“This is the most profound undermining of the civil service in our lifetimes,” American Federation of Government Employees President Everett Kelley said in a statement. “The president has doubled down on his effort to politicize and corrupt the professional service.
“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,” he said.
Trump said his order will “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.”
Among career employees, the “excepted service” mainly applies to positions in which it is not practical to use competitive processes in hiring, such as administrative law judges and attorneys. Employees of some entire agencies, such as intelligence agencies, also are in the excepted service.
Agencies are not required to post excepted service vacancies on the central USAJobs.gov recruiting site—although some do—and need not use rating systems required when hiring for competitive service jobs. Also, there is no formal preference for veterans. Unless they are veterans, excepted service employees do not gain appeal rights until after two years of employment, rather than the standard one year.
The order tells agencies to conduct an initial review within three months, and a full review within seven months, of their positions “of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition.”
Agencies then are to ask the Office of Personnel Management to move those positions into a newly created category of the excepted service, although a list of “prohibited personnel practices” such as discrimination and nepotism would continue to apply to them.”
While not defining which occupations would be affected, such duties would include development or advocacy of policy; involvement with writing regulations and guidance; work in an agency component that primarily focuses on policy; supervision of attorneys; work in the agency’s executive secretariat; conducting negotiations with employee unions; or work that includes “substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law.”
The order cites “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.”
It also says that “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.”
The order follows the recent 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.