Improving Performance, Accountability and Responsiveness in the Civil Service

OFFICE OF PERSONNEL MANAGEMENT <CFR>5 CFR Parts 210, 212, 213, 302, 432, 451, and 752</CFR> <DEPDOC>[Docket ID: OPM-2025-0004]</DEPDOC> <RIN>RIN 3206-AO80</RIN> <SUBJECT>Improving Performance, Accountability and Responsiveness in the Civil Service</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Personnel Management. <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Office of Personnel Management (OPM) is proposing a rule to increase career employee accountability. Agency supervisors report great difficulty removing employees for poor performance or misconduct. The proposed rule lets policy-influencing positions be moved into Schedule Policy/Career. These positions will remain career jobs filled on a nonpartisan basis. Yet they will be at-will positions excepted from adverse action procedures or appeals. This will allow agencies to quickly remove employees from critical positions who engage in misconduct, perform poorly, or undermine the democratic process by intentionally subverting Presidential directives. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before May 23, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by the docket number or Regulation Identifier Number (RIN) for this proposed rulemaking, by the following method: <E T="03">Federal eRulemaking Portal: https://www.regulations.gov.</E> Follow the instructions for sending comments. All submissions must include the agency name and docket number or RIN for this rulemaking. Please arrange and identify your comments on the regulatory text by subpart and section number; if your comments relate to the supplementary information, please refer to the heading and page number. All comments received will be posted without change, including any personal information provided. To ensure that your comments will be considered, you must submit them within the specified open comment period. Before finalizing this rule, OPM will consider all comments within the scope of the regulations received on or before the closing date for comments. OPM may make changes to the final rule after considering the comments received. As required by 5 U.S.C. 553(b)(4), a summary of this rule may be found in the docket for this rulemaking at <E T="03">www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Noah Peters, Senior Advisor to the Director, by email at <E T="03">employeeaccountability@opm.gov</E> or by phone at (202) 606-2930. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> OPM proposes this rule to strengthen employee accountability and the democratic responsiveness of American government, while addressing longstanding performance management challenges in the Federal workforce. Chapter 75 of title 5, United States Code (chapter 75) requires most agencies  <SU>1</SU> <FTREF/> to follow specific procedures to take “adverse actions” against employees for misconduct or poor performance—these actions include principally removals, suspensions, or reductions in pay or grade. <SU>2</SU> <FTREF/> Most agencies take performance-based adverse actions following procedures set forth in chapter 43 of title 5 (chapter 43). <SU>3</SU> <FTREF/> Whether taken under chapter 75 or chapter 43 procedures, employees can appeal such adverse or performance-based actions to the Merit Systems Protection Board (MSPB) and, if unsuccessful, to the Federal Circuit Court of Appeals. <SU>4</SU> <FTREF/> <FTNT> <SU>1</SU>  Chapter 75 does not apply to all employees or all agencies. See 5 U.S.C. 7511(b). </FTNT> <FTNT> <SU>2</SU>   <E T="03">See</E> 5 U.S.C. 7512, 7513. </FTNT> <FTNT> <SU>3</SU>  5 U.S.C. 4303. Chapter 43 does not apply to all employees or all agencies. See 5 U.S.C. 4301. </FTNT> <FTNT> <SU>4</SU>   <E T="03">See</E> 5 U.S.C. 7701, 7703. </FTNT> As described below, decades of experience have shown that chapter 43 and 75 procedures make it very difficult for agencies to hold employees accountable for their performance or conduct. The processes are time-consuming and difficult, and removals are not infrequently subject to a protracted appeal process with an uncertain outcome. Surveys show few agency supervisors believe they could dismiss subordinates for serious misconduct or unacceptable performance. This dynamic undermines Federal merit system principles, which call for employees to maintain high standards of conduct and for agencies to separate employees who cannot or will not improve their performance to meet required standards. <SU>5</SU> <FTREF/> <FTNT> <SU>5</SU>  5 U.S.C. 2301(b). </FTNT> The adverse action procedures and appeals that make it difficult for agency leadership to hold employees accountable also empower career employees to insert partisan or personal preferences into their official duties. While most Federal employees nonetheless faithfully perform their jobs, some do not. As discussed in greater detail later in this proposed rulemaking, it is well documented that many career federal employees use their positions to advance their personal political or policy preferences instead of implementing the elected President's agenda. Such behavior undermines democracy, as it enables government power to be wielded without accountability to the voters or their elected representatives. On October 21, 2020, President Donald J. Trump addressed these challenges with Executive Order 13957, “Creating Schedule F in the Excepted Service.”  <SU>6</SU> <FTREF/> Title 5 generally authorizes the President or OPM to exclude employees in excepted service positions of a “confidential, policy-determining, policy-making, or policy-advocating character” (hereafter “policy-influencing positions”) from chapter 75 procedural requirements and MSPB appeals. <SU>7</SU> <FTREF/> Chapter 43 also authorizes OPM to exclude excepted service positions from its procedural requirements and concomitant MSPB appeals. <SU>8</SU> <FTREF/> Executive Order 13957 used this authority to create a new Schedule F in the excepted service for policy-influencing career employees. The order required nonpartisan appointments to and removals from Schedule F; these positions remained career appointments filled based on merit and not political affiliation. <SU>9</SU> <FTREF/> However, chapter 43 and 75 procedural requirements and appeals would no longer apply. This would enable agencies to expeditiously remove career employees in policy-influencing positions for poor performance or misconduct, such as corruption or for injecting partisanship into the performance of their official duties. <FTNT> <SU>6</SU>  85 FR 67631 (Oct. 26, 2020). </FTNT> <FTNT> <SU>7</SU>  5 U.S.C. 7511(b)(2). </FTNT> <FTNT> <SU>8</SU>  5 U.S.C. 4301(2)(G). </FTNT> <FTNT> <SU>9</SU>  E.O. 13957, sec. 6. </FTNT> Executive Order 13957 recognized the value of a nonpartisan merit service that develops and maintains institutional knowledge and experience. It strengthened the merit service by giving agencies the tools necessary to hold policy-influencing employees accountable when they fail to uphold high standards of conduct and performance. On January 22, 2021, President Joseph Biden issued Executive Order 14003, which abolished Schedule F before any positions were transferred into it. <SU>10</SU> <FTREF/> In April 2024 OPM issued a final rule (hereinafter the “April 2024 final rule”) amending the civil service regulations to (1) define policy-influencing positions to encompass only political appointments and have no applicability to career Federal positions; (2) establish comprehensive procedures, including MSPB appeals, governing the transfer of positions to policy-influencing schedules in the excepted service; and (3) provide that any career incumbents moved into such policy-influencing excepted service schedules would remain subject to adverse actions procedural requirements and retain adverse action appeals. <SU>11</SU> <FTREF/> <FTNT> <SU>10</SU>  86 FR 7231 (Jan. 27, 2021). </FTNT> <FTNT> <SU>11</SU>   <E T="03">See</E> 89 FR 24982 (Apr. 9, 2024). </FTNT> On the first day of his second term President Trump signed Executive Order 14171 on “Restoring Accountability to Policy-Influencing Positions within the Federal Workforce.”  <SU>12</SU> <FTREF/> As described below, until the 1960s the general Federal workforce could not appeal adverse actions. Executive Order 14171 used an express grant of statutory authority to return policy-influencing positions to this historical baseline. To this end, Executive Order 14171 created a new Schedule Policy/Career in the excepted service for policy-influencing positions and made several related modifications to the civil service rules. Under the order Schedule Policy/Career positions remain career positions, filled on a nonpartisan basis using standard career employee hiring procedures. At the same time, employees in such positions will serve at-will and will not be covered by chapter 43 or 75 procedures. This will enable the President and his appointed agency heads to hold Schedule Policy/Career employees meaningfully accountable for their performance and conduct. <FTNT> <SU>12</SU>  90 FR 8625 (Jan. 31, 2025). </FTNT> The OPM Director is generally charged with executing, administering, and enforcing the civil service rules and regulations of the President and the laws governing the civil service. Accordingly, OPM proposes this rule to strengthen employee accountability and implement Executive Order 14171. OPM proposes amending its regulations in 5 CFR chapter I, subchapter B, as follows: 1. Amending 5 CFR part 213 (Excepted Service) to include Schedule Policy/Career as an excepted service schedule for policy-influencing career positi ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 342k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━