C. to Grand
	Junction, Colorado. Well, really the agency sent the positions
	away, but the people didn't follow. So, at the Agriculture
	entities, staff, despite a round of hiring last year, decreased
	by about a third since 2016. At the Bureau of Land Management,
	close to 90 percent of affected workers quit or found other
	jobs. Morale at those agriculture organizations plummeted.
	Congress has also largely tamped down meaningful growth and
	agency budgets and employee pay, which has also affected
	employee morale. The 2011 Budget Control Act with its yearly
	limits on discretionary defense and non-defense spending
	through Fiscal Year 2021, which were enforced through
	sequestration, contributed to downsizing and the freezing of
	hiring in some entities. President Trump proposed such minor
	pay increases that Congress overruled his recommendations
	twice.
	In addition, Congress and the White House have increasingly
	failed to keep the government open. In the most recent
	government shutdown, from December 22, 2018, to January 25,
	2019, 380,000 Federal workers were furloughed. And over 400,000
	essential workers had to work despite not being paid.
	As already noted, President Trump issued many directives
	that undermine the career workforce in the Federal Government.
	And the MSPB, which adjudicates critical disciplinary actions
	against Federal workers and helps to protect whistleblowers,
	have been unable to function since 2017 when it lost its
	quorum.
	Now, of course, these interventions have contributed to
	departures, the lower morale of agency workers, but their
	consequences go deeper. Governmental operations suffer, and
	there are effects outside the government as well. The CBO
	estimated that the last government shutdown resulted in a $3
	billion cut to GDP, and the Partnership for Public Services
	report on the shutdown detailed in a variety of ways how the
	shutdown did lasting and sometimes irreparable harm.
	Point three, despite these intentional or unintentional
	measures of undermining agency workers, the Federal workforce
	continues to serve the public in critical ways. And there's one
	way I want to flag that gets less attention. That senior career
	officials step in, sometimes for long periods of time,
	sometimes for shorter stints, to serve in acting roles in
	Senate-confirmed positions that are vacant. The Federal Vacancy
	Reform Act allows this to occur for certain senior career and
	political non-confirmed officials.
	And we saw that both Presidents Trump and Biden used career
	agency workers at the start of their administrations for the
	highest agency jobs, including acting secretaries. We see
	career workers stepping in in lower level positions as well.
	So, the General Counsel at the EPA, there have been 17
	acting general counsels, 10 of them came from the career ranks,
	since 1983. We also see career officials in IG offices also
	plagued by vacancies, stepping in in critical acting roles. But
	we did see in the last administration how President Trump used
	the vacancies act to sidestep career officials in these acting
	roles and turn to political acting IGs at the State and
	Transportation Departments.
	Finally, point four, there are many efforts, particularly
	by members of this subcommittee, on retaining and promoting
	career workers, encouraging younger workers to enter government
	service, using faster hiring authorities where possible and
	while maintaining merit principles, and helping to reform the
	vacancies act to promote expertise and not a workaround to the
	appointments process.
	I look forward to your questions.
	Mr. Connolly. Thank you so much. And, Professor O'Connell,
	I believe your mother is my constituent. Give her my best.
	The chair now recognizes the distinguished Congresswoman
	from the District of Columbia, Ms. Norton, for five minutes of
	questions.
	Ms. Norton. Thank you very much, Mr. Chairman. Can you hear
	me?
	Mr. Connolly. Loud and clear.
	Ms. Norton. I particularly want to thank you for this
	hearing on the impact, as you call it, of the failed pandemic
	response on the Federal workforce.
	My questions are for Mr. Kelley of the AFGE. But I do want
	to know, Mr. Sherk's testimony in which he cited satisfaction
	of Federal workers. Yes, Federal workers are generally
	satisfied, but this administration did more to undermine that
	satisfaction than any administration in recent memory. They are
	satisfied with being Federal workers. They are certainly not
	satisfied with the ways they were treated during the Trump
	administration.
	And, Mr. Kelley, I want to begin by going on record to
	thank Federal employees for the way they have served the public
	during this pandemic. Federal employees have continued to offer
	very critical services to--that, frankly, we needed to keep the
	country running. Some have served on the front line, and some,
	of course, have been teleworking, like Members of Congress.
	Now, the previous administration did not offer clear
	guidance on COVID-19. As a result, thousands of Federal
	employees lost their lives. Yet we do have--we don't have a
	central count of how many lost their lives, but, fortunately,
	many individual agencies have publicly reported their
	infections. And I want to indicate what that was for at least
	some of those that kept these records on their own.
	The Defense Department, with 750,000 civilian employees,
	had 184 deaths. The Veterans Department had 17,000 cases in its
	38,000 employees and 128 deaths. The U.S. Postal Service, who
	we must remember because our elections themselves depended on
	them, 14,000 employees contracted COVID, nearly 640,000
	employees, and 119 deaths.
	Now, last month, the administration issued new guidance to
	the heads of Federal agencies that implements a new executive
	order requiring masks and physical distancing--you would think
	that that would be achieved, but he had to issue an executive
	order--on Federal land by Federal employees and contractors.
	So, Mr. Kelley, this is my question to you. If you look at
	this guidance, in addition to this guidance, do you have any
	recommendations for the Biden administration to ensure that the
	Federal Government adequately protects its workforce? Mr.
	Kelley.
	Mr. Connolly. Mr. Kelley, if you will unmute.
	Mr. Kelley. Can you hear me now?
	Mr. Connolly. Yes, we can.
	Mr. Kelley. I think I understood your question. You were a
	little spotty, but it sounds like--but I think that I would
	first--I think that----
	Mr. Connolly. Mr. Kelley, one second.
	Mr. Kelley. [Inaudible.]
	Mr. Connolly. I want to add 10 seconds, please, to Mr.
	Kelley's response. Thank you.
	Mr. Kelley, you may proceed, sorry.
	Mr. Kelley. OK. I think I heard the question correctly. It
	was a little spotty at times, but I believe that the question
	is, do I believe that the Federal Government adequately
	protected its workforce. OK? And the answer to that is this.
	You know, the guidance that was given was so vague, most of the
	agencies could not understand it. And so, therefore, one agency
	would say one thing, another would say another.
	As it relates to the deaths of, you know--you know, and I
	had reports that so many agencies were telling the management
	officials not to even report certain infections and certain
	deaths. So, the accuracy of the death toll and the infection
	rates is absolutely unclear. No one knows what they really are.
	And it's because there was an underlying effort, you know, to
	keep that information away from the employees and from, I just
	say, even Congress.
	Mr. Connolly. Thank you.
	Ms. Norton, are you done? You've got 20 seconds.
	Ms. Norton. [Inaudible] Sent from Mayor Muriel Bowser of
	Washington, DC, Governor Lawrence Hogan of Maryland, and
	Governor Ralph Northam of Virginia to the Acting Secretary of
	U.S. Department of Health and Human Services, and to FEMA,
	requesting that the Federal Government provide COVID-19
	vaccinations to Federal employees. We must ensure that Federal
	employees are among those that get some priority in a
	vaccination.
	Thank you very much, Mr. Chairman.
	Mr. Connolly. Thank you, Ms. Norton. And I was pleased to
	join that effort with you.
	Mr. Hice, the ranking member, is recognized for his five
	minutes of questions.
	Mr. Hice. Thank you very much, Mr. Chairman.
	Mr. Sherk, let me just come directly to you. The OPM
	Federal Employee Viewpoint Survey that I referenced earlier has
	consistently showed that Federal employees----
	Mr. Connolly. If the gentleman would suspend one second.
	Could we ask everybody please to mute so that the gentleman can
	be heard.
	Mr. Hice. Thank you, Mr. Chairman. Can I have my 15 seconds
	back just because it was noisy, and I appreciate you taking
	care of that.
	Mr. Sherk, I'd like to direct my questions to you. The
	OPM's Federal Employee Viewpoint Survey consistently shows that
	Federal employees were happier under President Trump than they
	were under the Obama-Biden administration. Is that fair to say?
	Mr. Sherk. That's entirely correct, sir. Last year, in
	2020, Federal employee job satisfaction rose to 71.6 percent.
	That is the highest that the Federal Employee Viewpoint Survey
	has ever recorded. It goes back to 2002. It used to be called
	the Federal Human Capital Survey. You've never had that high
	proportion of Federal employees saying they're satisfied with
	their jobs.
	The FEVS measures 71 different metrics of, basically, work
	in the Federal workforce. And across 64 of those 71 metrics,
	these scores improved. There was 7 where they were flat. On no
	metric did they decline. And on over 40 of those scores, you
	saw Federal employees recording all-time record high
	satisfaction under the Trump administration. Simply put,
	Federal employees liked what we were doing.
	Mr. Hice. Thank you, Mr. Sherk. That's amazing. It's really
	stunning information.
	Quite frankly, if there was a war on Federal workers, as is
	the accusation against President Trump, then evidently someone
	forgot to mention that to the Federal workers. Because in every
	category, they gave overwhelming approval with the direction
	it's going. And why should that be a surprise? They are--many
	of them having to carry the load of poor performers.
	Now, you were heavily involved in drafting President
	Trump's executive orders on the Federal workplace. Can you
	summarize the top reasons that those orders were needed,
	primarily for the purpose of assuring a merit-based Federal
	workforce system?
	Mr. Sherk. Thank you. Yes, the reason--and, again, I can't
	divulge internal deliberations, but I can discuss my views on
	why I think the orders were a good idea. And simply put,
	Federal employees are frustrated with the lack of
	accountability for poor performers. Survey after survey shows
	this is one of the most negative scores that Federal employees
	give their agencies on the Federal Viewpoint Survey, is it
	doesn't do a good job of addressing poor performers. And right
	now, it's a third. That's a record all-time high. But only a
	third of Federal employees saying that is pretty miserable. And
	it's a huge burden on the Federal workforce.
	I am a former Federal employee. I live in Northern
	Virginia. I'm now one of Chairman Connolly's constituents. A
	number of my friends and neighbors are Federal employees. And,
	yes, it's not just the survey data. Anecdotally, you talk to
	Federal employees, they all know that guy Bob who sits in the
	office and plays solitaire all day. And they're sick of having
	to pick up the work that that person's not doing.
