Close Enough For Government Work? Sebellius And The Irrelevance Of Job Performance

220px-Kathleen_Sebelius_official_portraitBelow is my column today on the continuing problems with the Affordable Care Act.  I believe some national health care plan was needed.  However, before passage, I spoke on Capitol Hill and criticized the poor drafting of the Act as well as the constitutional concerns over the federalism issues.  I was most surprised by simply the poor shape of the massive bill.  It was rushed through Congress to avoid having to go back to the Senate after the death of Ted Kennedy.  The result was many poorly considered provisions.  For that reason, I expected (particularly after the expenditure of such a huge amount) that the rollout would be done with particular care. I was shocked by the gross negligence shown by the Administration.  Health and Human Services Secretary Kathleen Sebelius repeatedly assured Congress and the public that the system was ready after almost a half billion dollars in federal funds and years of preparation.  She never informed Congress that her top tech officer (who has now resigned) refused to sign off on the program due to concerns of the lack of full testing and that various experts expressed doubts about the launch.  However, Sebelius and her aides insisted on effectively launching in the blind.  Putting aside how one may feel about national health care, this would seem an objective measure of the lack of performance.  This was the single most important task not just for Sebellius but the Administration and it was a failure.  For those who have fought hard for health care, the failure played into the hands of critics.   Yet, with a program named after a Democratic President, there seems an unwillingness to separate the merits of Obamacare from the poor administration of the rollout of the program. While officials are now profusely apologizing, it seems that (unlike most citizens) high-ranking officials are immune from performance based termination.  That is the subject of the column in USA Today.

On Oct. 1, millions of citizens came face to face with one of the most embarrassing blunders of our generation. After almost half a billion dollars spent on the computer registration system for Obamacare, the website coughed, sputtered and appeared to descend into an immediate coma as millions tried to log on. One reason is that the Obama administration never fully tested it.

For many, the greatest surprise was not that the government spent wildly on a defective system, but that the failure did not result in a single termination. While the agency’s top technology officer, Tony Trenkle, wisely is retiring, the appearance of the still employed Health and Human Services Secretary Kathleen Sebelius at a congressional hearing this week led many to ask a reasonable question: What does it take to lose a government job?

If recent scandals are any measure, the answer is chilling. Of course, one would have thought that a$400 million debacle would fit easily under “fireable offenses.” This is particularly the case when contractors testify that it was the administration that decided not to fully test the system. Then there is the use of a contractor that was terminated earlier in Canada for allegedly fouling up the computer system for Ontario.

The Obamacare six

During her testimony before the Senate Finance Committee, Sebelius admitted that the website is still “not where we need to be.” That is quite an understatement. One government estimate put the number of people registered in the first 24 hours at six. If that seems a joke, it was. In a Saturday Night Live skit, Kate McKinnon played Sebelius and noted, “Millions of Americans are visiting, which is great news. Unfortunately, the site was only designed to handle six users at a time.” Still, the Obama administration insists it will not release the current number of actually registered people until the middle of November while admitting that it will be low.

However, if history is any judge, Sebelius can take heart. Her job should be secure. Neither crimes nor incompetence seems to meet the standard for termination for federal employment. Take National Intelligence Director James Clapper. In a public hearing before Congress, Clapper denied that the NSA was collecting “any type of data at all on millions or hundreds of millions of Americans.” That was clearly false. Clapper later admitted that he gave “the least untruthful” statement that he could think of. That, of course, would still make it a lie and thus perjury. However, Clapper was neither prosecuted nor fired.

Irrelevant waste

Likewise, waste is something that does not even register in Washington. The Pentagon ordered a dozen Italian-built C-27J Spartans at nearly $50 million a pop only to roll them directly from the factories into mothballs. That’s right, $567 million of aircraft sent directly to a facility in Arizona dubbed “the boneyard.” Then there is the $772 million spent for 30 Russian Mi-17 helicopters that an inspector general report found could not be flown by the Afghans. Then there is the $34 million spent to build a huge headquarters longer than a football field for the Marines in Afghanistan with a theater, special operations rooms and other amenities. The Pentagon did so despite the objections from the commander that the Marines neither needed nor wanted the building. An inspector general found that the 64,000-square-foot facility “will probably be demolished” without being used.

Even when lives are lost, negligence is not a basis for termination, as shown in the Benghazi scandal. The State Department’s own internal review found “systemic failures and leadership and management deficiencies” leading to the deaths of four Americans, including the U.S. ambassador to Libya, Christopher Stevens. But the Accountability Review Board “recognizes that poor performance does not ordinarily constitute a breach of duty that would serve as a basis for disciplinary action but is instead addressed through the performance management system.” In other words, even with four dead and an international crisis, the officials responsible could only be “reassigned.”

Arrogance of power

Given this history, one can understand Sebelius’ response to critics that “the majority of people calling for me to resign … are people I don’t work for.” Indeed, the people whom she works for measure success along political, not performance, lines.

