Safeguarding Our Nation's Secrets: Examining the National Security Workforce

11/20/2013

Senate Homeland Security and Governmental Affairs Committee Subcommittee on the Efficiency and Effectiveness of Federal Programs and the Federal Workforce

Chairman Tester and ranking Member Portman: Thank you for allowing me to provide NTEU’s views on this important topic. As National President of the National Treasury Employees Union, I represent over 150,000 employees in 31 agencies across government. Many of my members are in positions deemed “sensitive” by their agencies, and we are greatly concerned about the process used to make that designation and by the recent court ruling that threatens any review of agency decisions concerning the eligibility of employees to occupy “sensitive” positions.

This past August, the U. S. Court of Appeals for the Federal Circuit released its decision in Kaplan v. Conyers. The Court ruled that the Merit Systems Protection Board (MSPB) could not engage in substantive review of Department of Defense (DoD) decisions concerning the eligibility of employees to occupy “sensitive” positions, even though the MSPB had been capably doing so for decades. While the decision was technically limited to DoD, its broad reasoning will almost certainly be extended to all agencies.

The executive branch already has unlimited discretion to designate positions as “sensitive”. There is no monitoring or reporting of how agencies arrive at this decision and each agency can create its own guidelines. Indeed, there appears to be a great deal of inconsistency in how the determinations are made. In recent years, many agencies have designated huge numbers of employees as “sensitive”. At Customs and Border Protection, for example, almost all of the roughly 24,000 bargaining unit positions have been designated as “noncritical-sensitive”, but only a small fraction require security clearances.

By allowing agencies to take unreviewable adverse actions against occupants of “sensitive” positions on the basis of eligibility, the Conyers decision provides incentives for agencies to continue to expand the number of positions designated as “sensitive” and to use eligibility as the basis for adverse actions since neither is subject to review. Once an agency has designated an employee as “sensitive”, it can then deem that employee ineligible for his or her job. It can be based on incomplete or faulty background information; it can be for reasons motivated by an employee’s race, religion, or constitutionally protected speech; it can be for retaliatory reasons; it can be because the employee is a whistleblower – the decision by the agency of being ineligible for the job is not reviewable under Conyers.

The Civil Service Reform Act sets out narrow national security exemptions to the adverse action appeals processes included in the law. The court’s decision in an earlier case (Egan) held that the MSPB could not review agency security clearance determinations. However, the positions at issue in Conyers do not involve security clearances or access to classified information. The Conyers decision creates an exemption that swallows the rule, leaving hundreds of thousands of employees with little practical ability to ensure that adverse actions taken against them are legally appropriate. In essence, the Conyers decision allows the executive branch to ignore the Civil Service Reform Act. If the MSPB is not able to review eligibility determinations, agencies can remove, suspend, or demote any employee they deem “ineligible” without ever having to justify the basis for their determination.

NTEU believes Congress should address the impact of the Conyers decision, which will affect such a large segment of the federal workforce. NTEU supports a bill offered by Rep. Eleanor Holmes Norton in the House (HR 3278) that would amend chapter 77 of title 5 to clarify certain due process rights of federal employees serving in “sensitive” positions. It provides that an employee or applicant for employment who is appealing an action arising from an ineligibility determination may not be denied MSPB review of that determination if the position does not require a security clearance or access to classified information, and is otherwise appealable. We believe this is a sensible solution that balances national security and due process interests. Thank you for your attention to this important topic.