If a tree falls in the forest, and there is no one there to hear it, does it make a sound? How do you know?
If a judge makes a decision and there is no staff person there to write or publish it, does it make a difference?
National guardsman, Emell Monlyn was an essential government worker when twin snowstorms blanketed the Mid-Atlantic in 2010. The Bowie man was also required to report for work when a destructive derecho hit in June 2012 and Hurricane Sandy threatened later last year.
In the Great Shutdown of 2013, however, his services maintaining vehicles for the District of Columbia National Guard are suddenly dispensable. Monlyn is one of an estimated 800,000 so-called nonessential federal workers idled by the federal government shutdown.
In Baltimore, meanwhile, Judge Richard Clark, an administrative law judge (ALJ) for the Social Security Administration, has been declared essential. This means Clark and his fellow judges can preside over previously scheduled disability benefits hearings — but they won't be able to deliver decisions because their support staff has been furloughed. (Hahaha!!)
All through the vast federal bureaucracy, workers have expressed puzzlement over agency decisions that determined who would keep working and who would be sent home.
"I can't see rhyme or reason for it," said Witold Skwierczynski, an official with the American Federation of Government Employees (AFGE).
There's uncertainty over who will be paid and for what. In past shutdowns, lawmakers eventually voted to reimburse furloughed workers for lost wages. But in the current political climate, that may not happen. So workers and their union representatives are unsure who the lucky ones are — those furloughed for what could turn out to be a paid vacation, or those ordered to keep working.
"It is a mess," said Skwierczynski, president of the AFGE Council of Field Operations Locals at Social Security.
In the past, he said, "people preferred to be nonessential so they could sit at home and not work." But this time, he said, they're not confident they'll be made whole by a Congress they see as hostile to federal workers.
Several lawmakers, including many from Maryland and Virginia, have co-sponsored legislation to restore the pay of federal workers once the shutdown ends. The Office of Management and Budget (OMB) has said that those who are required to report will be paid eventually, but some workers are concerned they may have to work for an extended period without compensation.
Skwierczynski said the AFGE, which represents some 300,000 dues-paying members, is preparing a lawsuit in which it will argue that requiring government workers to report without a guarantee of timely pay is a violation of the Civil War-era 13th Amendment, which outlawed "involuntary servitude."
To determine who is essential and who is not, government lawyers have applied the federal Anti-deficiency Act, a 19th-century law that has been modified over the decades to provide a road map for agencies responding to an interruption in congressional appropriations.
In a 1980 interpretation of that law, then-Attorney General Benjamin Civiletti opined that agencies could obligate funds if they could show a "reasonable necessity" that the spending was necessary to protect human life or property. That keeps such workers as law enforcement agents on the job.
Civiletti also said that because certain activities, such as the payment of retirement benefits, may legally continue, the work needed to support them can continue, too. That exception is why about 70 percent of Social Security workers remain on the job.
Government functions that do not rely for funding on congressional appropriations — such as the Postal Service and fee-based inspections — may also continue.
Among the functions insulated from the appropriations process was the implementation of health insurance exchanges this week under ObamaCare, the Affordable Care Act — the law at the center of the shutdown. The exchanges are paid for through mandatory spending provisions of the act that don't require congressional action.
The various exceptions have resulted in vast disparities in the percentage of furloughed employees from agency to agency. More than 90 percent of the employees at the Department of Education and the Environmental Protection Agency have been designated nonessential, for example, but only 5 percent at the Department of Veterans Affairs.
The exceptions leave room for interpretation, and many of those affected see the decisions as arbitrary. In many cases, the lawyers are not so much deciding which people are essential but which of their functions have to continue during the shutdown.
At Social Security, for example, most of the employees who staff the field offices are still working. But the agency has instructed them that while they may accept applications for benefits, for instance, they must turn away people seeking new or replacement Social Security cards.
Clark, a 19-year federal administrative law judge (ALJ) and vice president of the National Association of Administrative Law Judges (AALJ) , said the agency's decision to keep the judges and furlough the support staff doesn't make sense.
"No decision is going to go out the door unless the support staff is there to do it," said Clark, who lives in Bel Air. (Because judges do not write their own decisions. Some do not even hold hearings before making a decision.)
He said the shutdown would contribute to a backlog of about 5,000 disability appeals cases in Baltimore.
ALJ Randy Frye, president of the administrative judges' association, said the group's position is that the staff as well as the judges should be considered essential.
In Monlyn's case, the decision to furlough most members of his National Association of Government Employees union local came as a surprise. As recently as Friday, he said, they had been assured by managers that they would remain on the job. But when they reported Tuesday, he said, all but seven of the 120 to 125 members were sent home.
Monlyn, who is president of NAGE Local R-386, said he and other union members are "dual status" employees — holding National Guard jobs as both civilians and military members. Among the work they perform is maintaining humvees, tanks and helicopters, gate security at National Guard posts, and secretarial services.
In the event of a natural disaster or civil disruption, he said, their absence could impede the Guard's readiness.
"It's quite disturbing," he said.
Monlyn, 37, who is a sergeant in the D.C. National Guard, said the furlough comes just as they were beginning to recover from the economic effects of seven furlough days during the summer.
Government workers have not actually been labeled "essential" or "nonessential." Officials prefer to say "excepted" or "nonexcepted."
One reason is concern that the term "nonessential" would affect the morale of employees given that label. It also could create an opening for small-government conservatives to question whether those jobs should exist at all.
"The very fact that government agencies and organizations have nonessential personnel present in the first place could be viewed as testament to our bloated, overfunded ... unsustainable government," commentator Jeff Emanuel wrote in a 2011 article on RedState.com.
Many of the functions of furloughed workers are widely viewed as critical even if they can be deferred for a limited time. Examples included compilation of government employment statistics, auditing banks covered by federal insurance and maintaining National Guard equipment.
Monlyn said that when managers gathered workers to notify them of the furloughs, they reassured them that "everybody's essential."
He was not appeased.
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