Federal Manager's Daily Report

Federal agencies have been told to take a broad view of which career federal jobs are potentially subject to President Trump’s new order directing that positions involved with policy matters are to be moved from the competitive service to the excepted service.

A memo from OPM gives instructions for carrying out the order, including the requirement for an initial inventory by late January, and a full one by late March, of jobs of a “confidential, policy-determining, policy-making, or policy-advocating character.” OPM will then determine whether to move those positions into the new excepted service “Schedule F” in which the positions no longer will be filled through competition and employees in them will lose many civil service appeal rights.

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While the decision would then lie with OPM, the presumption of the order is that it generally would grant such requests, as the FLRA similarly generally would grant requests that agencies meanwhile would have to send to that agency to remove union representation rights from any such positions currently under union bargaining units.

For purposes of creating those inventories, the order does not list occupations but rather speaks in terms of duties of the position. Because of that uncertainty, estimates of the number of positions potentially affected vary widely, but the number is commonly to be put in at least in the tens of the thousands and potentially 100,000 or more.

OPM said that while the terms “confidential,” “policy-determining,” “policy-making,” and “policy-advocating” under the order are drawn from civil service law, no court cases or other interpretations define exactly what they mean—and therefore “no case law binds the President’s particular delineation of specific characteristics within the scope of the ordinary meaning of these terms.”

It said that the descriptive terms in the order “are guideposts; they are not determinative. Agencies may include positions based on additional characteristics not expressly specified . . . and OPM may except those positions so long as the agency demonstrates that the position is of a confidential, policy-determining, policy-making, or policy-advocating character.”

It further noted that the order requires that agencies provide a written description of why the position would be affected. Those explanations “must demonstrate that the position’s duties are policy-determining, policy-making, or policy-advocating, or require working closely with senior officials in the case of confidential positions. That objective definition of the position’s duties must be derived from a statute, regulation, or internal agency document such as the position description,” it said.

It added: “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.”

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