Homeland Security Legislation
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MARGARET WARNER: For more on the debate over whether to extend civil service protection and collective bargaining in the new department, we are joined by two members of the House Select Committee on Homeland Security: Rob Portman, a Republican from Ohio, and Robert Menendez, a Democrat from New Jersey. Welcome to you both.
Rob Portman beginning with you. The president said today he needs managerial flexibility in this department. Why is that important?
REP. ROB PORTMAN (R-Ohio): Margaret, it’s absolutely critical in my view if this department is going to work that the president be able to take the 22 different personnel systems from 22 different agencies of government and meld them together in a way that we consolidate, streamline and make an effective agency to combat terrorism.
Secondly, the agility of the terrorist needs to be matched by a more agile federal work force than is available if the president does not have some flexibility. All worker protections are in this legislation including protections against whistle blowers. I just saw a comment on that on the floor. It’s in the legislation.
What the president does ask for is some basic flexibility’s in the area of pay, performance, classification and in appeals and adverse actions. I think it’s a good piece of legislation because it gives him, I believe, the kind of managerial and the kind of personnel flexibility he’s going to need, badly need, in order to make this work.
MARGARET WARNER: Congressman Menendez, you disagree with that. You don’t think he needs this.
REP. ROBERT MENENDEZ (D-N.J.): I don’t think he needs the flexibility to the great extent that he wants it. For all intents and purposes Section 730 of Title 5 that guarantees these federal employees a variety of rights — whistle blower protection, collective bargaining rights and other important issues important to people not only in the federal work force but throughout the country — will in essence be subject to being waived by a presidential determination on… that this is a national security interest.
The reality is, is that the president earlier this year used those similar provisions in reference to the US Attorney’s Office where over 500 individuals who were seeking to be unionized were suddenly taken away of all of their rights including their right to collective bargaining even though many of them were, for example, clerical employees having nothing to do with national security. So homeland security should not mean public employee insecurity. These are the people who we’re going to need their talent, their experience, their depth of knowledge from the different departments they’re coming from, and it is important to have them come into a department as patriots as they are willing and able to perform at the highest order, but they shouldn’t be insecure to do so.
And I don’t think that the president, who has said increasingly that in fact he doesn’t mean to violate any of these protections, then why not have them in the bill? If you don’t intend to violate any of the protections, then why not have them in the bill? The bill… there are provisions. The president would have plenty of flexibility particularly if some employees were going into categories having been transferred involuntarily into this new department, they would be going into categories that have to deal with intelligence, that have to deal with security issues, in two or three key categories he would have the flexibility.
But you don’t need this broad brush that I think will make federal employees insecure and doesn’t provide the goals of having that institutional knowledge and that spirit de corps that is going to be necessary to make this new department successful.
MARGARET WARNER: Congressman Portman why do you believe and does the president believe that he needs to have this kind of flexibility throughout the department?
REP. ROB PORTMAN: Margaret, again it’s the basic flexibility to make this work. Let me just be clear again. The whistle blower protections are included in the legislation. There’s no change in current law with regard to whistle blowers. All of the worker protections found in Title 5 of the United States code, which is the civil service protections, are included in the legislation.
MARGARET WARNER: Excuse me. Let me interrupt you for a moment. You’re talking there about things like basic civil rights or equal employment opportunity.
REP. ROB PORTMAN: That’s correct.
MARGARET WARNER: All of that is still preserved.
REP. ROB PORTMAN: The workers would be treated with the same respect that other federal workers are. What the president is asking for is something very specific. And it actually is not the same flexibility he currently has in the Transportation Security Agency, which was passed by this Congress in the last year in response to September 11. It doesn’t even go that far.
But what the president has said is with regard to this agency in order to bring together these 22 different personnel systems and to make this new entity work, to be able to protect our kids and our grand kids into the future against terrorism, we need to have the ability to have the right people in the right place.
We need to be able to offer pay incentives. I couldn’t agree with Bob more on the need to deploy these folks in a way where they have high morale, where they feel like they’re part of a team. That’s what this is all about. It’s paying people for their good performance. It’s being able to get rid of people who aren’t doing the right thing. In the end, employee protections are protected but not at the expense of homeland security. I think it’s the right balance.
MARGARET WARNER: All right. But Congressman Portman, people who aren’t familiar with the civil service system, give me an example of how civil service protections would get in the way of that.
REP. ROB PORTMAN: Let me give you a specific example. Right now if you want to go out and hire the best bioterrorist expert in response to a threat of bioterrorism, it can take you up to five months to hire that person following the civil service rules. A terrorist can commit an act of bioterrorism in five seconds or maybe five minutes. It shouldn’t take five months.
REP. ROB PORTMAN: This is a new idea, admittedly; it’s a 21st century approach to employment practices that says let’s get the best people in the right places and let’s be able to move people around as necessary. Another great example `would be on the border. We now have on our southern border of Mexico and on the border with Canada several agencies involved in protecting our border: The Customs Services, the Border Patrol; the agricultural inspection folks, the Coast Guard. They’re going to come together now in one border security agency.