	New Government Executive magazine did a survey, a
	scientific survey of Federal employees. I don't know how many
	Americans they had to survey to get the, you know, two percent
	who are Federal workers and have a scientifically valid
	response, but they did it. And they found 2-to-1 support for
	the Trump administration initiatives making it easier to fire
	poor performers.
	Simply put, if you've got a poor performer in your work
	unit, it's a drag on morale, it's a drag on the agency's
	sufficiency, and a lot of Federal employees themselves are
	really frustrated with it. And we were trying to respond to the
	voice of the Federal workers and say, Look, you deserve better.
	Mr. Hice. Thank you. Now, I've only got about a minute and
	a half left here, and I've got at least a couple more
	questions, so if you could be concise here. I want to zero in
	on President Trump's F schedule, the Schedule F. How
	significant is that when, particularly in reference to--without
	these reforms, how easy is it to thwart the implementation of a
	President's voter-approved agenda?
	Mr. Sherk. There are some civil servants who had a
	tremendous amount of power and ability to either, you know,
	facilitate the implementation of the President's agenda or to
	block it. There's only about 4,000 career political appointees
	in the entire executive branch that add up to 2.1 million.
	There are some senior civil servants who were given a lot of
	authority in terms of the drafting and, you know, the writing
	regulations. And if those guys don't like a policy, they have a
	considerable amount of ability to stop it.
	Now, when it comes to the Senior Executive Service, we
	already have a fairly high degree of performance
	accountability, that if you get one negative performance
	rating, you can be fired. And the SES members can be reassigned
	more or less at will. But that's not true for the General
	Schedule employees.
	So, what Schedule F was doing is for that very small
	portion of Federal employees who exercised this pretty
	substantial policy influence in power, treating them fairly
	similarly to the way the Senior Executive Service is currently
	treated.
	Mr. Hice. All right. My time has expired. I have one other
	question that I wanted to get out, but we'll get that to you.
	If you would answer us in due time.
	Thank you, Mr. Chairman.
	Mr. Connolly. Thank you, Mr. Hice.
	Mr. Davis is recognized for five minutes.
	Mr. Davis. Thank you very much, Mr. Chairman. And I want to
	thank you for calling this very timely hearing. I also want to
	thank all of the witnesses for coming to share their expertise
	and thoughts with us.
	It's a very important hearing, because as I was
	recollecting a little bit and reading, I noticed that in the
	Federal Service Labor Management Relations statute, Congress
	declared that collective bargaining is in the public interest,
	contributing to effective and efficient government operation.
	Yet the Trump administration has repeatedly undermined
	collective bargaining rights, weakening them unilaterally
	through executive action.
	For example, a series of executive orders in 2018 sought to
	remove unions from the workplace, allowing managers to dictate
	contract terms without independent review, impose arbitrary
	deadlines for the collective bargaining process, and
	drastically limit the ability of unions to represent employees
	in discipline and other matters.
	Ms. Lachance, several years ago, I had the good fortune to
	serve as a member of this subcommittee, and I am delighted to
	be back on it under the leadership of our chairman.
	Let me ask you, as a professional in personnel management
	business--I had a lot of wonderful relations and interactions
	with OPM back in those days--how important is it for agencies
	to engage in meaningful, collective bargaining with unions?
	What does it really do? What----
	Ms. O'Connell. Well, Congressman, thank you very much for
	that question. There should be a very strong commitment to
	working with the unions as they represent the rank-and-file
	employees across governments, across very important programs.
	During the Clinton administration, I chaired the National
	Partnership Counsel, where we took a more cooperative and open
	approach to union relations, smoothed things over quite a bit.
	It does not have to be an adversarial relationship. This is
	about what our employees need to get the work done and get the
	work done efficiently. And I think you'll find that if you sit
	down with any of the leaders of the unions across the
	government, that will be their concern. Of course, they're
	going to look out for the people they represent, but that
	benefits everybody. And having a good solid relationship with
	your union, with your bargaining unit at OPM, I worked very
	closely with local 32, it gave me an insight into what was
	getting in the way of our members and how--our work and helped
	me solve problems.
	Mr. Davis. Thank you. Thank you very much.
	Mr. Kelley, if I could ask you, how have collective
	bargaining rights and labor management relations been affected
	by the Trump administration and his executive order?
	Mr. Connolly. Mr. Kelley, if you can unmute.
	Mr. Kelley. OK. Can you hear me now?
	Mr. Davis. Yes.
	Mr. Connolly. Yes.
	Mr. Kelley. OK. Thanks for that question. Let me just say
	that, first of all, these executive orders, you know, has
	created such a hindrance for the labor and management to work
	cohesively to try to resolve issues at the lowest level. I
	mean, as you all know. You know, it actually, you know,
	hindered us, didn't give us opportunity to speak with the
	management about issues, even then with the pandemic, this
	executive order has been more or less of a wink to the
	management officials saying, look, do not talk with the
	employer, do not talk with the union, you know, and whatever
	issues that they bring up, just ignore it.
	And prior to these executive orders, you know, we didn't
	have that. We had cohesiveness. We had working together. We
	had, you know, coming to the table and talking about issues,
	resolving them at the lowest level that kept us out of
	litigation. So, it hindered us in so many ways. That's just
	one.
	Mr. Davis. Thank you very much, Mr. Chairman. And I yield
	back.
	Mr. Connolly. Thank you, Mr. Davis.
	The gentleman from Pennsylvania, Mr. Keller, is recognized
	for five minutes.
	Mr. Keller. Thank you, Mr. Chairman.
	President Trump's executive order that was issued last year
	that created a new classification within the Federal workforce
	called Schedule F for employees serving in positions considered
	confidential, and they were confidential with policy
	determining, policymaking, or policy advocating authority that
	are not subject to the change as a result of Presidential
	transitions. This order made it easier to hold accountable,
	remove employees, or remove employees who refuse to help the
	new administration or a President of any party implement
	policies that were mandated by the American voters.
	That's why I introduced the Federal Workforce
	Accountability and Modernization Act, which would codify the
	Schedule F classification and hold accountable this--and
	codified into law as written in President Trump's executive
	order.
	So, when we look at this, government agencies are currently
	forced to comply with a large number of lengthy and complicated
	procedures when it comes to taking favorable or adverse actions
	against employees. This puts high performers at a disadvantage
	and allows poor performers to easily remain in their position
	with no consequence.
	A 2016 Merit Principle Survey revealed that less than a
	quarter of Federal employees believe their agency addresses
	poor performers effectively. Additionally, the Government
	Accountability Office have reported that it takes six months to
	a year to remove Federal employees for poor performance. It's
	clear that Federal employees and American taxpayers deserve a
	more modern, efficient, and accountable government.
	So, I have a question for Mr. Sherk. And, Mr. Sherk, thank
	you for being here today. And in what way does rescinding the
	Schedule F order improve accountability in the Federal
	workforce?
	Mr. Sherk. It doesn't. It actually moves in the opposite
	direction. The reality is that the founders of the merit
	service were very concerned that you had to have accountable
	employees who could be removed, and they were concerned that,
	look, if you put in a whole bunch of removal protections and
	you've got to have a trial at law before you can fire someone,
	then you're going to have a lot of incompetence and negligence
	that is going to be sealed up. And they wanted none of that.
	They wanted a merit service.
	Any screening system--yes, the reforms were based on
	hiring, but they know that any screening system is going to let
	some bad apples through, and they believed it was very
	important to be able to remove that.
	Merit System Principle No. 6 says that poor performers
	should be separated from the Federal service. And what happens
	right now with the extensive appeal rights Federal employees
	have, it almost never happens. It takes about a quarter of a
	Federal manager's time for a year to fire a Federal employee.
	So, you can do it, but there's not that many employees who
	are so awful that you're going to spend 25 percent of your time
	for a year to fire, and the guy just sits in his office and
	plays solitaire two hours a day. That's the cost. But Federal
	employees hate the system. Again, the surveys show that by a 2-
	to-1 margin, they approved of the President's efforts to make
	it easier to fire poor performers.
	Schedule F was an attempt to return the civil service to
	its original vision, that of apolitical hiring, but where
	necessary and where there's bad performance, removing people on
	the basis of their merit.
	Mr. Keller. Thank you for that. Before President Trump's
	actions related to Schedule F--and you talked a little bit
	about how it was hard to deal with employees that weren't
	carrying out the agenda and the policy mandated by the American
	voters. Just for a matter of scope, the Schedule F, that's a
	very small percentage of the workforce, isn't it?
	Mr. Sherk. That's correct. My estimates are that Schedule F
	would have applied to between 1 and 3 percent of the Federal
	workforce. A very, very small fraction. There was another
	executive order in 2018 that said let's streamline, make more
	efficient the entire removal process, get rid of some
	unnecessary impediments that are making it take much longer
	than Congress ever intended. That would've applied to basically
	everyone, but Schedule F was a small, small fraction.
	Mr. Keller. So, we're just talking about a small portion of
	employees that are tasked with policymaking decisions, correct?
	Mr. Sherk. That's right. Individuals--you can think about
	regulation writers in agencies, the folks who do the yeoman's
	work of drafting the regulations. You can think about people
	who--Congress gives agencies different functions, gives
	discretion by law, anyone tasked with discretion to decide how
	the agency will exercise that power. Some of these folks are in
	the Senior Executive Service, but some are in the General
	Schedule, and the idea is we need accountability if you're
	wielding this incredible power Congress has delegated.
	Mr. Keller. And with President Biden having rescinded the
	order and the ongoing efforts to ensure no President may take
	similar action ever again, how helpful is this for the current
	and future administrations to deliver results for the American
	people?
	Mr. Connolly. The gentleman's time has expired.
	Mr. Sherk, you may briefly respond.
	Mr. Sherk. If you've got poor performers in your workplace,
	it's going to make it harder for the diligent Federal employees
	to get the job done. So, I think this is going to hurt most
	Federal employees.
	Mr. Keller. Thank you. And I yield back.
	Mr. Connolly. Thank you very much.
	If I can just ask a factual question you may know the
	answer to, Ms. Lachance, before I call on Mr. Sarbanes. Mr.
