Note the timing, 19 January 2020.
Originally posted by Federal_Executive
OMB Reportedly Designates 88% of Its Employees for Schedule F
One former official said the decision will make it harder, not easier, for presidents of both parties to implement their policy agendas in the future.
by Erich Wagner
23 November 2020
The leadership of the Office of Management and Budget reportedly plans to reclassify the vast majority of its workforce into a new employment category, removing job protections and effectively making them at-will employees.
Last month, President Trump signed an executive order creating a new Schedule F within the excepted service for employees “in confidential, policy-determining, policy-making and policy-advocating positions” and instructing agencies to identify and transfer competitive service employees that meet that description into the new job classification, an initiative that could strip hundreds of thousands of federal workers of their civil service protections.
The order has been widely derided by stakeholders and experts as an effort to politicize the civil service that would allow the president to purge agencies of employees viewed as disloyal and to instill partisans throughout the federal government. Agencies’ preliminary reviews of their workforces to determine who should be moved into Schedule F are due to the Office of Personnel Management by Jan. 19.
On Saturday, Real Clear Politics reported that OMB Director Russell Vought has determined that 88% of the agency’s workforce, or 425 employees, should be converted to Schedule F, according to an internal memo.
An OMB spokesperson confirmed to Government Executive that Vought has submitted the agency’s preliminary review to OPM and is awaiting approval to move forward with implementation, although they declined to provide a copy of the memo.
Vought told Real Clear Politics that the decision will improve federal workers’ “accountability.”
“Under President Trump’s leadership, we are committed to full accountability of policy-making officials, as Congress intended, and implementing merit principles,” he told the news outlet. “This is another step to make Washington accountable to the American people.”
But Robert Shea, a former associate director at OMB during the George W. Bush administration and a national managing principal for public policy at Grant Thornton, said if anything, the opposite is true.
“I think it erodes a lot of the trust that one should have in the advice that OMB’s spectacular workforce provides,” Shea said. “You know, the OMB staff are charged with doing the analysis, and making recommendations, to the most effective way to implement the president’s policies that are sometimes unpopular. Those folks often have to tell you, ‘You can’t do something you want to do,’ or, ‘The way to get something done that you want to do is harder than you might want it to be.’ If those employees fear retribution for providing tough love analysis, they’re likely to give a second thought before providing it.”
If the Trump administration chooses to fire even a portion of the 425 employees slated to lose their civil service protections, the damage to the ability of presidents of both parties to implement their policy agendas could be vast, Shea said.
“Education, national security, housing and public health, these folks have been helping to oversee the administration of these organizations and development of policy in these important areas, and if they are somehow removed . . . you would certainly lose that institutional expertise,” he said. “I think you’ll see an acceleration in the proposal of policies likely to be ineffective. Policies will be proposed that are likely to be met with not only resistance among stakeholders in Congress, but also in the courts. They will be inconsistent with current law and therefore challenged in the courts, and that will put inordinate delays in the implementation of a president’s policies.”
A wide array of federal employee groups, good government experts and other stakeholders continued their plea for Congress to step in and block the executive order from being implemented. A coalition of groups, including the Partnership for Public Service, the Volcker Alliance, the Senior Executives Association and the National Active and Retired Federal Employees Association, sent lawmakers a letter last week urging them to include language in their next appropriations package to nullify the executive order.
“Our nonpartisan civil service has served as a model for other countries for more than a century,” they wrote. “Since the passage of the Pendleton Act of 1883, civil servants have been hired based on their qualifications, and have been protected from removal based on political affiliation. These protections do not exist for the sake of the civil servants themselves, but rather to ensure the government delivers services insulated from undue political influence.”
The executive order has been particularly harmful in light of the presidential transition, the groups wrote. Trump and his lieutenants could remove employees responsible for key government services just ahead of President-elect Biden’s inauguration, or they could hire a cadre of unqualified partisans to sabotage the new president’s administration.
“The need for Congress to act is urgent, especially as we are in the midst of a transition,” they wrote. “Failing to act will set a dangerous precedent, signaling congressional indifference to a substantial expansion of executive power . . . If Congress remains silent, it indicates acceptance of not just this [executive order], but of future administrative actions to dismantle the legislative framework supporting a nonpartisan civil service.”
