OPM Decision No. C-0083-07-03, dated 1/18/01

This decision reopened, reconsidered, and superseded OPM decision number
C-0083-08-02, dated January 3, 2000.

Ms.  Carolyn Cohen
Director, Office of Personnel Policy
Office of the Secretary
U.S. Department of the Interior
1849 C Street, NW,  Mail Stop 5221
Washington, DC  20240

Dear Ms. Cohen:

This replies to your letter of September 14, 2000, which requests our reconsideration of 
classification appeal decision No. C-0083-08-02, issued January 3, 2000, by the Office 
of Personnel Management (OPM), Philadelphia Oversight Division.  This decision 
promotes [appellant] from Park Ranger, GS-025-07, to Police Officer, GS-083-08. 

Your request for reconsideration is based on your belief that our decision involves an 
erroneous interpretation of law and regulation, as established in current OPM 
classification standards.  We have reviewed the written record, information obtained 
during the appeal process, and your request for reconsideration.  We also contacted 
several refuges within the U.S. Fish and Wildlife Service to determine the nature of the 
work and the impact of our decision.   Based on this information, we are reopening and 
reconsidering our decision.

We have determined that the OPM classification standards were correctly applied.  
However, the higher level duties performed by the appellant are not regular and 
recurring and, therefore, cannot be considered grade controlling.  A more detailed 
explanation of our findings is attached for your review.  We will use these findings to 
overturn classification appeal decision No. C-0083-08-02 and reissue our decision.

We do appreciate your comments on the reconsideration process.  We will take them 
into consideration when we revise our regulations.

						Sincerely,

						/s/  1/18/01

						Janice R. Lachance
						Director

Enclosure

This decision responds to a reconsideration request from the Personnel Director of the 
Department of Interior to the Director of the Office of Personnel Management (OPM), as 
provided for in title 5, Code of Federal Regulations (CFR), section 511.614.  Based on 
additional fact finding by the Director, Classification Appeals and FLSA Programs,  the 
original decision, C-0083-08-02, is being overturned and superseded.

The agency disagreed with OPMs determination that Factor 3 should be credited with 
Level 3-3.  Both OPM and the agency agree that the position fully meets Level 3-2.  
However, the agency questions whether the appellant's position, in exceeding Level 3-2, 
fully meets Level 3-3.  Under the Factor Evaluation System (FES), each factor level 
describes the minimum characteristics needed to receive credit for that level.  Therefore, 
if a position fails to meet the criteria in a factor level description in any significant 
aspect, it must be credited at a lower level.

To accurately evaluate Factor 3, we referenced the GS-083/085 Guide for Police and 
Security Positions (Guide), the Introduction to the Position Classification Standards 
(Introduction), and the Primary Standard, which is the standard on which all other FES 
standards are based.

The Primary Standard outlines two subfactors within Factor 3 - Nature of guidelines and 
Judgment exercised.  Although the Guide does not specifically separate the two 
subfactors, we will separately address them for clarification purposes.

We will first evaluate the appellants work based on the guidance in the Guide, then 
discuss the regular and recurring work performed by the appellant based on instructions 
in the Introduction.

Nature of guidelines

This element covers the nature of the guidelines regularly used to perform the work.  
Guides used in General Schedule occupations include, for example, desk manuals, 
established procedures and policies, traditional practices, and reference materials 
common to the occupation.  The Guide describes guidelines used in the GS-0083 
occupation as including Federal, state, and local laws; agency and local rules and 
regulations; and local operating methods, techniques, and procedures (patrol areas, 
traffic control, and security check requirements).

The Guide states that guidelines at Level 3-3 are generally similar to Level 3-2.  
However, unlike Level 3-2, there are two potential situations:

? the guidelines are not always applicable; OR 
? there are gaps in specific applicability in circumstances such as those 
encountered in volatile emergency situations such as terrorist attacks, hostage 
situations, armed robbery, prolonged investigations, OR when enforcing 
traditional (written or unwritten) customs or laws.

One or both of these two elements exist in a position because of the nature of work 
assignments or the environment in which they are performed. The Primary Standard 
describes Level 3-3 guidelines as available but not completely applicable to the work or 
having gaps in specificity. The grade-controlling aspect of this factor is the applicability, 
or lack thereof, of guidelines and not solely the existence of emergency situations.

To further explain, we reference the discussion of Factor 3 in a previous OPM decision, 
#C-0083-07-01.  In that case, even though the appellant was faced with emergency 
situations, he was credited at Level 3-2 because he used established procedures, 
instructions, and guidelines.  Therefore, his position fell short of Level 3-3 because of 
the existence of such guidelines.
 
Despite the fact that the Guide mentions hostile or emergency situations, its use of OR 
recognizes that Level 3-3 covers nonvolatile situations as well.  We assert that this is 
true of the appellant's position.  In reviewing the appellants position and similar 
positions within the Fish and Wildlife Service (FWS), we found that very broad 
guidelines exist for these situations.  FWS refuges are governed by the CFR and a FWS 
Manual, among others.  We also found that some refuges have a Refuge plan, which 
may or may not include a Law Enforcement section.  For the most part, FWS guidelines 
covering law enforcement situations are not always applicable and must be tailored to 
the situation at hand.  

