An unknown but probably large number of federal employees whose positions involve formulating and carrying out policy would move from the competitive service to the excepted service under a new executive order from President Trump.
The order creates a new category of the excepted service, called Schedule F, for both current and future employees in positions “of a confidential, policy-determining, policy-making, or policy-advocating character and that are not normally subject to change as a result of a Presidential transition.”
The order does not list potentially affected occupations but rather speaks in terms of the position’s duties, which include (in its words):
· substantive participation in the advocacy for or development or formulation of policy, especially substantive participation in the development or drafting of regulations and guidance or substantive policy-related work in an agency or agency component that primarily focuses on policy;
· the supervision of attorneys;
· (substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law;
· viewing, circulating, or otherwise working with proposed regulations, guidance, executive orders, or other non-public policy proposals or deliberations generally covered by deliberative process privilege and either: directly reporting to or regularly working with an individual appointed by either the President or an agency head who is paid at a rate not less than that earned by employees at Grade 13 of the General Schedule; or working in the agency or agency component executive secretariat (or equivalent); or
· conducting, on the agency’s behalf, collective bargaining negotiations under chapter 71 of title 5, United States Code.
Agencies are to review positions that meet those criteria, with a first look is due within 90 days of the order—which falls on the day before Inauguration Day—and a fuller review within 210 days. After those reviews, agencies would request OPM to shift those jobs into the new schedule and OPM presumably would agree.
Estimates of the potential number of employees affected range from the tens of thousands to 100,000 or more.
The administration in 2018 had similarly moved administrative law judges from the competitive service to the excepted service, but that involved only about 2,000 positions and affected only those newly hired after that change.