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Originally posted by Federal_Executive
Executive Order Would Politicize Civil Service
President Trump signs directive that would potentially pull thousands of federal employees in "policy-making" positions out of the competitive service, making them at-will employees.
by Erich Wagner
22 October 2020
President Trump on Wednesday signed an executive order creating a new classification of “policy-making” federal employees that could strip swaths of the federal workforce of civil service protections just before the next president is sworn into office.
The order would create a new Schedule F within the excepted service of the federal government, to be composed of “employees in confidential, policy-determining, policy-making, or policy-advocating positions,” and instructs agency heads to determine which current employees fit this definition and move them—whether they are members of the competitive service or other schedules within the excepted service—into this new classification. Federal regulations stating that employees hired into the competitive service retain that status even if their position is moved to the excepted service will not apply to Schedule F transfers.
Positions in the new Schedule F would effectively constitute at-will employment, without any of the protections against adverse personnel actions that most federal workers currently enjoy, although individual agencies are tasked with establishing “rules to prohibit the same personnel practices prohibited” by Title 5 of the U.S. Code. The order also instructs the Federal Labor Relations Authority to examine whether Schedule F employees should be removed from their bargaining units, a move that would bar them from being represented by federal employee unions.
“Except as required by statute, the civil service rules and regulations shall not apply to removals from positions listed in Schedules A, C, D, E, or F, or from positions excepted from the competitive service by statute,” the order states.
The order sets a swift timetable for implementation: Agencies have 90 days to conduct a “preliminary” review of their workforces to determine who should be moved into the new employee classification—a deadline that coincides with Jan. 19, the day before the next presidential inauguration.
The White House argued that the executive order is a necessary reform to ensure that federal officials can more efficiently remove “poor performers.”
“Effective performance management of employees in confidential, policy-determining, policy-making or policy-advocating positions is of the utmost importance,” the order states. “Unfortunately, the government’s current performance management is inadequate, as recognized by federal workers themselves. For instance, the 2016 Merit Principles Survey reveals that less than a quarter of federal employees believe their agency addresses poor performers effectively.”
But federal employee groups and government observers described the executive order as a “stunning” attempt to politicize the civil service and undermine more than a century of laws aimed at preventing corruption and cronyism in the federal government.
“The [1883] Pendleton Act is clearly in the sights of this executive order,” said Donald Kettl, the Sid Richardson professor at the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs. “It wants to undo what the Pendleton Act and subsequent civil service laws tried to accomplish, which was to create a career civil service with expertise that is both accountable to elected officials but also a repository of expertise in government. The argument here is that anyone involved in policymaking can be swept into this new classification, and once they’re in they’re subject to political review and dismissal for any reason.”
American Federation of Government Employees National President Everett Kelley said in a statement on Thursday that the executive order is “the most profound undermining of the civil service system in our lifetimes.”
“This executive order strips due process rights and protections from perhaps hundreds of thousands of federal employees and will enable political appointees and other officials to hire and fire these workers at will,” Kelley said. “Through this order, President Trump has declared war on the professional civil service by giving himself the authority to fill the government with his political cronies who will pledge their unwavering loyalty to him—not to America.”
Kettl said that the order could be far reaching in scope. Not only would high profile employees who publicly disagree with a president be targeted for removal, but lower level employees tasked with collecting the data and evidence underlying much of what the federal government does could be affected.
“If you think about examples of how this could play out, Dr. [Anthony] Fauci could be fired, as well as individuals at the [Centers for Disease Control and Prevention] who are producing analysis about the spread of the coronavirus, social distancing and the importance of masks,” Kettl said. “You could have people within the State Department raising questions about the administration’s expansion of efforts to engage in crackdowns and change other policies who could be fired. The people counting the number of immigrant children who cannot be reunited with their parents could be fired. There’s no end to it because the biggest risk is that anyone who says anything that would be in opposition to the administration’s policy could be viewed as in a policy-making position, put in Schedule F and fired.”
Rep. Gerry Connolly, D-Va., who serves as chairman of the House Oversight and Reform Committee's subcommittee on government operations, blasted the administration's efforts to remove workers' civil service protections.