Accordingly, new contracts have been issued to fix the Obamacare registration system. And, in the ultimate triumph of hope over experience, Sebelius is promising to personally ensure their success.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.

USA Today November 8, 2013

36 thoughts on “Close Enough For Government Work? Sebellius And The Irrelevance Of Job Performance”

  1. Juliet N I live in Montgomery county and my wifes family lives in East Texas. They are all the same way and get welfare of all kinds. The reason for being rabid GOPers is racism. They think that only they deserve government benefits, and that the minorities are taking money that whites should only get. They are not the swiftest folks around which is why they need such welfare.

    1. Randyjet: I lived in El Paso in the early 90s, and I loved it. Ann Richards was governor. People didn’t vilify folks who crossed the border looking for better opportunities. I loved that Texas. This one? Not so much.

      1. Ann was a great governor and person. El Paso has improved quite a bit thanks to the increased border security so that there are not illegals crossing there destroying peoples homes and property. I work in Laredo and have lived on the border for many years so I know the situation about illegals which is a huge problem for Mexican Americans who are the victims of the illegals.

        I did a border watch with the MCDC in south Texas and the damage the illegals did was astounding. You could tell where there was a big pickup point by the mountains of trash on the roadsides. The place we were on had Wed. as the clean-up day. We got two full 55 gal drums of trash that we burned, and had to repair the fences and all the other damage they did.

        I have NO sympathy for these criminals since they spit on us and our laws if it gets in the way of their desires. They commit many other crimes in addition to sneaking into the US. A young boy was killed one morning while walking to school by a drunk illegal driver who then ran away. This happened just a few blocks down the road from our place. He was only caught because a tow truck driver had tracked him and was reporting to the police. The illegals have also cost me personally because when I had to get my roof replaced, the insurance company would only pay what contractors who used illegals would charge. The honest employers were being penalized by the crooked ones and the illegals.

        1. No doubt, there are legitimate problems with border crime. I just wonder if it couldn’t be better addressed with ending the “war on drugs” and reforming our immigration process to something that’s rational and doesn’t involve allowing corporations to exploit a cheap and illegal labor force.

  2. I don’t recall the HHS secretary resigning because of the Medicare Part D signup fiasco. In a GOP administration, Sebelius would have gotten a promotion. the retirement of the tech guy seems like the most appropriate thing to happen. Comparison to Clapper is ridiculous–a much different kind of breach.

  3. That should have been “underlying Obamacare is an underlying principle,” but the larger case in not untrue. Obama has based his governance on giving people more and more benefits while cutting taxes, while being harshly critical of Bush for doing the same thing.

  4. We can talk about the details, such as failed websites and cancelled policies all we want, but underlying Obama is a much larger failinf principle that escapes discussion and which is a national problem. That is that everyone wanted “health care reform,” but nobody was willing to sacrifice anything to get it.

    People with health insurance were unwilling to have their policies changed. People on Medicare didn’t want changes to Medicare. We could not either raise taxes or increase the deficit. We could not damage the business of pharma, health insurance or medical providers. Obama and Congress took on the “free lunch” proposition, saying they would “fix the broken system” without changing the system.

    Everyone drank the Koolaid, even to the extent of thinking that this 7600 page monstrosity somehow SHOULD be working and being critical because it is not. OF COURSE it is not working. “Free lunch” never does, and when critics step back and recognice it for what it is we will quit picking at the details, throw out the idiots who passed this mess, and elect legislators with courage and brains.

  5. I was not surprised, either, Juliet. As a former resident of the state of Texas, I have watched Rick Perry’s seemingly endless efforts to deny access to health care to the poor and middle class citizens of Texas. He has cut the CHIP program, shut down Planned Parenthood in many areas, and refused to expand access to medicaid. Texas also has the highest number of uninsured citizens in the country and the Texas Tea party doesn’t care. Sure, I am disappointed in the rollout of Obamacare but many of these tea party governors have been out to sabotage it from the beginning.

    1. The cognitive dissonance there astounds me. My former stepchildren, their children, and their mother all live outside of Houston. They have all depended on food stamps, Medicaid and welfare throughout their lives. Yet they are rabid Republicans and hate President Obama. Go figure,

    2. Swathmore As a fellow Texan, I am glad that Perry did not establish a state network since it would be an even bigger disaster than the Federal one. It would be five times as expensive, twice as slow, serve fewer people. I looked at the Texas high risk insurance pool since my wife could not get health insurance. Thankfully that is going out of business now since it cost FIVE times what regular health insurance would cost. It covered less, and took longer to join, and was basically worthless, just like Perry and the GOPers here. They only serve themselves and their big donors.

      We got better coverage, cheaper, and more expeditious handling than the Texas program when the Federal high risk pool went into effect a few years ago. Obama care so far has worked GREAT for us. The only problem is that this program is going out now, and we are having the same problems signing up as everybody else.

  6. Nal I agree with you….

    I think this whole program mess is symbolic of the Obama administration…..yes, you can keep your prior health plans… Yes, you can keep your doctors…. Come on… When are enough lies enough…..