	Sherk just indicated that Schedule F only applied, despite this
	apparent broad problem of firing people, it only applied to
	about three percent of the workforce, meaning that it actually
	doesn't address the problem he has ostensibly identified, but
	it disproportionately affected one agency, OMB. So, it might be
	three percent total, but it's like 87 percent of OMB. Is that
	accurate?
	Ms. Lachance. That was, as far as I know, the one agency
	that moved very, very quickly to identify the employees that
	would be moved to Schedule F, and I believe they identified
	some 80 percent of their workforce.
	Mr. Connolly. Thank you.
	Ms. Lachance. And so how somehow or other this can be 1 to
	3 percent is questionable in my mind. Also, the example of--if
	I could, the example of these are regulation writers and people
	with a lot of authority, regulations don't come from one person
	in the Federal Government----
	Mr. Connolly. I'm going to come back to that on my own
	time, but I just wanted to clarify for the record that number.
	Mr. Sarbanes, the gentleman from Maryland, is recognized
	for five minutes.
	Mr. Sarbanes. Thanks very much, Mr. Chairman. Appreciate
	the opportunity.
	Wanted to talk about telework, and I want to thank the
	chairman, Chairman Connolly, for all his work on telework over
	the last few years. It's been a passion of mine as well in
	terms of trying to make that option more available for the
	Federal workforce. And over the last four years, the Trump
	administration has really waged an assault on telework. In
	fact, in one case, a secretary, I guess, had a temper tantrum
	and reportedly cut the entire agency's telework program because
	the secretary couldn't talk in person to the individual that he
	was seeking. But we know, during the pandemic, that telework
	has been absolutely critical to ensure continuity of government
	operations to protect the health and safety of workers. And
	during the pandemic, 75 percent of the Federal workforce has
	been in a telework status of one kind or another. Nearly half
	of these employees are teleworking for the first time.
	Mr. Kelley, could you give me a sense of what you're
	hearing from your members about the importance of being able to
	perform their jobs remotely during the pandemic?
	Mr. Kelley. Can you hear me now?
	Mr. Sarbanes. Yes.
	Mr. Kelley. Thank you for that question because I think it
	is a very important question to ask. And, you know, I will say
	this. Our members are very engaged and energized for the fact
	that they have opportunity to telework, because what we have
	seen is that productivity has grown up tremendously. OK.
	They're getting opportunities to work during the time that they
	would spend commuting to work. They're given an opportunity to,
	you know, perform their duties, you know, during the time that
	they would take lunch break and these types of things. It has
	helped, you know, the family situation. It's helped all around.
	So, I could just say for a fact that the members that I
	represent are very excited about telework. It has proven that
	it is benefit to the agency as well as, you know, the employee.
	Mr. Sarbanes. Thank you very much. Let me state some
	statistics. Seventy-nine percent of the Federal workforce
	stated that telework during the pandemic has made them more
	committed to their agency's mission, 76 percent say they are
	more motivated to meet expectations, and 70 percent say
	telework has given them more trust in their colleagues.
	In addition, as you just indicated, many agencies are
	reporting increases in productivity. For example, the
	Department of Transportation surveyed its managers, and 55
	percent said the work units were more effective during the
	pandemic than before the pandemic.
	Ms. Lachance, this uptake around telework suggests that on
	the other side of the pandemic, we may want to relook at the
	opportunity for telework to be used and enhanced. Can you talk
	about how telework could begin to represent a new normal for
	the Federal workforce going forward?
	Ms. Lachance. Thank you so much. I do think telework is a
	critical component of attracting and retaining the kind of
	talent that we need in the Federal Government and, frankly,
	across all employers. The pandemic has made it very clear that
	many, many jobs can be performed at home, and it's helped keep
	people safe. And so I believe it's going to have to be part
	of----
	Mr. Connolly. Excuse me. If I could ask people to mute.
	It's hard to hear the gentlelady. Thank you.
	Ms. Lachance. I believe it has to be part of a strategy to
	attract and retain the talent that we need going forward. We
	have shown it can be done. Supervisors who are reluctant can be
	trained, coached, whatever it takes, to know how to supervise
	and work with people that they don't see every day, and I
	believe it's the way of the future. And now we have experience,
	we have information that we can apply across the board going
	forward.
	Mr. Sarbanes. Thank you very much. You've touched on the
	importance of it in terms of recruiting and retaining talent.
	That's going to be critical, particularly as we try to build
	back up these agencies that have been hollowed out by the Trump
	administration. That's just a reality. So, telework can help us
	there. It's something that's here to stay. The benefits of it
	in terms of cost savings, productivity, stress reduction,
	worklife all speak for themselves.
	Look forward to working with you, Mr. Chairman, to advance
	telework as we move forward. And I yield back.
	Mr. Connolly. Thank you so much, Mr. Sarbanes, and I look
	forward to working with you as well.
	Mr. Hice. Mr. Chairman?
	Mr. Connolly. Yes.
	Mr. Hice. Just real quickly, I wanted to ask if Mr. Sherk
	could respond to the question that you gave to Ms. Lachance a
	while ago, if he could--about OMB, if he could have a----
	Mr. Connolly. About OMB?
	Mr. Hice. Yes, sir.
	Mr. Connolly. Very briefly, Mr. Sherk. And the question was
	purely a factual one, not an opinion.
	Mr. Sherk. I'll just point out, you know, public reports
	say, did indicate, yes, that a large portion of OMB's workforce
	was proposed for Schedule F. However, OMB is a very unique
	agency in that pretty much all that they do is policy. And so
	if you've got an executive order that's, you know, basically
	aimed at folks who have a heavy role in policy, a lot of the
	OMB career staff have a greater influence on policy than
	Schedule C political appointees in the agency. They're very
	much the exception and, government-wide, my estimate was
	between 1 and 3 percent of the total Federal workforce.
	Mr. Connolly. Thank you.
	Mr. Hice. Thank you, Mr. Chairman.
	Mr. Connolly. The gentleman from Arizona, Mr. Biggs, is
	recognized for five minutes. And then I'm going to interrupt
	the order after your questioning is finished and recognize the
	distinguished majority leader who has joined us, Mr. Hoyer.
	Mr. Biggs. Thank you, Mr. Chairman. I very much appreciate
	today's discussion because our Federal workforce is in dire
	need of reform.
	In an ideal world, our government would be smaller, more
	efficient across the board. And as a believer in cooperative
	federalism, it greatly alarms me that Washington, DC.
	bureaucrats have enormous authority over so many issues that
	can be much better handled in state capitals. But,
	unfortunately, we won't be able to simply slash the size of the
	Washington bureaucracy any time soon, so we need to continue to
	think of ways to, at the very least, improve the apparatus we
	have already created.
	In today's discussion, there's been a lot of criticism of
	Schedule F. In particular, there's an assumption among many
	members across the aisle that Schedule F was merely a nefarious
	move on the part of the Trump administration to ensure
	political loyalty, even though we have no proof that this was
	the intention.
	Ultimately, arguing that Schedule F is simply political
	conveniently allows us to evade a more sensitive but
	nevertheless critically important issue that many career
	Federal bureaucrats are simply not very good or not very
	committed workers. I don't disparage everyone in the Federal
	workforce or even most, because I know there are plenty of
	career bureaucrats who take their oaths seriously and committed
	to public service, and do a really, really good job. But I've
	also heard way too many horror stories since coming to
	Washington about career bureaucrats who do not perform well.
	And, even worse, it is extraordinarily difficult to fire poorly
	performing or foot-dragging bureaucrats.
	In fact, there's a bureaucracy within the bureaucracy
	dedicated solely to this H.R. headache, and many managers who
	wish to take action against an underperforming Federal worker
	are so worried about being sued that they pay out of pocket for
	liability insurance. Collective bargaining is a big part of the
	problem, and this trend has unofficially driven up the
	compensation of Federal workers over the decades.
	Today, Federal workers earn considerably more than
	comparable private sector workers with similar skills,
	especially when nonsalary benefits like paid leave, retirement
	compensation, et cetera, are factored in. When I hear about an
	often overpaid and underperforming workforce being funded by
	the American taxpayers, my natural inclination is to cut wages
	and positions, but a sledgehammer approach such as that would
	make bureaucracy a less desirable career option for talented
	candidates, as well as punishing exemplary civil servants
	already in the system.
	And so I like many of the reforms you proposed, Mr. Sherk.
	Adding more performance-based metrics into Federal promotion
	and compensation decisions would certainly be an improvement.
	If you could summarize in a few top points, how would Federal
	employee unions undermine the merit basis of the Federal
	workforce system, Mr. Sherk?
	Mr. Sherk. Thank you. I'd say there's two big effects they
	have. One is, of course, they try and make it harder to fire
	Federal employees. The Federal sector unions actually don't
	represent that many Federal workers outside the post office,
	which does get to negotiate pay and benefits. The unions
	represent about 20 percent of the Federal workforce. And when
	you think about it, General Schedule sets pay, Federal
	workforce's right to work, why do you join a union? What's the
	value of proposition? What's the sales pitch?
	Some folks are sort of, you know, committed philosophically
	to the labor movement, but for most Federal employees, the
	sales pitch the unions make is, basically, we will protect your
	job. We're an insurance policy if your boss ever tries to fire
	you or give you a negative performance evaluation. And that's
	why they react with such horror every time anyone proposes
	taking actions against poor performers. That undermines their
	value of proposition to their members. Their sales pitch is,
	we'll make sure they can't hold you accountable. And so the
	union grievance process makes it very, very difficult for
	agencies to separate poor performers.
	If an agency jumps through all the hoops and they wind up
	before the Merit Systems Protection Board for firing someone,
	if the manager spends that 25 percent of their time for a year,
	they prevail about 90 percent of the time. But if you bring
	that same individual before a union grievance arbitrator, about
	60 percent of the time, the grievance arbitrator orders the
	employee reinstated. So, it makes it very hard to hold the
	agencies accountable.
	Also, because the unions can grieve over performance
	ratings, it crops the entire performance evaluation process. If
	you try and give a poor performer an honest performance rating
	and give them less than fully successful, well, you know you're
	going to be in just a world of hurt and spending a ton of time
	grieving this with the union. And so what do the managers do?
