Personnel Practices
Conversions of Employees from Noncareer to Career Positions May 2001 - April 2005 Gao ID: GAO-06-381 May 1, 2006A federal employee conversion occurs whenever an individual changes from one personnel status or service to another without a break in federal government service of more than 3 days. This report focuses on conversions of individuals from noncareer to career positions. Federal agencies must use appropriate authorities and follow proper procedures in making these conversions. GAO was asked to determine for departments and selected agencies (1) the number and characteristics of all noncareer to career conversions occurring during the period from May 1, 2001, through April 30, 2005, and (2) whether appropriate authorities were used and proper procedures were followed in making these conversions at the GS-12 level and above.
Twenty-three of the 41 departments and agencies selected for review reported converting 144 individuals from noncareer to career positions from May 1, 2001, through April 30, 2005. The other 18 departments and agencies reported making no conversions during this period. Four agencies accounted for 95, or 66 percent, of the 144 reported conversions: the Departments of Health and Human Services (36), Justice (23), Defense (21), and Treasury (15). Of the 144 reported conversions, almost two-thirds were from Limited Term Senior Executive Service (SES) positions (47) and Schedule C positions (46). Limited Term SES appointments may be made for up to 36 months and can include federal employees who previously held career positions. Schedule C appointments are generally noncompetitive and are for positions graded GS-15 and below that involve determining policy or that require a close confidential relationship with key agency officials. Of these 144 individuals, 64 were converted to career SES positions, 47 to career competitive service positions, and 33 to career excepted service (non-Schedule C) positions. Agencies used appropriate authorities and followed proper procedures in making the majority (93) of the 130 conversions reported at the GS-12 level or higher. However, for 37 of these conversions it appears that agencies did not follow proper procedures or agencies did not provide enough information for us to make an assessment. For 18 of the 37 of these conversions, it appears that agencies did not follow proper procedures. Some of the apparent improper procedures included: selecting former noncareer appointees who appeared to have limited qualifications and experience for career positions, creating career positions specifically for particular individuals, and failing to apply veteran's preference in the selection process. Seven of the 18 conversions were subject to OPM review and approval; 2 because they fell within the presidential election pre-appointment review period as prescribed by OPM and 5 because they were to SES level positions. For the remaining 19 conversions, agencies did not provide enough information for GAO to fully assess the process used by the agency in making the conversion. This was largely attributable to the types of appointments involved. Sixteen of these 19 conversions were to career excepted service (non-Schedule C) positions at the Department of Justice. For appointments to excepted service positions, OPM does not require agencies to follow OPM's competitive hiring provisions or to maintain records of the rating, ranking, and selection process, as it requires for competitive service appointments (although most of these conversions are subject to the merit system principles). These unique hiring procedures and limited documentation requirements for excepted service positions resulted in GAO having insufficient information to reconstruct the Department of Justice's decision-making process to convert these individuals. For the remaining three cases, the Department of Health and Human Services could not locate certain files.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-06-381, Personnel Practices: Conversions of Employees from Noncareer to Career Positions May 2001 - April 2005
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Report to Congressional Requesters:
May 2006:
Personnel Practices:
Conversions of Employees from Noncareer to Career Positions May 2001 -
April 2005:
GAO-06-381:
GAO Highlights:
Highlights of GAO-06-381, a report to congressional requesters.
Why GAO Did This Study:
A federal employee conversion occurs whenever an individual changes
from one personnel status or service to another without a break in
federal government service of more than 3 days. This report focuses on
conversions of individuals from noncareer to career positions. Federal
agencies must use appropriate authorities and follow proper procedures
in making these conversions. GAO was asked to determine for departments
and selected agencies (1) the number and characteristics of all
noncareer to career conversions occurring during the period from May 1,
2001, through April 30, 2005, and (2) whether appropriate authorities
were used and proper procedures were followed in making these
conversions at the GS-12 level and above.
What GAO Found:
Twenty-three of the 41 departments and agencies selected for review
reported converting 144 individuals from noncareer to career positions
from May 1, 2001, through April 30, 2005. The other 18 departments and
agencies reported making no conversions during this period. Four
agencies accounted for 95, or 66 percent, of the 144 reported
conversions: the Departments of Health and Human Services (36), Justice
(23), Defense (21), and Treasury (15). Of the 144 reported conversions,
almost two-thirds were from Limited Term Senior Executive Service (SES)
positions (47) and Schedule C positions (46). Limited Term SES
appointments may be made for up to 36 months and can include federal
employees who previously held career positions. Schedule C appointments
are generally noncompetitive and are for positions graded GS-15 and
below that involve determining policy or that require a close
confidential relationship with key agency officials. Of these 144
individuals, 64 were converted to career SES positions, 47 to career
competitive service positions, and 33 to career excepted service (non-
Schedule C) positions.
Agencies used appropriate authorities and followed proper procedures in
making the majority (93) of the 130 conversions reported at the GS-12
level or higher. However, for 37 of these conversions it appears that
agencies did not follow proper procedures or agencies did not provide
enough information for us to make an assessment. For 18 of the 37 of
these conversions, it appears that agencies did not follow proper
procedures. Some of the apparent improper procedures included:
selecting former noncareer appointees who appeared to have limited
qualifications and experience for career positions, creating career
positions specifically for particular individuals, and failing to apply
veteran‘s preference in the selection process. Seven of the 18
conversions were subject to OPM review and approval; 2 because they
fell within the presidential election pre-appointment review period as
prescribed by OPM and 5 because they were to SES level positions. For
the remaining 19 conversions, agencies did not provide enough
information for GAO to fully assess the process used by the agency in
making the conversion. This was largely attributable to the types of
appointments involved. Sixteen of these 19 conversions were to career
excepted service (non-Schedule C) positions at the Department of
Justice. For appointments to excepted service positions, OPM does not
require agencies to follow OPM‘s competitive hiring provisions or to
maintain records of the rating, ranking, and selection process, as it
requires for competitive service appointments (although most of these
conversions are subject to the merit system principles). These unique
hiring procedures and limited documentation requirements for excepted
service positions resulted in GAO having insufficient information to
reconstruct the Department of Justice‘s decision-making process to
convert these individuals. For the remaining three cases, the
Department of Health and Human Services could not locate certain files.
What GAO Recommends:
GAO recommends that (1) OPM review the 18 conversions GAO identified
where it appears that certain agencies did not use appropriate
authorities and/or follow proper procedures and determine whether
additional actions are needed, and (2) determine whether conversions to
career excepted service positions should be subject to OPM‘s review.
OPM generally agreed with these recommendations.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-06-381].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact George H. Stalcup at
(202) 512-6806 or stalcupg@gao.gov.
[End of Section]
Contents:
Letter:
Results in Brief:
Background:
Agencies Appeared to Have Used Appropriate Authorities and Proper
Procedures in Making the Majority of These Conversions:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Executive Branch Departments and Selected Agencies Covered
in This Review and Their Number of Conversions:
Appendix II: Scope and Methodology:
Appendix III: Noncareer Appointees Converted to Career Positions by
Departments and Selected Agencies from May 1, 2001 - April 30, 2005:
Appendix IV: Conversions Where Appropriate Authorities and Proper
Procedures May Not Have Been Followed:
Appendix V: Conversions Where It Could Not Be Determined Whether
Appropriate Authorities and Proper Procedures Were Followed:
Appendix VI: Comments from Office of Personnel Management:
Appendix VII: GAO Contact and Staff Acknowledgments:
Figure:
Figure 1: Departments and Selected Agencies with the Most Conversions:
Letter:
May 1, 2006:
The Honorable Henry A. Waxman:
Ranking Minority Member:
Committee on Government Reform:
House of Representatives:
The Honorable Danny K. Davis:
Ranking Minority Member, Subcommittee on Federal Workforce and Agency
Organization:
Committee on Government Reform:
House of Representatives:
According to the Office of Personnel Management (OPM), a federal
employee conversion occurs whenever an individual changes from one
personnel status or service to another without a break in federal
government service of more than 3 days. There are many types of
conversions. This report focuses on one type of conversion; i.e.,
converting individuals from noncareer to career positions. These
conversions represented less than 1 percent of the total number of
career conversions across the government from May 1, 2001, through
April 30, 2005.[Footnote 1] The types of positions this report covers
and a definition of each is listed in the background section.
Federal agencies must use appropriate authorities and follow proper
procedures in making the conversions. Most of these authorities and
procedures are found in Title 5 of the U.S. Code. Title 5 of the U.S.
Code includes the merit system principles,[Footnote 2] which are broad
principles governing federal personnel management, such as that all
applicants for federal employment should receive fair and equitable
treatment. Other examples of statutory requirements include granting of
veteran's preference[Footnote 3] and the prohibition on certain
personnel practices[Footnote 4] such as discriminating for or against
an applicant for employment on the basis of political affiliation. In
addition to these statutory requirements, agencies must follow OPM
regulations, which set out required procedures for making appointments
to career positions, such as providing public notice of all vacancies
in the career Senior Executive Service (SES).[Footnote 5] Agencies are
not required to follow OPM's competitive service hiring guidance for
career excepted service (non- Schedule C) positions; however, agencies
must follow merit system principles and apply veteran's preference when
making most of these appointments.
OPM also has oversight authority to ensure that federal agencies are
following the merit system principles when hiring. As one aspect of
carrying out these duties, OPM has traditionally required agencies to
seek its pre-appointment approval for the conversion of certain
noncareer appointees (Schedule C and Noncareer SES) into certain career
positions (competitive service and career SES) during a presidential
election review period. Schedule C appointments are generally
noncompetitive and are usually for positions graded GS-15 and below
that involve determining policy or that require a close confidential
relationship with the agency head or other key officials of the agency.
Noncareer SES appointees are responsible for formulating, advocating,
and directing administration policies. The specific duration of each
presidential election review period is defined every 4 years by OPM.
For the most recent presidential election, OPM defined the pre-
appointment review period from March 18, 2004, through January 20,
2005. OPM does not include conversions to career excepted service (non-
Schedule C) positions in this pre-appointment review process. In
addition, pursuant to the statutory requirement to maintain an
oversight program over delegated activities, OPM conducts periodic
audits of agencies' examining and hiring activities to ensure they are
consistent with the merit systems principles and other laws and
regulations.[Footnote 6]
This report responds to your request that we determine for departments
and selected agencies (1) the number of all conversions from noncareer
to career positions occurring during the period from May 1, 2001,
through April 30, 2005; and for each of these conversions, the
characteristics of the noncareer positions previously held by these
individuals and the career positions to which they were converted, and
(2) whether appropriate authorities were used and proper procedures
followed in making these conversions at the GS-12 level and above.
We have regularly reported on conversions from noncareer to career
positions in the past.[Footnote 7] In our most recent review, we
reported on conversions during the period from October 1998 through
April 2001. In addition, in June 2005, we provided you with information
on the number of individuals who were converted from noncareer to
career positions during the period from May 1, 2001, through December
31, 2003, as reported to us by departments and selected
agencies.[Footnote 8] We reported that 77 individuals holding noncareer
positions were converted to career positions during that time frame at
18 of the 41 selected departments and agencies covered in our review.
The remaining 23 departments and selected agencies reported no
conversions during that period. This report expands on that information
to show the total number of conversions reported by the 41 selected
departments and agencies for the entire period of May 1, 2001, through
April 30, 2005, and the results of our review of those conversions at
the GS-12 level and above.
To address our objectives, we asked 41 departments and selected
agencies to complete a data collection instrument (DCI) and provide
official records (Standard Form 50B) for each conversion to determine
the number of individuals converted from noncareer to career positions.
Appendix I lists the 41 departments and agencies we reviewed and the
number of conversions reported by each. The criteria we used to select
the 41 departments and agencies were (1) all 15 departments and (2) 26
agencies that had oversight or other regular responsibilities for
federal workforce issues, and that were agencies of particular interest
to the congressional requesters. For each conversion at the GS-12 level
and above, we reviewed the merit staffing files, which document
promotion and hiring decisions, and official personnel folders (OPF),
which include salary and other information from individuals' current
and previous appointments, to ensure that appropriate authorities and
proper procedures were followed. Agencies are not required to follow
OPM's competitive hiring procedures for career excepted service
positions. Instead, they devise their own hiring procedures for career
excepted service (non-Schedule C) positions. We requested written
copies of such procedures from each agency that used this authority to
determine (1) if agency procedures were consistent with law and
regulations, and (2) whether agencies followed their own procedures.
