Recent moves by OPM are stoking fear that the Trump administration is accelerating plans to politicize federal jobs as the window closes on Congress’ ability to block the move.
Time is running out for Congress to block the Trump administration’s implementation of what experts say is an alarming plan to convert potentially hundreds of thousands of federal workers into at-will employees, essentially turning the civil service into a partisan machine where jobs can be doled out as rewards for political support and “disloyal” employees can be fired when the boss takes offense.
In October, President Trump signed an executive order creating a new Schedule F job classification within the government’s career civil service for “employees in confidential, policy-determining, policy-making, or policy-advocating positions,” and instructing agencies to come up with a preliminary list of positions that meet that criteria by Jan. 19. Employees converted to Schedule F would lose the vast majority of their civil service protections and could be fired without cause. Already, the Office of Management and Budget has identified 88% of its workforce for the new Schedule F classification.
Trump’s directive has created an unlikely alliance of federal employee unions, associations representing managers and executives, good government groups, academics and other experts in opposition to the administration’s plans. They unanimously have argued the policy would undo more than a century of federal civil service laws and restore the spoils system that pervaded government in the 19th century.
Opponents of the executive order have urged lawmakers to block its implementation by including language in an omnibus spending package Congress must pass this week to keep the government from shutting down when funding expires on Dec. 18.
But a source familiar with negotiations told Government Executive that thus far, many lawmakers do not feel a sense of urgency to press for something they believe President-elect Biden could reverse after taking office in January. But they underestimate how difficult it might be for Biden to get rid of Schedule F.
“The impression I’m getting is that this is something that Biden can easily rescind, and therefore does not need to be part of the negotiations on this,” the person said. “There are two schools of thought: From the Republican standpoint, there’s little belief that employees will be converted on a large scale. They don’t believe the administration will actually do this, and if it does, it won’t be that many people because this is the federal government, and it moves very slowly.”
At the same time, many Democrats are loath to insist on the measure, as it presents an extra stumbling block for negotiations over federal funding and coronavirus relief, the source said.
“What I’m hearing is that, since Republicans are a hard ‘No’ on this and Biden can rescind it, this doesn’t need to be part of the negotiations,” they said. “If you’re [House Speaker Nancy] Pelosi or [Senate Minority Leader Chuck] Schumer or whoever and you think that Biden can easily rescind this, why would you trade this for something else?”
A Democratic congressional aide told Government Executive that including a provision blocking the order’s implementation in the funding bill remains a priority, noting that House Majority Leader Steny Hoyer has put his support behind the effort. But the aide acknowledged that members of the House Appropriations Committee haven’t “given a ton of guidance” on the matter.
An Impending ‘Logistical Nightmare’
Recent actions by the administration indicate that at least parts of the federal government are moving quickly to implement the executive order, which could at the very least create a bureaucratic logjam for agency HR shops after Biden rescinds the directive.
“This is not something that you can just reverse instantly,” said Jason Briefel, director of policy and outreach at the Senior Executives Association. “Putting someone who has been fired under Schedule F back on the payrolls will take at least one pay cycle, so even if it’s just the 400-plus people at OMB, it will be two to three weeks until they can be put back to work if they were fired. You could not possibly do it faster, and the scale of the logistical nightmare grows exponentially with the number of employees affected.”
A pair of new developments could further complicate efforts to roll back the provisions of the Schedule F order. President Trump issued a memorandum on Thursday changing the order of succession at the Office of Personnel Management, elevating the chief of staff to be next in line when the OPM director and deputy director resign or otherwise depart office. On that same day, OPM promoted its White House liaison, Paul Dans, into the chief of staff role.
Dans reportedly clashed with then-OPM Director Dale Cabaniss during her time at the agency, and his interference at the agency contributed to her decision to resign abruptly in March.
Additionally, the associate director for employee services position, now third in the order of succession, has been held since the spring by Trump appointee Dennis Kirk, a stalled nominee to the Merit Systems Protections Board. That position traditionally had been held by career OPM employees.
The Obama administration also adjusted OPM’s order of succession in 2016, but the end result was that a career federal employee, then Chief Management Officer Kathleen McGettigan, became acting director.
Federal employee groups and good government experts fear the recent personnel moves and the change to the order of succession portend faster movement on Schedule F at the agency responsible for green lighting conversions to the new job classification, or worse, spark a massive legal battle that ties the hands of the Biden administration.
“The only reason [to change the order of succession] is if they intend to actually use it,” said Donald Kettl, the Sid Richardson professor at the University of Texas Austin’s Lyndon B. Johnson School of Public Affairs. “I think the answer is probably to put the afterburners on to implement Schedule F in the administration’s remaining days. Why do that when it’s clear that President-elect Biden will strike it? For a lot of the folks who are behind this effort, this is part of a much longer campaign, so the goal is not so much just to implement it, but to lay the groundwork for a much broader assault on the existing system of merit.”
One possibility would be that Dans or Kirk could burrow into a career position at the agency, or declare their jobs part of Schedule F, Kettl said. In the latter case, the Biden administration’s efforts to rescind the executive order could serve as the impetus for a lawsuit, since the executive order preserves actions taken on the basis of an employee’s political affiliation as a prohibited personnel practice.
“Suppose that they decide to convert political appointees into Schedule F and then dare the incoming administration to fire them,” Kettl said. “That would create the opportunity for a court case, where the Biden people would argue that Schedule F was illegal to begin with, but that in many ways would play directly into the hands of the people who believe the Constitution grants the president the right to fire federal employees for any reason . . . So then what may be happening is an effort to make an opportunity to try to litigate that issue.”