FEDERAL 

WORKFORCE

Opportunities Exist to 

Improve Data on 

Selected Groups of 

Special Government 

Employees

Report to Chairman, Committee on the 

Judiciary, U.S. Senate

July 2016

GAO-16-548

United States Government Accountability Office
 

United States Government Accountability Office

 

Highlights of GAO-16-548, Report to 

Chairman, Committee on the Judiciary, U.S. 

Senate

July 2016

FEDERAL WORKFORCE 

Opportunities Exist to Improve Data on Selected 

Groups of Special Government Employees

What GAO Found

Federal agencies made limited use of special government employees (SGE) not 

serving on federal boards. As of December 2014, approximately 3 percent of 

SGEs (1,138 of 40,424) were working as experts or consultants and not serving 

on federal boards, according to the Office of Government Ethics (OGE). Over a 

10-year period (2005 to 2014), GAO found that agencies used an annual 

average of approximately 2,000 SGEs, with a peak of about 3,100 in 2009 and a 

low of about 500 in 2013.

Agencies are responsible for reporting on SGEs not serving on federal boards to 

OGE. The Office of Personnel Management (OPM) requires agencies to identify 

SGEs on an individual’s personnel action. OGE’s data reflected what agencies 

reported on SGEs not serving on federal boards. Three of the five agencies GAO 

reviewed had challenges reporting reliable data on SGEs not serving on federal 

boards. The Department of Health and Human Services (HHS) had difficulty 

distinguishing between SGEs not serving on federal boards and those who were, 

and HHS did not explain data discrepancies. GAO found instances of 

misidentified SGEs not serving on federal boards at the Nuclear Regulatory 

Commission (NRC) and the Department of State (State), but the agencies 

provided corrected data. Weak internal coordination and misunderstanding about 

the SGE designation contributed to the identification challenges. Stronger data 

would better position agencies to report on SGEs and provide the required ethics 

training. Moreover, accurate and complete data are important to allow OGE and 

Congress to provide informed oversight of agencies.

Three of the five selected agencies primarily used expert and consultant hiring 

authorities to appoint SGEs not serving on federal boards. The other two 

agencies generally used their agency-specific authorities. The agencies used 

these employees in specialized areas (see figure). Four of five agencies said 

supervisors are generally responsible for tracking SGEs’ days of service. One 

agency permits SGEs to track their own days.

Special Government Employees Fill a Variety of Roles at Selected Agencies

OGE has not found any issues specific to SGEs not serving on federal boards. 

GAO’s analysis of 23 OGE reviews at Chief Financial Officers Act agencies and 

the Consumer Financial Protection Board for fiscal years 1998 to 2014 showed 

no issues specific to SGEs not serving on federal boards. Further, OGE had no 

outstanding recommendations related to SGEs at the selected agencies. View GAO-16-548. For more information, 

contact Yvonne D. Jones at (202) 512-6806 or 

jonesy@gao.gov. 

Why GAO Did This Study

The SGE category was created by 

Congress in 1962 to make certain 

ethics rules less restrictive than for 

other federal employees to overcome 

obstacles in hiring outside experts and 

other temporary employees for 

occasional service. SGEs are 

employees appointed to serve for not 

more than 130 days during any one 

year period. 

GAO was asked to examine agencies’ 

use of SGEs not serving on federal 

boards. This report: (1) describes what 

is known about the total number of 

SGEs not serving on federal boards; 

(2) assesses the extent to which OGE, 

OPM, and selected agencies identify, 

collect, and report data; (3) assesses 

how selected agencies appoint, use, 

and track SGEs; and (4) examines how 

OGE oversees and ensures 

compliance with ethics requirements. 

GAO analyzed OGE, OPM, and 

agency data; reviewed agency 

documentation; and interviewed 

agency officials. GAO selected five 

agencies—the Departments of Health 

and Human Services, Justice, State, 

Nuclear Regulatory Commission and 

National Science Foundation—based 

in part, on the number of SGEs and 

ratio of SGEs not serving on federal 

boards to total employees.

What GAO Recommends

GAO recommends HHS take steps to 

improve the reliability of data on SGEs 

not serving on federal boards and OGE 

should determine whether other 

agencies are experiencing data 

challenges similar to HHS, State, and 

NRC and take appropriate action. HHS 

concurred. OGE partially concurred. 

