A little-noticed provision of the $1 trillion infrastructure bill the Senate passed this week would create a new Transportation Department research agency that would operate outside the civil service system.
The move has angered the federal employee unions the Biden administration counts as powerful allies, leading to charges that the White House is embracing an approach to hiring and firing government employees put in place by President Donald Trump, who was hostile toward the federal workforce. Adding to the anger and confusion among union officials is that while President Biden moved in his first days in office to repeal a Trump-era order, known as Schedule F, that sought to remove civil service protections from a large class of federal employees, his administration now appears to be trying to use the same policy selectively.
“President Biden may have rescinded Schedule F, but the reintroduction of this governance model in an infrastructure bill is gratuitous and unnecessary . . . and represents an attack on the underpinnings of an apolitical civil service,” American Federation of Government Employees National President Everett Kelley wrote in a letter to lawmakers last week.
The Advanced Research Projects Agency for Infrastructure (ARPA-I) would operate as a high-visibility think tank of sorts, filled with engineers and scientists working with state and local governments and universities to improve the government’s capabilities in transportation projects the bill would invest in.
The idea, modeled after a similar department created in 2007 during the George W. Bush administration to spur innovation at the Energy Department, was endorsed by Secretary Pete Buttigieg and his staff, who asked that it be included in the infrastructure bill moving through Congress, according to government officials who, like others, spoke on the condition of anonymity to describe the negotiations.
The goal is to quickly stand up a premier arm of one of the president’s signature legislative programs. But employees of the new agency will lack civil service protections enjoyed by the vast majority of federal employees. The Transportation Department does not need to open the jobs to competition, but can use private head hunters to hire staff members.
The employees will have few protections against retaliation for whistleblowing. And they could be fired without appeal rights or other due process protections in cases of discipline or removal that are pillars of the civil service system.
Biden officials intend to use the template elsewhere. They’ve proposed a similar agency at Health and Human Services called ARPA-H, which would set up an entity at the National Institutes of Health to find breakthroughs in the fight against cancer and other illnesses.
The proposed agencies at Transportation and HHS reflect growing bipartisan frustration with a sluggish federal employment process that has changed little since the 1970s and, lawmakers argue, often fails to draw the most talented people to government and makes it difficult to dismiss poor performers.
But the workforce and the unions that represent about 1.3 million federal employees are still smarting from the Trump administration’s attempt to overhaul the federal bureaucracy it viewed as a “deep state” that fought its policies. The effort culminated at the end of Trump’s term with a last-ditch effort to remove civil service protections from tens of thousands of career federal employees.
Biden quickly overturned Schedule F after the outgoing administration had moved to reclassify the vast majority of staff in the White House budget office.
Officials at AFGE, the largest federal employee union with more than 700,000 members at 70 agencies — including Transportation — flagged the infrastructure agency to the White House last week. The union was puzzled that it knew nothing about the infrastructure agency until days before the Senate vote on the bill, according to congressional aides and other people familiar with their conversations.
The union then wrote a letter to every senator asking them to strike the language creating ARPA-I “without regard to the civil service laws.”
This “would effectively adopt the completely discredited Schedule F hiring and firing procedures that were rescinded by President Biden immediately after he took office,” Kelley wrote in his letter to lawmakers.
Sen. Chris Van Hollen (D-Md.) proposed a last-minute legislative fix that would allow the new entity to hire without competition but ensure the staff’s rights as federal employees.
“Civil service protections across our government are key to ensuring a strong federal workforce that puts the needs of the American people first,” the senator, whose district includes tens of thousands of federal employees, said in an email. He called his proposal a guarantee that the agency “will provide critical protections to support whistleblowers and prevent undue political influence in the treatment of their workforce.”
But the broad infrastructure bill passed the Senate on Tuesday without Van Hollen’s proposal. It’s unclear whether House Democrats will try or be able to change the language when that chamber takes up the bill this fall.
Spokespeople for the Transportation Department and the White House Office of Management and Budget said the administration supports Van Hollen’s amendment.
The Biden administration is counting on AFGE and other unions as key allies in the fight against the
coronavirus, seeking support for a new vaccine policy that requires federal employees to attest that they have been inoculated or face restrictions in the workplace. Union support is also crucial to White House plans to return government workers to the office to restart key services for the public that have languished during the pandemic.
The administration has offered few details about the new agency or its employment provisions, which were approved by the Senate Commerce Committee in June at the Transportation Department’s request as part of a surface transportation bill that was rolled into the larger infrastructure package, Senate aides said.
The new agency’s funding would be subject to future appropriation efforts, so it is unclear what its budget and staffing would entail. The legislative language setting it up calls for a Senate-confirmed leader reporting to the secretary, with top officials serving three-year, renewable terms. Pay would be set higher than the general schedule for other federal employees.
The new agency is not without precedent. The Energy Department version, created under Bush but first funded in the Obama administration’s 2009 economic stimulus bill, provides money for cutting-edge research that partners with government labs, private industry, and universities. The Trump administration had proposed eliminating ARPA-E, saying it duplicated other programs.
The Defense Department has operated a similar agency for 60 years — the Defense Advanced Research Projects Agency (DARPA) — designed to invest in breakthrough national security technologies. But where the defense agency is authorized to recruit outside the competitive hiring system, it must provide job protections. Energy’s research agency does not.
Administrations in both parties have sought workarounds to ease hiring in recent years, getting permission from Congress and the Office of Personnel Management to forgo the competitive merit system. A spokeswoman for the personnel agency declined to comment on the new infrastructure agency.
“If I were running the DOT, I would not want to spend the next year trying to hire people with what we know is an outdated, ineffective hiring process,” said Jeff Neal, a retired Department of Homeland Security personnel manager who writes a
blog on the management of government. Neal added, though, that “providing due process is important.”
James Sherk, Trump’s top adviser on labor relations and civil service issues and the author of the proposed Schedule F system, said the infrastructure agency’s personnel system sounds “very similar.”
“If you want the government to do things, you have to change the system that works so well for the unions,” said Sherk, who now directs the Center for American Freedom at America First Policy Institute, a think tank formed to promote Trump’s policies.
(Why is this guy being interviewed 
)
“You want a high level of accountability from the staff,” Sherk said, “So if an employee is not doing a great job, the agency has the ability to replace them with someone who will do a much better job.”
A federal personnel expert who is close to the administration and who spoke on the condition of anonymity to discuss what has become a sensitive issue said the Transportation Department agency and the one proposed at Health and Human Services create a caste system in the government that will make it harder to recruit for hard-to fill jobs elsewhere in the government.
“The barn door is open,” this person said, calling the new agencies “skunkwork operations that are corrupting the civil service.”