Since most of the conversions to career excepted service positions were
made by the Department of Justice (DOJ), we also met with DOJ's
Director of Attorney Recruitment and Management to discuss the process
DOJ uses to convert individuals to career excepted service (non-
Schedule C) positions.
We conducted our work in Washington, D.C. from March 2004 through March
2006 in accordance with generally accepted government auditing
standards. Appendix II contains more detailed information on our scope
and methodology.
Results in Brief:
Twenty-three of the 41 departments and agencies selected for review
reported converting 144 individuals from noncareer to career positions
from May 1, 2001, through April 30, 2005. The other 18 departments and
agencies reported making no conversions during this period. Four
agencies accounted for 95, or 66 percent, of the 144 reported
conversions: the Departments of Health and Human Services (36), Justice
(23), Defense (21), and Treasury (15). Of the 144 reported conversions,
almost two-thirds were from Limited Term Senior Executive Service (SES)
positions (47) and Schedule C positions (46). Limited Term SES
appointments may be made for up to 36 months and can include federal
employees who previously held career positions. Of these 144
individuals 64 were converted to career SES positions, 47 to career
competitive service positions, which are at the GS-15 grade level and
below, and 33 to career excepted service (non-Schedule C) positions.
Agencies used appropriate authorities and followed proper procedures in
making the majority (93) of the 130 conversions reported at the GS-12
level or higher. However, for 37 of these conversions it appears that
agencies did not follow proper procedures or agencies did not provide
enough information for us to make an assessment. For 18 of the 37
conversions, it appears that agencies did not follow proper procedures.
Some of the apparent improper procedures included: selecting former
noncareer appointees who appeared to have limited qualifications and
experience for career positions, creating career positions specifically
for particular individuals, and failing to apply veteran's preference
in the selection process. Seven of the 18 conversions were subject to
OPM review and approval; 2 because they fell within the presidential
election pre-appointment review period as prescribed by OPM and 5
because they were to SES level positions.
For the remaining 19 conversions, agencies did not provide enough
information for us to fully assess the process used by the agency in
making the conversion. This was largely attributable to the types of
appointments involved. Sixteen of these 19 conversions were to career
excepted service (non-Schedule C) positions at the Department of
Justice. For appointments to excepted service positions, OPM does not
require agencies to follow OPM's competitive hiring provisions or to
maintain records of the rating, ranking, and selection process, as it
requires for competitive service appointments. These unique hiring
procedures and limited documentation requirements for excepted service
positions resulted in us having insufficient information to reconstruct
the Department of Justice's decision-making process to convert these
individuals. For the 3 remaining cases, the Department of Health and
Human Services and the Department of Defense (DOD) could not locate
certain files.
To help ensure that federal agencies follow appropriate authorities and
proper procedures in making conversions from noncareer to career
positions, we are making recommendations to the Director of OPM to:
* review the 18 conversions we identified where it appears that certain
agencies did not use appropriate authorities and/or follow proper
procedures in making these conversions and determine whether additional
actions are needed, and:
* determine whether conversions to career excepted service positions
should be subject to OPM review--such as through the pre-appointment
review OPM conducts of other conversions during presidential election
periods, and/or during OPM's periodic audits of agencies' examining and
hiring activities, and if so, determine what information agencies
should provide on such conversions.
We obtained comments on a draft of this report from the Director of
OPM. OPM agreed with our first recommendation to review the 18 cases we
identified where certain agencies did not use the appropriate
authorities or adhere to merit system principles and veteran's
preference. With respect to our second recommendation, OPM stated that
it would incorporate a review of agency practices in this area during
its normal review of agency delegated examining units. Because we view
such action as responsive to the intent of our recommendation to
enhance the oversight over conversions agencies make from noncareer to
career excepted service positions, we revised the recommendation to
include OPM's intended action. Appendix VI contains OPM's written
comments.
Background:
We identified seven categories of noncareer position appointments
(positions from which individuals were converted as discussed in this
report).
* Schedule C: Appointments are generally noncompetitive and are for
excepted service positions graded GS-15 and below that involve
determining policy or that require a close confidential relationship
with the agency head or other key officials of the agency.
* Noncareer SES: Appointments are to positions with responsibility for
formulating, advocating, and directing administration policies.
Noncareer SES appointees have no tenure and serve "at the pleasure of
the department or agency head."
* Limited Term SES: Appointments may be made for up to 36 months to a
position with duties that will end within 36 months or an earlier
specified time period.
* Limited Emergency SES: Appointments may be made for up to 18 months
to meet a bona-fide, unanticipated, urgent need.
* Presidential appointees, including executive level and noncareer
ambassadors: Appointees are made by the President generally to fill
high-level executive positions. Appointments support and advocate the
President's goals and policies.
* Noncareer legislative branch: Appointments are primarily to positions
in member and committee offices.
* Other statutory at-will individuals: Sometimes called
administratively determined positions. Appointments are made under
specific authority provided to certain agencies to appoint individuals
to these positions noncompetitively. Appointees serve at the pleasure
of the agency head and can be removed at will. The salary levels can be
determined by the agency head within certain limits.
Although noncareer appointments are generally noncompetitive,
individuals holding noncareer positions may have previously held career
positions. For example, Limited Term SES and Limited Emergency SES
positions are often filled by federal employees who have previously
held career positions and achieved career status.
We identified four categories of career position appointments
(positions to which individuals were converted as discussed in this
report).
* Career (competitive service): Appointments are made through a
governmentwide or an "all sources" merit staffing (competitive)
process, including recruitment through a published announcement, rating
and ranking of eligible candidates, and establishment of OPM-created or
approved qualification standards.
* Career-conditional (competitive service): Appointments are for
permanent positions in the competitive service and are generally the
initial positions for new hires. Appointees must complete a 1-year
probationary period and a total of 3 years continuous creditable
service to attain a career appointment.
* Career (SES): Appointments are to top-level policy, supervisory, and
managerial positions above grade 15 of the General Schedule. Career SES
positions require a further review and approval of the merit staffing
process by OPM, and the proposed selectee's executive/managerial
qualifications by an OPM-administered SES Qualifications Review Board
(QRB) which are composed of members of the SES from across the
government.
* Career Excepted Service (Non-Schedule C): Appointments involve agency
positions that are not subject to OPM's competitive hiring examination.
Agencies have authority to establish their own hiring procedures to
fill excepted service vacancies. Such procedures must comply with
statutory requirements such as merit systems principles and veteran's
preference, when applicable. Career excepted service individuals have
adverse action appeal rights to the Merit Systems Protection Board;
which is responsible for protecting the federal government's merit-
based system of employment by hearing and deciding cases involving
certain personnel actions.
As mentioned previously, the majority of authorities and procedures
governing appointments to career positions are outlined in Title 5 of
the U.S. Code. Merit system principles are one of the fundamental
statutory rules that apply to civil service appointments. These
principles require that agencies provide a selection process that is
fair, open, and based on skills, knowledge, and ability.[Footnote 9]
Another statutory requirement is the prohibition on certain personnel
practices, such as granting any individual a preference or advantage in
the application process, including defining the manner of competition
or requirements for a position to improve the prospects of any
particular applicant, or failing to fulfill veteran's preference
requirements.[Footnote 10] In addition to these statutory requirements,
agencies must follow OPM's regulations in Title 5 of the Code of
Federal Regulations, which also outline required procedures for making
appointments to career positions, such as providing public notice of
all vacancies in the career SES.[Footnote 11] For career excepted
service (non-Schedule C) positions, agencies are not required to follow
OPM's hiring regulations for the competitive service; however, they
must apply veteran's preference and follow merit system principles when
making most of these appointments.
OPM has oversight authority to ensure that agencies are following the
merit system principles when hiring.[Footnote 12] In accordance with
this authority, OPM has traditionally required agencies to seek its pre-
appointment approval for the conversion of certain noncareer appointees
(Schedule C and Noncareer SES) into certain career positions
(competitive service and career SES) during a presidential election
period. OPM defines the specific duration of this period every 4 years.
In a memorandum to department and agency heads dated March 18, 2004,
OPM defined the most recent pre-appointment review period as beginning
on March 18, 2004, and concluding on January 20, 2005, Inauguration
Day. In that memorandum, OPM also reminded agencies of the need to
ensure that agency personnel actions remain free of political influence
and meet all relevant civil service laws, rules, and regulations and
that all official personnel records should clearly document the
continued adherence with merit principles and the avoidance of
prohibited personnel practices. OPM also required agencies to seek its
approval before appointing a current or former (within the last 5
years) Schedule C or Noncareer SES employee to the competitive service
or career SES during this period. As stated previously, OPM does not
include conversions to career excepted service (non-Schedule C)
positions in this pre-appointment review process. Thirty-six of the 144
reported conversions covered in this review occurred during the most
recent presidential election review period. In addition to conducting
pre-appointment reviews during election years, OPM also reviews all
career SES appointments. For these appointments, OPM first reviews the
selection process to ensure merit staffing procedures were followed,
then forwards the documents to an OPM-administered SES QRB that reviews
and approves the executive/managerial qualifications of agency proposed
selectees.
Agencies Made 144 Noncareer to Career Conversions from May 2001 through
April 2005:
Twenty-three of the 41 agencies we reviewed reported 144 conversions of
individuals from noncareer to career positions from May 1, 2001,
through April 30, 2005. The other 18 agencies reported no conversions
during this period. Four agencies, the Department of Health and Human
Services (HHS), the Department of Justice (DOJ), the Department of
Defense (DOD), and the Department of the Treasury (Treasury) accounted
for 95, or 66 percent, of the total 144 conversions reported, as seen
in figure 1.
Figure 1: Departments and Selected Agencies with the Most Conversions:
[See PDF for image]
[End of figure]
Of the 144 reported conversions, individuals were converted from the
following categories of noncareer positions:
* 47 Limited Term SES positions:
* 46 Schedule C positions:
* 25 other statutory at-will positions:
* 13 Noncareer SES positions:
* 6 Limited Emergency SES positions:
* 3 presidential appointee positions:
* 4 legislative branch positions:
The 144 reported conversions were made to the following categories of
career positions:
* 64 career SES positions:
* 47 competitive service positions:
* 33 career excepted service (non-Schedule C) positions:
Appendix III provides more detail on the characteristics of the
noncareer and career positions to which the individuals were converted,
e.g., title of positions, grades, salaries, and appointment dates.
Agencies Appeared to Have Used Appropriate Authorities and Proper
Procedures in Making the Majority of These Conversions:
Agencies appear to have used appropriate authorities and followed
proper procedures in making the majority (93) of the 130 conversions at
GS-12 level or above. However, for 18 conversions, it appears that
appropriate authorities were not used or proper procedures followed.
For 19 conversions, agencies did not provide us with enough information
to make a determination--many of these conversions were to excepted
service positions where agencies develop their own hiring procedures
and have limited documentation requirements.
In 93 Conversions, Agencies Appeared to Have Used Appropriate
Authorities and Followed Proper Procedures:
For 93 of the 130 conversions at the GS-12 level and above, our review
of the merit staffing files and official personnel files at the
respective agencies indicated that the agencies generally followed the
procedural requirements associated with each appointing authority
called for by federal law and regulations, including merit system
principles such as fair and open competition and fair and equitable
treatment of applicants. For example, agencies generally complied with
the competitive service examination process which is intended to ensure
that merit system principles are followed. The process includes
notifying the public that the government will accept applications for a
job, rating applications against minimum qualification standards and
assessing applicants' competencies or knowledge, skills, and abilities
against job-related criteria to identify the most qualified applicants.
In 18 Conversions, Appropriate Authorities and Proper Procedures May
Not Have Been Followed:
For 18 conversions, it appeared that in making the conversions,
agencies did not adhere to merit systems principles or may have engaged
in prohibited personnel practices. We found that most of these cases
involved one of several categories of improper procedures, and a few
cases involved more than one. Each of these conversions is discussed in
more detail in appendix IV.
In 7 of the 18 instances, it appears agencies created career positions
specifically for particular noncareer individuals, tailored career
positions' qualifications to closely match the noncareer appointees'
experience or pre-selected an applicant for a career position.
