Mon, 10/26/2020
Watch out federal employees. President Trump seeks to remove hundreds of thousands of federal employees from civil service protections to create a class of employees beholden solely to him and his political whims.
In 1883, President Chester Arthur signed the Pendleton Civil Service Reform Act, leading the United States into an era of a professional, non-political federal civil service and ending the spoils system of cronyism and political patronage that had run rampant in the federal government. Late on October 21, 2020, President Trump issued an executive order that seeks to undo much of the progress made in the nearly 140 years since President Arthur’s civil service reforms.
The order, titled “Executive Order on Creating Schedule F in the Excepted Service,” creates a new category of federal employees who are exempt from civil service protections. The order gives federal agencies 90 days to identify positions that are “confidential, policy-determining, policy-making, or policy-advocating” but that do not normally change as part of a presidential transition.
Under the order, those positions would no longer be covered by most civil service laws. This change would allow federal agencies to both avoid competitive hiring processes for the positions and remove employees from the positions without the civil service appeal rights that protect most federal employees from arbitrary personnel actions. The order could also allow an administration to more easily fill the “Schedule F” positions with its political supporters while also using the lack of civil service protections to fire employees who are not sufficiently obsequious toward an administration or president.
The order defines “Schedule F” positions in vague language, and it covers federal employees whose jobs involve (1) participating in advocacy for or the development of policy, (2) drafting regulations and guidance, (3) engaging in substantive policy-related work, (4) supervising attorneys, (5) determining the manner in which an agency exercises functions committed to the agency by law, (6) viewing, circulating, or otherwise working with proposed regulations, guidance, or executive orders, and (7) conducting collective bargaining negotiations. This vague and broad list of duties for the “Schedule F” positions has led many employee advocates to estimate that “Schedule F” could encompass hundreds of thousands of federal employees.
In guidance issued by the Office of Personnel Management on October 23, 2020, OPM’s Acting Director specified that the list of duties in the Executive Order, discussed above, are merely “guideposts” and that agencies can include positions based on other job duties if the agency believes that the job is “of a confidential, policy-determining, policy-making, or policy-advocating character,” indicating that the number of employees falling within Schedule F could be even larger. Agencies have 90 days to provide a list of positions that they wish to include in Schedule F to OPM, which has the final authority, under the executive order, on whether to strip civil service protections from a position.
The order directs agencies to move “expeditiously,” after determining which positions are included in “Schedule F,” to petition the Federal Labor Relations Authority to remove the “Schedule F” employees from bargaining units. As a result, in addition to losing their civil service rights with regarding to hiring and firing, these employees would be prohibited from being covered by federal sector union rights.
The order is another step in President Trump’s war on federal employees and his attempt to politicize civil service. The federal civil service has worked for nearly a century and a half to insulate federal employees from political influence, creating a professional class of employees who remain in place regardless of the political whims of the administration in power or the arbitrary misjudgment of their supervisors. The new executive order would be a sea change for federal employees permitting an administration to terminate federal employees for any purpose without giving employees any meaningful opportunity to challenge their removal. If permitted to go into place, the order could cripple the effectiveness of the federal government by replacing dedicated, professional public servants with political hacks subservient to the administration in power.
The order is scheduled to go into place on January 19, 2021, the day before the inauguration of the winner of the 2020 presidential election.
