Skip to comments.Executive Order on Creating Schedule F In The Excepted Service
Posted on 10/22/2020 7:14:34 AM PDT by ransomnote
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.
Long policy speak. Is there a laymans version of this?
Trump order creates Schedule F, to speed hiring and firing in key positions
The Trump administration created a new category of civil servant dubbed “Schedule F” in an Oct. 21 executive order that establishes new hiring and firing flexibilities for agencies across a range of policymaking positions....
.....The order also requires agencies to “expeditiously petition” the Federal Labor Relations Authority for approval to remove a reclassified Schedule F job from a bargaining unit, eliminating union participation......
.....”President Trump has long pledged to take on this bureaucracy and restore power to the people by draining the swamp,” Rep. James Comer (R-Ky.), the ranking member of the House Committee on Oversight and Reform, said in a statement. “President Trump again delivered on his promise by signing an executive order that will help make bureaucrats who have the ability to create and implement policy more accountable for their actions.”......
......Everett Kelley, national president of the American Federation of Government Employees called the order, “the most profound undermining of the civil service in our lifetimes.”
“The president has doubled down on his effort to politicize and corrupt the professional service,” Kelley said in a statement. “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.”......
(Bwahahahahahahaha!!! Tells you ALL you need to know, about this EO!!)
Layman’s version: “Government worker” used to be a term for someone who didn’t have to work much and couldn’t be fired. The president has, in a few of the documents posted to the whitehouse.gov website, made changes to policy’s effecting certain job classifications that would allow under performing workers to *gasp* lose their cushy government jobs!
Move the agencies out of DC and let the staff get a breath of fresh air in fly-over country.
Ric Grennel and I have been saying the same thing ;-)
“Oh, man. What a traffic backup! They moved us from DC to out here in the sticks where the rubes all live and I figured that the rush hour traffic was a thing of the past. But there is a combined Trump/Nazi party rally that has traffic stopped for miles around. D**n him! Trump is literally Hitler!” (/liberal)
A few years overdue.
Well of you want to drain the swamp this is a good start. This EO appears to only effect the upper management of agencies and not the vast majority of federal employees.
Its most basic effect will allow a new administration to affectedly clear the deck of previous appointees who don't support the new administrations goals and priorities and may work to undercut it.
That will likely be the initial impact - however, there are a bunch of federal non-management employees that could eventually be considered "employees in confidential, policy-determining, policy-making, or policy-advocating positions". For example, any federal scientists or engineers involved in writing fracking regulations might be included. The "confidential" aspect might be susceptible to a particularly broad application - picture a petroleum engineer reviewing confidential and/or proprietary industry data while drafting fracking regs, etc.
Its most basic effect will allow a new administration to affectedly clear the deck of previous appointees who don't support the new administrations goals and priorities and may work to undercut it.
True, and that's not necessarily a bad thing. But to have any real fiscal impact, the federal government needs to shed entire departments, with functions and responsibilities going back to the individual States. I was disappointed that President Reagan didn't get it done...
Woo Hoo!!! It is about time! Too bad I already retired, I would have loved to see this from the DC folks I worked for. I was a contractor, and therefore scum.
Dont know the jargon to be certain but it sounds like Civil Service job protections just were removed from a chunk of the deep swamp.
Federal employee union will scream bloody murder.
“......Everett Kelley, national president of the American Federation of Government Employees called the order, the most profound undermining of the civil service in our lifetimes.”
The President is fed up with feral employees screwing up, being defiant of the Office of the President to whom they report, leaks and other politically manipulative actions for which there is no consequence. He wants to be able to fire them. Think Fauci delivering public notices as a rogue to the Administration’s program or Christopher Wray acting pretty much in defiance of the President and withholding evidence with no consequences.
Civil Service was to protect federal employees from a spoils system of politics. It anticipated employees continuing to do their jobs apolitically. Many of them are not doing that now. We now have a flourishing system of political activism cells in the gooberment. Some political opinion / leaning in gooberment and civil service is unavoidable because the system is populated by people who have freedom and independent thinking but they had not used their positions very often for platforms of political activism or active resistance to the President as many do now.
I see this action by the President directed toward people like the director of the USPS who is allowing his carriers to destroy ballots. If he is held personally accountable he will hold the employees in his agency accountable much more than he appears to be now.
SO does it prohibit the transferring of these people to regular civil service to prevent the swamp creatures from blocking a future administration’s policy?
It puts the political appointees at risk. So many of these folks are just parked in an agency and are there to footdrag and fiddle with operations. Make the opposite party look bad.
Realtors throughout DC are salivating at the prospect of new inventory coming onto the market. /#humor
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