* In one case, it appears that Department of Homeland Security (DHS)
created a career excepted service (non-Schedule C) position and
appointed a former noncareer appointee to it without providing an
opportunity for other potential candidates to apply.
* In two cases, correspondence between HHS officials suggested that new
competitive service positions were created specifically for particular
individuals holding statutory at-will positions under Title 42 of the
U.S. Code.
* For two cases, it appears HHS tailored the mandatory qualifications
in the vacancy announcement to closely match the Limited Term SES
individuals' experience, giving them a distinct advantage in the
qualifications rating process for the career SES position.
* In one case, HHS may have tailored a career position to match a
Schedule C appointee's experience, giving the political appointee an
unfair advantage in the competitive process.
* In one case, it appears DOD preselected a former Schedule C appointee
for a career position, giving the political appointee an unfair
advantage in the competitive process.
In 4 of the 18 instances, it appears agencies did not apply veteran's
preference properly when converting noncareer appointees to competitive
service and career excepted service (non-Schedule C) positions.
* In one case, it appears HHS selected a Schedule C appointee over an
applicant with veteran's preference, who had scored higher than the
noncareer appointee in the competitive examination process. Although
agencies may make such selections they are required to justify such
decisions in writing. It appears the agency did not document its
justification.
* In one case, documents suggest the Environmental Protection Agency
(EPA) did not apply veteran's preference points[Footnote 13] to
applicants' scores, despite the presence of seven veteran's preference
eligibles on the applicant roster for a competitive service position.
Had the points been assigned, five of the applicants would have scored
higher than the Schedule C appointee (who was eventually selected) in
the competitive examination process. Additionally, it appears that the
agency may have created the career position specifically for this
individual.
* In one case, it appears HHS did not apply veteran's preference points
for two applicants. Had the points been assigned, the applicants would
have scored higher than the Title 42 statutory-at-will employee (who
was eventually selected) in the competitive examination process.
* In one case, it appears that DOJ converted a former Schedule C
employee to a career excepted service (non-Schedule C) position without
providing the opportunity for veteran's preference eligibles to apply.
In 3 of the 18 instances, agencies converted individuals who appeared
to have limited qualifications and/or experience relevant to the career
excepted service (non-Schedule C) positions.
* In one case, DOJ converted a former Schedule C appointee even though
it appears he did not meet the position's minimal qualifications as
outlined in the vacancy announcements.
* In two cases, the Department of Housing and Urban Development (HUD)
and DHS selected former Schedule C appointees who appeared to have
limited experience relevant to the career positions.
For the four remaining conversions, agencies did not follow several
different proper procedures during the appointment process:
* For two cases, HHS posted vacancy announcements for SES positions for
less than the designated minimum time requirement for SES Merit
Staffing Procedures.
* In one case, OPM raised concerns to the Small Business Administration
(SBA) that the appointment did not adhere to merit system principles
during the competition. Based on our review, it appears that SBA
proceeded with the conversion without fully addressing OPM's concerns.
* In one case, OPM cited weaknesses to the Consumer Product Safety
Commission (CPSC) concerning the selected candidate's qualifications
for the SES position. In our view, it appears that CPSC proceeded with
the conversion without fully addressing OPM's concerns.
Concerning OPM's role in these 18 conversions, 7 of the 18 conversions
were subject to OPM review and approval; 2 because they fell within the
presidential election pre-appointment review period as prescribed by
OPM and 5 because they were to SES level positions. Of the 2
conversions subject to OPM's presidential election pre-appointment
review process, in one instance, it appeared the agency did not submit
the conversion to OPM for its review. In the other instance, OPM
reviewed the file but did not take action before the January 20, 2005,
deadline for the pre-appointment review period. Of the 5 conversions to
SES level positions, an OPM-administered QRB reviewed and approved the
selectee's qualifications for each of these appointments, although in
one case OPM initially rejected the selectee's qualifications, then
approved the selection after the agency revised and resubmitted its
application.
In 19 Conversions, There Was Insufficient Information to Make a
Determination as to Whether Appropriate Authorities and Proper
Procedures Were Followed:
For 19 conversions, we did not have sufficient information to make a
determination as to whether appropriate authorities and proper
procedures were followed. More details on these conversions can be
found in appendix V. Sixteen of these conversions were to career
excepted service (non-Schedule C) positions at DOJ. For the remaining 3
conversions, agencies could not locate the required files or documents.
As mentioned previously, agencies are not required to follow OPM's
competitive examination process when making appointments to career
excepted service (non-Schedule C) positions. Rather, individual
agencies and components within these agencies may develop their own
procedures and guidelines for hiring, including documentation
requirements for hiring decisions. Although OPM requires agencies to
maintain records of the rating, ranking, and selection process for
competitive service appointments, these documentation requirements do
not apply to the excepted service. Agencies are, however, required to
follow merit system principles and apply veteran's preference when
making most appointments, including those to excepted service
positions. Given the limited documentation requirements for these
positions, we could not obtain adequate records from DOJ to reconstruct
its hiring process. More specifically, DOJ could not provide us with
documentation of their decision-making process for these appointments,
such as, in some cases, a copy of the selectee's application. For the 3
remaining conversions, HHS could not locate certain files. In two
cases, HHS could not locate the Official Personnel File or the merit
staffing file for 2 conversions of Limited Term SES individuals to the
career SES. In the other case, HHS could not locate the merit staffing
files for a former Schedule C appointee that converted to a competitive
service position.
Conclusions:
As we have stated in previous reports, the ability to convert noncareer
employees to career positions is an appropriate and valuable process
available to agencies. However, the noncompetitive nature of the
appointment process for the noncareer positions can create concerns
about whether these individuals have benefited from favoritism or
improper advantage when being converted to career positions, even the
appearance of which could compromise the integrity of the merit system.
OPM has established a process to help ensure that conversions occurring
during presidential election periods and to SES level positions, meet
merit system principles. While this process has in fact helped ensure
that some improper conversions are prevented, questionable conversions
can sometimes still occur. Also, conversions to excepted service
positions are excluded from the presidential election period pre-
appointment review process. While these conversions to excepted service
positions are exempt from the OPM competitive examination process, they
are subject to other statutory requirements, and therefore could
involve some of the same concerns, as demonstrated by our review. As we
discussed previously, as a part of its oversight authorities, OPM also
conducts periodic reviews of agencies' examining and hiring activities
to ensure they are consistent with the merit systems principles and
other laws and regulations.
OPM should review the 18 conversions we identified where certain
agencies appeared not to have used proper authorities or to have
followed proper procedures, and take any appropriate corrective
actions. Also, OPM should determine whether conversions to excepted
service positions should be subject to its pre-appointment review
during presidential election periods or its periodic reviews of
agencies' examining and hiring activities, and if so, what information
the agencies should provide to OPM in that regard.
Recommendations for Executive Action:
To help ensure that federal agencies are following appropriate
authorities and proper procedures in making conversions of noncareer to
career positions, we recommend that the Director, OPM:
* review the 18 conversions we identified where it appears that certain
agencies did not use appropriate authorities and/or follow proper
procedures in making these conversions and determine whether additional
actions are needed, and:
* determine whether conversions to career excepted service positions
should be subject to OPM review--such as through the pre-appointment
review OPM conducts of other conversions during presidential election
periods, and/or during OPM's periodic audits of agencies' examining and
hiring activities, and if so, determine what information agencies
should provide on such conversions.
Agency Comments and Our Evaluation:
We obtained comments on a draft of this report from the Director of
OPM. OPM agreed with our recommendation to review the 18 cases we
identified where agencies did not use the appropriate authorities or
adhere to merit system principles and veteran's preference. OPM also
noted that 9 of the 18 cases we identified came from HHS where OPM
recently withdrew a delegated examining authority from one of its
components following an oversight review.
With respect to our recommendation that OPM determine whether
conversions to career excepted service positions should be subject to
the pre-appointment review OPM conducts during the presidential
election periods, OPM stated it would incorporate a review of agency
practices in this area during its normal review of agency delegated
examining units. Because we view such action as responsive to the
intent of our recommendation to enhance the oversight over conversions
agencies make from noncareer to career excepted service positions, we
revised the recommendation to include OPM's intended action. OPM's
written comments are in appendix VI.
We also verified the number of conversions reported by each agency for
the period from May 1, 2001, through April 30, 2005, including those
that reported no conversions during this period with cognizant agency
officials. In addition, we provided draft summaries of the 18
conversions on which we had questions and the 19 conversions where we
could not make a determination, to the agencies that had reported them.
The Department of Justice, Environmental Protection Agency, Department
of Housing and Urban Development, Department of Defense, Small Business
Administration, and Consumer Product Safety Commission provided
technical clarifications to the discussion of their respective
conversions, which we incorporated as appropriate.
As agreed with your offices, unless you announce the contents of this
report earlier, we plan no further distribution until 30 days after the
date of this report. At that time, we will send copies to the Director
of the Office of Personnel Management and other interested parties. In
addition, this report will be available at no charge on the GAO Web
site at [Hyperlink, http://www.gao.gov].
If you or your staff have questions about this report, please contact
me at (202) 512-6806 or stalcupg@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff that made major contributions
to this report are listed in appendix VII.
Signed by:
George H. Stalcup Director, Strategic Issues:
[End of section]
Appendix I: Executive Branch Departments and Selected Agencies Covered
in This Review and Their Number of Conversions:
1. Department of Agriculture--3:
2. Department of Commerce--1:
3. Department of Defense (Office of the Secretary, Air Force, Army, and
Navy)--21:
4. Department of Education--3:
5. Department of Energy--1:
6. Department of Health and Human Services--36:
7. Department of Homeland Security--3:
8. Department of Housing and Urban Development--3:
9. Department of the Interior--4:
10. Department of Justice--23:
11. Department of Labor--3:
12. Department of State--2:
13. Department of Transportation--0:
14. Department of the Treasury--15:
15. Department of Veteran Affairs--4:
16. Commission on Civil Rights--0:
17. Consumer Product Safety Commission--5:
18. Corporation for National Service--0:
19. Environmental Protection Agency--1:
20. Equal Employment Opportunity Commission--1:
21. Export-Import Bank of the U.S.--0:
22. Federal Deposit Insurance Corporation--0:
23. Federal Labor Relations Authority--0:
24. Federal Maritime Commission--0:
25. Federal Trade Commission--1:
26. General Services Administration--3:
27. U.S. International Trade Commission--0:
28. Merit Systems Protection Board--0:
29. National Aeronautics and Space Administration--3:
30. National Labor Relations Board--0:
31. Office of Government Ethics--0:
32. Office of Management and Budget--0:
33. Office of Personnel Management--5:
34. Office of Special Counsel--0:
35. Office of the U.S. Trade Representative--0:
36. Overseas Private Investment Corporation--0:
37. Peace Corps--0:
38. Pension Benefit Guaranty Corporation--0:
39. Security Exchange Commission--0:
40. Small Business Administration--2:
41. Social Security Administration--1:
Total Number of Conversions: 144:
[End of section]
Appendix II: Scope and Methodology:
For the purpose of this review, we identified seven categories of
noncareer position appointments. These noncareer appointments were:
Schedule C, Noncareer SES, Limited Term SES, Limited Emergency SES,
Presidential appointees, Noncareer legislative branch, and Other
statutory at-will positions. Individuals holding noncareer positions
may have previously held career positions. For example, Limited Term
Senior Executive Service (SES) and Limited Emergency SES positions are
often filled by federal employees who have previously held career
positions (prior to being appointed to the noncareer positions from
which they were being converted). We identified four categories of
career position appointments: Career (competitive service), Career-
conditional (competitive service), Career (SES), Career Excepted
Service (Non-Schedule C). Definitions of these noncareer and career
positions can be found in the background section of this report. We
also reviewed our prior work on conversions for information on these
position categories.
The criteria used to select the executive branch departments and
agencies for this review were (1) all 15 departments and (2) 26
agencies that had oversight or other regular responsibilities for
federal workforce issues, and agencies that were of particular interest
to the congressional requesters of the review. Under these criteria, we
identified 41 departments and agencies, which are listed in appendix I.
