President Trump’s Executive Order (EO) creating a new class of quasi-political Excepted Service appointments must be reversed to avoid returning the civil service to the spoils system that existed prior to passage of the Pendleton Act in 1883. Although eliminating Schedule F is essential, it is clearly not enough. Schedule F must have a stake driven through its heart, and the authority to do it again must be removed.
The people and organizations who oppose having a fully functional federal government have now seen that the Excepted Service is a potential pathway to accomplish the destruction of the career civil service, even if they cannot get enough support in Congress to do it legislatively. If Schedule F is reversed, but the broad authority of the President to create classes of excepted service jobs remains, this tactic will resurface. It may not be next year, but it we will definitely see it again.
Representatives Gerry Connolly (D-VA), Carolyn Maloney (D-NY) and Steny Hoyer (D-MD) introduced the Saving the Civil Service Act last week. The bill would rescind the EO, prohibit funds from being spent to implement Schedule F, and reverse any moves of employees into Schedule F positions. It would grant back pay to people converted from competitive to Schedule F positions who are terminated without due process.
The bill is a great start, but it misses some key issues. The most important is that it addresses the movement of competitive service employees into excepted service positions, but remains silent on the movement of employees from another excepted service schedule into Schedule F.
The big risk here is that the Administration could, at any time, convert all or most of the current Schedule C political appointees to Schedule F. That means they would remain employed after a presidential transition. An incoming Administration could remove them, but it would have to do it carefully. The EO says “Prohibited Personnel Practices Prohibited. Agencies shall establish rules to prohibit the same personnel practices prohibited by section 2302(b) of title 5, United States Code, with respect to any employee or applicant for employment in Schedule F of the excepted service.”
The retention of coverage by Prohibited Personnel Practices (PPP) protections means a wholesale firing of Schedule F appointees who are “burrowed in” former Schedule C political appointees could run afoul of the Prohibited Personnel Practices. Firing them solely because they were appointees of a previous Administration could conflict with PPP restrictions regarding actions taken on the basis of political affiliation. The addition of the PPP language to the EO is curious, because 5 U.S. Code § 2302, the law that establishes Prohibited Personnel Practices, specifically excludes any position “excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character.” It appears the intent is to provide job security for the Schedule F political appointees when there is a change of Administrations. They could still be fired, but not through a broad removal of Trump appointees. Although the proposed bill would eliminate the EO, a court might rule that the provisions of the EO with respect to Prohibited Personnel Practices would remain in effect until the employees were no longer covered by Schedule F. They could also rule that eliminating Schedule F would be done prospectively rather than retroactively, thus leaving any Schedule F employees on the payroll. The issue can muddy the water just enough to give a sympathetic court something to hang its hat on.
In order to be truly effective, a legislative fix to Schedule F should eliminate Schedule F, reverse any move of any current employee in the competitive or excepted service into Schedule F, terminate the employment of anyone hired directly into Schedule F, and rescind the authority of the President to create new large-scale excepted service Schedules.
In order to provide flexibility for any Administration to meet legitimate needs, the excepted service authority should be reduced to a reasonable number, such as 1,000 or fewer positions, that can be created without congressional approval. If the law does not significantly restrict future attempts to break the civil service through widespread use of excepted service authority, it is virtually certain we will see other attempts by this or a future Administration to do something similar.