Breaking the civil service begins at OMB

In my recents posts regarding President Trump’s Executive Order 13957 on Creating Schedule F in The Excepted Service, I warned that some agencies could see most of their employees converted to Schedule F. On Saturday, RealClearPolitics reported “OMB Lists Workers Stripped of Job Protection in Trump Order” and said “The Office of Management and Budget has completed its task, RealClearPolitics has learned. According to an internal memo, OMB Director Russ Vought has classified 88% of that agency’s workforce, 425 employees, as Schedule F.”

That means virtually every core mission job at OMB will be covered by Schedule F. What are the potential effects?

How this turns out depends on a few things. Does the Trump Administration proceed with moving the career and political workforce of OMB into Schedule F? That is the key question. If they identify the jobs, but do not make any moves before the inauguration, nothing will come of it. They could move the political appointees into Schedule F, but delay moving career employees. On the other hand, if they move 88 percent of OMB’s workforce into the quasi-political Schedule F appointments, a lot can happen.

Once they are in Schedule F, former political appointees have a more permanent status than they have today. So Schedule F is a huge gift to them. Career employees get just the opposite – what was once a secure civil service job loses most of its protections and becomes close to an at-will job. Any employees who are not viewed as sufficiently loyal to the outgoing Administration could be terminated. If the Administration wants to be vindictive on its way out the door, they could terminate all of the former career employees and leave President-Elect Joe Biden with an empty Office of Management and Budget.

If that happens, can it be fixed? Yes, but it will be messy and will take time. First, the actions moving the employees should be cancelled. For HR system purposes, it would be as if they never happened. Employees who were career would go back to their career positions and former politicals would go back to their political positions. Anyone who was terminated would receive back pay and go back to work. Timing is important in this scenario. Once employees are terminated, they get a lump-sum leave payout that would have to be repaid. Some might choose to retire. Whether they could cancel the retirement action or not is a question that is not so simple. Normally employees who take optional retirement cannot back out of it.

What happens to the people who are currently political appointees would be a bit more complicated. If the actions moving them to Schedule F were cancelled, some would likely sue and argue that the Biden Administration cannot simply cancel their Schedule F appointment. I think they would lose, but who knows what will happen when a case gets in front of a judge? They could also simply be fired. Again, some would argue that their termination is due to their political affiliation and appeal or sue. They might win. Another option for those folks would be to abolish their jobs and give them Reduction in Force (RIF) notices. They would have no “bump” and “retreat” rights and all would get termination notices with 60 day notice. That might be cleaner and more likely to withstand scrutiny, but it would also take time.

The bottom line is that we do not know if the Trump Administration is going to start moving people to Schedule F jobs. The fact that OMB came up with a list two months ahead of the January 19, 2021 deadline in the Executive Order leads me to believe they will. The fact that we are approaching a funding cutoff on December 11 complicates matters. There is a good chance that the next funding bill will include a prohibition on implementing Schedule F. Will the Trump Administration move ahead of the funding deadline while they still can? Or will they hope that proponents of a Schedule F freeze will prevail? Will they fire former career employees with a Christmas lump of coal? Maybe. Those folks will almost certainly get their jobs back, but they may have a few weeks or even months of uncertainty.

Once everything is done and the presidential transition is completed, it is likely that anyone who is a career employee today will be a career employee again. Anyone who is a political appointee will, as is the normal procedure, go away in the next Administration. Any actions taken to implement Schedule F will go away. That would lead most people to agree that a rush to implement Schedule F is unwise, but wisdom and politics do not always go together.

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