To determine the number of individuals who converted from noncareer to
career positions, we asked the 41 agencies to complete a data
collection instrument (DCI) for the conversions made from May 1, 2001,
through December 31, 2003, and provide the information to us by April
15, 2004. To follow up on conversions made on or after January 1, 2004,
we asked the agencies to provide the number of conversions to us on a
monthly basis even if the agency had no conversions, beginning on May
15, 2004, through April 30, 2005.
In the DCI, we asked the agencies to provide specific information about
the conversions: the career positions to which the individuals were
appointed, including the position title, pay grade, annual salary, and
the date of appointment. We also asked for information on the
convertee's former noncareer position. In addition, we asked the
agencies to provide the Standard Form-50B (SF-50B) for all
appointments. The SF-50B is the official record of the personnel
action. We used the SF-50B to verify the information that agency
officials provided in the DCI. We also verified the number of
conversions reported by the agencies with agency officials for the
period from May 1, 2001, through April 30, 2005, including those that
reported no conversions during this period.
During our review, we also cross-referenced conversions the agencies
reported to us that were made during the presidential election review
period from March 18, 2004, to January 20, 2005, with the information
agencies reported to OPM during the same period. According to OPM, it
received and reviewed 24 proposed conversions during the period.
We reviewed the authorities used and procedures followed for
conversions reported to us at the GS-12 level and above. We first
identified the authority that the agency cited for the appointment on
the SF-50B and verified that it was the appointment authority for that
conversion. We also examined the contents of the individual's official
personnel file (OPF), and when appropriate, the merit staffing case
files to determine if there was evidence that the criteria for using
the authority was met.
To determine if proper procedures were followed, we reviewed merit
staffing files and OPFs to determine what steps were taken in the
application and conversion process. Merit staffing files document
promotion and hiring decisions for specific career appointments. The
OPF contains SF-50Bs, position descriptions, and records from
individuals' previous appointments, including former noncareer
positions. If we had questions concerning a conversion, we interviewed
officials at the appointing agency and requested documentation to
support their statements. We compared the procedures used in the
conversion process to the federal personnel laws and regulations
contained in Title 5 of the U.S. Code and Title 5 of the Code of
Federal Regulations. We also referred to agencies' merit staffing
plans. We based our analysis on our review of documents within the case
file and additional supporting documents provided by the agency in
response to our questions.
Agencies are not required to follow OPM's competitive hiring provisions
for career excepted service positions and can establish their own
hiring procedures for these positions, but they are not required to
have written copies of these procedures. We requested, and when
available, obtained and reviewed copies of the hiring procedures from
each agency reporting using this authority to determine if proper
procedures were followed. Specifically, we requested additional
information from the Departments of Homeland Security, Housing and
Urban Development, Treasury, and Justice (DOJ), and the Consumer
Product Safety Commission (CPSC). Because each individual component in
DOJ has its own appointing authority, we contacted the following eight
individual components that reported conversions: Office of the
Solicitor General, Executive Office of U.S. Attorneys, Executive Office
of Immigration Review, Office of Legal Counsel, Civil Rights Division,
Tax Division, Criminal Division, and the Federal Bureau of
Investigation (FBI). We also met with Department of Justice's Director
of Attorney Recruitment and Management to discuss the process DOJ uses
to convert individuals to Excepted Service (Non-Schedule C) positions.
The CPSC, the Department of Treasury, and four components (Civil Rights
Division, Criminal Division, FBI, and Executive Office of U. S.
Attorneys) within DOJ provided GAO with written procedures. HUD and
three components (Executive Office of Immigration Review, Tax Division,
and Office of Legal Counsel) within DOJ reported they did not have
written procedures. DHS and one component within DOJ (the Office of the
Solicitor General) did not respond to our request for written
procedures.
We verified the number of conversions reported by the agencies with
agency officials for the period from May 1, 2001, through April 30,
2005, including those that reported no conversions during this period.
In addition, we provided draft summaries of the 18 conversions where it
appeared agencies did not follow proper procedures and the 19
conversions where we could not make a determination to the respective
agencies. The Department of Justice, Environmental Protection Agency,
Department of Housing and Urban Development, Department of Defense,
Small Business Administration, and Consumer Product Safety Commission
provided technical clarifications to the discussion of these
conversions, which we incorporated as appropriate.
We conducted our work in Washington, D.C. from March 2004 through March
2006 in accordance with generally accepted government auditing
standards.
[End of section]
Appendix III: Noncareer Appointees Converted to Career Positions by
Departments and Selected Agencies from May 1, 2001 - April 30, 2005:
[See PDF for Image]
Source: GAO.
[A] Salary includes locality pay:
[B] Salary at time of conversion:
[C] Newly established position:
Legend:
AD: Administratively determined;
rate set by agency.
EJ: The Department of Energy Organization Act Excepted Service. Code is
for use by the Department of Energy only.
ES: Senior Executive Service:
GG: Grade similar to General Schedule:
GS: General Schedule:
IJ: Immigration Judge Schedule. The code is for use by the Department
of Justice only.
IR: Internal Revenue Service Broadband Classification and Pay System
Positions only. Code is for use by the Internal Revenue Service
(Department of Treasury) only.
NH: Business Management and Technical Professional. DOD Acquisition
Workforce Demonstration Project. Code is for use by the Department of
the Air Force, Department of the Army, Department of Defense, and
Department of the Navy only.
SK: Securities Exchange Commission individuals formerly under the GS,
GM, and EZ pay plans. Code is for use by the Securities and Exchange
Commission only.
[End of table]
[End of section]
Appendix IV: Conversions Where Appropriate Authorities and Proper
Procedures May Not Have Been Followed:
For 18 of these conversions, it appears that agencies did not follow
proper procedures or may have violated other statutory or regulatory
requirements. OPM has oversight authority to ensure that agencies are
following the merit system principles when hiring. In accordance with
this authority, OPM has traditionally required agencies to seek its pre-
appointment approval for the conversion of certain noncareer appointees
(Schedule C and Noncareer SES) into certain career positions
(competitive service and career SES) during a presidential election
review period. OPM defined the most recent pre-appointment review
period as beginning on March 18, 2004, and concluding on January 20,
2005, Inauguration Day. Additionally, career SES positions require a
further review and approval of the merit staffing process by OPM, and
the proposed selectee's executive/managerial qualifications by an OPM-
administered SES Qualifications Review Board (QRB) which are composed
of members of the SES from across the government.
Seven of the 18 conversions were subject to OPM review and approval;
2 because they fell within the presidential election pre-appointment
review period as prescribed by OPM and 5 because they were to SES level
positions. Of the 2 conversions subject to OPM's presidential election
pre-appointment review process, in one instance, it appeared the agency
did not submit the conversion to OPM for its review. In the other
instance, OPM reviewed the file but did not take timely action before
the January 20, 2005, deadline for the pre-appointment review period.
Of the 5 conversions to SES level positions, an OPM-administered QRB
reviewed and approved the selectee's qualifications for each of these
appointments, although in one case a QRB initially rejected the
selectee's qualifications, then a different QRB approved the selection
after the agency revised and resubmitted its application.
Case 1:
Department of Defense (DOD):
Positions:
From Schedule C Appointment, GS-0301-13/01, Special Assistant to the
Director, Program Analysis and Evaluation:
To GS-0343-13/01, Assistant for Plans and Integration, Office of
Assistant Secretary for Defense, Homeland Defense:
Issue:
Preselecting an applicant for a career position:
Details:
The eventual selectee served as a Schedule C Special Assistant to the
Principal Deputy Under Secretary of Defense for Policy from December
2001 through August 2002. In September 2002, she was reassigned to
another Schedule C position as a Special Assistant to the Director,
Program Analysis and Evaluation. Official records indicate the eventual
selectee occupied this position until her conversion to the career
position of Assistant for Plans and Integration on January 25, 2004.
However, according to her resume, the eventual selectee assumed the
duties of the career position beginning in March of 2003. Based on her
description, as the Assistant for Plans and Integration, the eventual
selectee: (1) developed and integrated force employment and planning
policy guidance related to homeland defense;
(2) developed, organized, and coordinated policy guidance working
groups with other DOD components related to homeland defense
activities;
(3) ensured policy oversight for force employment issues;
and (4) provided recommendations to the Deputy Assistant Secretary for
Force Planning and Employment and the Assistant Secretary of Defense
for Homeland Defense.
The agency contracted with OPM's Philadelphia field office to advertise
and rate applications for the career position of Assistant for Plans
and Integration in the Office of the Assistant Secretary of Defense for
Homeland Defense. On November 20, 2003, OPM sent DOD a selection
package containing a certificate listing eight eligible candidates in
the order of their rating and their applications. Based on documents
OPM provided to us, a 10-point compensable veteran[Footnote 14] had the
highest rating, and the eventual selectee was listed fourth. In a
December 2, 2003, memorandum to the selecting official, the Principal
Director, Organizational Management and Support referred to the
eventual selectee by name as the agency's "primary candidate." On
December 30, 2003, the selecting official interviewed the veteran's
preference eligible, who voluntarily declined consideration for the
position at that time. On the same day, the agency selected the former
Schedule C appointee to the career position.
Conclusions:
We did not receive a complete merit staffing file from DOD for this
conversion. Based on the available documents, there is some evidence
that DOD may have pre-selected the former Schedule C employee for the
position. Pre-selecting an applicant for a career position would
violate the statutory prohibition against granting unauthorized
advantages to individuals in the hiring process. Since we were unable
to review the resumes of all the applicants, we could not make a
determination as to the comparative qualifications of the candidates,
including the veteran's preference eligible that declined the position.
OPM's Role:
Since this conversion did not occur in the presidential election review
period, it was not subject to OPM's pre-appointment review.
Case 2:
Department of Health and Human Services (HHS):
Positions:
From Statutory At-Will, Title 42 U.S.C. § 209(g), AD-0602-00/00,
Research Fellow, National Institutes of Health:
To GS-0601-13/01, Health Scientist Administrator, National Institutes
of Health:
Issue:
Creating career positions specifically for particular individuals:
Details:
The eventual selectee worked as a statutory-at-will Title 42 Research
Fellow at the National Institutes of Health for almost 5 years prior to
applying for the career position of Health Scientist Administrator.
According to her resume, as a research fellow, she was assigned to a
variety of work details involving both scientific and administrative
duties within the Basic Neurosciences Program at the National Institute
for Neurological Disorders and Stroke.
On December 18, 2004, the selecting official expressed interest in
hiring the eventual selectee (identifying the individual by name) as a
program officer and requested the creation of a full-time equivalent
position for that purpose. This request to hire the eventual selectee
was approved by agency officials in an electronic mail correspondence
dated December 22, 2004. On January 12, 2005, the health scientist
administrator position was created in the Division of Basic
Neuroscience and Behavioral Research. According to the position
description, as health scientist administrator, the individual would be
responsible for organizing an extramural research program to support
the study of neurobiology as it relates to chemical addiction and
neuroimmunology in AIDS research. The agency advertised the position,
19 individuals applied, and four candidates were certified as eligible
for consideration. The eventual selectee had the lowest rating of the
four candidates (one candidate subsequently declined prior to the
selection being made), but was selected for the position on February 1,
2005.
Conclusions:
The documents provided to us suggest the position may have been created
specifically to hire the eventual selectee. This would represent a pre-
selection of an applicant, which would violate the statutory
prohibition against granting unauthorized advantages to individuals in
the hiring process.
OPM's Role:
Since this conversion did not occur in the presidential election review
period and did not involve a Schedule C or Noncareer SES appointee, it
was not subject to OPM's pre-appointment review.
Case 3:
Department of Health and Human Services:
Positions:
From Statutory At-Will, Title 42 U.S.C. § 209(f) AD-0403-00/00,
Scientific Review Administrator, National Institutes of Health:
To GS-0601-15/05, Health Scientist Administrator, National Institutes
of Health:
Issue:
Creating career positions specifically for particular individuals:
Details:
The eventual selectee served in a statutory-at-will Title 42 position
as Scientific Review Administrator from March 2001 to March 2005. Prior
to this, the eventual selectee had served within the Division of
Extramural Activities at the National Institute for Allergy and
Infectious Diseases (NIAID) for several years in a competitive
position. She listed the following responsibilities for the statutory
at-will position on her resume: (1) performed special scientific
reviews and lead the initiation, planning, management, and oversight of
division activities related to international research funding and
resource management, (2) represented the division director at meetings
that discuss extramural international grants, contracts, and capacity
sustainability in developed and developing countries, (3) helped
develop policies that affect foreign research funding and methods to
improve financial management of international awards, and (4) managed
the NIAID Select Agent process to assist with the biodefense program.
