One of the package of executive orders issued on January 2025 was an executive order, “Restoring Accountability for Career Senior Executives,” which focused on Senior Executive Service (SES) employees. Examination of the executive order provides a reminder of what rules and protections apply to the SES.
SES employees are treated differently than General Schedule employees, and fall under their own separate statutes when it comes to their appointment, general employment status, performance evaluations and disciplinary actions. Indeed, even when Congress was enacting special disciplinary authorities for Department of Veterans Affairs employees, as previously discussed in this blog, it separated the statute for SES employees from the one for General Schedule employees. These protection are statutory, and the courts have long held that no executive order can rewrite or override the express statutes of Congress in an area within its constitutional legislative authority (and not constitutionally reserved to the sole authority of another branch of government), and have further indicated that Congress may enact statutory protections which constrain or set procedural standards for personnel actions against SES employees.
Consistent with these general principles, the executive order does not in any way directly change the standard for, or procedures for, disciplining SES employees, despite the order’s sweeping verbiage concerning SES employees serving at the pleasure of the President. SES employees still remain entitled to statutory procedural requirements concerning their discipline and performance evaluations. Instead, the executive order directs the Office of Personnel Management (in conjunction with the Office of Management and Budget) to update standardized language for agencies to later include in SES employees’ performance plans. The executive order calls for changing over the personnel staffing the executive resources board involved in appointment of career SES employees and the performance review boards involved in SES employees’ performance evaluations, but the underlying procedures for appointments and performance evaluation issuance are not modified. The executive order also cites to, but does not purport to modify, the statutory authority for reassigning or transferring SES employees.
If you are an SES employee and wish to seek advice regarding your rights based on the issuance of this executive order, consider contacting Gilbert Employment Law, P.C. to request an initial consultation.
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