Blowing the whistle on Trump’s mistreatment of civil servants

Civil servants are the glue that holds together our federal government. They are the experts who advise the president and his Cabinet on the pros and cons of particular policies. They are the continuity between administrations, even, or perhaps especially, administrations of different parties. And they are the voices of responsible implementation, ready to carry out whatever decisions the political leadership may reach but prepared to ensure that such implementation is lawful, sensible and effective.

Unfortunately, since Jan. 20, some civil servants, and especially certain senior civil servants, have fallen victim to an administration uninterested in their hard-earned experience and apparently intolerant of questioning of the administration’s pre-existing ideological commitments. That’s why we at Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection have just filed a letter with the U.S. Office of Special Counsel on behalf of 13 leading scholars of constitutional, administrative and civil service law in support of a whistleblower. His story speaks to our broader and growing concerns about how senior civil servants are being treated.

In June, the U.S. Department of the Interior reassigned to new jobs approximately fifty of its highest-ranking career civil servants, all members of the Senior Executive Service (SES). Despite this mass movement of over one-fifth of its senior leadership, the Interior Department offered no meaningful justification to its employees, let alone to the public. Two months later, we remain in the dark, even amidst reports that another wave of reassignments is planned.

One of those reassigned senior executives, Joel Clement — previously the Interior Department’s top climate policy official — has filed a complaint with the Office of Special Counsel alleging that his reassignment came in retaliation for blowing the whistle on the imminent dangers facing coastal Alaska Native communities. After raising the alarm that, because of climate change, these communities are in danger of being washed away in the next big storm, Clement was moved from his role as the director of the Office of Policy Analysis, where he supervised 24 employees, to an accounting position for which he has no relevant qualifications.

If and when Interior Secretary Ryan Zinke offers an explanation for this action, he may argue that Clement and the dozens of other Interior Department employees reassigned with him simply got what they signed up for. Congress created the SES to provide the executive branch with a group of highly skilled managers — now responsible for administering numerous critical federal programs — with the versatility to meet a variety of agency needs. All members of the SES are thus subject to reassignment — but only under certain circumstances. And, as we explain in our letter, it would represent a dangerous expansion of the reassignment power to deem this one such a circumstance.

That’s because Congress specifically intended that agencies use their SES reassignment authority to shift personnel strategically to improve effectiveness and efficiency of agencies. At the same time, Congress insisted that reassignments not be wielded as weapons of retaliation or political intimidation. Federal law makes this clear in a number of ways. It’s unlawful to reassign an employee on account of political affiliation or for whistleblowing. And to avoid knee-jerk reassignments that disregard the merit of employees, agency heads cannot reassign members of the SES within 120 days of taking charge. Worrisomely, Clement and his colleagues were informed they would be moved before those 120 days had passed, with the reassignments apparently delayed so that they would formally take effect after the 120-day period.

Plus, to ensure skills of senior executives are put to good use, such executives may be reassigned only to positions for which they’re “qualified.” In theory, this limitation should prevent an agency head from forcing a climate scientist like Clement to languish in an accounting office in the hopes that he “voluntarily” resigns — a practice explicitly encouraged by some in the Nixon administration and one Congress sought to abolish with today’s civil servant protections. But Secretary Zinke has appeared to embrace publicly this impermissible approach, testifying to the Senate Energy and Natural Resources Committee that he planned to eliminate 4,000 jobs through, among other means, reassignments.

These constraints on reassignment authority are not just the law, they’re also good policy. Recruiting and retaining highly skilled senior executives is hard enough already, as Presidents George W. Bush and Obama both recognized in supporting reforms aimed at improving SES pay and rewards. Why make it harder by creating a culture of fear of reassignment, as Zinke’s public comments and private actions appear designed to do?

Moreover, a looming threat of reassignment may discourage senior executives from sharing their expertise. Nonpolitical members of the SES average 18 years in the federal government before rising to this top echelon of the civil service. With that comes immense institutional knowledge that can be brought to bear on the challenges facing federal agencies, thus informing the decisions of any political leadership. Silencing that voice of wisdom and experience prevents political appointees from making fully informed decisions to the public’s detriment.

Clement’s case presents an important opportunity for the Office of Special Counsel to send a clear signal to the administration. The office should carefully police the line between mission-inspired reassignments and retaliatory ones to ensure that President Trump’s vow to “drain the swamp” does not become a full-blown political purge of the civil service.

Robert D. Friedman and Joshua A. Geltzer serve as institute fellow and executive director, respectively, at Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection. Friedman previously served as the Relman civil rights fellow at Relman, Dane & Colfax. Geltzer previously served as senior director for counterterrorism and deputy legal adviser at the National Security Council during the Obama administration.

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