The rules state that positions of a “confidential, policy-determining, policy-making, or policy-advocating” nature are limited only to positions already designated as politically appointive, not career. Image: Joseph Sohm/Shutterstock.com
By: FEDweek StaffOPM has stressed to agencies the restrictions in rules it issued earlier this year against converting competitive service employees to excepted service status, rules it issued to create at least a temporary barrier against the reimposition of a Schedule F program should former President Trump win the election.
Trump has said that he would promptly move to reinstate Schedule F, which was created by a late 2020 executive order to allow agencies to make such conversions for competitive service employees involved with making or carrying out policy. 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 on taking office with an order of his own. The rules finalized in April of this year would act to prevent the return of a Schedule F by only a new executive order. A second Trump administration would have to start a new regulatory process to take them off the books, during which opponents doubtlessly would pursue legal action claiming such a change violates civil service law.
The rules state that positions of a “confidential, policy-determining, policy-making, or policy-advocating” nature are limited only to positions already designated as politically appointive, not career; set standards for moves of other positions 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 create a right to appeal to the MSPB of any loss of protections.
The new guidance from OPM, in a memo at chcoc.gov, notes that for other types of positions, conversions within the excepted service or from the competitive service—such as an employee voluntarily switching to a “Schedule C” politically appointive position—remain allowed under limited circumstances. But it sets out a list of requirements for agencies to change a position’s status, including documenting the need, certifying that it meets certain standards, and approval by the agency’s chief HR official and by OPM.
The guidance also states that an agency would have to “notify the employee that the employee retains any earned competitive status or procedural or appeal rights.” Failure to provide such a notice would be grounds for appealing an involuntary conversion to the MSPB.
Also, it says, “an individual may appeal on the basis that (A) a facially voluntary move was coerced or otherwise involuntary or (B) a facially voluntary move to a new position would require the individual to relinquish their competitive status or any civil service protections and the move was coerced or was otherwise involuntary.”
Former Trump administration officials have estimated that Schedule F would have affected some 50,000 employees although federal unions have said the number could have been far higher, given how widely the few agencies interpreted policy-oriented positions in preparation for carrying out that order.
Proposals remain pending in Congress to erect a still higher barrier by putting into law policies mirroring the current rules, but have fallen short of enactment since first being introduced in 2021.
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