The White House issued an Executive Order on October 21 creating a new “Schedule F” category of excepted service positions. These new jobs could replace all career civil service positions “of a confidential, policy-determining, policymaking, or policy-advocating character.” Such positions would “provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive service selection procedures. The EO goes on to say “Placing these positions in the excepted service will mitigate undue limitations on their selection. This action will also give agencies greater ability and discretion to assess critical qualities in applicants to fill these positions, such as work ethic, judgment, and ability to meet the particular needs of the agency. These are all qualities individuals should have before wielding the authority inherent in their prospective positions, and agencies should be able to assess candidates without proceeding through complicated and elaborate competitive service processes or rating procedures that do not necessarily reflect their particular needs.”
In addition to eliminating merit-based hiring processes for such positions, the EO removes adverse action due process under Title 5, saying “Conditions of good administration similarly make necessary excepting such positions from the adverse action procedures set forth in chapter 75 of title 5, United States Code.”
What are the implications of the EO? How any jobs will it affect? Is it legal? Is it a good idea? The Executive Order does not appear to have gone though normal rule-making processes. Sources tell me that it was driven by political appointees and that many career employees in the Office of Management and Budget and the Office of Personnel Management believe it is deeply flawed.
The implications of this being fully implemented are profound. It is the most direct assault on the career civil service since the passage of the Pendleton Act in 1883. To understand why, we need to look at what it really does. Jobs that do not require a merit-based hiring process and that can be terminated at will are, for all practical purposes, another class of political appointee. So “Schedule F” is a more permanent form of political job. Unlike Schedule C, non-career SES and other political appointees who go away at the end of an Administration, Schedule F appointments would last beyond the Administration that appoints them. A new Administration could inherit hundreds or even thousands prior Administration appointees. An Administration that wants its policymaking to continue beyond its term, or that simply wants to gum up the works for an incoming Administration, would have an effective tool to do it. It could also affect current career employees by moving them from jobs with civil service protections to at-will employment. Say something a senior official or the president doesn’t like? You are toast.
How many jobs would Schedule F affect? There is no good answer in the documents that were published, but the number could easily grow to tens or even hundreds of thousands. Many GS-13, 14 and 15 and equivalent positions are in the category of “policy-determining, policymaking, or policy-advocating character.” That last one — policy advocating character — is a definition you could drive massive numbers of jobs through. In effect, almost any job in an agency headquarters, and many in field operations could be considered “policy-advocating.” In field organizations the covered positions could be at even lower grade levels.
The EO identifies the potential Schedule F positions as “Appointments of individuals to positions of a confidential, policy-determining, policy making, or policy-advocating character that are not normally subject to change as a result of a Presidential transition …” There is a reason such positions are not normally subject to change as a result of a Presidential transition. An effective government needs professionals who understand the work and the mission, and who are not driven solely by the political interests of an Administration. Most people who understand government would argue that the last thing we need is more political appointees, and particularly not more political appointees who would last beyond the Administration that hires them. What we are talking about with this EO is possibly increasing the number of political appointees tenfold. The EO specifically identifies the some categories of positions that would be covered. They include “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 nonpublic policy proposals or deliberations generally covered by deliberative process privilege and either: (A) 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 (B) 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.”
Is this legal? Maybe. I think parts of it are highly questionable. For example, 5 USC Chapter 75 covers adverse action procedures. It defines covered employees as including excepted service employees who are either veteran preference eligibles with 1 year of service or nonveterans with 2 years of service.
I believe exempting these Schedule F employees from Chapter 75 is most likely not legal. While the President has a tremendous amount of authority with respect to the executive branch, he does not have the authority to unilaterally waive statutes. Absent a court deferring to the executive branch in a significant way, there is a high likelihood it would be overturned. That is obviously not a guarantee.
It is unlikely that large numbers of Schedule F positions will be implemented before the election or even before the inauguration. If President Donald Trump is reelected, I would expect to see an effort to move many thousands of positions into Schedule F. The steps to do that could take a while, as it is not likely they have authority to simply reassign career employees into Excepted Service jobs and deny them due process. It is also highly likely that the House of Representatives will insert language into appropriations bills that prevent Schedule F implementation. If former Vice President Biden is elected, I would expect this EO to be canceled, as it should be, within days of the inauguration.