“This executive order is yet another attack on federal employees that addresses absolutely none of the issues that can hinder effective federal recruitment and hiring," Connolly said. "It’s a cheap ploy to let the Trump administration replace talent and acumen with fealty and self-dealing.”
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Originally posted by Trump_White_House_Executive_Orders
Executive Order on Creating Schedule F In The Excepted Service
Issued on: October 21, 2020
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301, 3302, and 7511 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Policy. To effectively carry out the broad array of activities assigned to the executive branch under law, the President and his appointees must rely on men and women in the Federal service employed in positions of a confidential, policy-determining, policy-making, or policy-advocating character. Faithful execution of the law requires that the President have appropriate management oversight regarding this select cadre of professionals.
The Federal Government benefits from career professionals in positions that are not normally subject to change as a result of a Presidential transition but who discharge significant duties and exercise significant discretion in formulating and implementing executive branch policy and programs under the laws of the United States. The heads of executive departments and agencies (agencies) and the American people also entrust these career professionals with non‑public information that must be kept confidential.
With the exception of attorneys in the Federal service who are appointed pursuant to Schedule A of the excepted service and members of the Senior Executive Service, appointments to these positions are generally made through the competitive service. Given the importance of the functions they discharge, employees in such positions must display appropriate temperament, acumen, impartiality, and sound judgment.
Due to these requirements, agencies should have a greater degree of appointment flexibility with respect to these employees than is afforded by the existing competitive service process.
Further, effective performance management of employees in confidential, policy-determining, policy-making, or policy-advocating positions is of the utmost importance. Unfortunately, the Government’s current performance management is inadequate, as recognized by Federal workers themselves. For instance, the 2016 Merit Principles Survey reveals that less than a quarter of Federal employees believe their agency addresses poor performers effectively.
Separating employees who cannot or will not meet required performance standards is important, and it is particularly important with regard to employees in confidential, policy-determining, policy-making, or policy-advocating positions. High performance by such employees can meaningfully enhance agency operations, while poor performance can significantly hinder them. Senior agency officials report that poor performance by career employees in policy-relevant positions has resulted in long delays and substandard-quality work for important agency projects, such as drafting and issuing regulations.
Pursuant to my authority under section 3302(1) of title 5, United States Code, I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive service selection procedures. 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.
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. Chapter 75 of title 5, United States Code, requires agencies to comply with extensive procedures before taking adverse action against an employee. These requirements can make removing poorly performing employees difficult. Only a quarter of Federal supervisors are confident that they could remove a poor performer. Career employees in confidential, policy-determining, policy‑making, and policy-advocating positions wield significant influence over Government operations and effectiveness. Agencies need the flexibility to expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation.
Sec. 2. Definition. The phrase “normally subject to change as a result of a Presidential transition” refers to positions whose occupants are, as a matter of practice, expected to resign upon a Presidential transition and includes all positions whose appointment requires the assent of the White House Office of Presidential Personnel.
Sec. 3. Excepted Service. 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 shall be made under Schedule F of the excepted service, as established by section 4 of this order.
Sec. 4. Schedule F of the Excepted Service. (a) Civil Service Rule VI is amended as follows:
(i) 5 CFR 6.2 is amended to read:
“OPM shall list positions that it excepts from the competitive service in Schedules A, B, C, D, E, and F, which schedules shall constitute parts of this rule, as follows:
Schedule A. Positions other than those of a confidential or policy-determining character for which it is not practicable to examine shall be listed in Schedule A.
Schedule B. Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination shall be listed in Schedule B. Appointments to these positions shall be subject to such noncompetitive examination as may be prescribed by OPM.
Schedule C. Positions of a confidential or policy-determining character normally subject to change as a result of a Presidential transition shall be listed in Schedule C.
Schedule D. Positions other than those of a confidential or policy-determining character for which the competitive service requirements make impracticable the adequate recruitment of sufficient numbers of students attending qualifying educational institutions or individuals who have recently completed qualifying educational programs. These positions, which are temporarily placed in the excepted service to enable more effective recruitment from all segments of society by using means of recruiting and assessing candidates that diverge from the rules generally applicable to the competitive service, shall be listed in Schedule D.
