The list OMB compiled in 2020 for potential conversion encompassed positions such as economists, IT specialists, a toxicologist, correspondence specialists and FOIA officers. Image: Joseph Sohm/Shutterstock.com
By: FEDweek StaffOPM has finalized rules that would effectively act as a barrier–although possibly only a short-term one–against reinstating an excepted service Schedule F, as former President Trump has said he would do if elected in November.
An April 4 Federal Register notice finalizes rules proposed last fall, in the latest of the back and forth over an executive order that Trump issued just ahead of the 2020 election. That order would have moved competitive service career employees involved with policy matters or with providing confidential advice to agency leadership into that new excepted service category.
That essentially would have turned those jobs into political appointees without civil service protections against firing, and would have allowed filling those positions without competitive hiring.
President Biden quickly revoked that order with one of his own on taking office in early 2021; the new rules in essence prevent a return of Schedule F through another order that would override Biden’s order in turn. The rules themselves could be revoked by a new administration but that process would take some time—a period in which legal challenges doubtlessly would be filed.
The rules state that positions of a “confidential, policy-determining, policy-making, or policy-advocating” nature—the definition Schedule F used for being subject to conversion to the excepted service—are limited only to positions already designated as politically appointive, not career.
They also set standards for moves from the competitive service to the excepted service, or from one excepted service category to another; require that in any such move an employee would retain the status and civil service protections they previously had; and creates a right to appeal to the MSPB of any loss of protections.
The MSPB meanwhile finalized rules of its own to accommodate such appeals, which it had proposed on the assumption that the OPM rules would take effect.
The final rules will help “ensure that people are hired and fired based on merit and that they can carry out their duties based on their expertise and not political loyalty,” OPM director Kiran Ahuja said in a statement.
“Frontline federal employees are not political appointees, and for good reason. By having basic rights such as notice of any adverse action and an opportunity to respond, they are shielded from unlawful and politically motivated firings,” the NTEU union said. “This is a bedrock principle of making sure day-to-day government services are provided by qualified professionals who do their job without regard to which political party holds the White House.”
The NTEU recently said that the number of employees potentially affected by a return of Schedule F could be tens of thousands higher than the 50,000 figure cited by former Trump administration officials who are working on reinstating it should Trump be elected in November. That was based on information the union received in response to a FOIA request on positions that would have been converted at OMB, one of the few agencies that identified such positions during the only several months Schedule F existed.
While OMB has a far higher percentage of policy-oriented jobs than most agencies, its list—which OPM had approved, although conversions never were carried out—also encompassed positions such as economists, IT specialists, a toxicologist, correspondence specialists and FOIA officers.
Proposals are pending in Congress to change the law along the same lines as in the new rules; that would create an even higher barrier since another change in law would be needed to reverse course afterward. However, those efforts have been unsuccessful, even in the prior Congress where Democrats controlled both the House and Senate as well as the White House.
Meanwhile, Rep. James Comer, R-Ky., chair of the House Oversight and Accountability Committee, said the committee “will continue to conduct rigorous oversight of the federal workforce and will examine legislative solutions to make the unelected, unaccountable federal workforce more accountable to the American people.”
He said the rules are “yet another example of the Biden administration’s efforts to insulate the federal workforce from accountability” and that it “will further undermine Americans’ confidence in their government since it allows poor performing federal workers and those who attempt to thwart the policies of a duly elected President to remain entrenched in the federal bureaucracy.”
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