  7. If they want tried and true responses they should study Windows 1.0, 2.0, 3.0, 4.0, 5.0 software releases.

    They had “why doesn’t _____ work” down pat.

    It is well known in the sotware engineering world that 1.0 releases increase beer, wine, and whiskey sales.

  8. I’m sure it was a huge shock to the administration that so many Republican governors and state legislators would deliberately screw over their citizenry by refusing to create state exchanges and expand Medicaid.

    I wasn’t surprised, in the slightest.

  9. 567 million means they spent about 10 millions on parts they knew wouldnt work at all and the rest was split between the 13 so called ruling families.. come on people when are you all going to realize that the billionaires are the only ones getting richer while we the people are going broke……. its sickening in a sense that the complacency of the people had kept the idiots from instituting martial law.. so their drugging of humanity has backfired. but at the same time no one is trying to do anything to fight back.!! OBAMA IS NOT BLACK AND DEFINITELY NOT HERE TO HELP THE PEOPLE….. wake up

  10. Is USA Today that batch of toilet paper they leave in the outhouse for us to use when the toilet paper without all the print on it is used up?

  11. itchBay, itchBay, itchBay. Play into the hands of the Koch Brothers, Mister Turley.

  12. In their book ‘Unmaksing Administrative Evils’ Adams & Balfour (1998) states:

    “The desire to eliminate such problems (illict drugs, illegal immigration, rising health care costs, etc.), and, by extension, the potenital surplus populations with which they are associated, often forms the hidden metaphorical subtext of the search for solutions.”

    In his book ‘The Age of Triage: Fear and Hope in an Overcrowded World,’ Rubenstein (1983) defines a surplus population as ‘one that for any reason can find no vaible role in the society in which it is domiciled’. Rubenstein argues that ‘the overproduction of people and concomitant programs for their elimination are central features of modern civilization.’

  13. The first 15 minutes of episode 203 of the Professional Left podcast:

    discusses the IT rollout for the ACA from the perspective of an IT worker (Driftglass) and explains why it is that when there are are any political concerns impacting any IT timeline, the politics have, do, and will always win, and timelines and the readiness of the programs they apply to generally become a massive fiction.

    The better half, an IT guy, explained how that worked to me a couple of decades ago. When I changed careers 10-12 years ago and got to watch it in action, yep, what I was told was true. It’s worth a listen.

    My employer had an advantage though that Sebellius didn’t have. We had money for overtime and could hire or transfer employees into needed positions to augment the people doing the job, if the job wasn’t so complex that the people starting it had to continue it themselves. We at one time staffed for the peak work times and swapped out excess employees to other units when work hit the troughs or had them do meaningful work of a different kind until the new work came in that would require their labor. Later, we developed a cadre of temporary employees (that had retired from the parent company) that worked during the peak times, were laid off, and then returned when needed for several years.

    Sebellius was operating with a budget that was tiny compared to what OMB said would be needed and Congress would not provide her more money for the work needed for the roll-out. In the government the budget drives a lot of decisions including which companies get hired to do the work. That the company lied about being able to do the work on time is normal. That she may have had to go with a company that wasn’t top shelf because she was working with a budget that didn’t even qualify as a shoe-string and didn’t have have the money to supplement the work force as needed (and possibly get the quality of IT company needed) was engineered by Congress.

    1. Lottakatz, This same thing happened in aviation with the last plane I flew, the EMB-170. The FMS and all the avionics were designed by Honeywell which did not work well at all. I asked a tech rep why Embraer went with Honeywell. He replied that all the other companies stated that they could not get the system ready in the time span of three years, but Honeywell lied and said they could. In the event, it took them the same amount of time, and it had to be constantly repaired while we were using the planes. It did not work well even after that.

  14. Conspiracy Theory: Do you actually believe that the government is trying save millions of lives via a health care bill? Doubt it. Why would we want an additional millions of people to live (or live longer) when we are unable to take care of the 100 millions we are already have? Sounds cruel but it is how the elites rationalize their following objective:

    The government is finding more unique ways to legally eliminate ‘unwanted populations’; this is also a form of population control.

  15. I find it ironic that the one who wouldn’t sign off on the rollout is the one who resigned.

  16. This problem is NOT confined to government. Since most of my life has been in the capitalist, private enterprise world, I have seen the same thing in a big oil company, aviation, and many things in the military. The main problem in all such cases is that the end users are the last ones to be consulted and have any input. The managers are exempt from discipline that is routinely meted out to the lower classes. A manager can screw up something costing millions of dollars, yet a worker who damages something worth $20 gets time off or is fired. The manager is considered to be a victim of the ones who do the work, not the cause of it. It is simply class bias at work.

    In government work in big projects that will have a continuing need for experts, it would make more sense to have them hired as permanent government employees rather than contractors. We would then keep a good cadre of people who could do the work and know what is needed to accomplish the tasks. Any increase in workforce needs could be more efficiently managed with their expertise. I have never seen a good result from contracting work out. There may be some exceptions, but they are few and far between.

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