Federal Managers Association

Opinions & Editorials

• FMA Supports Proposed Rule Upholding Civil Service Protections and Merit System Principles

• On September 18, 2023, the Office of Personnel Management (OPM) published proposed regulations in the Federal Register to reinforce and clarify important civil service protections for federal employees who may shift from the competitive service to the excepted service or from one excepted service schedule to another. FMA National President Craig Carter submitted comments on behalf of our association strongly supporting the proposed rule and urged OPM to finalize the new regulations as expediently as possible.

  A hallmark of America’s civil service is the foundational, fundamental understanding that federal employees swear an oath to the Constitution and provide services to all Americans, regardless of political party. The federal government cannot function effectively without this nonpolitical civil service capable of preserving institutional memory and competence across administrations. Dating back to the Pendleton Act of 1883, which ended the spoils system, America’s civil service has been governed by statutes and rules aimed at preserving a federal employee’s right to due process, as protected by the Constitution.

  As stated by OPM, the proposed rule:

  • Clarifies that, upon such a move, an employee retains the status and civil service protections they had already accrued by law, unless the employee relinquishes such rights or status by voluntarily encumbering a position that explicitly results in a loss of, or different, rights.

  • Interprets ‘‘confidential, policy-determining, policy-making, or policy-advocating’’ and ‘‘confidential or policy-determining’’ to describe positions generally excepted from civil service protections, in accordance with statutory text, legislative history for that text, and congressional intent, to reinforce the interpretation that this term was intended to mean noncareer, political appointments.

  • Provides specific additional procedures that apply when moving positions from the competitive service to the excepted service, or from one excepted service schedule to another, for the purposes of good administration, to add transparency, and to provide employees with a right of appeal to the Merit Systems Protection Board (MSPB or Board) to the extent any such move purportedly strips employees of their civil service status and protections.

  FMA’s Carter argued the proposed rule further ensures necessary safeguards for the civil service. FMA supports these principles, protections and clarifications as proposed.

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