By LISA REIN AND ERIC YODER | The Washington Post | Published: October 22, 2020null
President Donald Trump has fired his biggest broadside yet this week against a federal bureaucracy he has moved to remake with an executive order that would remove job security from an estimated tens of thousands of civil servants.
The directive, issued late Wednesday, strips long-held civil service protections from employees whose work involves policymaking, allowing them to be dismissed with little cause or recourse, much like the political appointees who come and go with each administration.
Federal scientists, attorneys, regulators, public health experts and many others in senior roles would lose rights to due process and in some cases, union representation, at agencies across the government. The White House declined to say how many jobs would be swept into a class of employees with fewer civil service rights, but civil service experts and union leaders estimated anywhere from tens of thousands to hundreds of thousands in a workforce of 2.1 million.
It would be a profound reimagining of the career workforce, but one that may end up as a statement of purpose rather than anything else. The order fast-tracks a process that gives agencies until Jan. 19 to review potentially affected jobs. That’s a day before the next presidential inauguration. An administration under Democratic nominee Joe Biden would be unlikely to allow the changes to proceed.
Still, the order, coming less than two weeks before the election, represents a stunning effort to reshape large parts of the nonpartisan government, which is supposed to serve as a cadre of subject-matter experts for every administration.
“President Trump is delivering on his promise to make Washington accountable again to the citizens it’s meant to serve,” Russell Vought, director of the Office of Management and Budget, said in a statement. “This much-needed reform will increase accountability in essential policy-making positions within the government.”
Critics said the latest effort, while not affecting a majority of the government, would upend the foundation of the career workforce by imposing political loyalty tests.
“I am calling this a declaration of war on the civil service,” said Richard Loeb, senior policy counsel for the American Federation of Government Employees, the largest union representing federal workers.
Political appointees ultimately call the shots on policy direction, but career employees advise them on how to follow the law and implement their priorities.
Tensions are common. But in the Trump era, they have reached a fever pitch in many offices, as career employees chafe at an agenda that has upended Washington. Political appointees have come to view many civil servants with suspicion. The new directive tries to even the score, returning the upper hand to the administration, two senior administration officials said. They spoke on the condition of anonymity because they were not authorized to speak publicly.
And over almost four years, the Trump administration has moved to weaken employee unions and hold them accountable for misconduct and weak performance.
The administration has been open with its frustration at the obstacles to firing poor performers. “Agencies need the flexibility to expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation,” the order says.
article continues below
The White House’s earlier efforts to limit the power of federal employee unions and impose faster discipline survived multiple court challenges as it created a climate of anxiety across much of the government.
Agencies have reined in some job protections for all employees, imposing shorter timetables for correcting poor performance and appeals. They’ve dispensed with established union practices such as allowing labor officials to use agency computers for work on employees’ behalf, for example. And a long-held practice called official time, in which unions work on behalf of employees facing discipline or other action, has been all but killed.
Even if Trump loses the election, Loeb said the administration could move in fewer than 90 days to impose the order, which he worries might be designed to let Trump political appointee stay on into a Biden administration.
“This could be used to put a whole bunch of Trump loyalists in place,” Loeb said, making it messy for a Biden team to fire them.
Loeb estimated that the change could strip due process rights and protections from more than 100,000 employees.
Rep. Don Beyer, a Democrat, whose Northern Virginia district includes about 85,000 federal workers, said the order, if enacted, would usher in loyalty tests and further politicize agencies that have become deeply partisan workplaces under Trump.
“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,” Beyer said, calling the result “open cronyism that does not benefit the country, but the president.”
The order would shift the affected employees from what is known as the “competitive service” — which covers the bulk of the executive branch — into the “excepted service,” which in general applies to political appointees below the level requiring Senate confirmation.
The group would no longer be hired under competitive procedures and would lose their right to be represented by a union.
While unions said they heard rumblings of the order, neither they nor government personnel experts say they were consulted on the details.
“The order is highly troubling,” said Max Stier, president and chief executive of the nonprofit, nonpartisan Partnership for Public Service. “It appears to be an effort to remove the career merit protections around a core part of the civil service.”
Stier said that while the change would not turn the employees into political appointees, “The effect and the apparent intent is that they are moving them into that box. The discretion for both hiring and firing is so great that the merit principles are undermined and they resemble a political appointee much more than a career civil servant.”
“This is a bad idea and it was done in a bad way,” he said. “What happens next is something that the election will be relevant for.”
While it does not define which occupations will be swept into the new job classification, the order gives broad roles, including those that develop or advocate policy, negotiate with employee unions, write regulations and do legal work. The work would include “substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law.”
“Career employees in confidential, policy-determining, policy-making, and policy-advocating positions wield significant influence over Government operations and effectiveness,” Trump wrote.
Among career employees, the “excepted service” mainly applies to positions in which it is not practical to use competitive processes in hiring, such as attorneys. Employees of some entire agencies, such as in the intelligence community, also are in the excepted service.
Hiring managers are not required to post these kinds of vacancies on the government’s central job board, USAJobs.gov. The jobs do not require the complex rating systems of applicants that are mandated for most federal roles. And there is no formal preference for veterans.
Unless they are veterans, employees in this group do not have rights to appeal disciplinary actions by a supervisor for two years, rather than the standard one year.
The order would not affect the roughly 6,000 senior executives in the government. But experts on the civil service said the most likely targets would be employees at the highest level of the General Schedule below that, GS-13, 14 and 15.
The new set of employees would lose the rights to due process and appeals of personnel actions against them they now enjoy — with one exception. Whistleblowers and those claiming discrimination or harassment would have more rights, according to John Berry, an attorney who represents federal workers.
The Trump administration has moved aggressively on other issues involving federal workers. It has recommended in its annual budget proposals numerous cuts to federal retirement benefits while advocating that employees pay more toward those benefits. While Congress has not accepted those proposals, the administration moved on its own authority in several controversial ways.
Trump’s new order closely follows issuance of rules telling agencies to provide only the minimal accommodations required by law to assist underperforming employees before disciplining them and to make the maximum use of their discretion in choosing discipline either for poor performance or misconduct.