On April 9, 2004, agency officials, including the selecting official,
circulated a position description for the recruitment of a director for
the Office of International Extramural Activities. The routing slip
stated that this position description was to recruit the eventual
selectee by name. On June 24, 2004, a new interdisciplinary competitive
service position was created in the Division of Extramural Activities.
On January 12, 2005, the agency advertised the new position as
Director, Office of International Extramural Activities. The position
description stated that the director, among other duties, would: (1)
lead the initiation, planning, management, and oversight of division
activities related to international research funding and resource
management, (2) be the senior advisor and management official
concerning the management of international research awards, (3) help
develop policies and systems that affect foreign research funding, and
assist international parties to design contract management systems, and
(4) be the expert advisor to the NIAID on biodefense issues. The agency
advertised the position;
three applicants applied;
and only the eventual selectee was certified as eligible for
consideration. The agency selected her for the position on February 4,
2005.
Conclusions:
Two factors taken together create the appearance that the individual
may have been preselected for this position, including: (1) the routing
slip circulated within the agency specifically identifying the eventual
selectee by name, and (2) clear and extensive overlap/similarities
between responsibilities previously cited by the eventual selectee and
the duties listed in the description of the newly created position. Pre-
selecting an individual or applicant for a competitive position grants
an unauthorized preference to an individual in the employment process,
and is a violation of federal law.
OPM's Role:
Since this conversion did not occur in the presidential election review
period and did not involve a Schedule C or Noncareer SES appointee, it
was not subject to OPM's pre-appointment review.
Case 4:
Department of Health and Human Services:
Positions:
From Schedule C, GS-0301-14/03, Special Assistant to the Deputy
Director for Office of Child Support Enforcement, Administration for
Children and Families:
To GS-0301-14/03, Information Management and Dissemination Coordinator,
Office of the Assistant Secretary for Planning and Evaluation:
Issue:
Failure to apply veteran's preference:
Details:
Prior to appointment to the career position, the eventual selectee
served for over 2 years as a Schedule C Special Assistant to the Deputy
Director in the Office of Child Support Enforcement. According to the
special assistant position description, the eventual selectee served as
a principal source of advice and counsel to the Deputy Director/
Commissioner on various assignments, projects and work groups involving
program policies, reviews, evaluations, plans, and approaches that
affected the Office of Child Support Enforcement.
On April 4, 2004, HHS created, and 2 weeks later, advertised the
Information Management and Dissemination Coordinator position in the
Immediate Office of the Assistant Secretary for Planning and
Evaluation. The position description provided that the coordinator
would be the senior advisor for the office's information dissemination
and communication program, leading content and technical aspects of the
development and use of technology-based solutions.
Eleven applicants were certified as eligible for consideration,
including three veteran's preference eligibles. After preference points
were allocated, both the eventual selectee and a veteran's preference
eligible candidate received the highest scores of 100 points on the
rating tool. In accordance with law,[Footnote 15] the veteran's
preference eligible candidate was listed first on the certificate of
eligibles, but the agency passed over this candidate to choose the
selectee for the position on September 19, 2004. Agencies may pass over
veteran's preference eligible candidates based on:
suitability grounds,[Footnote 16] or may ask OPM to disqualify an
eligible candidate due to medical reasons.[Footnote 17] However, in
exercising their authority, agencies must file written reasons[Footnote
18] for passing over a veteran's preference eligible, either with OPM
or with a delegated examining authority.[Footnote 19] The selection
certificate contained a handwritten notation referring to a veteran's
preference objection letter. However, no such letter or approval from
the examining office[Footnote 20] was contained in the file provided to
us.
Conclusions:
Based on the available documents, it appears the agency did not follow,
or did not properly document that it followed, statutorily-required
veteran's preference hiring procedures for competitive service
appointments.
OPM's Role:
Since this conversion involved a former Schedule C appointee and took
place during the presidential election review period, this conversion
was subject to OPM's pre-appointment review. The agency should have
referred the case to OPM prior to appointing the selectee to the
position. Based on available documents from both HHS and OPM, there is
no indication whether this referral or review occurred.
Case 5:
Department of Health and Human Services:
Positions:
From Statutory At-Will, Title 42 U.S.C. § 209(f) AD-0401-00/00,
Biologist, National Institutes of Health:
To GS-0601-14/01, Health Scientist Administrator National Institutes of
Health:
Issue:
Failure to apply veteran's preference:
Details:
The eventual selectee served as a Title 42 Biologist in the Office of
Policy Analysis for over 2 years prior to applying for the career
position. Based on her resume, in the Biologist position the eventual
selectee carried out a range of responsibilities related to scientific
program reporting, strategic planning, and program evaluation.
On February 8, 2005, HHS advertised a career position of Health
Scientist Administrator in the Office of Policy Analysis. The position
description listed responsibility for scientific planning, program
reporting, and the development of materials on biodefense research
efforts.
Eleven applicants applied for the position, including a 5-point
compensable veteran and a 10-point compensable veteran.[Footnote 21]
Applicants were assigned scores based on their online responses and a
computer-based scoring system. Agencies are required to assign
additional points to qualifying veteran's scores during the rating and
ranking process.[Footnote 22] Based on the applicant listing HHS
provided, applicant scores were not adjusted for veteran's preference.
Had the adjustment for veteran's preference been made, both the 5-point
and 10-point compensable veterans would have rated higher and been
listed ahead of the eventual selectee on the certificate of eligibles.
In the absence of veteran's preference points, three individuals (the
eventual selectee, another nonveteran, and the 10-point compensable
veteran) were referred to the selecting official, and because veteran's
preference points were not assigned, the eventual selectee had the
highest score on the certificate of eligibles. Selection was made on
March 1, 2005.
Conclusions:
Based on the documents provided to us, it appeared that HHS did not
apply veteran's preference points for two applicants. Had HHS assigned
veteran's preference points, both of the veterans would have ranked
higher than the eventual selectee on the final rating sheet, and the
agency would have had to file written reasons for passing them over.
OPM's Role:
Since this conversion did not occur in the presidential election review
period and did not involve a Schedule C or Noncareer SES appointee, it
was not subject to OPM's pre-appointment review.
Case 6:
Department of Health and Human Services:
Positions:
From SES Limited Term Appointment, ES-301-00/01, Director, Competitive
Sourcing Unit, Program Support Center:
To ES-0342-01/00, Director, Office of Administrative Operations,
Program Support Center:
Issue:
Tailoring of career position qualifications to match an individual's
experience:
Details:
Prior to the conversion, the eventual selectee served for 6 months in
the SES Limited Term Position. According to the position description,
as Director he was responsible for designing HHS's implementation of
the Competitive Sourcing Initiative and serving as the Acting Director
of the Administrative Operations Service (AOS). In his resume, the
eventual selectee emphasized his role as Acting Director of AOS,
stating that he was responsible for providing HHS and other federal
customers nationwide administrative and technical services in areas
such as (1) building operations, surplus real property, leasing,
security, property management, warehousing, logistics and management
services;
(2) printing, duplicating and typesetting;
(3) operation of reference libraries;
(4) mail distribution and handling;
(5) claims service for Public Health Service components nationwide
under specific statutory authorities;
(6) acquisition service;
(7) pharmaceutical, medical, dental supplies to federal agencies and
other related nonfederal customers;
(8) technical graphics and photography services;
and (9) a wide range of technology and telecommunications services.
On May 24, 2002, HHS advertised the SES Director of AOS position, open
to qualified federal employees. In both the position description and
the vacancy announcement, one of the mandatory professional/managerial
qualifications specified for the position was "experience in delivering
and managing a wide range of administrative support services to a
diverse, complex, and large customer base requiring such services such
as (1) building operations, surplus real property, leasing, security,
property management, warehousing, logistics and management services;
(2) printing, duplicating and typesetting;
(3) operation of reference libraries;
(4) mail distribution and handling;
(5) claims service for PHS components nationwide under specific
statutory authorities;
(6) acquisition service;
(7) pharmaceutical, medical, dental supplies to federal agencies and
other related nonfederal customers;
(8) technical graphics and photography services;
and (9) a wide range of technology and telecommunications services." An
agency panel rated the eventual selectee and two other candidates as
highly qualified for the position, then referred all three to the
selecting official. Four other candidates were also referred to the
selecting official as qualified applicants based on their SES status.
The selecting official, who was also the eventual selectee's supervisor
at that time, selected him for the position on July 8, 2002. Although
an internal agency memo directs the selecting official to provide a
brief statement of the rationale for hiring individuals, no such
documentation was in the file we were provided on this selection.
Conclusions:
Based on the documents, it appears the agency may have tailored the
qualifications for the career position for the purpose of improving an
individual's prospects for employment. Further, one of the mandatory
technical qualifications specified for the new position appeared to be
tailored to the selectee's previous experience. Such a situation could
both unnecessarily limit the applicant pool, but also provide an
individual an unfair advantage. Including such a specific qualification
without prior consultation with OPM would also violate qualifications
standards regulations for General SES positions.[Footnote 23] There was
no evidence within the file to suggest the agency consulted with OPM
prior to setting the qualifications standards.
OPM's Role:
The selectee's executive qualifications were approved by an OPM-
administered QRB on July 30, 2002.
Case 7:
Department of Health and Human Services:
Positions:
From SES Limited Term Appointment, ES-0301-00/00, Program Manager, E-
Grants Initiative, Office of Assistant Secretary for Administration and
Management:
To ES-1101-00/00, Director, Office of Grants Management and Policy,
Office of Assistant Secretary for Administration and Management:
Issue:
Tailoring of career position qualifications to match an individual's
experience:
Details:
The eventual selectee was appointed Program Manager of the E-Grants
Initiative, a SES Limited Term position, on March 24, 2002, and held
the position for approximately 2 years. Prior to this appointment, the
eventual selectee had been a career civil servant at the National
Institutes of Health in various positions from 1981 through 1999, prior
to leaving to work in the private sector, then being rehired as an
excepted service consultant to HHS in 2001. On February 10, 2002, the
eventual selectee was reinstated to a career position at HHS. According
to his application, as Program Manager of the E-Grant Initiative, the
eventual selectee led the management and development of Grants.gov and
built consensus through outreach to grantors and grantees as well as
making presentations to OMB, HHS leadership and the Federal Chief
Financial Officers (CFO) Council. Beginning in June 2003, the role of
acting director for the newly created Office of Grants Management and
Policy was added to the eventual selectee's responsibilities in the SES
Limited Term position.
On October 10, 2003, HHS created, and then 3 weeks later advertised,
the director position open to all sources. According to the vacancy
announcement, the duties and responsibilities within the Immediate
Office of the Director were to support government electronics grants,
including outreach to grantors and grantees, and interfacing with OMB,
the Federal Council and HHS leadership. Additionally, the director
would also be responsible for the Division of Grants Policy and the
Division of Grants Oversight and Review. As a mandatory professional/
technical qualification for this position, applicants were required to
possess progressively responsible management experience in the E-Grants
Initiative that demonstrated in-depth knowledge of outreach efforts and
interfaces with OMB, Federal CFO Council, and HHS leadership on
Grants.gov, and included at least one year of specialized experience in
the E-Grants Initiative at the GS-15 or equivalent level.
There were two printed rosters listing the seven applicants included in
the merit staffing file we were provided. The first roster listed five
candidates as qualified, with hand-written annotations towards the not
qualified category for 4 of these 5. The second roster listed only the
eventual selectee as qualified and only he was referred to the rating
panel. Since there were no documents included for the other applicants
within the file, a review of the referral process to the rating panel
was not possible. The selecting official, who was the selectee's
supervisor at the time, chose him for the position on January 30, 2004.
