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A Midnight Attack on Federal Employees?

Late last week, in the final days of a presidential election, President Donald Trump issued an innocuous-sounding Executive Order (EO) that immediately raised eyebrows.   While described as a step to increase accountability for top policymakers, many experts see it as a threat to long standing Civil Service principles. The EO, unless overturned, could put at risk the civil service protections provided to impacted employees and drive many from public service.   It is a change that could allow this President or a future one to purge or intimidate career officials while allowing greater political interference in government functions.


If predictions prove out, the impact of such changes on Departments like USDA and HHS, (including FDA) could be profound.


Federal Civil Service laws adopted originally in 1883 have been a bedrock principle of American government ever since.  They assure that the majority of Federal employees are chosen based on merit rather than partisan spoils.  Congress has always been careful adjusting this system, recognizing the public interest in neutral, professional government.   


The new Executive Order 13957, “Creating Schedule F in the Excepted Service”, will not garner the attention of most people, but this EO is already being described by the Washington Post as one that  “…threatens to be the most significant assault on the nonpartisan civil service in its 137-year history.”  It risks robbing the public as well as top government officials of candid and honest assessments of policy proposals by chilling agency personnel who will now have their jobs at risk.


Federal rules already permit presidents to place large numbers of political appointees – up to about 4,000 governmentwide — to lead in the carrying out of Administration policies and goals.  Some of these political appointees are confirmed by the Senate; others are appointed without confirmation.   The new EO amends the Code of Federal Regulations at 5 CFR 6.2 by creating a new “Schedule F” as part of the Civil Service, defined as  “Positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition.”  In other words, it would take positions currently in the career-protected portion of the government, and re-assign them to a quasi-political arm.  Once a position is placed into the new Schedule F category, an unspecified part of its insulation from political interference is eliminated.


Exactly which agency positions will be affected remains to be determined.  The EO requires a preliminary review of agency positions within 90 days of the date of this order.  That turns out to be January 19, 2021 – the day before the next presidential inauguration.  Agencies must then conduct a complete review of their workforce within 210 days of the EO, and to review the list annually thereafter.  Unlike normal government rulemaking, the EO does not provide any period for public comment.  The individuals holding the positions identified by the review process would be subject to the new and dramatic personnel policy, including termination.  How quickly any terminations might happen is not specified. 


The positions that the EO expects to be included in the new Schedule F are defined as those whose duties include (1) 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; (2) supervision of attorneys; (3) substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law; (4) 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 (5) conducting, on the agency’s behalf, collective bargaining negotiations under chapter 71 of title 5, United States Code.


These criteria on their face are vague and will likely lead to many questions.   What exactly is “policy”?  Is discretionary action a matter of policy or is it an appropriate administrative decision?  Will this EO invite more challenges to agency actions? Will it impact the ability or willingness of agency personnel to meet with the public or interact at meetings?


Whether such a sweeping action can be accomplished by Executive Order alone, rather than by going to Congress for legislation, and how the proposed changes comport with current law, is also yet to be seen.  The Executive Order is likely to be challenged on Capitol Hill, and there are already reports that some Members may propose adding language in upcoming appropriations bills to prevent the implementation of the new Schedule F.  And if Biden/Harris are elected in November, the EO could be rescinded or modified substantially.


The EO, in its preamble, claims that 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.”  But it may also lay a groundwork for future administrations to undercut long-held assumptions about our quality of government, allowing them to make many key positions more political and risking the professionalism developed over time by agency personnel.


The National Treasury Employees Union has filed a lawsuit in the D.C. district court seeking to strike down the EO. Ron Sanders, the Chair of the Federal Salary Council and a presidential appointee, also resigned in protest of the EO.


We anticipate this Executive Order will continue to generate much discussion in coming weeks, regardless of the outcome of next week’s elections.   Watch this space for more developments.


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