It’s very important because right now the left hand doesn’t know what the right hand is doing. You have different people without accountability and responsibility. You want to bring that together.
In order to do that, you’re going to need to have a pay system that is consistent across all those different personnel systems. And under current civil service rules you simply couldn’t do that. These are the kinds of things the president is asking for. It’s not to take away collective bargaining rights. In fact, collective bargaining rights continue just as they do now. What Bob was referring to earlier was a presidential waiver where because of national security he would be able to pull people out of collective bargaining. That is a current right of the President and has been since Jimmy Carter. Presidents have used it sparingly but it seems to meal it would be ironic to take away that existing right of the president in the case of homeland security so we fought against that today.
MARGARET WARNER: Congressman Menendez, let me get you to respond on first the civil service side, which is the first examples that Congressman Portman gave. And the argument the president is making is there are rigidities in this civil service system. Do you think that’s not the case, that the president could work perfectly well with all those additional rules?
REP. ROBERT MENENDEZ: I think that the president is given under the legislation broader powers than he needs and far greater… it’s beyond flexibility. It’s basically undoing a whole host of civil service rights.
First of all, the reality is, is that what Rob, who I have a great deal of respect for and has worked on this issue, but what Rob describes is not necessarily the crux of the issue here. I think there would be plenty of flexibility in that regard.
MARGARET WARNER: You mean in being able to hire quickly without going through all the steps that are laid out now?
REP. ROBERT MENENDEZ: I believe the flexibility would exist there. I certainly believe anyone who is transferred into a position. I mean, basically what we say is if you came from a department and you were organized and had a union in that department and had rights under that department that when you get transferred, involuntarily those rights should continue to exist.
However, even though we allege — believe that those rights should continue to exist, if you do get transferred and you’re now in a position that has sensitivity, that has national security, that has intelligence aspects, that may have some law enforcement aspects, attached to it, thereby, the president would have the flexibility he needs to ensure that those people might not be in a collective bargaining agreement and might not have all the rights of all the other employees. That is plenty of flexibility.
But I would remind your audience that, in fact, the good government reforms that we now call civil service were to take partisanship out, were to take pressures out so that we could have people coming forth as Ms. Crowley came forth in the FBI and talked about things we never would have heard but for her coming forth and saying these were the things that went wrong in my attempts to tell the FBI leadership about Mr. Moussaoui.
So these are the elements that we want to preserve and we do not believe the bill as it stands preserves those realities. We believe we can give the president flexibility but not in this totally blunt way. We shouldn’t let go of those good government reforms that we have cherished for quite some period of time.
MARGARET WARNER: All right. Congressman Portman, let me turn the tables back on you. As Congressman Menendez says, a lot of these protections were put in because, unlike in private business, your managers are political appointees. If you give the president this kind of flexibility and freedom from all the civil service rules and regulations, how do you prevent that political power from being abused?
REP. ROB PORTMAN: Well it’s a great question. And I couldn’t agree with Bob more. That’s why the legislation specifically cites all those current protections under law. For instance, political patronage would be absolutely illegal. For instance, any partisanship would be absolutely illegal. For instance, whistleblower protections are current law. You can keep all those protections in place and we do. And you must.
Those are basic civil service protections that ought to be there. What we’re talking about is something that is a little different. And that is, the flexibility to be able to manage. And again there are two reasons this is so important to this President because he is the one that’s going to be asked to set up this new department. He’s taken a bold step. He’s given Congress a challenge and said let’s make this work better for the American people, taking these 22 different agencies, each of which has a little piece of homeland security where everybody is in charge and therefore no one is in charge. Let’s make someone accountable. Let’s create this new department.
But in doing so let’s put the right people in the right place. This is where the rigidity is in the current system– and it dates back to the 1950s and its antiquated civil service rules on things like classification and pay and performance and separation and appeals. These are the areas where– this does not have to do with political patronage or whistleblower or civil rights or all the other protections which stay in the code explicitly. And we make that very clear. But if you don’t provide those kinds of flexibility’s again on pay performance, classification, and so on, you’re not going to be able to meld these 22 agencies together.
Second is again this is a unique responsibility. We’re asking this department to be able to respond to an unpredictable and agile and a deadly threat of terrorism. We don’t know where they’re going to strike next. We know they will. We have got to be able to be agile in our response. That requires — it seems to me — the ability for the president to manage and to be flexible and to put the right people in the right place.
REP. ROBERT MENENDEZ: And I would just say that that agility that we both agree on can be accomplished as we have in the Department of Defense, in the Department of State, where we have some very significant and really important national security issues at stake both in the State Department and the Department of Defense and other agencies. And yet we have not seen the request for the broad, sweeping language under the guise of flexibility in those departments.
So if we could do it at the Department of Defense, if we can we could do at the Department of State, if we can do it at other agencies of the federal government involved with law enforcement, I think that the protections that are provided there should be fully provided here. And under the guise of flexibility we should not be watering down those protections. It’s worked there. It can work well here.
MARGARET WARNER: Congressman Menendez, Congressman Portman, thank you both.