The move puts the final decision under the new order in the hands of the President rather than OPM, in what may be a change designed with an eye on legal challenges—one of which already has been filed. Image: DCStockPhotography/Shutterstock.com
In interim guidance on the Schedule Policy/Career (formerly “Schedule F”) executive order, OPM addressed (in addition to the types of positions for agencies to consider for conversion; see related story) next steps and other considerations.
The order, like its predecessor from 2020, directs agencies to review and identify positions that are “appropriately categorized” to the new excepted service category; they then are to “petition OPM to recommend that the President place those positions in Schedule Policy/Career,” says a memo on chcoc.gov. “A new executive order will subsequently effectuate the transfers into Schedule Policy/Career.”
That puts the final decision under the new order in the hands of the President rather than OPM, in what may be a change designed with an eye on legal challenges—one of which already has been filed.
While the new order does not specify a timeframe, the guidance refers to the schedule under the original order: “Agencies have 90 days to conduct a preliminary review of positions and submit petitions, with an additional 120 days to finalize their review and submit any remaining petitions. Agencies may, and are encouraged to, submit such petitions on a rolling basis.”
The order requires agencies to include a written explanation for their recommendations, which “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.”
“Importantly, 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 Policy/Career,” it says.
It adds that the types of policy-related positions mentioned in the order and in the guidance “are not determinative. Agencies may include positions in their petitions based on additional characteristics not expressly specified.” OPM further will have discretion to not recommend to the President positions that agencies have identified, it says.
OPM meanwhile said that it expects to propose regulations to “provide that Schedule Policy/Career positions will be filled using the procedures applicable to filling competitive service vacancies, unless those positions would have been filled using excepted hiring procedures had they not been placed in Schedule Policy/Career.”
“Under either scenario, agencies will be forbidden from making Schedule Policy/Career appointments based on political affiliation. Rather, they will hire the candidates with the knowledge, skills, abilities, and experience that make them best equipped for the position . . . This prohibits, inter alia, discrimination based upon political affiliation. OPM will issue further guidance providing model rules that will satisfy these requirements,” it says.
That represents a change in expectations dating from the original Schedule F order that after conversion, positions could be filled without competition—essentially converting them to political appointees. Those instructions also could be designed with an eye on legal challenges.
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