Virtually Every Federal Position Potentially Affected, Including Those with ‘Control Over Unclassified Information’

(Washington, DC) – Last week, the Government Accountability Project (GAP) filed public comments condemning a proposed rule by the Office of the Director of National Intelligence (DNI) and the Office of Personnel Management (OPM): “Proposed Rule on Designation of National Security Positions in the Competitive Service, and Related Matters,” 78 Fed Reg. 31847 (daily ed. May 28, 2013)

The rule would implement a 1950s era Executive Order (10450) that requires extra scrutiny for employees to hold jobs deemed to be national security “sensitive” positions.

The proposal would make virtually every meaningful job in the government eligible for re-designation as “sensitive” on national security grounds. OPM is proposing the rule at the same time it seeks court authority through the case Conyers v. Berry (Federal Circuit No. 2011-3207) to remove any “sensitive” employee from government service without the right to appeal to the independent Merit Systems Protection Board.

GAP Legal Director Tom Devine commented:

The proposal is premature, irresponsible and would have the effect of canceling the civil service rule of law that has kept the federal labor force non-partisan since the 19th Century. OPM’s combined initiatives are an effort to replace government accountability with a national security “at will” doctrine, that would turn enforcement of the merit system into an honor system by national security managers. The net impact could create a national security spoils system. This can be viewed as nothing less than a direct threat to the survival of civil service law.

Under the proposal, independent civil service rights would be removed from any position involving:

• Virtually any significant work involving “investigative” duties;
• Senior management positions in “key” government programs;
• Responsibility for Border Patrol and Customs work;
• Work on critical infrastructure programs;
• Nuclear power and nuclear weapon duties;
• Responsibilities for expenditures greater than $50 million;
• Any “duties related to criminal justice, public safety or law enforcement;”
• Life saving responsibilities;
• Or, perhaps most startling, “positions in which the occupants have unlimited access to and control over unclassified information.”

As GAP’s public comment noted about the latter, “This category literally requires any job that requires reading to be a sensitive position.”

GAP strongly recommends that the proposed rule be withdrawn, until OPM compiles data it currently does not have on the following key issues:

• the number of positions currently designated “sensitive;”
• the number of non-sensitive positions remaining if the proposed rule is adopted;
• the objective, tangible connection between any “sensitive” position and national security;
• credible, consistent agency procedures to designate jobs as “sensitive;”
• credible, consistent due process appeal rights when an agency removes an employee as ineligible for a sensitive position; and
• the cost of investigating and reinvestigating nearly the entire federal labor force to determine eligibility for a sensitive job.

Devine concluded: “This is not yet a proposal that deserves serious consideration. Neither the need, scope nor cost have been disclosed or justified.

Contact: Tom Devine, GAP Legal Director

Phone: 202.457.0034, ext. 124; cell 240.888.4080

Email: [email protected]

Government Accountability Project

The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization based in Washington, D.C.

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