Just in time for the upcoming election, the Office of Personnel Management has issued guidance to federal agencies to implement the final rule that it issued in April designed to thwart any future implementation of Schedule F.
The final rule was issued on April 9, 2024. It outlines the following:
- It establishes procedural requirements for moving positions from the competitive service to the excepted service and within the excepted service. OPM says that this change both creates transparency and establishes an appeals process for federal employees when any such movement is involuntary and characterized as stripping employees of their civil service protections.
- It clarifies that the status and civil service protections a federal employee has accrued cannot be taken away by an involuntary move from the competitive service to the excepted service, or from one excepted service schedule to another. Once a career civil servant earns protections, that employee retains them unless waived voluntarily.
- It clarifies that the phrase “confidential, policy determining, policymaking, or policy-advocating” positions—a term of art to describe positions that lack civil service protections—means noncareer, political appointments. This rule prevents that exception from being misapplied to career civil servants.
OPM’s new guidance lists frequently asked questions about the rule change and how it will work. Some of the templates in the document that will have to be filled out to collect the necessary information suggested that it will also create a lot of paperwork for agencies.
Schedule F: The Political Football
On October 21, 2020, President Trump signed an Executive Order on “Creating Schedule F in the Excepted Service.” That Executive Order created a new class of federal employees who would not be subject to the civil service procedures applicable to most federal employees.
When he took office, President Biden issued another Executive Order to revoke the one issued by Trump.
Legislation from both political parties was introduced to codify the pro or anti-Schedule F positions into law. None of the bills were enacted.
Schedule F has been addressed outside of Congress via executive orders and OPM issuing rules. Both the Trump and Biden administrations have done this. The result is a fluid situation that changes depending on which political party is at the helm in Washington.
There is also a flurry of activity surrounding the issue that happens as an election approaches.
For instance, the original Executive Order introducing Schedule F was issued on October 21, 2020, two weeks before the election. The ensuing guidance from OPM to agencies to begin implementing it was issued two days later, on October 23, 2020, just 11 days before the 2020 presidential election.
OPM issued its final rule blocking Schedule F during an election year, and its guidance to agencies to implement it was published on October 25, 2024, also 11 days before the election.
What is Next for Schedule F?
When Schedule F was originally instated, agencies began implementing it after the election and before Biden took office. Regardless of who wins the upcoming election, agencies are likely to begin carrying out this new guidance this time as well.
If Trump is reelected, Schedule F could resurface. OPM could issue a new rule that changes the one that was recently finalized in some way, and the process could begin anew.
If Kamala Harris wins, nothing is likely to change from the current state. Agencies will most likely continue carrying out OPM’s guidance over the next four years.
However, full control of Washington could make the situation more permanent one way or the other. The makeup of Congress could put a stop to the back and forth executive orders and agency rulemaking via legislation.
If Democrats control both Congress and the White House, it would not be hard to pass a law permanently ending Schedule F by codifying it into law. Ditto for Republicans; if they have both Congress and the White House, a law could be passed that makes Schedule F the law of the land. Laws are much harder to undo in the future than an executive order.
All of this is the end result of the politicization of the federal workforce. When Schedule F was set up four years ago, FedSmith author Ralph Smith presciently wrote at that time:
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 [establishing Schedule F] 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 [President Trump] 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.