	They give everyone at least a fully successful.
	Congress intended the Civil Service Reform Act to
	meaningfully tie pay and performance to the Federal workforce,
	but that hasn't happened because the performance appraisal
	system has been corrupted. It's just too much work and too much
	effort for a manager to give someone an honest rating, so they
	give everyone flying colors.
	Mr. Biggs. Mr. Sherk, OPM reported last October that from
	2016 to 2019, the number of hours Federal employees spent on
	union activities actually declined almost 30 percent. Isn't
	that a good thing? And why--go ahead.
	Mr. Sherk. I think it's an excellent thing. It shows that
	the Trump administration was serious about cracking down on
	waste in government. We basically said, look, some agencies use
	union time more effectively than others. Agencies adopt the
	best practices of agencies, like the Department of Defense,
	Interior, State Department, be as efficient as they are, and we
	saw savings to the effect of tens of millions of dollars.
	Mr. Connolly. The gentleman's time has expired. Thank you.
	We now recognize the distinguished majority leader of the
	House, Mr. Hoyer.
	Mr. Hoyer. Thank you very much, Mr. Chairman. I'm glad to
	be with you, and I thank you for holding this hearing and that
	there are so many participating. I want to thank Ranking Member
	Hice as well for allowing me to participate in today's hearing
	on revitalizing the Federal workforce.
	As you may be aware, Mr. Chairman, like you, I proudly
	represent a very large number of Federal employees in
	Maryland's Fifth congressional District. Obviously, therefore,
	I pay attention to those issues and spend a lot of time looking
	at what's right and what's wrong, and I'd like to speak to some
	of those items today.
	Mr. Kelley, who is here to testify today on behalf of the
	American Federation of Government Employees, not only
	represents many of them, but is a constituent of mine. So,
	Constituent Kelley, I welcome you to this hearing. I want to
	thank you for participating in this hearing, Mr. Kelley, along
	with Ms. Lachance and Dr. O'Connell, as well as others.
	Mr. Chairman, too often, as you and I both know, Federal
	employees have been treated as though they're expendable, even
	though they are indispensable to the operations of our Federal
	service. That has been particularly true over the last four
	years. Perhaps the most vivid example of that was--and, of
	course, I disagree with the previous speaker--the Schedule F
	categorization that jeopardized the nonpartisan civil service
	and sought to intimidate Federal workers. It was to turn a
	merit system into a political system.
	Thankfully, as all of you know, President Biden reversed
	that misguided action, protecting our Nation's civil service as
	well as our civil servants.
	That wasn't the only threat, of course, Mr. Chairman, to
	our nonpartisan civil service over the past four years. As many
	of you know, I've been working with Chairwoman Maloney----
	Mr. Connolly. Would the gentleman yield just for one
	second?
	Mr. Hoyer. Sure.
	Mr. Connolly. I share your view, thank God, that President
	Biden has overturned the executive order, but I hope to engage
	you, Mr. Hoyer, in codifying the legislative role. If new
	schedules are to be created that cannot be done unilaterally by
	the chief executive, they must, moving forward, require
	legislative approbation, and I have legislation to do that and
	I would welcome your involvement in that issue.
	Thank you for yielding.
	Mr. Hoyer. Chairman Connolly, thank you for your leadership
	on that. Obviously, if you have a system that allows the
	President unilaterally to change it and turn civil servants
	into political appointees who serve at the will of the
	President, then you have undermined the whole point of having a
	merit system civil service. And, therefore, I look forward to
	working closely with you to making sure that the legislative
	body that makes policy, and that's employee policy as well,
	should be the final arbiter of whether or not we change and
	modify that system. So, thank you for your leadership on that
	effort.
	Mr. Chairman, as many of you know, I've been working with
	Chairwoman Maloney, as well as yourself and Representative
	Lynch, to pass legislation to protect inspectors general across
	the executive branch from being fired as a result of political
	retaliation. We've seen that frequently in the last four years,
	unfortunately, and it has undermined the integrity and the role
	of the inspector generals.
	Independent inspector generals are a critical component,
	Mr. Chairman, as you well know, in ensuring that the Federal
	workforce is able to serve the American people in a nonpartisan
	professional manner. And a nonpartisan professional civil
	service is precisely what the 1881 Civil Service Reform Act and
	the 1978 Civil Service Reform Act intended it to be. From pay
	freezes and benefit cuts to shut downs and even denigrating
	comments from political leaders, our Nation's Federal leaders,
	our Nation's Federal employees have continued to face difficult
	conditions as they perform the jobs serving the American
	people.
	One of the issues, Mr. Chairman, that I've been working on
	for a long time, as you know, and working with you, is
	promoting pay parity for civilian Federal employees. Now, the
	previous speaker indicated that the Federal employees were
	largely overpaid. That is simply not a fact and very, frankly,
	through four or five administrations, Republican and Democratic
	administrations, I've said if you don't like the Pay
	Comparability Act, change it. Show us a better way to determine
	how we can pay Federal employees for comparable work,
	comparable skills, comparable qualifications with the private
	sector. Very, frankly, we don't do that.
	If we wish to recruit and retain the best and brightest to
	serve in the Federal workforce, we must ensure that pay and
	benefits are competitive with the private sector. That is not
	the case at this point in time.
	Right now, the most recent report on pay comparability from
	the Federal Salary Council issued in May 2020--that's not when
	we were in charge, but when the Trump administration was in
	charge--showed that Federal employees earned, on average, 26.7
	percent less--less--less than their counterparts in the private
	sector. That is abysmal, and if we want to remain competitive
	with the rest of the world, if we want to have the best civil
	service in the world, we need to change that.
	One of the ways to correct this is to set Federal civilian
	pay increases at parity with pay increases for our military.
	Frankly, Mr. Chairman, you and I know we did that for many
	years, but, recently, that has been the exception, not the
	rule.
	At the same time, we need to focus on finding ways to bring
	competitive retirement and healthcare benefits in line with the
	best private sector plans. Now very frankly, in terms of
	retirement and healthcare, we are competitive, but we must make
	sure that that advantage does not erode, lest we are less
	competitive with the private sector in recruiting and retaining
	the kind of people we need to serve the American people and to
	run complex, complicated, difficult enterprises.
	I'm pleased, Mr. Chairman, that we're able to extend 12
	weeks of paid parental leave for Federal employees last year as
	do so many folks in the private sector, but we need to finish
	the job by extending that to full family and medical leave. Our
	Federal employees work hard, contrary to public perception and
	political rhetoric, and they deserve the pay and benefits
	commensurate with their talent, education, experience,
	technical skills, and contributions. And we need to make
	certain that we're not driving talented employees away by
	failing to compete with the private sector.
	Again, let me emphasize, Mr. Chairman, I've challenged
	Democratic and Republican administrations, if you don't like
	how the pay council comes to its conclusion, then send us a new
	system, send us another way to determine the relationship
	between the private and public sector pay. And very frankly,
	none of them have done that.
	I know that our Federal workers cherish the opportunity to
	serve their country and want to stay with their agencies, but
	many will leave, Mr. Chairman, because they find more lucrative
	opportunities outside of government. And while there is a
	certain kind of security working for the Federal Government,
	which everybody points to, the too frequent threat of shutdown
	and pay interruptions is extraordinarily inefficient, costly,
	and traumatizing to our employees.
	So, one thing we need to do, Mr. Chairman, is to make sure
	that we stop this silly business of failing to do our duty and
	funding government on time, so that we do not confront these
	false threats of shutting down the government of the United
	States. It makes no sense, it's irresponsible, and we ought to
	stop it.
	I hope this subcommittee will continue to explore ways to
	address the challenges and promote pay and benefit policies
	that attract and retain the best Federal workforce possible.
	Now, Mr. Chairman, in closing, let me refer to something
	that Ms. Lachance and I think John Sarbanes----
	Mr. Connolly. If I could address the distinguished majority
	leader. If he could do it quickly, we would appreciate it,
	because we've got a long list of other people to be recognized.
	Mr. Hoyer. Thank you very much, Mr. Chairman.
	I would just reference on the telework issue, I worked with
	Frank Wolf from your state, Republican, for many, many years in
	the eighties on teleworking, which I think is efficient. And
	what I was going to say is, what COVID-19 has taught us, there
	is a way not to be in physical place, but to virtually do one's
	job, do it efficiently and effectively. And I think you're
	going to see a lot more than that in the private sector and in
	the public sector.
	Thank you, Mr. Chairman.
	Mr. Connolly. Thank you, Mr. Hoyer. And thank you for your
	impassioned advocacy and protection of Federal employees and
	always infusing their work with dignity and respect. Thank you
	for your leadership. We look forward to working with you on a
	package of good government initiatives coming out of our
	subcommittee.
	Mr. Hoyer. Thank you, Mr. Chairman.
	Mr. Connolly. Thank you, Mr. Hoyer.
	The gentlelady from New Mexico, Ms. Herrell, is recognized
	for five minutes.
	Ms. Herrell. Thank you, Mr. Chair. And I'm glad we're
	holding this important hearing about our Federal workforce, and
	we must be serious about confronting the issues. I'm glad that
	I have an opportunity to ask a few questions to Mr. James
	Sherk.
	I wanted to ask him if he could discuss in more detail
	meaningful government workforce reform. What does that look
	like? Also, can you discuss what the Trump administration
	compared to the Biden administration should keep and why?
	Mr. Sherk. Sorry. Could you clarify the last question
	there?
	Ms. Herrell. Did you hear the question?
	Mr. Sherk. No, it didn't quite come through.
	Ms. Herrell. OK. I'm just asking you, can you discuss what
	you think meaningful government workforce reform would look
	like? And also, can you discuss what from the Trump
	administration versus the Biden administration should be kept
	and why?
	Mr. Sherk. All right. I think you've got a few big problems
	in the Federal workforce. The biggest, which we've spent a lot
	of time today discussing, is just the complete failure of the
	performance management system. Federal employees are
	frustrated. The FEVS scores show that again and again and again
	that this is either the single biggest pain point or one of the
	biggest pain points in the Federal workforce, that it's simply
	too hard to remove a bad employee. And not just that, you also
	don't have a good system in place for recognizing good
	employees.
