As the federal government’s HR department weighs regulations to guard millions of federal employees from partisan attacks on their employment, a group of Democratic lawmakers vowed to codify similar protections in legislation.
In a letter to the Office of Personnel Management on Monday, Sen. Tim Kaine, D-Va., and Rep. Gerry Connolly, D-Va., urged the adoption of a rule first proposed in September that strengthen civil servants’ employment rights and permit them to appeal agency decisions that purportedly disregard them.
“The proposed rule honors our 2.2 million career civil servants, helping to ensure they can carry out their duties without fear of political reprisal,” said OPM Director Kiran Ahuja in a statement accompanying in September. “Prior attempts to needlessly politicize their work risked harming the American people.”
What OPM referred to is the Trump administration’s attempt to transfer tens of thousands of civil servants in policymaking or confidential positions into appointed positions, thus making them more susceptible to dismissal. Most government employees fall by default into the competitive service, though about one-third are in the excepted service.
In 2020, a few agencies had gone as far as determining which of their employees would be eligible for reclassification before Joe Biden overrode that executive order, known as Schedule F, within days of taking office.
However, ever since, there have been calls by federal employee unions and Democrats to put in place a permanent law preventing similar policy from being reintroduced. Kaine, a member of the Senate Armed Services Committee, also introduced legislation in September as an amendment to the fiscal 2024 National Defense Authorization Act to prevent reclassification outside of the merit system without Congress’ approval.
“While it is a relief that the Biden administration swiftly revoked this proposal, we remain deeply concerned about former President Trump’s stated plan to reinstitute Schedule F if elected,” the lawmakers wrote in the Nov. 13 letter. “This proposed rulemaking is an important first step to protect civil servants from the threat of politically motivated removal and ensure the civil service continues to rely on merits and expertise to deliver for the American people.”
If OPM’s proposed rule is adopted, it would ensure that even if an employee is moved from the competitive service to the excepted service, they would retain adverse action protections. It also clearly defines “confidential, policy-determining, policy-making, or policy-advocating” positions to mean non-career, political appointments, thereby limiting any future adaption of this definition to other types of employees.
Finally, it would set out “a floor of procedures” for any agency seeking to convert employees into the excepted service that would require a detailed explanation of who is being affected and what merit system principles support that decision. Then, the agency would have to obtain approval by the chief human capital officer and subsequently OPM.
Among others, congressional leaders representing 15% of federal employees who live in National Capital Region signed the letter, including Sens. Mark Warner, D-Va., Ben Cardin, D-Md., Chris Van Hollen, D-Md. and Reps. Don Beyer, D-Va., Abigail Spanberger, D-Va., Jamie Raskin, D-Md., and Del. Eleanor Holmes Norton, D-D.C.
The public comment period closes on Nov. 17. The next step is for OPM to issue a final rule reflecting any new changes.
Even if implemented, it wouldn’t be impossible for a future president to replace or curtail this regulation, but doing so successfully would require a formal explanation of need and a justification of support.
“Any rescission of the final rule would certainly face legal challenges,” according to analysis by Protect Democracy, a nonprofit group of nonpartisan advocates and lawyers.
“Successive bills introduced by Sen. Kaine and Rep. Connolly in the 117th and 118th Congresses, for instance, have attempted to prevent the return of Schedule F but have not gained sufficient traction and are unlikely to do so during this Congress.”
Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.