Schedule E. Position of administrative law judge appointed under 5 U.S.C. 3105. Conditions of good administration warrant that the position of administrative law judge be placed in the excepted service and that appointment to this position not be subject to the requirements of 5 CFR, part 302, including examination and rating requirements, though each agency shall follow the principle of veteran preference as far as administratively feasible.
Schedule F. Positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition shall be listed in Schedule F. In appointing an individual to a position in Schedule F, each agency shall follow the principle of veteran preference as far as administratively feasible.”
(ii) 5 CFR 6.4 is amended to read:
“Except as required by statute, the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedules A, C, D, E, or F, or from positions excepted from the competitive service by statute. The Civil Service Rules and Regulations shall apply to removals from positions listed in Schedule B of persons who have competitive status.”
(b) The Director of the Office of Personnel Management (Director) shall:
(i) adopt such regulations as the Director determines may be necessary to implement this order, including, as appropriate, amendments to or rescissions of regulations that are inconsistent with, or that would impede the implementation of, this order, giving particular attention to 5 CFR, part 212, subpart D; 5 CFR, part 213, subparts A and C; and 5 CFR 302.101; and
(ii) provide guidance on conducting a swift, orderly transition from existing appointment processes to the Schedule F process established by this order.
Sec. 5. Agency Actions. (a) Each head of an executive agency (as defined in section 105 of title 5, United States Code, but excluding the Government Accountability Office) shall conduct, within 90 days of the date of this order, a preliminary review of agency positions covered by subchapter II of chapter 75 of title 5, United States Code, and shall conduct a complete review of such positions within 210 days of the date of this order. Thereafter, each agency head shall conduct a review of agency positions covered by subchapter II of chapter 75 of title 5, United States Code, on at least an annual basis. Following such reviews each agency head shall:
(i) for positions not excepted from the competitive service by statute, petition the Director to place in Schedule F any such competitive service, Schedule A, Schedule B, or Schedule D positions within the agency that the agency head determines to be 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. Any such petition shall include a written explanation documenting the basis for the agency head’s determination that such position should be placed in Schedule F; and
(ii) for positions excepted from the competitive service by statute, determine which such positions are of a confidential, policy-determining, policy-making, or policy-advocating character and are not normally subject to change as a result of a Presidential transition. The agency head shall publish this determination in the Federal Register. Such positions shall be considered Schedule F positions for the purposes of agency actions under sections 5(d) and 6 of this order.
(b) The requirements set forth in subsection (a) of this section shall apply to currently existing positions and newly created positions.
(c) When conducting the review required by subsection (a) of this section, each agency head should give particular consideration to the appropriateness of either petitioning the Director to place in Schedule F or including in the determination published in the Federal Register, as applicable, positions whose duties include the following:
(i) substantive participation in the advocacy for or development or formulation of policy, especially:
(A) substantive participation in the development or drafting of regulations and guidance; or
(B) substantive policy-related work in an agency or agency component that primarily focuses on policy;
(ii) the supervision of attorneys;
(iii) substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law;
(iv) 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:
(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
(v) conducting, on the agency’s behalf, collective bargaining negotiations under chapter 71 of title 5, United States Code.
(d) The Director shall promptly determine whether to grant any petition under subsection (a) of this section. Not later than December 31 of each year, the Director shall report to the President, through the Director of the Office of Management and Budget and the Assistant to the President for Domestic Policy, concerning the number of petitions granted and denied for that year for each agency.
(e) Each agency head shall, as necessary and appropriate, expeditiously petition the Federal Labor Relations Authority to determine whether any Schedule F position must be excluded from a collective bargaining unit under section 7112(b) of title 5, United States Code, paying particular attention to the question of whether incumbents in such positions are required or authorized to formulate, determine, or influence the policies of the agency.
Sec. 6. 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.
Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) If any provision of this order, or the application of any provision to any person or circumstances, is held to be invalid, the remainder of this order and the application of any of its other provisions to any other persons or circumstances shall not be affected thereby.
(e) Nothing in this order shall be construed to limit or narrow the positions that are or may be listed in Schedule C.
DONALD J. TRUMP
THE WHITE HOUSE,
October 21, 2020.
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Originally posted by White_House_Gift_Shop
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