	There is Civil Service Reform Act, the text of the statute
	talks a lot of great things about recognizing or rewarding
	performance, but the entire performance evaluation process is
	just being corrupted, because it's just such a litigious
	nightmare for a Federal supervisor to actually give someone a
	negative grade that you only have a few thousand employees each
	year at most getting anything less than a fully successful
	rating.
	And so all the--Members of Congress of both parties have
	talked about, yes, we should, of course, pay the top performers
	more, we should connect bonuses and pay raises to performance,
	but if you can't meaningfully give someone a good performance
	evaluation, an honest performance evaluation, then all of that
	means nothing, because you're basing it on sand, so to speak.
	So, I think those are two of the biggest problems, giving
	the agencies the ability to expeditiously remove poor
	performing employees and to reward those workers who are
	working hard and diligent.
	I think it was something that the majority leader said and
	members of the committee have said that's entirely correct.
	While on average the Federal pay and benefits exceed those in
	the private sector, especially for the most skilled and the
	most productive employees, they do not. There are a number of
	occupations and positions where the Federal Government is not
	competitive and in positions and occupations where people are
	making 50 percent, again, more what they would in the private
	sector.
	The government should be, rather than a one size fits all
	sort of General Schedule approach, things like with the Bush
	administration drive with the National Service Personnel
	System, connect pay banding, connecting pay to performance
	would make a lot of sense, and where the government's
	undercompensating, it should pay more, where it's
	overcompensating, it should pay less. You should have equity in
	parity between the Federal sector and the private sector.
	With regards to what the government should be keeping
	versus should not be keeping from the Trump administration,
	look, I think all of the reforms were good reforms. I think
	Schedule F would've held those senior employees who do have a
	hand and control in making policy, held them more accountable
	for the awesome government power that they wield. I think the
	streamlining
	[inaudible] executive order, whatever it was, making it a
	lot easier for agencies to take appropriate and warranted
	personnel actions against employees. I think it made just a lot
	of sense to renegotiate the collective bargaining agreements to
	get a better deal for the American people.
	There were some lousy contracts out there with provisions
	that were not helping the agencies. To date, one example, the
	Department of Veterans Affairs, the union contract required
	them to post vacancies for 15 calendar days. That's three weeks
	before hiring--15 business days. OPM recommends five calendar
	days.
	So, this union contract was just unilaterally making it
	harder for Veterans Affairs to hire needed personnel and slow
	down the process. It made a lot of sense to revisit those
	contracts and negotiate better deals for the American people.
	And I think union time is just used very wastefully. There's
	not a lot of accountability for how its used and how its spent.
	Saying agencies adopt best practices, employees, you've got to
	spend the majority of your time working for the agency that's
	paying you so that your skills don't erode, all of these were
	good reforms.
	We haven't talked much about the competency-based
	assessment, but the President was working hard to make sure we
	weren't overlooking employees for hiring into the Federal
	service simply because they don't have a college diploma, but
	instead require agencies to look at the skills that employees
	had. All of these were good reforms and I think they should
	have been kept.
	Ms. Herrell. Thank you.
	And, quickly, your written testimony highlights the success
	stories in states that have reformed their civil service
	frameworks. Can you tell us more about those success stories?
	Mr. Sherk. Very briefly----
	Mr. Connolly. Just one second, Mr. Sherk. The gentlelady's
	time has expired, but you may respond briefly.
	Ms. Herrell. Thank you, Mr. Chair.
	Mr. Sherk. Very briefly, there've been a number of states,
	including Georgia, Arizona, Florida, Texas, Missouri, that have
	reformed their civil service systems to basically eliminate
	removal protections for all state government employees, and
	those states continue to have highly, successful professional
	civil service systems that work well for their state residents.
	Ms. Herrell. Thank you.
	I yield back, Mr. Chairman.
	Mr. Connolly. Thank you very much.
	Let me see. Mr. Lynch. The gentleman from Massachusetts,
	Mr. Lynch, is recognized for five minutes.
	Mr. Lynch. Thank you, Mr. Chairman. Thanks to the ranking
	member as well for holding this hearing.
	I want to make several points. First of all, we recently
	had an oversight hearing in this subcommittee where we brought
	in the Federal managers, Postal Service and several others, and
	we asked the management and the department heads if official
	time was a problem. Every one of them said it's not a problem.
	It's not a problem. It's not abused and it's not a problem.
	They had other issues that they had problems with, but that
	wasn't one of them.
	Second, I would refer everyone to Government Executive
	magazine that about two months ago said, basically, on an
	analysis of Schedule F, hundreds of thousands of Federal
	employees would be included under Schedule F, based on the
	broad language of that change, of that executive order.
	So, they're saying hundreds of thousands. Government
	Executive magazine knows a little bit about how our government
	works, and I tend to believe what they have asserted.
	Third, we're forgetting here there's a gap in what my
	colleagues across the aisle are saying. They're saying they're
	going after bad performance. The problem is that Schedule F
	adopts a termination for no cause standard. So, whereas of now,
	people can be fired for cause, for nonperformance, Schedule F
	moves us to a standard where performance doesn't matter. You
	can fire a person for no cause, nothing at all.
	I'm a former employment attorney, so I have dealt with this
	for a long time. And the standard that Schedule F applies is
	that we can terminate an employee for no reason at all. No
	reason at all. No cause. So, it doesn't get at the people who
	are not performing; it just allows the executive to fire a
	person for no reason at all. And that--that invites very
	subjective measurement of employee performance. It allows you
	to fire a person for no reason at all. It opens up the system
	to abuse because of political leanings. You never have to
	explain why you're firing a person, as long as it's not for a
	bad cause, as long as you're not firing a person because of
	their race or their gender, but you can fire them for no cause
	at all.
	So, it puts the lie to the idea that we're just going after
	these nonperformers because under Schedule F, performance
	doesn't matter. You can fire them for no cause. That's the way
	this standard works in the private sector and that's how it
	would work in the public sector.
	Ms. Lachance, I do want to ask you a question. So, we've
	had a situation in the previous--in the Trump administration
	where at times in DOD, we've had 24 out of the 60 top level
	managers, and these are Senate-confirmed positions, vacant,
	either vacant or temporary employees, people in an acting
	status. Ms. Lachance, what does that do to the efficacy, the
	efficiency of those departments when you have 40 percent of the
	civilian vacancies that are Senate confirmed are vacant, not
	filled, and then, like I say, 24 out of the 60 top level
	positions are filled by acting positions? What does that do to
	the morale and to the efficiency of those operations?
	Ms. Lachance. Well, it's very hard to make progress under
	those circumstances, Congressman, and you're absolutely right
	to highlight those. People have a tendency in acting positions
	to be cautious, to hold back, to think twice, three times, four
	times, or it's the other extreme where they think they have
	nothing to lose, they're not accountable to anyone, they're not
	accountable to the Senate or this Oversight Committee.
	So, the acting situation seems to play out at the extreme,
	and I think that brings us to situations where there are
	inefficiencies where people are wondering what to do. There's
	not clear direction, and the programs essentially stop. And if
	you have frequent changes, over time, that leadership, that
	continuity, that vision that a good, strong leader provides,
	who's been through a confirmation process, a nomination
	process, just is absent. And while you may get the basics done,
	you're not going to be able to operate at the highest possible
	levels that you'd like.
	Mr. Connolly. Thank you. The gentleman's time has expired.
	Mr. Lynch. Thank you. I yield back.
	Mr. Connolly. Thank you, Mr. Lynch.
	The gentleman from Georgia, Mr. Clyde, is recognized for
	five minutes.
	Mr. Clyde. Thank you, Mr. Chairman.
	I'm a Navy officer and a small business owner, and one of
	my first influencers in my Navy career was my fighter
	squadron's commanding officer, Commander Al Gorthy at the time.
	He had three words painted in 3-foot high letters in the hangar
	bay where our F-18 Strike Fighters were parked. Those three
	words were ``performance, not excuses.'' And those words have
	stayed with me over these last 30 years.
	So, my questions are for, individually for Ms. Lachance and
	Mr. Kelley and Professor O'Connell, in that order. Do you
	support a merit-based system for Federal employment? Just
	please answer yes or no.
	Ms. Lachance. Yes.
	Mr. Clyde. You do? Thank you, Ms. Lachance.
	Mr. Kelley?
	Mr. Connolly. Mr. Kelley, if you can unmute. Mr. Kelley?
	Mr. Clyde. Then how about Professor O'Connell?
	Mr. Connolly. Professor O'Connell?
	Ms. O'Connell. Sure.
	Mr. Kelley. OK. I'm sorry. Can you hear me now?
	Mr. Connolly. All right. Yes, Mr. Kelley, go ahead.
	Mr. Clyde. Mr. Kelley, do you support a merit-based system
	of Federal employment?
	Mr. Kelley. Yes, I do. Can you hear me? Yes, I do.
	Mr. Clyde. Thank you. Thank you very much.
	And, Professor O'Connell?
	Ms. O'Connell. Yes, I do, for many positions. Of course----
	Mr. Clyde. Thank you. I appreciate that.
	When it is difficult to deal with a poor performer, then
	it's unfair to other Federal employees who are doing a good
	job, and that's kind of the way I see it.
	I yield back the balance of my time to Ranking Member Hice.
	Mr. Hice. I thank the gentleman from Georgia.
	Mr. Sherk, let me go back and ask you. You'd mentioned in
	your opening statement about removal protections. I was very
	intrigued by that and what specifically you mean by that. You
	refer to it as a means by which some of these poor performers
	actually are able to seal up incompetence and insubordination.
	What are you referring to when you talk about the current
	scenario where, in essence, poor performers have removal
	protections?
	Mr. Sherk. So, if an agency wants to remove an employee,
	they have to demonstrate that they have cause to remove them.
	And there's a burden of proof that they have to meet. There's
	two basic procedures that most removals happen under. One is
	Chapter 75 of the United States Code--or, sorry, Title 5 United
	States Code. The other is Chapter 43. And, basically, there's a
	process where they have to gather sufficient evidence to
	support the removal. That process can take many months, and
	then the employee then can appeal to the--well, they've got
	many appeals roads. One is the Merit System Protection Board.