Conclusions:
Based on the documents, it appears the agency may have tailored the
qualifications for the career position for the purpose of improving an
individual's prospects for employment. First, the duties defined
closely correlated with those performed by the eventual selectee in the
Limited Term SES Program Manager position. Further, one of the
mandatory professional technical qualifications appeared to be tailored
to the selectee's experience. In addition, the requirement of in-depth
knowledge of the E-grants program likely excluded any nonfederal
applicants. Including such a specific qualification without prior
consultation with OPM would violate qualifications standards
regulations for General SES positions. There was no evidence within the
file to suggest the agency consulted with OPM prior to setting the
qualifications standards. Defining the scope or manner of competition
or the requirements for any position for the purpose of improving or
injuring the prospects of any particular person for employment would
violate federal law.[Footnote 24]
OPM's Role:
The selectee's executive qualifications were approved by an OPM-
administered QRB on April 2, 2004.
Case 8:
Department of Health and Human Services:
Positions:
From Schedule C Appointment, GS-0301-12/02, Confidential Assistant to
the Executive Secretary, The Executive Secretariat:
To GS-0301-12/02, Policy Coordinator, Office of the Secretary of Health
and Human Services:
Issue:
Tailoring of career position qualifications to match an individual's
experience:
Details:
The eventual selectee served as a Schedule C Confidential Assistant to
the Executive Secretary for a year and a half prior to applying for the
career position. Before this, the eventual selectee worked for the
Secretary for almost 4 years as a policy analyst when the Secretary was
Governor of Wisconsin. According to his resume, as the Confidential
Assistant to the Executive Secretary, the eventual selectee (1)
directly supported the Secretary of HHS by coordinating briefing
materials, (2) provided relevant information regarding meetings,
briefings, and speaking engagements, (3) reviewed and produced
documents requiring the Secretary's approval, (4) developed the
Secretary's daily calendar, (5) facilitated meetings with the
administrative staff of the office, and (6) analyzed policy decisions
for their potential impact on the Department.
On June 4, 2002, HHS posted a vacancy announcement for the re-
established career position[Footnote 25] of Policy Coordinator in the
Office of the Secretary. According to the position description and
vacancy announcement, the individual selected for this position would
(1) review documents requiring the Secretary's approval, (2) be a
technical source of information, (3) represent the Executive Secretary
to other government officials, (4) develop background papers to brief
the Secretary and other department officials, and (5) coordinate and
facilitate meetings.
Of the 53 applicants, 5 were referred to the selecting official after
being assigned numerical scores and 4 were referred as eligible based
on their career status. The eventual selectee received the highest
numerical score;
however, the file contained no documentation to show how points were
assigned or who rated the applicants. The selecting official, who was
also the selectee's supervisor at the time, made the selection on
August 1, 2002.
Conclusions:
The duties and responsibilities of the Schedule C and career positions
overlap substantially and are located in the same office with a similar
supervisory structure, giving the appearance that the agency may have
tailored qualifications for the position for the purpose of improving
an individual's prospects for employment. Although the selectee
received the highest score, there is no documentation explaining how
the score was assigned, or who assigned it.
OPM's Role:
Since this conversion did not occur in the presidential election review
period, it was not subject to OPM's pre-appointment review.
Case 9:
Department of Health and Human Services:
Positions:
From SES Limited Term Appointment, ES-0201-00/00, Director, Human
Resources (Site Director) Atlanta, Program Support Center:
To ES-0201-00/00, Director, Human Resources Center, Atlanta, Program
Support Center:
Issue:
Posting SES vacancy announcements for less than the minimum time
requirement:
Details:
Prior to appointment to the SES career position as Director, Human
Resources Center in Atlanta, the eventual selectee served in a similar
position for a year under a Limited Term appointment. Before this, she
had held career positions for 23 years. At the time of the SES Limited
Term appointment on May 18, 2003, the eventual selectee had achieved a
position within HHS at the GS-15 level.
HHS posted a vacancy announcement on USA Jobs for a SES position as
Director, Human Resources Center in Atlanta, who would be responsible
for providing a variety of human resources services to the Center for
Disease Control and Prevention in Atlanta. The announcement was open
from March 22, 2004, to April 2, 2004, a period of 12 days. Eleven
applicants applied, and of these, three were certified as eligible for
consideration. Selection was made on April 14, 2004.
Conclusions:
HHS posted the position on USA Jobs for only 12 days. This appears to
be a violation of OPM's regulations which require SES job listings to
be posted for a minimum of 14 days.[Footnote 26]
OPM's Role:
The selectee's executive qualifications were approved by an OPM-
administered QRB on May 21, 2004.
Case 10:
Department of Health and Human Services:
Positions:
From SES Limited Term Appointment, ES-0510-00/02 Project Manager,
Financial Management, Acting Director, Division of Financial
Operations, Program Support Center:
To ES-0510-00/02, Director, Division of Financial Operations, Program
Support Center:
Issue:
Posting SES vacancy announcements for less than the minimum time
requirement:
Details:
Prior to appointment to the SES career position as Director, Division
of Financial Operations, the eventual selectee served as a Project
Manager (with Acting Director duties for the Division of Financial
Operations) for over a year under a Limited Term SES appointment. At
the time of the conversion, the eventual selectee had been employed
with HHS for almost 32 years, 30 of which were in career positions.
HHS posted a vacancy announcement on USA Jobs for the director position
to lead the operation of HHS' Debt Collection Center and other core
financial accounting systems managed by the division. The announcement
opening date was August 13, 2002, and it closed on August 19, 2002, a
period of 7 days. Four applicants applied, and of these, three were
certified as eligible for consideration. Selection was made on October
3, 2002.
Conclusions:
HHS posted the career SES position on USA Jobs for only 7 days. This
appears to be a violation of OPM's regulations which require SES job
listings to be posted for 14 days.[Footnote 27]
OPM's Role:
The selectee's executive qualifications were approved by an OPM-
administered QRB on February 21, 2003.
Case 11:
Department of Homeland Security:
Positions:
From Schedule C GS-0301-13/02, Staff Assistant, Federal Emergency
Management Agency (FEMA):
To GS-0301-13/02, Program Specialist, Federal Emergency Management
Agency:
Issue:
Selection of former noncareer appointee who appears to have limited
qualifications and experience to a career position:
Details:
The eventual selectee served as a Schedule C Staff Assistant at FEMA,
initially in the Office of General Counsel (OGC), then in the Regional
Operations Directorate for 14 months prior to applying for the career
position. Although the staff assistant position description provided by
the agency outlined a primarily advisory and administrative support
role, the eventual selectee's resume listed the following
responsibilities as part of the position (1) conceive and implement new
initiatives and projects to facilitate and integrate emergency
management programs, and (2) formulate, present, and execute budgets.
Before joining the federal government, the eventual selectee had worked
for 4 years in the private sector for the former FEMA Director prior to
his appointment.
Beginning on January 28, 2003, the agency advertised the Program
Specialist position for 2 weeks. The duties listed for this position in
the vacancy announcement included among others (1) conceive and
implement new initiatives and projects to strengthen emergency
management programs, (2) be the authoritative resource for coordinating
and developing long-term planning for regional offices, (3) allocate
resources in accordance with short and long range plans, (4) maintain
an intimate knowledge of agency policies, programs and directives, and
(5) formulate, present, and execute the budget. Of 39 applicants, only
the eventual selectee and a career FEMA employee, with over 10 years
experience at FEMA as an Emergency Management Specialist, were
certified as eligible for consideration. Both candidates were rated as
best qualified for the position. The agency referred both the career
employee and the eventual selectee to the selecting official on
separate certificates. On March 3, 2003, the selecting official, who
was also the eventual selectee's supervisor at the time, chose her for
the position. The selecting official did not provide further
justification for the hiring decision.
Conclusions:
Although agencies have discretion when hiring among a limited pool of
eligible candidates, the agency selected a Schedule C appointee with
limited experience over a career employee with over 10 years of
relevant emergency management experience. It is unclear why the two
candidates received the same rating in the consideration process.
OPM's Role:
Since this conversion did not occur in the presidential election review
period, it was not subject to OPM pre-appointment review.
Case 12:
Department of Homeland Security:
Positions:
From SES Noncareer Appointment ES-0301-00/00, Deputy Assistant
Secretary for Legislative Affairs, Immediate Office of the Secretary:
To Excepted Service Schedule A GS-0301-15/10, International Programs
Coordinator, Immigration and Customs Enforcement, Office of
Investigations:
Issues:
Creating career positions specifically for particular individuals:
Details:
Prior to the appointment to the career excepted service position, the
eventual selectee served for less than 1 year in a variety of work
details as a Noncareer SES appointment at DHS. According to the
eventual selectee's resume, in these positions she advised high-ranking
agency officials on relevant policy issues, guided department-wide
efforts to develop and implement policy initiatives, coordinated public
outreach, and handled managerial and administrative duties.
On March 26, 2004, the agency submitted an official personnel action
request to convert the selectee by name to the position of
International Programs Coordinator. Four days later, on March 30, a
position description was authorized for an International Programs
Coordinator, with duties to include advising and assisting the Office
of International Affairs in the administration of international policy
and planning in Greater Europe. The conversion was made the same day.
The agency did not advertise the opening, and there is no evidence
suggesting any other candidates were considered for the position.
Conclusions:
Based on the documents provided to us, two factors create the
appearance that the individual may have been pre-selected for this
position. These factors include: (1) the agency's request to convert
the selectee by name prior to authorizing the position description and
(2) not providing an opportunity for other candidates to apply. By law,
agencies may not grant unauthorized preference to any particular
individual or applicant to improve her prospects in the employment
process.
OPM's Role:
This conversion was not subject to pre-appointment review because OPM
does not review appointments to the excepted service during the
presidential election review period.
Case 13:
Department of Housing and Urban Development (HUD):
Positions:
From Schedule C GS-0301-13/04, Special Assistant, Office of General
Counsel:
To Excepted Service Schedule A GS-0905-13/04, Attorney-Advisor, Office
of General Counsel:
Issue:
Selection of former noncareer appointees who appear to have limited
qualifications and experience to career positions:
Details:
Prior to appointment to the career excepted service (non-Schedule C)
position, the eventual selectee served for almost 4 years as a Schedule
C Special Assistant in the Office of Insured Housing-Multifamily
Mortgage Division in the Office of General Counsel. Based on the
eventual selectee's resume, duties in that Special Assistant position
included providing legal counsel, interpreting existing and proposed
multi-family insurance program statutes, regulations, and other legal
documents.
Beginning on September 9, 2004, the agency advertised the career
position at the GS-12, 13, and 14 levels for 2 weeks. The eventual
selectee and one field office attorney applied for the position. The
field office attorney had over 26 years of experience in the agency,
including several years as a Freedom of Information Act (FOIA) officer
in a field office. The eventual selectee identified handling of FOIA
requests as one element of his experience on his application;
however, his accompanying resume had no mention of FOIA experience.
Based on agency excepted service hiring protocols, both candidates were
considered qualified for the position and were referred to the
selecting official. No interviews were conducted prior to the
selection. The Deputy Assistant Secretary for Human Resource Management
stated that the eventual selectee qualified at the GS-13 level and the
field office attorney qualified at the GS-14 level. They were referred
to the selecting official separately on a GS-13 selection roster and GS-
14 selection roster respectively.
Conclusions:
Although this conversion was compliant with the agency's excepted
service hiring procedures, our work raised questions concerning the
selection. With the written applications as the primary source of
information considered, the agency selected a Schedule C appointee with
minimal experience in FOIA issues, a key requirement of the position,
over an attorney with 26 years of legal experience at the agency,
including several years as a FOIA officer.
OPM's Role:
This conversion was not subject to pre-appointment review because OPM
does not review appointments to the excepted service during its
presidential election review period.
Case 14:
Department of Justice (DOJ):
Positions:
From Schedule C GS-0905-15/04, Senior Advisor to the Assistant Attorney
General, Tax Division:
To Excepted Service Schedule A IJ-0905-00/02, Immigration Judge,
Executive Office For Immigration Review:
Issue:
Selection of former noncareer appointees who appear to have limited
qualifications and experience to career positions:
Details:
Prior to his appointment to the career excepted service (non-Schedule
C) position, the eventual selectee served for almost 2 years as a
Schedule C Senior Advisor to the Assistant Attorney General in the Tax
Division. According to his resume, the eventual selectee's experience
included (1) providing written and oral legal counsel concerning
ongoing tax litigation as a Senior Advisor to the Assistant Attorney
General;
(2) serving for approximately 6 months in a temporary detail as an
appellate attorney in the Office of Immigration Litigation, and (3)
over 25 years of experience as a civil trial attorney in a private
firm. His resume does not list any experience in immigration litigation
other than the approximately 6-month detail in the Office of
Immigration Litigation.