GAO maintains that OGE should 

undertake the actions as discussed

further in the report. 
Page i GAO-16-548 Federal Workforce

Letter 1

Background 4

Agencies’ Use of SGEs Not Serving on Federal Boards Is Limited 10

Four of Five Selected Agencies Had Reliable Data on SGEs Not 

Serving on Federal Boards While HHS Had Challenges 

Reporting Reliable Data 12

Selected Agencies Appointed SGEs Primarily Using Expert and 

Consultant Hiring Authority and Utilized Them in Specialized 

Areas 16

OGE Reviews Have Found No Issues for SGEs Not Serving on 

Federal Boards 23

Conclusions 26

Recommendations for Executive Action 27

Agency Comments and Our Evaluation 27

Appendix I Objectives, Scope, and Methodology 29

Appendix II Legislative History of the Special Government Employee 

Designation 32

Appendix III Ethics Provisions Applicable to Non-Special Government 

Employees Compared to Special Government Employees Not 

Serving on Federal Advisory Committees or Other Boards 34

Appendix IV Government-wide and Agency-Specific Hiring Authorities Used to 

On-Board Special Government Employees by Selected Agencies 38

Appendix V Use Of Special Government Employees At Chief Financial 

Officer Act Agencies And The Consumer Financial Protection 

Bureau, 2012-2013 41

Contents
Page ii GAO-16-548 Federal Workforce

Appendix VI Comments from the Department of Health and Human Services 42

Appendix VII Comments from the Office of Government Ethics 44

Appendix VIII GAO Contacts and Staff Acknowledgments 46

Tables

Table 1: Ethics Provisions for Executive Branch Employees 35

Table 2: Government-wide Hiring Authorities Used at Selected 

Agencies 38

Table 3: Agency-Specific Hiring Authorities Used at Selected 

Agencies 40

Figures

Figure 1: Differences in Ethics Requirements for Other 

Government Employees Compared to Special 

Government Employees (SGE) 6

Figure 2: Special Government Employees Not Serving on Federal 

Boards, Calendar Years 2005-2014 10

Figure 3: Special Government Employees (SGE) Not Serving on 

Federal Boards at CFO Act Agencies and the CFPB, as a 

Portion of the Executive Branch SGEs Not Serving on 

Federal Boards, Calendar Years 2012 and 2013 11

Figure 4: Comparison of OGE and Selected Agency Data on 

Special Government Employees Not Serving on Federal 

Boards, 2012 and 2013 13

Figure 5: SGEs Not Serving on Federal Boards Fill a Variety of 

Roles for Short-Term Expertise at Selected Agencies 21
Page iii GAO-16-548 Federal Workforce

Abbreviations

CFO Act Chief Financial Officers Act of 1990

CFPB Consumer Financial Protection Bureau

CY calendar year

DOJ Department of Justice

EHRI Enterprise Human Resources Integration

FACA Federal Advisory Committee Act

FDA Food and Drug Administration

GS General Service

HHS Department of Health and Human Services

NDMS National Disaster Medical System

NRC National Regulatory Commission

NSF National Science Foundation 

OGE Office of Government Ethics

OPM Office of Personnel Management

PRB Program Review Branch

SGE special government employee

State Department of State

WAE when actually employed

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Page 1 GAO-16-548 Federal Workforce 

441 G St. N.W.

Washington, DC 20548

July 15, 2016

The Honorable Charles E. Grassley

Chairman

Committee on the Judiciary

United States Senate

Dear Mr. Chairman:

Congress established the Special Government Employees (SGE) 

category in 1962 to overcome obstacles in hiring outside consultants, 

experts, and other temporary employees by making certain ethics rules 

for these employees less restrictive than for regular federal government 

employees. SGEs are employees who are retained, designated, 

appointed, or employed to perform temporary duties, with or without 

compensation, for not more than 130 days during a 1-year period.1 SGEs 

may serve the government in a variety of ways, including working 

individually on discrete projects, or as members of federal advisory 

committees. At the end of 2014, all categories of SGEs made up 

approximately 1 percent, or 40,424, of the federal government’s 4.2 

million civilian and military personnel.2

Questions have been raised about the number of SGEs employed by 

federal agencies and how agencies use SGEs. For example, frequently, 

SGEs have substantial outside activities and financial interests that may 

raise difficult ethics questions.

