Schedule F appointment

A Schedule F appointment is a job classification in the excepted service of the United States federal civil service that contains policy-making positions. It was created by Executive Order 13957 of President Donald Trump on October 21, 2020, less than two weeks before the 2020 elections. It was repealed by President Biden on January 22, 2021, by executive order.

Characteristics

Employees within the Schedule F classification will not be covered by the Civil Service Rules and Regulations,[1] including due process and possibly collective bargaining rights.[2] However, appointees cannot be fired based on certain protected statuses, such as whistleblower status, partisan affiliation, or for claiming discrimination or harassment.[2][3] The stated purpose of the order is to increase flexibility in hiring and firing to improve performance management[1] and accountability.[2]

The Schedule F classification includes "positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition". The Executive Order lists several characteristics of jobs that may fall under the Schedule F classification:[1]

  • substantive participation in the advocacy for, development, or formulation of policy, especially development or drafting of regulations and guidance
  • substantive policy-related work in an agency or component that primarily focuses on policy
  • the supervision of attorneys
  • substantial discretion to determine the manner in which the agency exercises functions committed to it by law
  • working with 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 paid at the GS-13 level or higher, or
    • working in the executive secretariat of the agency or component
  • conducting certain collective bargaining negotiations on the agency's behalf

According to the Office of Personnel Management (OPM), these provisions are guidelines, as not all positions covered by them must be converted to Schedule F, and positions not covered by them may be converted.[2][4] These are broad enough to include many scientists, attorneys, regulators, public health experts, and others in senior roles. The estimated number of employees they cover ranges from tens of thousands to hundreds of thousands.[2]

The Executive Order also provides transition procedures for transferring covered positions out of the competitive service into Schedule F, by which executive agency heads must petition the Director of the OPM with a list of positions to be converted with a written rationale. The OPM Director has the sole power to decide whether to grant the petition.[1][5][6]

History

Schedule F was created by Executive Order 13957 on October 21, 2020 during the Trump administration.[1] The creation of Schedule F was controversial, as it is estimated that tens or hundreds of thousands of career employees could lose their civil service protections,[2] and that it would increase the number of political appointments by a factor of ten.[7] Conversely, there was concern that political appointees of Trump, whose appointments are supposed to expire at the end of his term, could "burrow in" by being converted to Schedule F appointments that are harder to fire.[8]

Heads of all federal agencies were ordered to submit a list of positions that could be reclassified as Schedule F. The lists were to be submitted by January 19, 2021, the day before the next presidential inauguration, to John D. McEntee, the Director of the Presidential Personnel Office.[9]

Initial response

Representative Don Beyer (D-VA) said "it's an attempt to redefine the civil service as a political arm of the presidency rather than public servants who work for the American people", leading to "open cronyism that does not benefit the country, but the president".[2] Former federal human resources executive Jeff Neal called the order "the most direct assault on the career civil service since the passage of the Pendleton Act in 1883", which had created the merit-based federal civil service.[10]

Eleanor Mueller, a writer for Politico, wrote that the executive order "stripped job protections for many federal workers" by requiring federal agencies to classify "any worker responsible for the handling of policy" into a new category that would be exempt from hiring and firing protections and ineligible for representation as part of a union bargaining unit, and "would make it easier to remove civil servants who do not agree with the administration's policies" while easing the potential transition of current political appointees into permanent civil service jobs.[11] Rebecca Beitsch, writing for The Hill, wrote that Trump's executive order was being criticized by unions as "the biggest change to federal workforce protections in a century, converting many federal workers to 'at will' employment".[12] Eric Yoder, a Washington Post journalist, said the order "could affect tens of thousands or more career positions involved in making or carrying out policy".[13]

An official statement from Infectious Diseases Society of America (IDSA) further stated that the executive order was "alarming".[12] The six authors, all infectious disease specialists and epidemiologists, wrote:

We rely on the judgment of civil service experts to lead responses against the pandemic, inform the public, drive research, update guidance and review data supporting the use and distribution of vaccines and treatments to address the impacts of COVID-19. Replacing our scientists and public health experts with politically motivated staff will reduce our ability to respond, and reduce public confidence in our response, to COVID-19 and other public health crises.[14]

The executive order received support from conservatives. Representative James Comer (R-KY) supported the change, saying that “our founding fathers never envisioned a massive unelected, unaccountable federal government with the power to create policies that impact Americans' everyday lives... President Trump has long pledged to take on this bureaucracy and restore power to the people by draining the swamp".[7] Rachel Greszler, a fellow at The Heritage Foundation, said: "I really think that the order is unlikely to affect many of those workers because the overwhelming majority of federal employees are upstanding individuals, they're providing valuable knowledge and experience that the managers in the agency heads don't want to lose. It's only those bad apples who are derelict in their duties, or they're outright trying to thwart their agency’s actions that would need to worry about their job security".[3]

Resignation of Ronald Sanders

On October 26, 2020, Ronald Sanders, the chair of the Federal Salary Council, resigned. Writing that he was a "lifelong Republican" who prided himself on having "served three Democratic and three Republican presidents",[15] Sanders sent a letter to John D. McEntee, Presidential Personnel Office director, characterizing Executive Order 13957, which had purported to hold federal employees more accountable, as a transparent attempt to remove long-standing employment protections from federal workers:[16]

