Schedule F is gone, but the debate continues in Congress

The House Oversight and Reform Committee is decidedly split on an agenda for the federal workforce.

For Democrats, the last four years prove the civil service is vulnerable and needs more protection than ever after former President Donald Trump’s federal workforce policies.

“Damage remains,” Gerry Connolly (D-Va.), chairman of the House Oversight and Reform Subcommittee on Government Operations, said Tuesday at a hearing on “revitalizing the federal workforce. “Clearly we have a lot of work ahead of us to rebuild our civil service.”

Connolly said he’s interested in preserving collective bargaining, strengthening whistleblower protections and finding ways to improve diversity and inclusion in federal hiring.

“We will use what we learn here today to better understand weaknesses in the federal laws that are meant to enshrine merit system principles in perpetuity,” he said.

Most of former President Donald Trump’s federal workforce policies were rescinded in the early days of the Biden administration. But that didn’t stop the vast majority of the subcommittee’s Republican members from asking about them.

They were especially interested in Schedule F, which Trump established during the last few months of his presidency via executive order.

“This was not an attempt to recreate a patronage system or politicize the civil service,” Rep. Jody Hice (R-Ga.), the subcommittee’s ranking member, said of Schedule F. “This was a reflection of this reality — that feds in policymaking positions wield tremendous power to implement or hinder the administration’s agenda, whatever administration that might be.”

The order allowed agency heads to reclassify certain policy-making positions into a new schedule of quasi-political appointees known as Schedule F. Career federal employees would have lost their civil service protections in the process, meaning their agency heads could have fired them — and hired new replacements — at will.

Biden rescinded Schedule F on his third day in office, and there are no indications that agencies found time to reclassify career feds into the new excepted service category. One agency, the Office of Management and Budget, came close.

“It had to be done immediately,” Janice Lachance, former OPM director during the Clinton administration, said of the actions Biden took to repeal Schedule F. “We had to send a signal right away, that this sort of cherry-picking, of deciding who stays and who goes had to end, and it had to end immediately. However, I do think that the Congress should take a very, very careful look of whether those decisions should be the purview of a single president of either party or of any party.”

For Connolly and some committee Democrats, the Schedule F debate shed light on the vulnerability of the civil service, and they believe Congress should do more to protect and preserve it.

But James Sherk, a former special assistant for the White House Domestic Policy Council, said Trump’s workforce policies, including Schedule F, was an attempt to “respond to the voice of the federal employees.”

He said Schedule F would have applied to a fraction of the federal workforce, about 1-3% of employees. In a workforce of roughly 2.1 million federal employees, anywhere from 21,000-to-63,000 people could have been impacted based on Sherk’s estimates.

Former federal human capital experts previously said Schedule F could have covered a much larger portion of the workforce, potentially hundreds of thousands of federal employees.

“All of the reforms were good reforms,” Sherk said of Trump’s federal workforce policies. “Schedule F would have held those senior employees who do have a hand and control in making policy more accountable for the awesome power they wield.”

Democrats disputed Schedule F would have allowed agencies to better respond and discipline poor performers, as Sherk suggested.

“Schedule F adopts a termination for no cause standard. Where as now, people can be fired for cause [or] for non-performance. Schedule F moves us to a standard that doesn’t matter. You can fire a person for no cause, nothing at all,” said Rep. Stephen Lynch (D-Mass.). “It doesn’t get at the people who are not performing. It just allows the executive to fire a person for no reason at all. That invites a very subjective measurement of employee performance.”

Sherk said yes, agencies would have a lower burden of proof to meet in order to fire someone in Schedule F.

“At the same time, the agencies are absolutely prohibited from terminating someone because of their race, their sex or their political activities,” he said. “That was in the executive order itself. And the order required the agencies to put together a system and agency rules to ensure there were no terminations on the basis of politics or anything like that.”

Meanwhile, Connolly is pushing Congress to consider bipartisan legislation that he introduced earlier this year, which would prevent any future president from moving positions out of the career civil service and into something like Schedule F. Connolly said he didn’t believe any president of any party should wield that power.

“Congress needs to be involved, and I’m hopeful I can engage my friends on the other side of the aisle in looking at that from a pure separation of powers issue,” Connolly said.

Lawmakers debate whether feds were happier during Trump administration

Tuesday’s hearing covered a long list of topics, including federal pay, labor relations, COVID-19 safety protocols, telework, the Merit Systems Protection Board, diversity and inclusion, the Office of Personnel Management, the Federal Employee Viewpoint Survey and Trump’s workforce policies.

For Connolly, he saw the hearing as a way to set a different agenda for the federal workforce. He introduced two pieces of legislation Tuesday, including one that’s designed to improve diversity and inclusion planning at federal agencies. Another bill would reauthorize the MSPB, which still needs Senate-confirmed members after four years without a quorum.

But Hice, the subcommittee’s ranking member, said he disagreed with the premise of the hearing, which was titled “Revitalizing the Federal Workforce.”

“The title would suggest it’s in bad shape, which it’s not,” he said. “My majority counterparts like to rely on recycled talking points and anecdotes but the real data, the real information, shows that the Trump administration’s federal workforce reforms made a positive difference.”

He pointed to a few data points the Trump administration released on its last full day in office. According to OPM, which previewed a few highlights from the 2020 Federal Employee Viewpoint Survey, job satisfaction rose more than 5% over the last four years.

The results of the full survey aren’t out yet, and it’s unclear how individual agencies fared, or how employees answered specific questions in 2020.

Republicans said the FEVS data showed employees were responding positively to Trump’s workforce policies, which they described as commonsense reforms.

“They finally saw someone who was taking action to deal with the real issues that they have to live with every day at work,” Hice said. “They saw someone trying to address the problem of poor performers, for example, an area that consistently ranks as one of the lowest areas on the federal survey. The majority of federal employees are good at what they do. They’re proud to do it, and they have chosen the federal workforce in large part because it’s important and meaningful work. But many of them, let’s just be honest, have to pick up the slack for poor performers.”

“We’re supposed to believe that people come to work happier than ever, and whistle while they work?” Connolly said. He pointed to a handful of large agencies whose employee engagement scores had dropped in recent years, including the Agriculture, Education and Justice Departments.

Fewer than half of federal employees respond to the FEVS each year. About 44.3% of the workforce took the 2020 survey, OPM said, although that number improved by 1.5% since the previous year.

“It’s hard to argue with data,” Lachance said. “On the other hand, a survey can’t ask the opinion of people who have left, people who have been demoralized and people who have given up. They’re probably not filling out the survey.”

The full 2020 FEVS results are expected in early spring, OPM has said.

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