Did you get that memo? Right-wing smear machine falsely claims new Obama administration policy will "purge" Republicans from civil service

››› ››› ADAM SHAH & TODD GREGORY

Reading a RedState blog post on his radio show, Rush Limbaugh stated that the "Obama administration intends to purge Republicans from the civil service retroactive to five years ago, starting in the year 2010." In fact, the Office of Personnel Management memo that Limbaugh was referencing would require federal agencies to seek OPM's approval to hire both current and recent political appointees for jobs they apply for in the future, not jobs they already hold; furthermore, the memo explicitly states that "political appointees may not be excluded from consideration for Federal jobs because of their political affiliation."

Right-wing media conveyor belt forwards notion that OPM will "purge" Republicans from career jobs like "Marxists do"

Instapundit emailer: "OPM is now claiming authority to weed out every former political appointee from being considered for ANY federal positions at EVERY level." From an email published by Instapundit's Glenn Reynolds:

OPM is now claiming authority to weed out every former political appointee from being considered for ANY federal positions at EVERY level of the GS Pay Scale, for both the competitive AND excepted service -- made RETROACTIVE for the past 5 years! (This is a new, extra layer of scrutiny previously reserved for SES hires.) OPM will now check the recommended hires to "ensure they comply with merit system principles and applicable civil service laws."

It is well established anti-discrimination law in the Federal sector -- the public (political appointees included) may not be excluded from consideration for federal jobs because of their political affiliation. [Instapundit.com, 11/12/09]

RedState: Obama "intends to purge all Republicans from the federal bureaucracy retroactive to five years ago." From Erick Erickson's November 12 RedState.com post:

It is a typical Washington process that many political appointees are able to take jobs within the civil service once their political appointment expires -- usually at the conclusion of one administration. What often happens as well is Congressional staffers, before an election or shortly thereafter, will move over to the Executive Branch placed into the civil service, in effect, by appointment.

So, for example, when George Bush became President in 2001, a number of Clinton political appointees became civil service employees. As a result, they became subject to civil service hiring and firing rules, which meant they could no longer be replaced simply for having been a Democratic appointee.

Barack Obama is changing that. He intends to purge all Republicans from the federal bureaucracy retroactive to five years ago.

Under his new rules, made retroactive for five years, the Office of Personnel Management will examine civil service employees who got their start as political appointees in the Bush administration and terminate those employees. The order is retroactive to 2004, that moment when a number of Republican congressional staffers and others sought to embed into the second Bush administration right after the election. [RedState.com, 11/12/09]

Limbaugh: "This is what Marxists do. This is a purge." On his November 12 radio show, Limbaugh read from Erickson's RedState.com post and commented: "This is what Marxists do. This is a purge. This is typical of Marxist regimes, totalitarian regimes. And I -- I'll tell you what, I hope the next Republican administration learns this lesson, because there are going to be thousands of Maoists sleazing their way into the bureaucracy after whatever number of years Obama is in the White House. The bureaucracy is being polluted with these people, and just as Democrats and Obama are going to purge all Republicans from the civil service." [Premiere Radio Networks' The Rush Limbaugh Show, 11/12/09]

"Purge" undermined: OPM memo does not deal with jobs that former political appointees already hold

Berry: "I am instituting a change in OPM policy with respect to hiring political appointees for civil service jobs." In the memo, OPM director John Berry does not address the current job of any civil-service employee. Rather, he directs federal agencies to "seek prior approval from OPM before they can appoint a current or recent political appointee to a competitive or non-political excepted service position at any level":

I believe we must hold ourselves and the government to a higher standard, one that honors and supports the President's strong commitment to a Government that is transparent and open. OPM's responsibility to uphold the merit system is not limited to Presidential election years nor to competitive service appointments. That is why I am instituting a change in OPM policy with respect to hiring political appointees for civil service jobs.

Beginning January 1, 2010, agencies must seek prior approval from OPM before they can appoint a current or recent political appointee to a competitive or non-political excepted service position at any level under the provisions of title 5, United States Code. OPM will review these proposed appointments to ensure they comply with merit system principles and applicable civil service laws. [OPM memo, 11/5/09]

Memo does not give authority to fire anyone from civil-service positions they currently hold. The OPM memo does not mention reviewing the qualifications of current civil servants, nor does it mention firing anybody.

Career employees will make decisions about hiring, not political appointees

Berry: "I have delegated decisionmaking authority over these matters to career Senior Executives at OPM." Appointments to positions covered by the new policy will not be subject to the review of political appointees. In the memo, Berry writes: "I have delegated decisionmaking authority over these matters to career Senior Executives at OPM to avoid any hint of political influence." [OPM memo, 11/5/09]

OPM already reviews hiring of some political appointees

Federal law requires agencies to seek OPM approval for some positions during presidential election years. OPM's review of hiring had previously been limited to jobs at the Senior Executive Service level during years in which presidential elections are held. The policy change expands that practice to employees at all levels every year. From the memo:

Pursuant to our oversight authority under 5 U.S.C. Section 1104(b)(2) and 5 CFR Section 5.2, OPM requires Federal agencies to seek our approval before selecting a political appointee for a competitive service position during a Presidential election year. OPM's oversight in this area safeguards merit system principles and assures fair and open competition free from political influence. However, if the proposed civil service job is below the Senior Executive Service (SES) level, OPM's review has been limited only to competitive service appointments and only those appointments that take place during a Presidential election year. In contrast, OPM conducts merit staffing reviews of proposed SES appointments whenever they occur. [OPM memo, 11/5/09]

Several federal laws and regulations already prohibit taking political affiliation into account when hiring for career civil-service positions -- as Berry's memo notes

Berry: "While political appointees may not be excluded from consideration for Federal jobs because of their political affiliation, they must not be given preference or special advantages." From the memo:

The U.S. Office of Personnel Management (OPM) carries out many important responsibilities for the President and the American people but none is more important than our statutory responsibility to ensure the best qualified candidates are selected for Federal jobs after fair and open competition. In light of the historical origins of the civil service system, OPM's role as guardian of the merit system is especially important when a Federal agency selects a political appointee for a position in the civil service. While political appointees may not be excluded from consideration for Federal jobs because of their political affiliation, they must not be given preference or special advantages. [OPM memo, 11/5/09]

Federal law: Managers "shall not" discriminate against "any employee or applicant for employment" on the basis of "political affiliation." From Title 5, Section 2302 of the U.S. Code:

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority --

(1) discriminate for or against any employee or applicant for employment --

[...]

(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;

"Merit system principles" in U.S. Code state: "[A]pplicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation." From Title 5, Section 2301 of the U.S. Code:

(b) Federal personnel management should be implemented consistent with the following merit system principles:

[...]

(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.

DOJ investigation found Bush official violated "Department policy and federal law" by hiring based on political affiliation. In the context of hiring for the Department of Justice, the DOJ inspector general noted that federal laws and regulations prohibited taking political affiliation into account and found that a Bush administration official had violated "both Department policy and federal law," which "prohibit discrimination in hiring for career positions on the basis of political affiliations." ["An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General," 7/28/09]

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