	One is through a union grievance and arbitration. And another
	would be, in some cases, they can file an EEO complaint.
	Now, 97 percent of EEO complaints are decided in favor of
	the agency. So, I think we all agree that discrimination is
	abhorrent, but many employees use the EEO complaints as an
	alternative form of civil service protection to basically put
	the manager on trial. And so the agency has to go through and
	litigate this, and it's a very time consuming, expensive
	process. It's about a quarter of a manager's time for a year to
	litigate from start to finish one of these removals.
	Mr. Hice. OK. Thank you. I'd also like for you to have the
	opportunity to reply to Mr. Lynch when he was painting the
	picture of a no cause termination in Schedule F. There are,
	likewise, protections not to fire people for political reasons
	or things along those lines. Would you like to respond to what
	Chairman Lynch was--or Mr. Lynch was saying a while ago?
	Mr. Sherk. Certainly, and thank you. He is partially
	correct and partially incorrect. He's correct in that you don't
	have the same agency has the burden of proof that they have to
	overcome and has to demonstrate by a preponderance of the
	evidence and so on and so forth. At the same time, the agencies
	are absolutely prohibited from terminating someone because of
	their race, their sex, their religion, or their political
	activities. That was in the executive order itself, and the
	order required the agencies to put together a system and agency
	rules to ensure that there were no terminations on the basis of
	politics or anything like that.
	And so under Schedule F, employees would have had
	considerably greater removal protections than the Pendleton Act
	of 1883, which did not require these internal agency rules and
	procedures. This was something going back to the foundations of
	the civil service saying, yes, you're going to have discretion;
	yes, there's an element of subjectivity in someone's
	performance, so we're not going to put you on trial, but you're
	trying to go into politics and this is just not allowed.
	And if you look at the FEVS survey, it shows that all-time
	record high agreement that there was no political coercion in
	the Federal workplace under the Trump administration.
	Mr. Hice. Thank you very much.
	Mr. Chairman, I appreciate it too, and I would like to have
	submitted to the record really what Mr. Sherk was just now
	referencing regarding the survey. Some of the arguments that
	you presented a while ago, good arguments, but it was a select
	group of agencies kind of like cherry picking to say that--and
	we all know that when you pick certain agencies, you can paint
	almost any picture.
	I would like to submit to the record the report agency by
	agency. And there's a whole list of questions here, but two of
	them in particular, how satisfied are you with your job, every
	single agency, and how satisfied are you with the organization.
	Mr. Connolly. Without objection, it so ordered.
	Mr. Hice. Thank you.
	Mr. Connolly. The gentleman from Maryland, Mr. Raskin, is
	recognized for five minutes.
	Mr. Raskin. Good afternoon, Mr. Chairman, and thank you for
	calling this very important hearing.
	There are really two different philosophies of government
	that are on view around the world today, and one is that the
	government belongs to the leader of the government, the
	President, for his own self-enrichment and profit making and
	self-aggrandizement and the enrichment of his personal family
	and his friends in corporations. And you can be a very poor
	performer in terms of public effectiveness. As long as you're
	making money for yourself and enhancing your own private
	interests, then it's OK.
	The other theory is the old-fashioned theory that
	government must be an instrument of the public interest and the
	common good, and you must be serving the people. And it should
	not be an interest of private self-enrichment.
	Now, I'm delighted that we are moving in America from one
	model to the other. I'm surprised to hear about the fact that
	public employees have been thrilled with the leadership of the
	last President in the government, and I'm going to be very
	interested to read about that.
	I mean, perhaps it's all of those workers who are filling
	out the forms who are the so-called poor performers who play
	solitaire, watch TV, and spend their day on social media
	fighting with people rather than doing their jobs that may
	explain those results, but I don't know. I've got an open mind
	as to what's going on there.
	In any event, the happiness of the Federal workforce is not
	really the controlling metric of the effectiveness of the
	Federal workforce, which is really what we should care about.
	And as a Representative who has more than 70,000 Federal
	workers in my district, I've heard nothing but complaint about
	the way that the last administration undermined the Federal
	workforce at every turn, beginning with the longest government
	shutdown in American history, 35 days; massive furloughs
	accompanied with that, the imposition of a hiring freeze, which
	is a completely arbitrary random way of figuring out where to
	make cuts in the Federal workforce; pay freeze; authoritarian
	executive orders that accomplish union busting and the
	nullification of collective bargaining agreements and on and
	on, all the way up to the incitement of a violent insurrection
	against the union, the Congress, and all of the Federal workers
	who were there to defend us.
	But I want to go back to this question F. We know that
	President Trump tried to pull the plug on having a professional
	expert workforce with an executive order at the very end of his
	Presidency. And, Professor O'Connell, I wonder if you would
	briefly state what this executive order sought to do and why it
	is diametrically opposed to the principles of the civil
	service.
	Ms. O'Connell. Yes, Representative. So, the executive order
	would have created a new line in the accepted service, a
	Schedule F, for employees involved in confidential policy
	determining, policymaking, or policy advocating rules. Many
	estimates are quite different than Mr. Sherk's of that it
	would've taken many more employees from the competitive service
	into this new step, would've stripped those employees of their
	civil service protections.
	Of course, our civil rights legislation would still apply,
	but many of the protections that the civil servants now have,
	those would go, and this would have many detrimental effects.
	Mr. Raskin. OK. Thank you.
	Ms. Lachance, let me ask you, is President Biden's
	executive order reversing President Trump's Schedule F
	executive order enough to repair the damage of what was done?
	Should we just stick with that executive order by President
	Biden?
	Ms. Lachance. Thank you, Congressman. I think it was a
	great start, and it had to be done immediately. We had to send
	a signal right away to say that this sort of cherry picking of
	deciding who stays and who goes had to end and it had to end
	immediately. However, I do think that the Congress should take
	a very, very careful look at whether those decisions should be
	the purview of a single President, of either party, of any
	party.
	Shouldn't this process be subjected to and be a part of the
	deliberations that occur in this body and in the Senate? And
	shouldn't we think about these things carefully, rather than
	doing something with the stroke of a pen, removing people's
	protections, and, in my view, actually undermining an evidence-
	based and data-based decisionmaking----
	Mr. Raskin. Thank you. I've got to cut you off because I
	have one more question for President Kelley. What can we do to
	restore the morale of the workforce after these serial assaults
	on it over the last several years?
	Mr. Connolly. The gentleman's time has expired. Mr. Kelley,
	you may respond briefly.
	Mr. Kelley. Well, first of all, you know, I will say that,
	you know, we have to concentrate on getting the morale of the
	workforce back up. We have to concentrate on pay, making sure
	that employees are paid adequately.
	Now, you know, every corporation in America has figured
	this out, right? You know, if you want to attract and retain
	better talent, pay more and offer better benefits. The Federal
	Government is the only place where the idea is entertained that
	to attract better talent you are to offer less.
	Mr. Raskin. Thank you.
	Mr. Connolly. Thank you, Mr. Kelley. And thank you, Mr.
	Raskin.
	The gentleman from Kentucky, Mr. Comer, is recognized for
	five minutes.
	Mr. Comer. I want to thank the chairman and Ranking Member
	Hice for having this committee and having a hybrid committee.
	My questions will be for Mr. Sherk. I know that several of
	my colleagues have quoted the OPM 2019 Federal Employee
	Viewpoint Survey, but I wanted to read four of the questions
	that had the lowest percentage of agreement. Of course, this
	survey was for our Federal employees. And one question was, pay
	raises depend on how well employees perform their jobs. Only 28
	percent of Federal employees agreed to that.
	The next question: In my work unit, steps are taken to deal
	with a poor performer who cannot or will not improve. Only 34
	percent agreed with that.
	Next, promotions in my work unit are based on merit. Only
	39 percent of Federal employees agreed with that.
	And last, in my work unit, differences in performance are
	recognized in a meaningful way. And, again, only 39 percent of
	Federal employees agree with that.
	So, I think these questions raise a problem that we have in
	delivering a merit-based Federal workforce for the American
	taxpayer.
	My question is, have the limitations on Federal manager's
	rights to remove or discipline poor performers contributed to
	these views that an overwhelming majority of Federal employees
	share?
	Mr. Sherk. The short answer is yes, and decades of study
	back up that conclusion. Studies by the Merit Systems
	Protection Board itself, which demonstrates that most Federal
	employees just believe it's--or sorry, most Federal supervisors
	don't believe that it's worth the time and the effort to remove
	a poor performer. It might not succeed and most of them won't
	even try. We've seen that for decades.
	If you want to rate people on performance and pay on
	performance and promote on performance, you need a system where
	managers can accurately rate people on performance, and if you
	got a poor performer, get rid of them. And that is not the
	system we have now, unfortunately.
	Mr. Comer. Now, our friend in the last question--or Mr.
	Raskin's concluded that the morale was low because of President
	Trump. But before I came to Congress, I worked in state
	government. I was a state representative, and I was
	commissioner of agriculture, so I had a government agency with
	about 300 employees. And I would say those survey questions
	would have been pretty consistent with how state employees feel
	as well.
	So, do you agree that these responses show we have a
	problem in delivering a truly merit-based system of Federal
	employment for the benefit of the American taxpayers or is it a
	problem with the personality of the last administration or the
	management of the last administration? In other words, has this
	been a problem for a long time or was this just a problem over
	the last four years?
	Mr. Sherk. Well, if you go back and look at the FEVS survey
	results, Federal employees, in general, have been satisfied
	with the work writ large, but where they find the biggest pain
	point is the lack of accountability for performance that
	they're not promoted, they don't get raises based on
	performance no matter how hard they work, and then they look at
	their fellow employees who are poor performers and they just
	stay there day after day. This is being a consistent pain
	point. You go back year over year, that question on does your
	work unit get rid of poor performers is always either the first
	or the second most negative response in all of FEVS. So, this
	has been a consistent problem going back a long time.
	Overall, Federal employees like their jobs and think
	they're doing good work, but this really irritates them, and
	this is something the Trump administration was trying to
	address to respond to the voice of the Federal employees who
	want us to do better.
	Mr. Comer. Well, I'll agree with everything you said. And
	there's nothing worse for a good government employee than to
	have to work beside a bad government employee, one that doesn't
	work, one that doesn't perform, one who is tardy. And there's
	really oftentimes no incentive for that good employee to
	continue doing good work above and beyond.
	So, I appreciate the fact that we're having this hearing. I
	hope that we can move forward some day and agree on reforms
	that will not only benefit the morale of the Federal workforce,
	but also benefit the American taxpayers with creating a system
	where the best government employees can be rewarded accordingly
	and the ones that are poor performers can be terminated.
	With that, Mr. Chairman, I yield back.
	Mr. Connolly. I thank the gentleman.
	The gentlelady from California, Ms. Porter, is recognized
	for five minutes. Ms. Porter.
	Ms. Porter. Thank you.
	Professor O'Connell, we've worked together in the past on
	my Accountability for Acting Officials Act that closes
	loopholes that allow the President to go around Congress to
	appoint unqualified acting agency heads, effectively leaving
	top positions vacant. And the effect of this is that many
	agencies were left without real leadership during President
	Trump's tenure and during the COVID-19 crisis. Other agencies
	were completely unable to function, like the Merit Systems
	Protection Board.
	Can you tell me very, very briefly, what the Merit Systems
	Protection Board does and what is its purpose?
	Ms. O'Connell. Sure, Congresswoman. The MSPB is an
	independent, quasi-judicial agency that was established in the
	Civil Service Reform Act of 1978 to protect Federal merit
	systems against partisan political practices and to ensure
	protection for Federal employees against abuses by agency
	management. So protecting people like whistleblowers.
	Ms. Porter. Great. And tell me, what has the Merit Systems
	Protection Board been up to the last few years?
	Ms. O'Connell. Not much. It's been without a single board
	member for two years, a first for the agency, and it's lacked a
	quorum required for operations for roughly four years.
	Ms. Porter. So, the Board has no board members. Is that
	correct?
	Ms. O'Connell. That's right. It's supposed to have five
	Senate-confirmed appointees, and it has zero.
	Ms. Porter. OK. I have a question, and I don't know if you
	know these things, but I think it's good for the committee to
	learn. Does the Merit Systems Protection Board have staff?
	Ms. O'Connell. Yes, it does have staff.
	Ms. Porter. Do you know about how many?
	Ms. O'Connell. I do not know how many staff it has, but I
	know that it just issued a report about direct hiring
	authorities.
	Ms. Porter. OK. It has 235 staff members.
	How about offices? Do they have offices that we're paying
	for as taxpayers?
	Ms. O'Connell. Oh, yes.
	Ms. Porter. Yes, they have nine offices, actually,
	including one in D.C., and regional offices.
	Do you know about what the budget is that we the taxpayers
	are paying for the Merit Systems Protection Board?
	Ms. O'Connell. Millions of dollars.
	Ms. Porter. Correct. Their request for Fiscal Year 2021 was
	$42 million. So, we're spending $42 million, have 235 people in
	nine offices.
	How many cases has the Board adjudicated over the last four
	years?
	Ms. O'Connell. Zero. So, there's a backlog of over 3,000
	cases.
	Ms. Porter. So, we spent $42 million, have operating nine
	offices, with 235 Federal employees, we have adjudicated zero
	cases, and 3,000 Federal cases are waiting to be adjudicated,
	but we were unable to do them.
	Ms. O'Connell. That's right.
	Ms. Porter. How is this good government?
	Ms. O'Connell. It's not good government.
	Ms. Porter. So, how are we spending taxpayer dollars wisely
	here?
	Ms. O'Connell. We're not. We need to get the agency staffed
	with Senate-confirmed appointees, and we need to clear that
	backlog, which is going to take--even the most aggressive
	estimates is that it would take 6 to 8 months. Other estimates,
	that it could take far longer. And we have----
	Ms. Porter. So, we're going to have to spend even more to
	catch up to deal with the backlog that we've allowed to be
	created.
	Right now, if somebody--right now, who is protecting a
	whistleblower when they call out a Federal worker who calls out
	fraud, waste, and abuse? If they're attacked or fired or
	demoted for that, who's protecting them? Who's adjudicating
	that case?
	Ms. O'Connell. Some cases, if the employee can pay, can go
	to the Federal circuit. But, generally, employees don't have
	protection. Their protection is the MSPB.
	Ms. Porter. Which, to go back, has adjudicated zero cases.
	So, essentially, by not appointing and confirming people to the
	Merit Systems Protection Board, we've wasted taxpayer dollars,
	we've neutered the agency from being able to do its work
	effectively, and we've left Federal employees who are stepping
	up to be whistleblowers to protect against race, fraud, and
	abuse. I'm just surprised there hasn't been a whistleblower
	from the Merit Systems Protection Board calling out the waste,
	fraud, and abuse that we're allowing to go on there without
	appointed board members.
	You said that we should definitely get these board seats
	filled as soon as possible. You've also shown support in the
	past for this subcommittee and Chairman Connolly's Merit
	Systems Protection Board Empowerment Act. What would that Act
	do, and why is it important to addressing this wasteful
	situation we have now?
	Ms. O'Connell. Well, we need to get members in. We also--in
	the case of vacancies, there was also legislation in the last
	session that was not enacted in the last session of Congress to
	perhaps delegate a certain work to the general counsel of the
	MSPB, which would also be critically important. And, of course,
	MSPB administrative judges need to be trained in whistleblowing
	and whistleblower protection as well before they adjudicate
	these critical cases.
	Ms. Porter. Thank you so much, Professor O'Connell.
	I yield back.
	Mr. Connolly. Thank you, Congresswoman Porter. And thank
	you for that whiteboard. I love it.
	Mr. Hice. Mr. Chairman?
	Mr. Connolly. Yes. Thank you.
	Mr. Hice. Earlier in the hearing, I believe it was Ms.
	Norton and Dr. Kelley, a statement was made to the effect that
	there was no guidance from the Trump administration or it was
	so vague regarding the COVID response. And I would just like to
	submit to the record that that is not accurate. There was
	guidance for a COVID response that followed CDC guidelines and
	that Federal agencies have PPE, and I would like to submit for
	the record that guidance.
	Mr. Connolly. So, you are submitting that for the record?
	Mr. Hice. Yes, sir.
	Mr. Connolly. Without objection, so ordered.
	Mr. Hice. Thank you.
	Mr. Connolly. The gentleman from Virginia, Mr. Beyer, is
	recognized.
	Mr. Beyer. Chairman Connolly, thank you very much. And
	thank you for allowing me to waive on. Ranking Member Hice
	also.
	Chairman Connolly, as you know, we go back and forth as to
	who represents the most Federal workers, but I have about
	87,000, and I've been listening to four years of extreme
	unhappiness from state Department employees, EPA, U.S.
	Department of Interior, the IRS, Social Security, about how
	they are treated. And, in fact, there's one easy way--I know
	people mentioning again and again the Federal employee survey,
	which I respect.
	There's another survey which was held on the second or the
	first Tuesday in November. Eighty percent of the employees--of
	the voters in my district did not vote for the outgoing
	President, which I think is pretty telling about what they
	thought about how they were treated by that President.
	By the way, this notion that you can't fire a Federal
	employee, 24 Federal employees are fired every day in America.
	Ten thousand last year. And this is after every Federal
	employee has a one-year probation period. In the Department of
	Defense, it's a two-year probation period. So many of them are
	let go before there's any of these, you know, ways to protest
	it.
	In fact, Government Executive magazine had suggested that
	the rigors of the Federal hiring process that weed out the poor
	performers before they start may be one reason why that only
	10,000 are fired every year.
	But, Chairman Connolly, I've been a boss for a long time,
	and I know that the most important thing as the leader is to
	create a culture where workers are valued, are respected, where
	the work is important. And, instead, what I have heard, first
	from Ronald Reagan who's told us that I'm here from the
	government, I'm here to help you, and from my dear Republican
	colleagues over the years who have talked about the nameless,
	faceless bureaucrats, and now we learn that they played video
	games and social media all day long.
	You know, Chairman Connolly, the ratio of Federal workers
	to American citizens right now is the lowest it's been since
	1960. We have fewer workers serving more Americans more
	effectively than ever before.
	But I'd like to give my--Mr. Kelley an opportunity to
	respond to Mr. Sherk's notion that the only purpose of a
	Federal employee union is to keep bad people from getting
	fired. Don't you think you might have a different selling
	proposition, Mr. Kelley?
	Mr. Connolly. Mr. Kelley.
	Mr. Kelley. Thank you. Can you hear me?
	Mr. Connolly. Loud and clear.
	Mr. Kelley. OK. Great.
	Well, thank you for that question. You know, I've listened
	to this testimony about poor performers, you know, and Mr.
	Sherk testified that Federal employees jobs satisfactory roles,
	you know, under Mr. Trump. And I represent several hundred
	thousand of government--D.C. government employees. I've heard a
	lot of stories, but never did I hear someone say that they were
	better off as a Federal employee under the Trump
	administration, especially, you know, not after the pandemic
	hit.
	Now, he also said that Federal employees are worried about
	poor performance. He's right. I remember the word that the
	Trump administration create a whole new class of Schedule F
	employees and filled those positions with unqualified,
	political flunkies. Now, thankfully, Mr. Trump was forced from
	office before he could finish this particular scheme.
	Now, a lot has been made about poor performers in Federal
	Government, but for many of my members and most Americans, some
	of the worst performers of the last few years were agency heads
	under the Trump administration. He appointed people who were--
	who had dedicated their entire careers to undermining agency
	mission. Then they were allowed to corrupt them from the
	inside.
	These poor performers left a mess, and the dedicated career
	public servants I represent are now working with the Biden
	administration to clean it up. Now, excuse me if I had a hard
	time taking lectures on performance letters from the
	administration responsible for the pandemic response that left
	500,000 Americans dead.
	Now, when it comes to the performance, we believe in due
	process. We believe that the problem is not the system; the
	problem is the management. Because if you would take time and
	not be lazy, take time and document the actions of a poor
	performer, then it's not hard to find. As a matter of fact,
	it's very easy to find them.