According to the Immigration Judge's position description, the eventual
selectee would preside at quasi-judicial hearings to determine the
issues arising in exclusion, deportation, and related proceedings. The
special knowledge and abilities required for this position include,
among others: "a thorough knowledge of the numerous immigration and
nationality laws, both past and present, and the regulations and rules
of the Immigration Naturalization Service issued thereunder," "expert
knowledge of judicial practice," and "a proven ability to assure a fair
hearing." On April 4, 2004, the agency appointed the selectee to the
Immigration Judge position. In an internal memo requesting a higher pay
rate for the appointment, a DOJ Chief Immigration Judge stated that the
selectee was eminently well-qualified for the position, but did not
cite any immigration litigation experience beyond the selectee's
temporary detail as justification for this assessment.
Conclusions:
Converting a Schedule C appointee with less than 6 months of
immigration law experience to an Immigration Judge position raises
questions about the fairness of the conversion.
OPM's Role:
This conversion was not subject to pre-appointment review because OPM
does not include excepted service positions in its review of
appointments made during the presidential election review period.
Case 15:
Department of Justice:
Positions:
From Schedule C Appointment GS-1035-15/01, Deputy Director, Office of
Public Affairs, Office of Public Affairs:
To Excepted Service Appointment, Title 28 U.S.C. 536, GS-1035-15/02,
Public Affairs Specialist, Federal Bureau of Investigation (FBI):
Issue:
Failure to apply veteran's preference:
Details:
Prior to appointment to the career excepted service (non-Schedule C)
position, from February 2001 until December 2002, the eventual selectee
served as a Schedule C Deputy Director in the Office of Public Affairs.
According to her application for the FBI position, her duties as Deputy
Director included, among others, serving as a spokesperson for the
department and Attorney General and preparing the Attorney General and
other senior officials for press conferences.
According to the position description, the Public Affairs Specialist
for the FBI would serve as a liaison between the media and senior
agency officials, as well as a public relations advisor to the agency.
DOJ created the position on December 6, 2002. The selectee was
appointed 3 days later. DOJ did not advertise the opening, and there is
no evidence suggesting any other candidates were considered for the
position. As part of the excepted service, the FBI is required to apply
veteran's preference to its appointments.
Conclusions:
While this selection was consistent with the FBI's current Merit
Promotion and Placement Plan,[Footnote 28] since there was no
opportunity for other candidates to apply, the agency apparently did
not apply the statutory requirements of veteran's preference to this
hiring decision.
OPM's Role:
This conversion was not subject to pre-appointment review because OPM
does not review appointments to the excepted service.
Case 16:
Consumer Product Safety Commission (CPSC):
Positions:
From Schedule C Appointment, GS-0301-15/10, Special Assistant, Office
of the Chairman, Consumer Product Safety Commission:
To ES-0340-00/00, Director, Office of International Programs and
Intergovernmental Affairs, Office of the Executive Director, Consumer
Product Safety Commission:
Issue:
Agency did not appear to address OPM qualification concerns about the
conversions in a substantive manner:
Details:
Prior to applying for the career position, the eventual selectee had
served for over a year as a Schedule C Special Assistant in the office
of the Chairman. According to his resume, as a Special Assistant, the
eventual selectee directly supported the Chairman by (1) providing
senior level policy advice on current and developing issues, (2)
preparing written materials for presentation at external speaking
engagements, (3) acting as a liaison with internal and external
parties, and (4) drafting documents as needed.
On November 14, 2003, CPSC posted a vacancy announcement for the SES
career position of Director, Office of International Programs and
Intergovernmental Affairs. Based on the vacancy announcement, the
director would oversee and coordinate the Commission's international
and intergovernmental efforts related to product safety standards. The
desired qualifications listed in the announcement closely matched the
eventual selectee's previous experience in the private sector, and as
an elected official to the New Mexico State Legislature, as listed on
his resume.
Twenty-four applicants applied, and of these, nine were considered
qualified for the position and assigned numerical scores. The eventual
selectee received the highest numerical score and the selecting
official selected him for the career position on December 19, 2003.
Because this is an appointment to the career SES, CPSC submitted the
selectee's case to OPM for approval on February 13, 2004. An OPM-:
administered QRB[Footnote 29] denied the agency's request citing
weakness in three of the five Executive Core Qualifications (ECQ). The
QRB also noted that the selectee's lack of managerial experience would
be a handicap to successful performance in the SES. Based on comments
from CPSC's Executive Director, the selectee revised his ECQ statement
by citing different examples from his experiences. Although the
selectee refers to his "career as a senior manager and leader" the only
concrete examples he provided of his experiences in the ECQs relate to
his 15-month position at the CPSC or his 2-terms as an elected official
in the New Mexico State Legislature. However, in describing his
specific role and duties for each of these positions on his resume, he
does not mention managerial or supervisory duties for either. Using the
revised ECQs, CPSC resubmitted its request. OPM pointed out that the
resubmission was provided to a different QRB, which was not involved or
familiar with the initial QRB's concerns or decision. This QRB approved
the appointment on April 2, 2004.
Conclusions:
Although the selectee modified his second submission to OPM, the
primary basis for the selectee's qualifications remained his experience
from the 15-month appointment at the CPSC and 2-terms as a State
Representative. It is unclear whether or how this revised submission
addressed the concerns raised by the initial QRB regarding the
candidate not meeting the "demonstrated executive experience" required
for SES positions by 5 U.S.C 3393, or the "well-honed executive skills
and broad perspective of government" recommended by OPM guidance on the
SES.
OPM's Role:
Because this is an appointment to the career SES, CPSC submitted the
selectee's case to OPM for approval. On February 13, 2004, an OPM-
administered QRB denied the agency's request due to weakness in three
of the five ECQs. After CPSC resubmitted its request, a different QRB
approved the appointment on April 2, 2004.
Case 17:
Environmental Protection Agency (EPA):
Positions:
From Schedule C, GS-0301-14/04, Information Management Specialist,
Office of Administrative Services:
To GS-0301-14/04, Management Specialist, Office of Administrative
Services:
Issues:
Failure to apply veteran's preference/creating a career position for a
particular individual:
Details:
Prior to applying for the career position, the eventual selectee served
for over 2 years in a variety of work details initially as a Schedule C
appointee, then as an administratively determined position in the
Immediate Office of the EPA Administrator. Before this, the eventual
selectee had worked for 3 years as a Special Assistant for the
Administrator when she was Governor of New Jersey, and had also worked
state level political campaigns. In addition to providing
administrative support and policy advice to the EPA Administrator, she
listed the following experiences on her resume from an 11-month detail
to the Facilities Management and Services Division: (1) managed the
daily operation of Personnel Security Staff, (2) maintained working
knowledge of Executive Orders and OPM guidelines pertaining to national
security positions, (3) established and implemented new internal
processes and policies regarding personnel security, and (4) worked
with other governmental agencies to facilitate personnel security
clearances.
On April 25, 2003, EPA advertised the new career position of Management
Specialist in the Office of Administration and Resources Management, 2
weeks prior to the position's creation. According to the vacancy
announcement, the individual in this position would (1) serve as an
advisor to the Director, (2) perform special projects such as planning
for the review, development and execution of personnel and physical
security plans and programs, (3) maintain awareness of the major policy
and program initiatives relevant to Security Staff, and (4) work with
other federal agencies and the private sector regarding the personnel
and physical security plans and programs.
Thirty-five individuals applied for the position, including at least
seven with veteran's preference. Individuals were assigned scores based
on their online responses and a computer-based scoring system. By law,
agencies are required to assign additional points to qualifying
veteran's scores during the rating and ranking process.[Footnote 30]
Based on the applicant listing EPA provided to us, the scores were not
adjusted for veteran's preference. Had the veteran's preference points
been applied, five of the seven individuals that had veteran's
preference would have ranked higher than the selectee. Even without the
points applied, the eventual selectee shared the highest score with a 5-
point compensable veteran. Despite this tied score, the agency referred
only the eventual selectee to the selecting official. On May 18, 2003,
the agency converted the selectee to the career position. According to
EPA, the selectee had eleven months of relevant experience for the
career position at the time of her selection.
Conclusions:
Based on the documents, EPA did not apply veteran's preference points
for seven applicants. Other factors also suggest there may have been
preselection. Although, even in the absence of the added veteran's
preference points, two applicants, (a veteran and the eventual
selectee), shared the same examination score, the agency only referred
the selectee to the selecting official. Also, the close correlation
between the duties listed by the selectee for her most recent detail
and those of the newly created career position may have given the
selectee an advantage in the rating process. Finally, the position was
created and filled immediately prior to the former Administrator's
resignation.
OPM's Role:
This conversion was not subject to OPM's pre-appointment review because
it occurred before the presidential election review period.
Case 18:
Small Business Administration (SBA):
Positions:
From Schedule C Appointment, GS-0301-13/04, Special Assistant to the
Administrator, Office of the Administrator:
To GS-0301-12/10, Administrative Resources Coordinator, Region IX:
Issue:
Agency did not appear to address OPM concerns about the conversion in a
substantive manner:
Details:
The eventual selectee served as a Schedule C Special Assistant in the
Office of the Administrator for over 3 years prior to applying for the
career position. Before this, the eventual selectee had worked in Los
Angeles for almost 5 years at the private business owned by the
Administrator prior to his appointment as SBA Administrator. According
to her application, as the Special Assistant to the Administrator, the
eventual selectee managed the Administrator's calendar, coordinated
meetings with other officials, answered correspondence, and performed
special projects of a sensitive nature, among other duties.
On August 11, 2004, SBA posted a vacancy announcement for the newly
created career position of Administrative Resources Coordinator in the
Los Angeles Regional Office. According to the vacancy announcement, the
coordinator would (1) interact with senior level officials within the
SBA, (2) perform special projects for the Regional Administrator, (3)
manage budget allocations, (4) maintain the Regional Office Executive
Scorecard, and (5) interact with diverse groups in a variety of
settings.
There were six applicants for the position, and of these, three were
considered eligible. The eventual selectee received the highest rating
of all the candidates, and the selecting official chose her for the
position on September 10, 2004.
Because conversions of Schedule C appointees to career positions during
OPM's presidential election review period are subject to OPM pre-
appointment review, the agency submitted this conversion to OPM for
approval on October 26, 2004. On February 22, 2005, OPM returned the
agency request without formal action, citing the fact that the period
of pre-appointment review had passed. However, OPM raised concerns to
SBA that the appointment did not adhere to merit system principles
because the quality ranking factors in the vacancy announcement and
crediting plan did not appear to be supported by the position
description. In OPM's view, this discrepancy may have limited the
applicant pool and interfered with open and fair competition. OPM
encouraged SBA to review the hiring process and ensure it met merit
system principles before appointing the selectee to the position. On
February 25, 2005, the Director of SBA's Denver Office of Human Capital
Management advised the Chief Human Capital Officer that he had reviewed
the recruitment file and the appointment of the selectee met merit
system principles because it was made from a legally constituted
certificate of eligibles. Based on this review, the agency appointed
the selectee to the Administrative Resources Coordinator position on
March 6, 2005. The Chief Human Capital Officer at SBA told us that SBA
was in the process of moving one of its regional offices from San
Francisco to Los Angeles, and that this position was created as part of
the standard configuration for a regional office.
Conclusions:
As OPM suggested, several factors raise questions about the fairness of
this conversion. At the time of selection, the selectee had been
working for the SBA Administrator, both in the private sector and at
SBA, for about 8 years. Additionally, the position, which was
established less than 6 months before the 2004 election was located in
the eventual selectee's hometown. SBA did respond to OPM's observation,
but it is not clear from the documents whether SBA adequately addressed
OPM's concerns, and there was no documentation in the file indicating
OPM contacted the SBA further concerning this appointment or the
agency's response.
