OPM-GSA Merger Could Cause Regulatory Bottleneck, Legal Challenges

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Even if Congress were to pass the Trump administration’s proposal to reorganize OPM, it could still take years before policymakers could tackle other workforce issues.

The Trump administration’s proposal to send the Office of Personnel Management’s policy functions to the Executive Office of the President could lead to years of implementation woes and legal challenges, before the initiative could begin achieving supporters’ stated goals, one observer said.

The White House’s plan to merge most of OPM’s functions with the General Services Administration and create an Office of Federal Workforce Policy at the Office of Management and Budget includes a provision that places the existing OPM director’s regulatory and rulemaking authority in a non-Senate confirmed position within OMB.

Acting OPM Director Margaret Weichert has said that OPM’s authority on workforce policy is too narrowly focused on Title 5 employees. Moving rulemaking power to the White House could allow the federal government’s top HR shop to make policy governing more than just the Title 5 workforce. For example, the unit could issue regulations for Veterans Affairs Department medical staff, who are governed by Title 38.

But before the new workforce policy director could begin taking a look at civil service reform, he or she likely would face years of, for lack of a better term, busy work, according to Donald Kettl, professor and academic director at the University of Texas’ Lyndon B. Johnson School of Public Affairs.

“It’s worth noting that the sheer scale of the question at stake here is enormous,” Kettl said. “A search on the Code of Federal Regulations for ‘Office of Personnel Management’ reveals [more than 700 references] across 41 titles. So the question of the rulemaking fix required to attend to the administration’s proposal is huge.”

Additionally, Kettl said he believes the decision to place rulemaking authority with a non-Senate confirmed political appointee could be unprecedented, although Congress seems unlikely to move forward with the idea. The White House, in its legislative proposal, suggested that despite the authority being placed within OMB, GSA likely would do most of the work on any regulatory changes.

“This section also transfers OPM's rulemaking authority to the Office of Management and Budget, to allow the new Office of Federal Workforce Policy to assume a policy leadership role,” the White House stated. “By delegation and in practice, GSA will conduct the significant majority of this rulemaking.”

Even so, such an arrangement could lead to legal challenges to any regulation put forward by the White House workforce policy director, Kettl said.

“Any effort to do so seems certain to generate legal challenges, which could well tie up the reorganization in court,” he said. “The simplest answer is [retaining an] OPM director as a figurehead. But that, in turn, raises the question of why go through all of this, without defining the basic problem to be solved and devising a strategy that seems most likely to solve it.”

Max Stier, president and CEO of the Partnership for Public Service, said he could not speak specifically to the potential legal and regulatory issues that could crop up if Congress were to approve the administration’s reorganization proposal. But he said there are many big questions that must be answered about the plan, and noted that officials should consider the “opportunity cost” of large scale changes to any agency.

“When you think about the opportunity cost, what else might be worth your energy and resources?” Stier said. “There are already some good questions in this arena, and there are other things that need to happen, like civil service reform, and you just can’t do it all. You have to prioritize where there’s the best shot of making something happen. There have been a lot of good questions raised about what does this really look like and what are the alternatives, and answering those questions is fundamental in evaluating whether this is the right priority.”

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