	If a person is constantly coming in late and you document
	it, you document that, and then you present that, and no one
	can argue that if you got documentation this person's been late
	10 times specifically. No one can argue that. If someone is--
	and this is the first time I'm learning that, you know, a
	Federal employee is sitting around, you know, selling their
	businesses or during duty time, if that's the case, why the
	supervisor is not documenting that. Because if they document
	that, that is absolutely an opportunity to get rid of that
	employee. Because I too believe that's poor performance.
	Mr. Connolly. Thank you.
	Mr. Beyer. Thank you, Mr. Kelley.
	Mr. Connolly. The gentleman's time has expired.
	The gentlelady from Virginia, Ms. Wexton, is recognized for
	five minutes.
	Ms. Wexton. Thank you, Mr. Chairman. And thank you, Ranking
	Member, for allowing me to waive on to the committee today. And
	thank you to the witnesses for testifying.
	Like many of my colleagues from the National Capital Region
	who are on this committee, I hear directly from state and
	Federal workers almost every day because they are my
	constituents. So, I'm really happy to be discussing these
	issues that are so important for a functioning civil service.
	In particular, thank you for bringing up agency relocations
	in your testimony, Professor O'Connell.
	When the Trump administration sought to relocate several
	executive branch agencies during their tenure, hundreds of
	Federal employees were told if they wanted to keep their jobs,
	they would need to move out of the Washington, DC. area. Some
	in as little as 30 days. That included employees at USDA's
	Economic Research Service and National Institute of Food and
	Agriculture to Kansas City, and the Bureau of Land Management
	Headquarters to Grand Junction, Colorado.
	When I started looking into how to help my constituents, I
	was surprised to hear that--to learn that Federal agencies
	currently are not required to conduct a cost-benefit analysis
	in advance of their relocations. For example, the USDA, their
	move was opposed by Congress, by scientific stakeholders, by
	land-grant universities, and even by the labor unions
	representing the farmers, all of whom the agency is supposed to
	be serving. Only about 25 percent of ERS and NIFA's workforce
	relocated, and the USDA is still trying to fill open positions
	to replace these employees.
	So, how exactly did this relocation serve the agency's
	mission? It's unclear because the USDA only produced an 11-page
	summary of a cost-benefit analysis that they paid a third party
	to conduct. But we know that fulfilling the agency's missions
	was not a priority for the Trump administration and, in fact,
	making it easier to fire employees was, which is why Mick
	Mulvaney, who was then acting White House chief of staff,
	praised the move because Federal employees quitting was, quote,
	a wonderful way to streamline the government.
	My legislation, the COST of Relocations Act, will ensure
	that agencies seeking to relocate conduct an analysis in
	accordance with the Federal guidelines and best practices for
	conducting that cost-benefit analysis. These standards include
	quantitative data, such as the cost of real estate and
	staffing, and they also include qualitative metrics, such as
	employee attrition and the impact on the agency's ability to
	fill its mission. The analysis would be made public, and the
	agency's IG would quickly audit it and submit a report to
	Congress. That way Congress and taxpayers know exactly how a
	proposed move serves the American people, which should be the
	goal of all agencies.
	Professor O'Connell, can you talk about how the threat of
	relocation affects agency employees at their agency?
	Ms. O'Connell. Yes, Congresswoman. The threat of
	reorganization and relocation produces a lot of uncertainty.
	That uncertainty, especially with lack of buy-in, lowers
	morale. And lower morale typically undermines agency
	performance. So, these Federal Employee Viewpoint Surveys we're
	talking a lot about, those agricultural organizations sat at
	36.5 and 20.3. That's the Economic Research Service was the
	first one, and the National Institute of Food and Agriculture
	was the second one. And those were drops of more 30 points in
	each of those agencies since 2016.
	Ms. Wexton. So, if the agency has to rehire positions,
	often losing people that we have with many years of experience
	and, you know, institutional knowledge, what does that do to
	the functioning of that agency? And how does that impact the
	ability of that agency to serve the American people?
	Ms. O'Connell. It does in several ways. First, the
	departures of longstanding expert career workers, that
	represents years, if not decades of expertise that go out the
	door, and that hurts the performance of the agency. Second,
	when the jobs then are vacant, the agency then has to spend
	time and resources in filling those slots, and that's time and
	resources that could have been devoted to the agency's mission.
	And there's a cost to the taxpayers as well.
	Ms. Wexton. And specifically with regard to the relocation
	of the operations at the Department of Agriculture, how has it
	impacted their operation of the employee engagement considering
	that the majority of employees did not make the move?
	Ms. O'Connell. Yes, Representative. Various news reports
	have indicated that at the Economic Research Service, for
	example, its productivity dropped by half, if you measure by
	the research reports, which is a predominant action of that
	agency. Also, news reports indicated that sponsored research by
	the National Institute of Food and Agriculture is receiving
	less supervision and less oversight. So, those are concrete
	examples of consequences in those two USDA entities.
	Ms. Wexton. So, it's safe to say that their missions have
	been impaired by this news. Would you agree.
	Ms. O'Connell. Yes, definitely.
	Ms. Wexton. Thank you very much.
	I see my time is up, and I yield back.
	Mr. Connolly. Right on the nose. Thank you, Ms. Wexton.
	The chair recognizes himself for the last line of
	questioning.
	Ms. Lachance, to listen to Mr. Sherk and others,
	apparently, despite the longest Federal Government shutdown in
	history, 35 days, relocation of whole offices to other parts of
	the country, pay freezes, hiring freezes, lack of due process
	because of the unwillingness to fill board positions as an
	organization like the Merit Systems Protection Board, and then
	the creation of a whole new schedule that actually allows the
	executive branch--the executive in the executive branch to
	bypass the entire civil service protection system, we're
	supposed to believe that people come to work happier than ever
	and whistle while they work.
	Do you believe that that's an accurate assessment of where
	the Federal workforce is in terms of morale and productivity
	and attitude toward their jobs?
	Ms. Lachance. It's hard to argue with data. On the other
	hand, a survey can't ask the opinion of people who have left,
	people who've been demoralized, people who have given up.
	They're probably not filling out the survey.
	And, actually, I'm not surprised that the satisfaction
	increased over four years. Typically, when a new administration
	comes to power, there's a lot of concern on both sides. Who are
	these new people? Are the civil servants going to be loyal to
	the past administration? And over time, the humanity comes into
	play, and people get to know each other, they start to trust
	each other. So, the satisfaction rates can increase.
	In the past administration, I am just sorry that that level
	of trust, cooperation, that seems to be exemplified by the
	Federal Employee Viewpoint Survey, never reached the White
	House. And we heard constant attacks on Federal employees
	throughout the last four years. It started during the campaign
	with the Deep State and with issues--with people who have been
	discredited in their jobs and not listened to, not paid
	attention to. They've been stifled. Their research has been
	limited and not been allowed to--to play a part in policy
	setting. And so it is hard for me to believe that if you talk
	to everybody who worked over the past four years, that we would
	be----
	Mr. Connolly. You obviously are familiar with the FEVS, the
	Federal Employee Viewpoint Survey, right?
	Ms. Lachance. Yes, sir.
	Mr. Connolly. And I am looking at data. And although some
	would like us to believe that everybody's just happy as clams,
	I'm looking at six Federal agencies that had relatively
	significant declines in satisfaction: Labor, the Environmental
	Protection Agency, Justice Department, State Department,
	Agriculture, and Education. Education being the most
	pronounced, 16 percent. In fact, it's the only Federal agency
	that had a double-digit change of any kind, and it was
	negative. So, it's not like everybody's whistling to work and
	happy as clams.
	Ms. Lachance. Right.
	Mr. Connolly. There have been consequences from the--now,
	Professor O'Connell, you--we were--we heard testimony here
	today that Schedule F is really kind of--even though it was
	purely by executive order, which I object to on principle,
	whether it's Democrat or Republican. Congress needs to be
	involved. And I'm hopeful I can engage my friends from the
	other side of the aisle in looking at that from a purely
	separation of powers issue.
	But if I look at the merits of Schedule F, some of the
	testimony we've heard today, Professor O'Connell, would have us
	believe that this was a good government measure. But then we
	heard that, actually, it's not based on performance at all.
	What's the story from your point of view?
	Ms. O'Connell. I think Schedule F largely was disingenuous.
	I mean, I think if you're concerned about the difficulty in
	getting bad performing employees removed, well, then you won a
	fully staffed Merit Systems Protection Board to help process,
	you know, those deserved firings quicker. And to go for a
	system of all of these protections to no protections seems like
	the wrong answer to various concerns, right.
	The head of this Federal Salary Council resigned because of
	the Schedule F executive order and said he simply could not be
	part of an administration that seeks to replace apolitical
	expertise with political abeyances.
	Mr. Connolly. Thank you. My time is up.
	In closing, I want to thank our witnesses for their
	remarks. I want to commend my colleagues for participating in
	this important conversation. By the way, this is a timely
	hearing because we are told that within a half hour or so, the
	new head of OPM will be announced by the White House, or the
	prospective new head. So, that--it's a timely hearing.
	I also want to insert into the record statements from the
	National Federation of Federal Employees and the National
	Whistleblower Center in support of the MSPB Empowerment Act,
	which was discussed earlier, which we are also reintroducing
	today.
	I also want to insert into the record statements in support
	of our hearing from the National Treasury Employees Union; the
	National Active and Retired Federal Employees Association; the
	Partnership of Public Service; Professor Nina Mendelson, Joseph
	Sax Collegiate Professor of Law at the University of Michigan
	Law School; and Professor David Lewis, Rebecca Webb Wilson
	University, distinguished professor at Vanderbilt University.
	With that, without objection, all members will have five
	legislative days within which to submit additional written
	questions for the witnesses through the chair which will be
	forwarded to the witnesses for their response. We ask all
	witnesses, should such questions come to you, please respond as
	expeditiously as possible.
	With that, this hearing is adjourned. Thank you.
	[Whereupon, at 1:31 p.m., the subcommittee was adjourned.]

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