5 Workforce Executive Orders President-Elect Biden Should Cancel on January 20, 2021

Recent press coverage says President-Elect Joe Biden plans to cancel a number of President Donald Trump’s Executive Orders. Given the critical role the nation’s 2 million civil servants play, these 5 Executive Orders should be high on the list to be canceled immediately:

    1. Executive Order on Creating Schedule F in The Excepted Service
    2. Executive Order on Combating Race and Sex Stereotyping
    3. Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles
    4. Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use
    5. Developing Efficient, Effective and Cost-Reducing Approaches to Federal Sector Collective Bargaining. The provisions of Collective Bargaining Agreements that were implemented without full collective bargaining under that Executive Order may be reopened at the request of the affected labor organization.

Let’s go through them individually and look at what they do, why they should be eliminated, and some of the complications in eliminating them.

Executive Order 13957 on Creating Schedule F in The Excepted Service. I have written extensively about this EO (here, here and here). It creates a potentially large number of quasi-political jobs, removes most civil service protections from them, and could devastate the merit-based civil service. There is not time before January 20, 2021 to fully implement it, but there is ample time to do significant damage. The damage, including the largest scale “burrowing in” of political appointees that we have ever seen, new politically motivated hires, and conversion of hundreds or thousands of career civil servants to Schedule F, is where the complexity lies. Eliminating the EO does not eliminate the burrowing in and other actions that may have been taken. Depending on the timing, it may be possible to simply cancel the personnel actions that move career employees and Schedule C politicals to Schedule F. Another option is to terminate the employment of the burrowed in Schedule Cs, but that could open the Biden Administration to allegations of prohibited personnel practices based on political affiliation. Another clean option is to eliminate every Schedule F position and conduct a reduction in force (RIF). Because the converted politicals and new hires would have no place to go in a RIF, they would all be separated. Former career employees who are involuntarily moved to Schedule F or who have been converted and then terminated can easily be reinstated as career employees. I am also hearing a few people saying that the Biden Administration should retain Schedule F because it would give them hiring flexibilities. I strongly disagree. That view is roughly equivalent to being lured by the dark side of the force. While there may be a few benefits that could result, the overall result of Schedule F is politicization of the civil service. Politicization is bad, a spoils system is bad, and a non-merit civil service is bad, whether it is done by Republicans or Democrats. This EO opens doors that must be closed and it must be rescinded immediately. 

Executive Order 13950 on Combating Race and Sex Stereotyping. This EO, widely viewed as a hyperpartisan appeal to President Donald Trump’s base, eliminates diversity and inclusion training in the federal government (civilian and military) and by federal contractors. It denies the realities of systemic racism, using inflammatory language and, ironically, stereotyping the views of proponents of diversity and inclusion training. It interferes with the ability of agencies and contractors to promote diversity and inclusion. Given the substantial research that demonstrates the benefits of a diverse workplace and the measurable effects of systemic racism, this EO is a significant step backwards. It should be rescinded and any actions taken to implement it reversed.

Executive Order 13839 Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles. This EO was described as an attempt to hold federal workers more accountable. It reduced the time for employees with performance deficiencies to improve, eliminated the requirement for progressive discipline, shortened the times for agencies to make decisions on adverse actions, attempted to remove discipline and performance from grievance procedures, and eliminated “clean record” settlements. While the goal of streamlining discipline and performance cases is sound, the approach is not. It focused on speed and removing employees’ ability to respond or to grieve. Combined with the Administration’s failure to ensure a quorum on the Merit Systems Protection Board, it significantly limits employees’ ability to have an independent third-party review. The reality is that the government wins most of those reviews, so they are not the problem. The real driver of delays in dealing with poor performance and misconduct is management inaction. Many supervisors do not want to deal with such issues, and many HR and General Counsel staff want to settle everything. Rather than dealing directly with real problems on the management side, this EO went after the employees. It should be rescinded.

Executive Order 13837 Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use. This EO was targeted directly at the ability of unions to adequately represent bargaining unit employees. Labeling official time as “taxpayer funded union time” makes it sound as thought the unions are being paid to do union work. That is not the case. Official time is necessary because federal agencies are not closed shops and the unions are required to represent bargaining unit employees whether they pay dues or not. This EO placed unreasonable limits on the amount of official time, directed agencies to remove unions from offices in agency space, and remove resources such as computers. The EO, issued at the same time as EO 13839, removed much of unions’ ability to represent employees at the same time 13839 reduced the amount of time for employees to defend themselves. This coordinated effort to deprive employees of due process was a rather cynical approach to dealing with employee issues and should be rescinded. 