A large number of visitors use the [name], a suburban refuge and the appellant's duty 
station, for a wide variety of different and often conflicting purposes, e.g., waterfowl 
hunting, bird watching, surf fishing, night fishing, clamming, and beach use for sunning 
and swimming.  This produces situations requiring the appellant to deal with a multitude 
of human and natural resource interactions for which there are no FWS or other specific 
guidelines available.  The Refuge Plan for the [acronym], approved in September 1991 
and provided by the Refuge Manager, lists potential law enforcement problems 
associated with waterfowl hunting, clamming, and surf fishing.  However, no policy 
statement exists on how to proceed when these situations arise.  Within the plan, there is 
only one policy statement, and it pertains to the handling of juvenile offenders.  We 
found that these guidelines do not give instructions on what the appellant should do, for 
example, when an intruder drives on a closed beach within the [acronym] and violates 
the nesting habits of the Piping Plover, a Federally threatened species, or when boats 
wash up on the protected refuge beach and must be removed while at the same time 
protecting the safety of human and natural resources.  Determinations such as these go to 
the heart of controlling human interaction with the refuges most fragile natural 
resources.

This information was substantiated during conversations with the FWS' Regional Law 
Enforcement Coordinator for Region [#].  He revealed that no regional guidance exists 
to further interpret the applicability of the broad guidelines found in the CFR and the 
FWS Manual.  In the example of marijuana cultivation cited by the appellant, he stated 
that it would be left to the officer's discretion on how to proceed.   We find that some of 
the appellants work assignments and situations are covered by the nature of guidelines 
described in Level 3-3.   

Judgment exercised

This element covers the extent to which judgment is exercised in applying the guidelines 
regularly used to perform the work.  Individual positions in different occupations vary in 
the specificity, applicability, and availability of the guidelines used to perform 
assignments.  The Guide recognizes that, in the absence of procedures or under broadly 
stated objectives, employees may use considerable judgment in developing new methods 
and techniques for doing the work that may become guidelines for others. 

At Level 3-3 in the Guide, judgment is used to interpret, adapt, apply, and deviate from 
guidelines based on two types of situations:  unusual or emergency circumstances.  Both 
must also have a concern with protecting public safety.  The employee analyzes the 
results of such adaptations and recommends changes in established methods and 
procedures.  The Primary Standard describes the Level 3-3 employee as one who uses 
judgment to interpret and adapt guidelines such as agency policies, regulations, 
precedents, and work directions to specific cases or problems.  The employee analyzes 
the results and recommends changes. 

The Guide's use of "or" in describing the types of circumstances again recognizes that 
Level 3-3 covers nonemergency situations.  We assert that this is true of the appellant's 
position.  The grade-controlling element within this subfactor is the use of judgment in 
deviating from guidelines and adapting procedures.  

Although the agency referred to the discussion of Factor 3 in a previous OPM decision, 
#C-0083-07-02, which they believe is germane to the appellants position, we do not 
find that discussion applicable to this case.  Even though that refuge law enforcement 
position was found to handle emergency situations (unlike the appellant's), there was a 
lack of discretion exercised by that employee.  The deviations were minor, at best, and 
did not result in the type of adaptations and changes in established methods and 
procedures required to credit Level 3-3. 

We find that the appellant does use that type of discretion and deviation necessary to 
meet the Level 3-3 threshold.  However, this is not the case with many of the law 
enforcement officers within the FWS.  Therefore, this subfactor needs to be assessed on 
a case-by-case basis.  For this reason, we continue to assert that this position is different 
and unique from other FWS positions.

Applying FL 3-3 in the Guide to the FWS mission requires that we substitute protecting 
public safety with protecting natural resources.  Based on a [acronym] functional 
statement, this refuge was established to preserve the habitat for migratory waterfowl, 
especially the American Black Duck.  It is also an important nesting area for the Piping 
Plover and Least Tern.  It provides important resting/feeding habitats for shorebirds, 
wading birds, raptors, and passerines.  Based on the unique inhabitants to this refuge and 
its distinctive functional purpose, the work environment is considered unusual for the 
intent of Level 3-3.

The appellant provided examples of situations based on [acronym] important mission, 
where no guidelines are established and, therefore, required his use of judgment and 
discretion.  These included handling intruders of closed beaches, especially when they 
violate nesting habitats of the Piping Plover, and handling boaters, especially when they 
become disabled and must be assisted without harming the natural resources. 
Specifically, the appellant's approach to removing a stranded boat from the nesting beach 
required him to weigh the ability of the visitor to remove the vessel unaided, provide for 
the visitor's safety, and anticipate the consequences of extracting the boat on the 
protected nesting beach.  The appellant also provided examples where he has developed 
standard operating procedures on how to handle situations which are not specifically 
addressed in the CFR, the FWS Manual, or the Refuge Plan.

