The Office of Personnel Management (OPM) has issued a proposed rule to expand appeal rights available to those in the competitive service to federal employees in the excepted service. The proposed rule is apparently the response to a petition filed with OPM by the National Treasury Employees Union (NTEU).
What Are Excepted Service Employees?
Excepted service employees are federal employees not covered by the competitive service rules and regulations. They are hired under different authorities and have different rights and benefits than competitive service employees. One of the differences is the appeal rights that excepted service employees have in case of an adverse action, such as removal, suspension, demotion, or furlough.
Most federal employees and over 80 percent of DOD civilians are in the competitive service. The excepted service includes all federal civil service positions not included in the competitive or Senior Executive Service.
The Office of Personnel Management (OPM) oversees the federal civil service system. One of the functions of OPM is to establish and enforce standards for hiring, promoting, and removing federal employees. OPM also administers the merit system principles and the prohibited personnel practices that protect the rights and interests of federal workers.
Competitive vs. Excepted Service
Federal employees are classified into two categories: competitive service and excepted service. Competitive service employees are hired through a competitive process that ensures fair and open competition, and they have certain rights and benefits, such as the right to appeal adverse actions to the Merit Systems Protection Board (MSPB).
Excepted service employees are hired under special authorities that allow agencies to fill positions not subject to the competitive process, such as those requiring special qualifications, skills, or trust. Excepted service employees may have different rights and benefits depending on the specific authority under which they are hired. These positions are not subject to the competitive service’s appointment, pay, and classification rules.
Under the current system, excepted service employees generally do not have the right to appeal an adverse action to the Merit Systems Protection Board (MSPB) unless they meet certain criteria. These criteria include having completed two years of current continuous service in the same or similar position, being a preference-eligible veteran, or being subject to an action based on misconduct or unacceptable performance that is appealable to the MSPB. Some exceptions may apply depending on the specific type of excepted service position and the agency involved.
What is OPM Proposing?
OPM outlines its proposal as follows:
- The proposed rule would clarify that the status and civil service protections an employee has accrued cannot be taken away unless the employee gives up these rights voluntarily.
- The proposed rule would clarify the definition of positions that are “confidential, policy determining, policymaking, or policy-advocating” to mean noncareer, political appointments. These positions do not have civil service protections, and this proposed rule would prevent that exception to those protections, which is aimed at political appointments, from being misapplied to career civil servants.
The proposed rule would establish procedural requirements for moving positions from the competitive service to the excepted service and within the excepted service. This change would create transparency and an appeals process for federal employees when any such movement purports to strip them of their civil service protections.
The purpose of the proposal is to give federal employees who may be moved into the excepted service to be notified of an adverse action. They would also be given the right to respond. The proposal also states that civil service protections cannot be removed unless an employee voluntarily gives up this protection.
OPM Rationale for the Proposal
OPM Director Kiran Ahuja says, “The proposed rule honors our 2.2 million career civil servants, helping to ensure they can carry out their duties without fear of political reprisal.”
OPM Deputy Director Rob Shriver added, “Our country relies on non-partisan civil servants to make sure our food is safe and our water is clean, to protect us from national security threats, to care for veterans, and to support seniors. This proposed regulation builds on two years of the Biden-Harris Administration’s efforts to strengthen federal agencies and the federal workforce to better deliver for the American people.”
In the Federal Register notice, OPM also wrote, “Congress has created conditions under which certain employees (i.e., those with the requisite tenure in continued employment) may gain a property interest in continued employment….[O]nce a government requires cause for removals, constitutional due process protection will attach to that property interest and determine the minimum procedures by which a removal may be carried out.”
OPM also notes in the Federal Register notice that the new proposed rule is necessary and that procedures are in place so that “If a Federal employee refuses to implement lawful direction from leadership, there are appropriate vehicles for agencies to respond through discipline and, ultimately, removal….”
While that is true, it ignores the reality that the system does not work well and federal employees know that it does not work. Here is the reality.
In federal employee viewpoint survey results conducted by the Office of Personnel Management (OPM), between 2017 and 2021, an average of 36% of employees responding to the question said that “steps are taken to deal with a poor performer who cannot or will not improve.” Stated differently, 64% reported their agencies did not take action to deal with an employee who was not successfully performing in a work unit.
In these surveys between 2019-2021, federal employees report that more than 50% of poor performers “remain in the work unit and continue to underperform.” For each of these three years, 2% of respondents said the poor performers left the work unit or quit, about 9% of the poor performers were transferred or removed and about 19% said there were not any poor performers in their work unit. About 18% said the poor performers continue to work there and gradually improve over time.