OPM's Role:
Because the agency selected a Schedule C appointee for a career
position during the presidential election review period, it submitted
the conversion to OPM for approval in October 26, 2004. On February 22,
2005, OPM returned the agency request without action citing the fact
that the period of pre-appointment review had passed but expressed
concern with the merit staffing process.
[End of section]
Appendix V: Conversions Where It Could Not Be Determined Whether
Appropriate Authorities and Proper Procedures Were Followed:
Noncareer position, title, and office: Department of Health and Human
Services.
Noncareer position, title, and office: Limited Term SES;
Chief Information Officer;
Office of Budget, Technology, and;
Finance;
Position title, office, and hiring authority: Department of Health and
Human Services: Chief Information Officer;
Office of the Assistant Secretary for;
Planning and Evaluation;
Reg. 317.304;
Date converted: Department of Health and Human Services: 04/20/03.
Noncareer position, title, and office: Limited Term SES;
Special Advisor Information Technology;
Food and Drug Administration;
Position title, office, and hiring authority: Department of Health and
Human Services: Chief Information Officer;
Food and Drug Administration;
5 U.S.C. 3393;
Date converted: Department of Health and Human Services: 12/29/02.
Noncareer position, title, and office: Schedule C;
Secretary Regional Representative;
Office of the Regional Director;
Position title, office, and hiring authority: Department of Health and
Human Services: Regional Administrator;
Administration of Aging;
HHS-PSC-1-05-0002;
Date converted: Department of Health and Human Services: 01/23/05.
Noncareer position, title, and office: Department of Justice.
Noncareer position, title, and office: Presidential Appointee;
U.S. Attorney;
United States Attorney's Office;
Eastern District of Missouri;
Position title, office, and hiring authority: Department of Health and
Human Services: Assistant U.S. Attorney;
United States Attorney's Office;
Eastern District of Missouri;
28 U.S.C. 542;
Date converted: Department of Justice: 05/01/01.
Noncareer position, title, and office: Schedule C;
Special Assistant to the Assistant;
Attorney General;
Civil Rights Division;
Position title, office, and hiring authority: Department of Health and
Human Services: Attorney Advisor;
Office of Legal Counsel;
Schedule A 213.3102D;
Date converted: Department of Justice: 09/17/01.
Noncareer position, title, and office: Schedule C;
Attorney Advisor;
Civil Division;
Position title, office, and hiring authority: Department of Health and
Human Services: Trial Attorney;
Civil Rights Division;
Schedule A 213.3102D;
Date converted: Department of Justice: 11/02/03.
Noncareer position, title, and office: Limited Term SES;
Counselor to the Assistant Attorney;
General;
Criminal Division;
Position title, office, and hiring authority: Department of Health and
Human Services: Trial Attorney (General);
Office of the Solicitor General;
Schedule A 213.3102D;
Date converted: Department of Justice: 04/ 07/02.
Noncareer position, title, and office: Schedule C;
Attorney Advisor;
Office of the Assistant Attorney General;
Position title, office, and hiring authority: Department of Health and
Human Services: Assistant U.S. Attorney;
United States Attorney's Office;
Eastern Virginia;
28 U.S.C. 542;
Date converted: Department of Justice: 09/08/02.
Noncareer position, title, and office: Schedule C;
Attorney Advisor;
Executive Office for United States;
Attorneys;
Position title, office, and hiring authority: Department of Health and
Human Services: Assistant U.S. Attorney;
United States Attorney's Office;
Western Washington;
28 U.S.C. 542;
Date converted: Department of Justice: 06/29/03.
Noncareer position, title, and office: Schedule C;
Special Assistant to the Attorney;
General;
Criminal Division;
Position title, office, and hiring authority: Department of Health and
Human Services: Assistant U.S. Attorney;
United States Attorney's Office;
Eastern New York;
28 U.S.C. 542;
Date converted: Department of Justice: 06/15/03.
Noncareer position, title, and office: Schedule C;
Special Assistant to the Assistant;
Attorney General;
Criminal Division;
Position title, office, and hiring authority: Department of Health and
Human Services: Assistant U.S. Attorney;
United States Attorney's Office;
Eastern Virginia;
28 U.S.C. 542;
Date converted: Department of Justice: 06/01/03.
Noncareer position, title, and office: Schedule C;
Counsel to the Assistant Attorney;
General;
Civil Rights Division;
Position title, office, and hiring authority: Department of Health and
Human Services: Trial Attorney;
Civil Rights Division;
28 U.S.C. 542;
Date converted: Department of Justice: 03/09/03.
Noncareer position, title, and office: Noncareer SES;
Chief of Staff;
Criminal Division;
Position title, office, and hiring authority: Department of Health and
Human Services: Assistant U.S. Attorney;
United States Attorney's Office;
Western North Carolina;
28 U.S.C. 542;
Date converted: Department of Justice: 01/12/03.
Noncareer position, title, and office: Noncareer SES;
Counselor to the Assistant Attorney;
General;
Civil Rights Division;
Position title, office, and hiring authority: Department of Health and
Human Services: Trial Attorney;
Civil Rights Division;
Schedule A 213.3102D;
Date converted: Department of Justice: 11/02/03.
Noncareer position, title, and office: Schedule C;
Attorney Advisor;
Executive Office for United States;
Attorneys;
Position title, office, and hiring authority: Department of Health and
Human Services: Assistant U.S. Attorney;
United States Attorney's Office;
Massachusetts;
28 U.S.C. 542;
Date converted: Department of Justice: 08/08/04.
Noncareer position, title, and office: Noncareer SES;
Deputy General Counsel for;
Postsecondary and Regulatory Service;
Office of the General Counsel;
Department of Education;
Position title, office, and hiring authority: Department of Health and
Human Services: Assistant U.S. Attorney (Criminal);
United States Attorney's Office;
Western North Carolina;
Schedule A 213.3102D;
Date converted: Department of Justice: 02/06/05.
Noncareer position, title, and office: 3 U.S.C 105;
Associate Director;
Domestic Policy Council;
The White House;
Position title, office, and hiring authority: Department of Health and
Human Services: Immigration Judge;
Executive Office for Immigration;
Review;
Schedule A 213.3102D;
Date converted: Department of Justice: 03/20/05.
Noncareer position, title, and office: Schedule C;
Special Assistant to the Assistant;
Attorney General;
Criminal Division;
Position title, office, and hiring authority: Department of Health and
Human Services: Trial Attorney;
Criminal Division;
Schedule A 213.3102D;
Date converted: Department of Justice: 12/28/03.
Noncareer position, title, and office: Schedule C;
Counsel to the Director;
Executive Office for United States;
Attorneys;
Position title, office, and hiring authority: Department of Health and
Human Services: Trial Attorney;
Tax Division;
Schedule A 213.3102D;
Date converted: Department of Justice: 05/30/04.
Source: GAO.
[End of table]
[End of section]
Appendix VI: Comments from Office of Personnel Management:
United States Office Of Personnel Management:
Washington, DC 20416-1000:
Office Of The Director:
April 21, 2006:
Mr. George Stalcup:
Director, Strategic Issues:
Government Accountability Office:
Washington, DC 20548:
Dear Mr. Stalcup:
Thank you for the opportunity to review the Government Accountability
Office's (GAO) draft report, Personnel PRACTICES, Conversions of
Employees from Noncareer to Career Positions, May 2001 - April 2005.
As you know, the Office of Personnel Management (OPM) reviews Federal
agency hiring actions every four years during the pre-and post election
period to ensure merit system principles are followed with respect to
employees moving from non-career to career appointments. As your report
notes, our most recent review covered the period of March 18, 2004, to
January 20, 2005.
GAO has conducted a similar review for the period of May 1, 2001, to
April 30, 2005, and recommends that we review 18 cases you have
identified. We agree with this recommendation and will review these
cases in which GAO believes that certain agencies did not use the
appropriate authorities or adhere to merit system principles and
veterans' preference. It should be noted that nine of the 18 cases
identified came from the Department of Health and Human Services where
OPM recently withdrew a delegated examining authority from one of its
components following an oversight review.
With respect to GAO's second recommendation that OPM review conversions
to career excepted service positions in the same manner as done during
the presidential election periods, OPM will incorporate a review of
agency practices in this area during our normal review of agency
delegated examining units.
Sincerely,
Signed by:
Linda M. Springer:
Director:
[End of section]
Appendix VII: GAO Contact and Staff Acknowledgments:
GAO Contact:
George H. Stalcup (202)-512-6806 or stalcupg@gao.gov:
Acknowledgment:
In addition to the contact named above, Sarah Veale, Assistant
Director; Carolyn L. Samuels, Lisa Van Arsdale, and Jeffrey McDermott
made key contributions to this report.
(450424):
FOOTNOTES
[1] Although our report includes conversions from the Legislative
branch to the Executive branch and of conversions from one agency to
another, the total number of governmentwide conversions includes
conversions from noncareer to career within an agency. This difference
does not have a material effect on the comparison.
[2] 5 U.S.C. § 2301(b).
[3] 5 U.S.C. §§ 3309-20.
[4] 5 U.S.C. § 2302.
[5] 5 C.F.R. § 317.501(b)(2).
[6] 5 U.S.C. § 1104(b)(2).
[7] GAO, Personnel Practices: Career and Other Appointments of Former
Political Appointees, October 1998 - April 2001, GAO-02-326
(Washington, D.C.: Feb. 26, 2002);
GAO, Personnel Practices: Career Appointments Granted Political
Appointees from October 1998 through June 2000, GAO/GGD-00-205
(Washington, D.C.: Sept. 18, 2000);
and GAO, Personnel Practices: Career Appointment of Former Political
and Congressional Employees, GAO/GGD-97-165 (Washington, D.C.: Sept. 2,
1997).
[8] GAO, Conversions of Selected Employees from Noncareer to Career
Positions at Departments and Certain Agencies, GAO-05-584R (Washington,
D.C.: June 9, 2005).
[9] 5 U.S.C. § 2301(b)(1).
[10] 5 U.S.C. § 2302(b)(6)(11)(b).
[11] 5 C.F.R. § 317.501(b)(2).
[12] 5 U.S.C. § 1104(b)(2).
[13] By law, veterans who are disabled or who served on active duty in
the Armed Forces during certain specified time periods or in military
campaigns are entitled to preference over nonveterans both in hiring
from competitive lists of eligibles and in retention during reductions
in force. To be entitled to preference, a veteran must meet the
eligibility requirements in Title 5 U.S.C. § 2108.
[14] Five-point preference is assigned to honorably separated veterans
who served on active duty in the armed forces under certain
circumstances. Ten-point preference is given to those honorably
separated veterans who qualify as disabled veterans or are Purple Heart
recipients. 5 U.S.C. §§ 2108, 3309.
[15] 5 U.S.C. § 3313.
[16] 5 C.F.R. § 731.103(a)
[17] 5 C.F.R. § 339.201.
[18] 5 U.S.C. § 3318(b)(1).
[19] OPM has delegated most of the examining and hiring process to
individual agencies, but agencies must follow OPM's Delegated Examining
Operations Handbook in making appointments to the competitive service.
5 U.S.C. § 1104.
[20] According to OPM's Delegated Examining Operations Handbook, if an
appointing official wishes to pass over a preference eligible, he or
she must file written reasons with an appropriate agency official, who
must rule on whether the reasons are sufficient to justify the
passover. 5 C.F.R. § 731.103(a).
[21] Five-point preference is assigned to honorably separated veterans
who served on active duty in the armed forces under certain
circumstances. Ten-point preference is given to those honorably
separated veterans who qualify as disabled veterans or are Purple Heart
recipients. 5 U.S.C. §§ 2108, 3309.
[22] 5 U.S.C. §§ 3309, 3313.
[23] 5 C.F.R. §§ 318.402(c), 318.403.
[24] 5 U.S.C. § 2302(b)(6).
[25] Agencies may re-establish or recertify career positions after they
have been created but remain vacant.
[26] 5 C.F.R. § 318.501(b)(2).
[27] 5 C.F.R. § 318.501(b)(2).
[28] As mentioned previously, agencies create their own hiring
procedures and guidelines for excepted service (non-Schedule C)
positions.
[29] While OPM convenes Qualifications Review Boards and provides staff
support, the Boards are composed of members of the SES from across the
government.
[30] 5 U.S.C. §§ 3309, 3313.
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