Executive Order 13836 on Developing Efficient, Effective and Cost-Reducing Approaches to Federal Sector Collective Bargaining. This EO was a clear assault on the rights of federal workers to organize and bargain collectively. It set arbitrary limits on the time needed to negotiate ground rules and contracts themselves, assumes that delays in bargaining are the fault of the union, and bans interest-based bargaining, prohibits bargaining permissive subjects described in 5 USC 7106(b) (1). Combined with EO 13837, this EO was an attempt to limit the ability of unions to adequately represent employees and to truly negotiate contracts. For those reasons, it should be rescinded. 

There are complications with respect to rescinding EOs 13836 and 13837. The most significant is the collective bargaining agreements that have been put in place to conform to the EOs. Collective bargaining under the terms of these EOs is like playing with a stacked deck. Any collective bargaining agreements that were imposed, some without real bargaining, to implement these EOs should be reopened if the affected unions request it. There are likely to be agency policies that need to be revoked or revised. To the degree possible, agencies should return to the status quo prior to these EOs. 

My suggestion to rescind these EOs does not mean I think everything is great and no reforms are necessary. To the contrary, civil service laws, regulations and policies are woefully out of date. Substantial reform is needed to bring them into the 21st century. While much of that reform can be done administratively, there are changes that will require congressional action. To have any hope of making such changes and making them stick, the changes will require bipartisan support. Later this week I will post a proposal for a way forward for civil service reform.

 

Schedule F Must Have a Stake Driven Through its Heart

President Trump’s Executive Order (EO) creating a new class of quasi-political Excepted Service appointments must be reversed to avoid returning the civil service to the spoils system that existed prior to passage of the Pendleton Act in 1883. Although eliminating Schedule F is essential, it is clearly not enough. Schedule F must have a stake driven through its heart, and the authority to do it again must be removed.

The people and organizations who oppose having a fully functional federal government have now seen that the Excepted Service is a potential pathway to accomplish the destruction of the career civil service, even if they cannot get enough support in Congress to do it legislatively. If Schedule F is reversed, but the broad authority of the President to create classes of excepted service jobs remains, this tactic will resurface. It may not be next year, but it we will definitely see it again.

Representatives Gerry Connolly (D-VA), Carolyn Maloney (D-NY) and Steny Hoyer (D-MD) introduced the Saving the Civil Service Act yesterday. The bill would rescind the EO, prohibit funds from being spent to implement Schedule F, and reverse any moves of employees into Schedule F positions. It would grant back pay to people converted from competitive to Schedule F positions who are terminated without due process.

The bill is a great start, but it misses some key issues. The most important is that it addresses the movement of competitive service employees into excepted service positions, but remains silent on the movement of employees from another excepted service schedule into Schedule F. This big risk here is that the Administration could, at any time, convert all or most of the current Schedule C political appointees to Schedule F. That means they would remain employed after a presidential transition. An incoming Administration could remove them, but it would have to do it carefully. The EO says “Prohibited Personnel Practices Prohibited. Agencies shall establish rules to prohibit the same personnel practices prohibited by section 2302(b) of title 5, United States Code, with respect to any employee or applicant for employment in Schedule F of the excepted service.”

The retention of coverage by Prohibited Personnel Practices (PPP) protections means a wholesale firing of Schedule F appointees who are “burrowed in” former Schedule C political appointees could run afoul of the Prohibited Personnel Practices. Firing them solely because they were appointees of a previous Administration could conflict with PPP restrictions regarding actions taken on the basis of political affiliation. The addition of the PPP language to the EO is curious, because 5 U.S. Code § 2302, the law that establishes Prohibited Personnel Practices, specifically excludes any position “excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character.” It appears the intent is to provide job security for the Schedule F political appointees when there is a change of Administrations. They could still be fired, but not through a broad removal of Trump appointees. Although the proposed bill would eliminate the EO, a court might rule that the provisions of the EO with respect to Prohibited Personnel Practices would remain in effect until the employees were no longer covered by Schedule F. They could also rule that eliminating Schedule F would be done prospectively rather than retroactively, thus leaving any Schedule F employees on the payroll. The issue can muddy the water just enough to give a sympathetic court something to hang its hat on.

In order to be truly effective, a legislative fix to Schedule F should eliminate Schedule F, reverse any move of any current employee in the competitive or excepted service into Schedule F, terminate the employment of anyone hired directly into Schedule F, and rescind the authority of the President to create new large-scale excepted service Schedules.

In order to provide flexibility for any Administration to meet legitimate needs, the excepted service authority should be reduced to a reasonable number, such as 1,000 or fewer positions, that can be created without congressional approval. If the law does not significantly restrict future attempts to break the civil service through widespread use of excepted service authority, it is virtually certain we will see other attempts by this or a future Administration to do something similar.