Politics and the OPM Proposal
No doubt, the reason the proposal is now being issued, which will be finalized after the 60-day comment period, can be seen from this OPM statement: “The previous Administration issued an executive order to alter the long-standing system that ensures that decisions to hire and fire career civil servants are based on merit and not loyalty to the President. The Executive Order, commonly known as ‘Schedule F,’ would have directed agencies to move potentially large swathes of career employees into a new ‘at-will’ status that would purportedly strip them of civil service protections.”
In October 2020, the Trump administration issued an Executive Order on “Creating Schedule F in the Excepted Service.” The OPM guidance to agencies outlined how they were to implement the order.
This was the rationale for the Trump Executive Order:
…I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character….Placing these positions in the excepted service will mitigate undue limitations on their selection. 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….
Unfortunately, the Government’s current performance management is inadequate, as recognized by Federal workers themselves. For instance, the 2016 Merit Principles Survey reveals that less than a quarter of Federal employees believe their agency addresses poor performers effectively.
Executive Order on Creating Schedule F In The Excepted Service
Is the Federal Workforce Non-Partisan?
The new OPM proposal wades into the middle of a continuing debate. There is not an easy answer to resolving a problem that is now being highlighted by this proposal. There are also comments and promises from some Republican candidates hoping to become the next President of the United States and who anticipate the federal workforce will be a detriment to making changes they want to make if they win the election.
The federal civil service is supposed to be non-partisan and to work to implement the policies of the administration selected by the voters. Is the federal workforce non-partisan, or is it now a form of government that is immune from election results and, instead, implementing policies and programs that are favored by liberal Democrats?
Most Americans are probably in favor of a non-partisan federal workforce. Voters can determine the future of the country through elections and the workforce will, in theory at least, implement the policies of the election winner regardless of the winner’s political party.
An article on this topic released several days before the new OPM proposal by an author who was obviously frustrated with the federal civil service highlighted these examples of how the federal workforce worked against the Trump administration. James Sherk was Special Assistant to the President for Domestic Policy on the White House Domestic Policy Council. These examples are directly quoted from Tales From the Swamp: How Federal Bureaucrats Resisted President Trump.
- Career staff at the Department of Education assigned to work on politically sensitive regulations, including the Title IX due process regulations, would either produce legally unusable drafts that would never withstand judicial review or drafts that significantly diverged from the Department’s policy goals. As a result, political appointees had to draft the regulations primarily by themselves.
- Career employees in the Department of Justice Civil Rights Division refused to prosecute cases they ideologically disagreed with, even when the facts showed clear legal violations. This included Civil Rights Division career staff refusing to work on cases charging Yale University for racial discrimination against Asian-Americans and protecting nurses from being forced to participate in abortions.
- Department of Health and Human Services (HHS) career staff circumvented President Trump’s hiring freeze issued soon after taking office by crossing out new hires’ start dates on their hiring paperwork. Staff used Sharpie pens to retroactively adjust the start dates to January 19, 2017—the day before President Trump took office.
- Career lawyers at the National Labor Relations Board routinely gave political appointees misleading legal analyses. They would only cite cases supporting their preferred position and omit contrary precedents. Some career lawyers refused to draft documents whose positions they disagreed with.
- Department of Labor (DOL) regulatory staff intentionally delayed producing a departmental priority regulation. A competent private sector attorney could have produced a draft regulation in two to three weeks. The team of about a dozen career staff claimed they needed a year to do so—a pace that amounted to each attorney in the unit writing less than one line of text a day.
This is a summary of author James Sherk’s experience under the Trump administration:
Civil service protections enable this policy resistance. They make removing career employees for any reason prohibitively difficult. This is not what the founders of the civil service intended. They wanted to prevent patronage hiring but feared removal protections would protect incompetent or intransigent employees.
Summary
Creating a system to enable easy removal of federal employees in “confidential, policy-determining, policy-making, or policy-advocating” and “confidential or policy-determining” positions is a hot topic. Some see making it easier to remove employees in these jobs as a system that will “diminish faith in our democracy, terrorize the federal workforce, and inject politics into the routine day-to-day operations of government agencies.” Others see the OPM proposal as one that will “protect incompetent or intransigent employees” and will “shield career bureaucrats from accountability for how they exercise federal power.”
The OPM proposal is obviously about politics and political power. Those on both sides of the issue hold strong positions and often claim to want the same result (a competent, non-partisan federal workforce) but see the issue from different perspectives.
There is little doubt the OPM proposal will be implemented quickly. It is not a new law. As it is a regulation to be issued by OPM, it can be changed by subsequent administrations. It is also likely to be the topic of court review in the future.
Readers are free to weigh in with their personal opinions in the comments after this article.
