Agencies seeking to hire current or former political appointees into covered civil service jobs are facing new requirements from the Office of Personnel Management (OPM).

OPM released a memo on February 23, 2018, stating it will now review all requests made by federal agencies to transition political appointees into permanent positions involving non-competitive and direct-hire appointments. OPM had previously reviewed requests pertaining to transitioning political appointees into the competitive service or the career Senior Executive Service (SES).

With this new directive, all of the following require OPM’s written permission before action can be taken to hire someone who was a political appointee at any point over the last five years:

• Appointing current or former political appointees to a permanent competitive service, non-political excepted service or career SES position
• Appointing current or former political Schedule A, Schedule C or appointees who served in a political capacity under agency-specific authority in the Executive Branch to permanent competitive service, non-political excepted service or career SES positions
• Appointing a current or former non-career SES, Limited Term SES or Limited Emergency SES in the Executive Branch to a permanent competitive, non-political excepted service or career SES position
• Appointing a current or former political appointee in the Executive Branch to a covered position in an agency having established an interchange agreement with OPM, allowing movement from the agency’s system to the competitive civil service

OPM requires all agencies seeking to hire a political appointee to a career position to submit documentation about the interview processes they conducted to come to their conclusion to hire the specific former non-career employee. The information OPM needs includes:

• Descriptions of the appointee’s current or former position, and the agency’s proposed position
• A copy of the political appointment and resignation/termination form, if available
• An organizational chart identifying where the political and proposed positions are within the agency or agencies
• A statement explaining the arrangement of the appointee’s current position, if it has been vacated
• A statement disclosing a personal or professional relationship between the agency, its selecting officials and the appointee
• A complete case file for the proposed selection (the amount of information necessary in this section varies and depends on whether the position is in the competitive service or the non-political excepted service)
• The names, titles, contact information and the types of appointments for the members of the agency’s selection panel
• The names, titles, contact information and types of appointments for the agency’s recommending and selecting officials
• Documentation of the interview process involved (interview questions and notes, names of interviewers and/or panel members, the names of candidates who participated in the process)

OPM enacted its new policy to meet its stated goal of being in compliance with the Edward “Ted” Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015, which requires the agency to provide information about decisions it issues on other agencies’ requests to appoint current and former political appointees to covered civil service positions. The Transitions Improvements Act also expanded the list of covered civil service positions to which the rules apply.

For rank-and-file federal employees, OPM’s new policy ensures that they won’t be shut out of consideration for a promotion because their agencies are interested in hiring a political appointee. Agencies must prove they kept the process open and fair in order to gain approval from OPM to hire an appointee over a career-track federal employee. If they can’t, they will have to re-open the position and go through the interview process again.

It should be noted that this measure does not completely end the practice of hiring political appointees into permanent positions at federal agencies. In a FAQ sheet accompanying its memo, OPM stated it will generally grant its written permission to an agency’s request to hire a current or former political appointee – provided the agency did not create a position specifically for the appointee’s benefit, and the agency made sure the application process was fair and open. Approvals or denials will be issued within 15 business days of the date which OPM received all of the information it requested.

Even with OPM’s new documentation requirements in place, it is still possible for an agency to engage in a prohibited personnel practice to hire a political appointee. For instance, the appointee might tell another employee that he or she was assured the job was theirs, and the interview process was a formality. An employee may also feel he or she was passed over based on their race, religion, gender, age or disability. Employees who feel they were unjustly passed over for promotion in order for a political appointee to take the position they wanted should consult a federal labor and employment attorney to discuss their options for filing an appropriate action, if any.

OPM’s new requirements may make the process of hiring a political appointee to a covered civil service position more technically detailed, but it doesn’t resolve all of the issues surrounding such a move. Federal employees should speak up when they feel they have been unjustly passed over for a promotion in favor of an appointee.

Cheri L. Cannon, Esq. is the Managing Partner of Tully Rinckey PLLC’s Washington, D.C. office and an experienced federal labor and employment attorney. She oversees all federal sector legal matters at the firm and represents federal managers, employees and contractors in matters before the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC).