In October, President Trump issued an Executive Order entitled Creating Schedule F In The Excepted Service. While the title does not sound like a major change, the reality is that the Executive Order would result in major changes to the federal government’s civil service system.
What Schedule F Would Do
An observer of the federal government’s civil service may view the Executive Order as a way to “drain the swamp”—a phrase often mentioned by President Trump prior to being elected. The phrase was a reference to how the federal government and those who surround it or work for the government function on a daily basis. In effect, the term refers to a “deep state” that operates with its own agenda and priorities without regard for newly elected officials and their policies.
The Executive Order would create a group federal employees who would not be subject to the usual civil service procedures for hiring and firing. Their exemption to the usual array of appeal rights was justified, according to the Order, as “Agencies need the flexibility to expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation.”
The new system would also create a larger group of what is essentially a political form of appointments under a different system (Schedule F) than current political appointments (Schedule C appointments).
Agencies Moving to Implement New Schedule
In October, President Trump directed government agencies to review what employees do in their jobs and report back with a list of “Schedule F” federal employees by January 19th. That process is now starting.
The Office of Management and Budget (OMB) and the Department of Energy are both starting to identify potential positions to become Schedule F appointments. The process is to identify those in jobs that are “a confidential, policy-determining, policy-making, or policy-advocating character…..”
OMB has reportedly classified 88% of that agency’s workforce (about 425 employees) as potential converts to Schedule F.
What Happens Next?
A lot has happened in the short time since the Order was issued. The Order was issued shortly before a presidential election. Many polls showed former vice-president Joe Biden potentially winning in a national landslide. The landslide did not occur. Landslide or not, it now appears quite certain our next president will be Joe Biden who has amassed enough electoral votes to assume office in January 2021.
What will happen in the period between today and January 20, 2021? Will OMB actually move 88% of its workforce into Schedule F during the transition period?
If agencies identify potential people to go into Schedule F but do not actually move them, that is a much different scenario than one in which current employees are converted to a new type of appointment. A President Biden could revoke the Executive Order. Or, a President Biden could use it to move people into those Schedule F jobs if the Executive Order remains in place.
If agencies do quickly move people into Schedule F positions and the jobs are occupied when the new administration assumes office, their careers may be taking a nasty turn. It is possible some employees moved into Schedule F under the Trump administration could be quickly fired under the terms of the Executive Order. The new administration could also remove Schedule F employees and replace them with their own people to implement policies of the new administration.
I will not speculate on actions that could take place if this occurs. The situation would be complex and I would not want to be the human resources director tasked with resolving those issues. The biggest winners would likely be the lawyers hired to sort out the problems and handle the litigation that would likely emerge in the resolution process.
Had President Trump won the election, which may have been the expectation when the Order was issued, there is little doubt the Order would have been used and people would have been moved on to Schedule F—absent any legal impediments that may crop up delaying or preventing implementation.
Moving current Schedule C political appointees into a Schedule F job could benefit those who may want to remain as a federal employees. This category of employees would normally leave under a new administration unless they are able to “burrow in” to a career civil service job. Being fired as a Schedule F employee would allow them to argue they were being fired because of their political affiliation (Republican). An argument that firing the political appointee is a prohibited personnel practice could result in one of the current political appointees to retain their federal job.
We do not yet know what actions will be taken with regard to Schedule F. Nothing has apparently been done to formally move current federal employees into the new schedule.
The most logical approach would be to retain the status quo and prevent the disruption and confusion that will result from moving political or career employees into the new system. But, depending on one’s point of view of the civil service, some may see quick implementation is a way to “drain the swamp” of those who have not been willing to work hard on implementing policies of the outgoing administration.