You heard that President Donald Trump issued an Order yesterday freezing federal hiring and prohibiting contracting to circumvent the Order. Do not panic, not yet. Firstly, the “memorandum does not revoke any appointment to Federal service made prior to January 22, 2017.” This last sentence may avoid many (not all) issues seen in NTEU v. Reagan, 663 F.2d 239 (D.C. Cir., 1981) when President Ronald Reagan froze federal hiring. Secondly, President Trump’s Order expires after the Office of Management and Budget (OMB) provides a long term plan to reduce federal ranks through attrition. Thirdly, in the interim, some positions will be filled pursuant to statutes mandating such positions and in positions falling within exceptions to the Order.
President Trump’s Order has several exceptions. “The head of any executive department or agency may exempt from the hiring freeze any positions that it deems necessary to meet national security or public safety responsibilities. In addition, the Director of the Office of Personnel Management (OPM) may grant exemptions from this freeze where those exemptions are otherwise necessary.” Employees appointed “at the pleasure of the appointing authority” also may be hired. The limit on contracting does not address existing contracts; it addresses contracts that circumvent the Order.
Accordingly, and generally (this is not legal advice) if you are looking for a federal position, watch for vacancies within the exemptions. If you work on a Government contract, notice that the Order leaves room for Federal contractors to continue to provide services, in addition to obligations allowing these continued services under existing contracts and applicable law.
After President Ronald Reagan acted to reduce Government, I represented federal employees in multiple reduction-in-force and Air Traffic Controller cases. In 2017, the Office of Personnel Management (OPM) issued a guide to federal agencies on procedures for firing federal employees, titled “Managing Federal Employees’ Performance Issues or Misconduct.”
Viewing this memorandum from these perspectives, my thoughts are simple. You keep it simple and ignore hallway “lawyer” (by people who are not lawyers) jargon and fancy advice. (And you sure as heck should not confide misconduct to such people.) If you are a federal employee you want to obey orders, no matter what others tell you. You want to avoid needless fights with the boss. Do NOT lie or withhold material information from a federal official, even from that “jerk *&%@#!” boss, particularly if you hold a security clearance. Do a good job and document doing a good job.
This all may sound simplistic, but your options for changing jobs now are limited and many employment and security clearance problems are avoided by fairly simple acts or refusals to act. I will write about the 2017 OPM guide on disciplining federal employees another day. And I expect more is coming with the OMB plan and from OPM.
Until then, below, is the Presidential Memorandum in its entirety.
The White House
Office of the Press Secretary
For Immediate Release
January 23, 2017
Presidential Memorandum Regarding the Hiring Freeze
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: Hiring Freeze
By the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby order a freeze on the hiring of Federal civilian employees to be applied across the board in the executive branch. As part of this freeze, no vacant positions existing at noon on January 22, 2017, may be filled and no new positions may be created, except in limited circumstances. This order does not include or apply to military personnel. The head of any executive department or agency may exempt from the hiring freeze any positions that it deems necessary to meet national security or public safety responsibilities. In addition, the Director of the Office of Personnel Management (OPM) may grant exemptions from this freeze where those exemptions are otherwise necessary.
Within 90 days of the date of this memorandum, the Director of the Office of Management and Budget (OMB), in consultation with the Director of OPM, shall recommend a long-term plan to reduce the size of the Federal Government’s workforce through attrition. This order shall expire upon implementation of the OMB plan.
Contracting outside the Government to circumvent the intent of this memorandum shall not be permitted.
This hiring freeze applies to all executive departments and agencies regardless of the sources of their operational and programmatic funding, excepting military personnel.
In carrying out this memorandum, I ask that you seek efficient use of existing personnel and funds to improve public services and the delivery of these services. Accordingly, this memorandum does not prohibit making reallocations to meet the highest priority needs and to ensure that essential services are not interrupted and national security is not affected.
This memorandum does not limit the nomination and appointment of officials to positions requiring Presidential appointment or Senate confirmation, the appointment of officials to non-career positions in the Senior Executive Service or to Schedule C positions in the Excepted Service, or the appointment of any other officials who serve at the pleasure of the appointing authority. Moreover, it does not limit the hiring of personnel where such a limit would conflict with applicable law. This memorandum does not revoke any appointment to Federal service made prior to January 22, 2017.
This memorandum does not abrogate any collective bargaining agreement in effect on the date of this memorandum.
DONALD J. TRUMP
William Aramony, Law Offices 