On October 21, 2020, the President signed an Executive Order on “Creating Schedule F in the Excepted Service.”
The Executive Order would remove some federal positions from the competitive service. The positions potentially subject to the Order are those of a confidential, policy-determining, policy-making, or policy-advocating character. These jobs are often filled by people who are not normally replaced after a new president assumes office.
Under the Executive Order, positions with these characteristics will be rescheduled into the newly created Schedule F. They will be exempt from both the competitive hiring rules and adverse action procedures under chapter 75 of title 5 of the United States Code. Jeff Neal, an author with extensive expertise in government operations, referred to the Order as an “F-Bomb”.
OPM Guidance to Agencies
Agencies are going to be given considerable discretion in placing employees into Schedule F. Under new guidance sent to agencies and human resources directors from the Office of Personnel Management (OPM), the positions to be moved to the new schedule will include positions with these characteristics:
- “substantive participation in the advocacy for or development or formulation of policy, especially: (A) substantive participation in the development or drafting of regulations and guidance; or (B) substantive policy-related work in an agency or agency component that primarily focuses on policy”
- “the supervision of attorneys”
- “substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law”
- “viewing, circulating, or otherwise working with proposed regulations, guidance, executive orders, or other non-public policy proposals or deliberations generally covered by deliberative process privilege and either: (A) directly reporting to or regularly working with an individual appointed by either the President or an agency head who is paid at a rate not less than that earned by employees at Grade 13 of the General Schedule; or (B) working in the agency or agency component executive secretariat (or equivalent)”
- “conducting, on the agency’s behalf, collective bargaining negotiations under chapter 71 of title 5, United States Code”
Written, Objective Rationale Required
As inferred by the OPM wording in its new guidance, these job features are only a guide. Agencies could include or exclude positions based on other job features and OPM retains the final authority on which jobs are impacted.
OPM also noted that agencies must provide a written rationale for placing a job into Schedule F. The rationale is to be: An “objective definition of the position’s duties must be derived from a statute, regulation, or internal agency document such as the position description. To ensure placement into Schedule F satisfies procedural due process, the individualized characteristics and attributes of the particular employee encumbering a position are irrelevant to whether the underlying position or office itself is appropriately categorized into Schedule F.”
Politics and the Federal Workforce
A number of organizations with an interest in the federal workforce have issued an opinion on the new Executive Order.
Here is one example from a press release similar to the reaction of other organizations to the new Executive Order.
The new ‘Schedule F’ federal employee category created through Executive Order threatens the centuries-long integrity of nonpartisan professionals by forming a broad exception to the competitive civil service. The new exception demolishes the rule that civil servants are hired and fired based on merit, not political affiliation, a tradition that has served our country well since the late 1800s.
The “spoils system” was created in the 19th century by President Andrew Jackson. After Jackson’s election in 1828, he implemented his philosophy of “to the victors go the spoils.” He set a precedent followed by the major parties for the next fifty years and new presidents were inundated by those who wanted a federal job. One of these disappointed job seekers, who had worked in the Garfield campaign, shot President Garfield in 1881. After his assassination, Congress decided that a system of hiring federal workers who owed their political loyalty to the party in power did not create an effective system of government.
The result was the Pendleton Act of 1883. It mandated competitive examinations for federal employees rather than political loyalty or affiliation.
In order to enforce the merit system, the Act also created the United States Civil Service Commission. In 1912, the Lloyd-Lafollette act was passed to provide job protection for federal employees who were subject to politically motivated removals without recourse. More recently, competitive examinations are no longer used in selecting people to fill most government positions.
Politicizing the Federal Workforce
The reality is that the civil service system has been politicized to an extent. There are a number of jobs filled by political appointees. This feature is often mentioned by those opposed to the new Executive Order and it is a valid point. The number of political appointees has been increasing and at least some of these former political appointees “burrow into” the federal workforce by securing what are presumed to be politically neutral career civil service jobs.
Another point usually ignored is the role of federal employee unions. These organizations effectively work as an advocate for Democrats and their policies within the federal government. The federal government provides subsidies worth millions of dollars to support the unions despite their political advocacy and financial support. The pay-off for their support is that when their candidates win, they are supported in Congress and by the president who can provide numerous advantages to enhance their power and prestige.
The downside to their political activity is that when their supported candidate loses, the new president (and many Republicans in Congress) have an incentive to restrict their prerogatives and government subsidies.
This Executive Order is likely one aspect of the Republican currently in the White House taking action to restrict the power of the unions. If Joe Biden is elected, the Order will be erased. If President Trump is re-elected, it will likely go forward and a number of federal employees will likely be removed from bargaining units represented by unions.
No one knows how many career federal employees would be placed into Schedule F. It is likely to be in the hundreds and possibly thousands of current employees. That does not mean that they would lose their jobs, but it clearly would make it easier for a person to be fired or hired and political loyalty could be a factor in that decision.
It is not surprising that the increasing power of federal employee unions under Presidents Clinton and Obama have led to a political reaction once Donald Trump was elected—a political outsider with an objective of “draining the swamp” in Washington, DC. Those in his administration appear to view unions as a political problem along with some career people who were involved in activities designed to damage or prevent his election chances or implementation of new policies. (This general article and this one about GSA outline a view and examples of the deep state that may be influential to the current proposal and is a point-of-view probably contrary to the views of many federal employees.)
This Executive Order appears to be a reaction to attempts within the federal bureaucracy to enhance political opportunities for one party, one candidate or one political philosophy. Unfortunately, the fall-out from the unions’ political activity and actions by a relatively small but influential number of federal employees has had an impact.