In the case of the appealed position, we find that the appellant exercises judgment and 
discretion, and the guidelines he has available are not generally applicable to these 
unusual situations.  This is consistent with information obtained from the FWS' Regional 
Law Enforcement Coordinator for Region [#], who states that interpretation of 
regulations is provided at the local level and does not come from the regional level. 

The appellant's use of discretion is further supported by the Refuge Manager's statement 
that she does not carry a beeper or a radio.  For situations where the Refuge Manager 
might need to be contacted, she is called at home.  However, unlike other Refuge 
Managers within Region [#], if the Refuge Manager is not at home, she cannot be 
contacted.  This leaves the appellant to make discretionary decisions and judgment calls 
on his own, which, according to the Refuge Manager, is what she expects of the law 
enforcement position within the Refuge.  Therefore, the results of the appellant's work 
reflect Level 3-3 judgment and discretion on the part of the appellant and is supported by 
management's intent for the purpose of the position. 

Our findings are further supported by the position description of record, which was 
certified by the appellant, the first-level supervisor, and the agency as being accurate.  
The position description includes the following information:

	Major Law Enforcement Duties:

- The incumbent enforces all applicable Federal and state fish and wildlife laws, 
control and protection of the using public within the refuge, including assault, 
breaking and entering, theft, pollution of air or water, arson, destruction of property, 
and violation of other laws perpetrated on refuge lands.  The enforcement of these 
laws and regulations is accomplished by conducting patrols, conducting or assisting 
in investigations, apprehending violators, performing surveillance activities, and 
making contacts.

- The incumbent preserves and protects the natural, cultural and human resources 
using law enforcement and other resource protection techniques to enforce laws, 
acts, rules, and regulations.

	Factor 3 - Guidelines:

The guidelines are generally applicable but the incumbent must use judgment in 
selecting the appropriate guidance from a vast array of possibilities.  To meet the 
demands of unusual or emergency situations, the incumbent independently interprets and 
may make adaptations to procedures.  The incumbent also modifies and makes 
recommendations on changes to standard operating procedures.

The appellant's work meets both subfactors of Level 3-3.  However, the issue remains 
whether these situations constitute 25 percent or more of the incumbent's time in order to 
be grade-controlling.

Guidance in the Introduction states that when the highest level of work is performed less 
than a majority of the time, it may be grade controlling only if the work is officially 
assigned to the position on a regular and continuing basis; occupies at least 25 percent of 
the appellant's time; and requires knowledge and skills that would be needed in 
recruiting for the position if it became vacant.  This is consistent with a classification 
advisory from OPM's Classification Programs Division, which states that individuals 
involved in responding to nonemergency situations are required to perform the higher-
grade duties for 25 percent or more of their time for their positions to be graded at the 
higher level.

The appellant did provide an end-of-year report, which notes 175 violation notices; 64 of 
which were motor vehicle-related, 45 trespass-related, and 8 indecent exposures. The 
appellant also stated that there were 54 incidents reported and listed the most significant 
as the destruction of a Piping Plover nest, eradication of marijuana, breaking and 
entering of the Visitor Center, and 4 weapons violations.  (The appellant also reported an 
attempted suicide; however, that incident was handled by the appellant's first-level 
supervisor and cannot be credited to the appellant.)  Of the violation notices, only the 

indecent exposures, which required surveillance and investigation, have the potential of 
meeting Level 3-3.   They constitute only 5% of the violation notices issued by the 
Refuge, so they cannot be considered grade-controlling.  Of the 54 incidents, the most 
unusual situations constitute only 11% of the incidents handled by the appellant; 
therefore, they are not considered grade-controlling.

Summary

The position is found to fully meet the activities described at Level 3-2 on a regular and 
recurring basis and for at least 25 percent of the appellant's time.  The activities 
performed by the appellant which meet the threshold for Level 3-3 constitute a total of 
16% of his time; therefore, they are not grade-controlling.   The appellant's position is 
correctly credited with Level 3-2. 

Factor Evaluation System (FES) Table

In summary, we have evaluated the appealed positions as follows and have highlighted 
Factor 3, whose crediting changes the outcome of the decision:

Factor

	1.  Knowledge required by the position
		
		Level 1-4	550 Points
	
	2.  Supervisory controls
	
		Level 2-3	275 Points

	3.  Guidelines
		
		Level 3-2	125 Points

	4.  Complexity

		Level 4-3	150 Points

	5.  Scope and effect

		Level 5-3 	150 Points

	6.  Personal contacts 

		Level 6-3	60 Points

	7.  Purpose of contacts

		Level 7-3	120 Points

	8.  Physical demands
		
		Level 8-2	20 Points

	9.  Work environment

		Level 9-2	20 Points

	Total: 			1470 Points

A total of 1,470 points falls within the GS-7 grade level point range of 1,355 - 1,600 
points on the Grade Conversion Table in the GS-083/085 Guide.  

Decision

The appealed position is classified properly as Police Officer, GS-083-7.