On its surface, the president's Executive Order purports to serve a legitimate and laudable purpose...that is, to hold career Federal employees 'more accountable' for their performance. That is something that I have spent most of my professional life — almost four decades in Federal service (over 20 as a member of the Senior Executive Service) — trying to do. However, it is clear that its stated purpose notwithstanding, the Executive Order is nothing more than a smokescreen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process... I simply cannot be part of an Administration that seeks...to replace apolitical expertise with political obeisance. Career Federal employees are legally and duty-bound to be nonpartisan; they take an oath to preserve and protect our Constitution and the rule of law...not to be loyal to a particular President or Administration.[17]

Attempts to overturn the executive order

House Democrats introduced a bill, the Saving the Civil Service Act, that would halt implementation of the executive order and restore any converted or fired Schedule F appointees back into competitive service positions.[18] There was also discussion of adding the same provisions to either the National Defense Authorization Act for Fiscal Year 2021, or a continuing resolution for fiscal year 2021 appropriations.[10] These provisions were supported by a coalition of 28 labor unions.[19] However, no provision regarding Schedule F was included in the Consolidated Appropriations Act, 2021.[8]

House Democrats also requested documents about the creation of the executive order.[18]

The National Treasury Employees Union sued the administration in the United States District Court for the District of Columbia over the executive order, arguing that the administration did not properly justify it satisfied the legal requirement that the changes are "necessary" and as "conditions of good administration warrant".[18][20]

Implementation

In November 2020, the Office of Management and Budget classified 88% of that agency's workforce, 425 employees, as Schedule F.[21] It was repealed by President Biden on January 22, 2021, by executive order.

See also

References
  1. "Executive Order on Creating Schedule F In The Excepted Service". The White House. October 21, 2020. Retrieved October 24, 2020.
  2. Rein, Lisa; Yoder, Eric (October 22, 2020). "Trump issues sweeping order for tens of thousands of career federal employees to lose civil service protections". The Washington Post. Retrieved October 24, 2020.
  3. Temin, Tom (October 29, 2020). "Civil service executive order has some supporters". Federal News Network. Retrieved November 2, 2020.
  4. Rigas, Michael J. (October 23, 2020). "Instructions on Implementing Schedule F". U.S. Office of Personnel Management. Retrieved October 31, 2020.
  5. Wagner, Erich (October 23, 2020). "Agencies to Have Wide Latitude In Deciding Which Jobs to Strip of Civil Service Protections". Government Executive. Retrieved November 2, 2020.
  6. "Apply Authority to Move to Excepted Service Broadly, Agencies Told". FEDweek. October 26, 2020. Retrieved November 2, 2020.
  7. Ogrysko, Nicole (October 23, 2020). "What they're saying about the new Schedule F". Federal News Network. Retrieved October 24, 2020.
  8. Alms, Natalie; Mazmanian, Adam (December 21, 2020). "Schedule F workforce plan survives funding bill". FCW. Retrieved December 22, 2020.
  9. ‘Stunning’ Executive Order Would Politicize Civil Service
  10. Mazmanian, Adam (October 23, 2020). "House Dems mull response Trump's order to remake the civil service". FCW. Retrieved November 2, 2020.
  11. Eleanor Mueller, Trump federal salary adviser quits post over executive order reclassifying workers, October 26, 2020, Politico. Accessed October 26, 2020.
  12. Rebecca Beitsch, Trump federal salary adviser resigns over order stripping worker protections, October 26, 2020, Politico. Accessed October 27, 2020.
  13. Eric Yoder, Trump appointee resigns over the president's order removing job protections for many civil servants, October 26, 2020, The Washington Post. Accessed October 27, 2020.
  14. Barbara Alexander, M.D.; Rajesh T. Gandhi, M.D.; Jason M. Pogue, PharmD; Mary Hayden, M.D.; and Kristina A. Bryant, M.D.; Order to Reclassify Civil Service Posts Will Compromise Responses to Public Health Threats, 26 October 2020, Politico. Accessed 27 October 2020.
  15. Erich Wagner, Salary Council Chairman Resigns in Protest of Trump Order Politicizing Federal Workforce, October 26, 2020, Politico. Accessed October 27, 2020.
  16. Emily Czachor, Official Resigns Over Executive Order 'Smokescreen' That Asks for 'Political Loyalty' From Advisers, October 26, 2020, Newsweek. Accessed October 26, 2020.
  17. Ronald Sanders, , 26 October 2020, letter of Ronald Sanders. Accessed 27 October 2020.
  18. Ogrysko, Nicole (October 28, 2020). "House Democrats demand immediate stop to Schedule F executive order". Federal News Network. Retrieved October 31, 2020.
  19. Wagner, Erich (October 30, 2020). "Coalition of 28 Labor Groups Urges Congress to Block Trump Order Creating Schedule F". Government Executive. Retrieved October 31, 2020.
  20. Smith, Ian (October 28, 2020). "NTEU Sues Trump Over Schedule F Executive Order". FedSmith. Retrieved October 31, 2020.
  21. Wegmann, Philip (November 21, 2020). "OMB Lists Positions Stripped of Job Protection Under Trump Order". RealClearPolitics. Retrieved November 22, 2020.
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