New executive order could strip civil service protections from ‘wide swaths’ of federal workforce

President Donald Trump signed a new executive order that will reclassify a portion of the career federal workforce, giving agency heads the ability to hire and fire them at will under a new class in the excepted service.

The order, which the White House released Wednesday evening, creates a new schedule in the excepted service known as “Schedule F.”

It gives agency heads the authority to reclassify certain confidential, policy-making, determining or advocating positions from the career civil service to the excepted service under this new schedule.

“Placing these positions in the excepted service will mitigate undue limitations on their selection,” the order reads. “This action will also give agencies greater ability and discretion to assess critical qualities in applicants to fill these positions, such as work ethic, judgment and ability to meet the particular needs of the agency.”

The order doesn’t apply to the Senior Executive Service or Schedule A attorneys.

In justifying the need for the executive order, the Trump administration said the changes would allow agencies to address long-standing frustrations with current disciplinary procedures for career federal employees. The administration cited a 2016 survey that found less than a quarter of federal employees believe their agencies address poor performers effectively.

“Career employees in confidential, policy-determining, policy‑making and policy-advocating positions wield significant influence over government operations and effectiveness,” the order reads. “Agencies need the flexibility to expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation.”

This isn’t the first time the Trump administration has created a new schedule for the purposes of hiring and reclassifying career federal employees. Trump signed an executive order in 2018 which created a new schedule for future administrative law judges and gave agency heads authority to hire or fire them at will.

The EO applied only to new administrative law judges, not existing ALJs who remain part of the competitive civil service.

But this latest order applies to both current and future employees with policy-making or “confidential” positions. It moves these positions out of the competitive civil service and into the excepted service, where employees who accept a Schedule F role would lose their current rights to appeal disciplinary procedures and firings.

And it gives agency heads the authority to hire or fire employees within this new schedule at will, similar to the procedures for bringing on new political appointees to government.

The American Federation of Government Employees called the executive order the “most profound undermining of the civil service in our lifetimes,” describing it as an effort by the president to “politicize and corrupt the professional service.”

The National Treasury Employees Union said it was still evaluating whether the definitions in the executive order would apply to the members of their bargaining units.

“Americans should ask themselves why this White House is so determined to override, undermine and get rid of veteran public servants who have dedicated their careers to serving the American people,” Tony Reardon, NTEU national president, said in a statement to Federal News Network. “These are employees who have served admirably under presidents of both political parties, and they deserve the protections afforded by our civil service laws.”

Timing

Several people that Federal News Network spoke to about this executive order questioned why the Trump administration — or any administration for that matter — would announce an attempt to reclassify career federal employees two weeks before a presidential election.

Agencies won’t be able to reclassify career federal employees in policy-making roles immediately.

Under the executive order, agency heads are under a 90-day deadline to review all current positions and consider whether they should move to Schedule F. The initial deadline for a preliminary review falls on Jan. 19, 2021, a day before Inauguration Day.

Agencies then have another four months to finalize those determinations. For positions not excepted from the competitive service by statute, agencies must petition the director of the Office of Personnel Management to include those positions under Schedule F.

For positions already excepted from the competitive service, agency heads can simply move them and must publish a list of Schedule F appointments in the Federal Register.

Agencies must review Schedule F appointments at least once a year, according to the order. OPM must issue implementation guidance.

Should he win reelection, the EO allows the Trump administration to reclassify current career federal employees in these positions — and fire them and hire new appointees — to Schedule F within the first year of his second term.

“This is the kind of thing, if you are newly elected as a president and you want to have greater control over who works for your [administration], you would try to push this through the first few months of a new administration,” said Bill Wiley, a federal law employment attorney and former counsel for several agencies, including the Federal Labor Relations Authority and the Merit Systems Protection Board.

If former Vice President Joe Biden wins the upcoming election, the executive order would give him a similar opportunity to quickly name and pack federal agencies with policy-making appointees of his choice — unless he repeals it, a former OPM executive told Federal News Network.

Jeff Neal, a former chief human capital officer for the Department of Homeland Security, said the executive order could be responsible for a 10-fold increase in the number of political appointees.

“If the [Trump administration] manages to make this thing stick, it would basically gut the career civil service,” he said.

Schedule F’s potential scope unclear

It’s not clear how many positions exactly may be subject to reclassification under a Schedule F.

Both Wiley and Neal said the order could impact “tens of thousands” of current career positions.

Neal went as far to say it could affect “hundreds of thousands” of career positions, including hundreds of jobs at the Environmental Protection Agency, DHS subcomponents, the Office of Management and Budget and others.

“The number of ‘policy advocating’ jobs is big enough to drive a fleet of trucks through,” he said.

The Partnership for Public Service said the executive order had the potential to impact “wide swaths of federal employees.”

“Being able to place any number of existing career positions into this new Schedule F not only blurs the line between politics and the neutral competency of the career civil service, it obliterates it,” Max Stier, president of the Partnership for Public Service, said in a statement. “We urge Congress to act swiftly to examine the development and potential impact of this executive order.”

As of Thursday afternoon, House Majority Leader Steny Hoyer (D-Md.) and Rep. Don Beyer (D-Va.) had both denounced the executive order. Beyer promised to work with his colleagues on possible “legislative remedies.”

According to the executive order, Schedule F would apply to positions that participate in policy advocacy, supervise attorneys, lead collective bargaining negotiations, draft regulations or views, circulates or works with proposed regulations, guidance, executive orders or other non-public policy proposals covered by “deliberative process privilege.”

Executive secretariats and confidential assistants are also covered, as is any GS-13 or higher who directly reports or regularly works with an agency head or anyone appointed by the president.

This could include, for example, congressional affairs and communications positions. The EO doesn’t define what “regular” contact with an agency head means.

“Is that your budget officer who meets daily with the head of the agency? What’s frequent contact?” Wiley said. “If I’m a GS-13 budget analyst that means I have a background in accounting. [What] if I come in and it’s my job to sit in a briefing every Friday afternoon with the deputy of the agency?”

EO shifts career positions from ‘work’ to ‘people’

The Trump administration has consistently cited employee feedback on poor performance and a desire to make the government more effective and efficient as a reason for several federal workforce initiatives, including the president’s three 2018 executive orders on collective bargaining, official time and employee firings.

“President Trump is delivering on his promise to make Washington accountable again to the citizens it’s meant to serve,” Russ Vought, OMB director, said in a statement to Federal News Network. “This much-needed reform will increase accountability in essential policy-making positions within the government.”

To the extent the administration wants to give agencies more authority to easily fire certain employees, the EO may achieve that goal.

Employees in positions that fall under Schedule F would lose the due process rights they had previously in civil service, Wiley said.

But the EO may have other impacts.

Wiley said the order may create a paradigm shift for a portion of the career civil service, where positions that were formerly open to anyone who was qualified are now reserved for specific people, who could change as new administrations come and go.

“In the competitive service we don’t create positions for people, like we do in the excepted service,” he said. “We create positions for work to be done. Once government work positions are created, just about anyone can apply.”

Jim Eisenmann, a partner at Alden Law Group and a former MSPB executive director, said reclassifying career employees as political appointees may eliminate a “significant check” on the political process. Employees in the career competitive service are supposed to provide consistent knowledge regardless of their political party — and their agency head’s.

“The system is built for employees to feel secure in their jobs and be able to speak up,” he said. “But without those appeal and due process rights, they won’t speak up.”

And the former OPM executive said the EO didn’t explain how the order would serve as a solution to address the problem the administration described.

“It’s as if the  patient has a broken leg, and so we’re going to put his right arm in a cast,” the former executive said.

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