1

An SGE is defined, in part, as “an officer or employee of the executive or legislative 

branch...who is retained, designated, appointed, or employed to perform, with or without 

compensation, for not to exceed one hundred and thirty days during any period of three 

hundred and sixty-five consecutive days, temporary duties either on a full-time or 

intermittent basis,” under 18 U.S.C. §202(a). The full definition also includes employees 

and officers in certain miscellaneous positions who are deemed SGEs, without regard to 

the number of days of service. For example, a reserve officer of the Armed Forces or an 

officer of the National Guard of the United States who is serving involuntarily shall be 

classified as a SGE. SGEs may also be specified in an agency’s organic legislation. See, 

e.g., 42 U.S.C. § 12651b(e) (members of Board of Directors, Corporation for National and

Community Service).

2

OPM reported the total civilian and military personnel was 4.2 million in 2014. We 

included military members since we identified military members who are classified as 

SGEs. 

Letter
Page 2 GAO-16-548 Federal Workforce 

You asked us to review agencies’ use and oversight of SGEs in the

federal workforce for SGEs not serving on federal advisory or other

committees, commissions, or boards3 at the 24 agencies covered under

the Chief Financial Officers (CFO) Act of 1990, as amended, and the 

Consumer Financial Protection Bureau (CFPB).4 This review (1)

describes what is known about the total number of SGEs not serving on 

federal boards in the executive branch, as well as CFPB; (2) assesses 

the extent to which the Office of Government Ethics (OGE), the Office of 

Personnel Management (OPM), and selected agencies identified, 

collected, and reported data on SGEs not serving on federal boards; (3) 

assesses how selected agencies appoint, utilize, and track SGEs not 

serving on federal boards, and describes the relevant hiring authorities 

and ethics requirements; and (4) examines how, if at all, OGE oversees 

and ensures compliance with ethics requirements for SGEs, including 

the proper identification of individuals as SGEs, consistent with 18 

U.S.C. § 202(a). 

To address these objectives, we reviewed the federal statutes, 

regulations, and guidance that address SGEs and the ethics restrictions 

applicable to SGEs. To help address our second and third objectives, we 

selected five case study agencies: Department of Health and Human 

Services (HHS), Department of Justice (DOJ), Department of State 

(State), National Science Foundation (NSF), and Nuclear Regulatory 

Commission (NRC). We based our selection on criteria such as the 

number of SGEs, the size of the agency, OGE ethics program review 

results, and the ratio of SGEs not serving on federal boards compared to 

3

For the purposes of this report, we will refer to this category as “SGEs not serving on 

federal boards.” This category reflects the Expert/Consultant SGE category for reporting 

purposes. OGE breaks out and collects data on six categories of SGEs: (1) SGEs who 

serve on Federal Advisory Committee Act boards, committees, and commissions; (2) 

SGEs who serve on other boards, committees, and commissions; (3) expert/consultant 

SGEs; (4) board members; (5) commissioners; and (6) other SGEs. 

4

The 24 CFO Act agencies are listed at 31 U.S.C. § 901(b) and include: U.S. Departments 

of Agriculture, Commerce, Defense, Education, Energy, HHS, Homeland Security, 

Housing and Urban Development, the Interior, Labor, Transportation, the Treasury, 

Veterans Affairs, DOJ, and State, as well as the U.S. Agency for International 

Development, Environmental Protection Agency, General Services Administration, 

National Aeronautics and Space Administration, NSF, NRC, Office of Personnel 

Management, Small Business Administration, and Social Security Administration. These 

agencies account for a very high proportion of the total federal labor force. CFPB was 

included in our scope because the bureau reported employing SGEs. 
Page 3 GAO-16-548 Federal Workforce 

the agency’s 2-year on-board average of all employees, among other 

criteria. We analyzed OGE’s, OPM’s, and selected agencies’ data on the

number of SGEs at CFO Act agencies and CFPB between fiscal and 

calendar years 2005 and 2014. We compared OGE data on the total 

number of SGEs not serving on federal boards with selected agency data 

for the most recent years available—2012 and 2013. We examined 

OGE’s process for reviewing agency data.

We also compared selected agency data on individual SGEs not serving 

on federal boards with OPM data for 2005 to 2014. We found the data 

from OGE and four selected agencies (DOJ, State, NRC, and NSF) 

sufficiently reliable to report annual totals of SGEs. For two agencies, we 

found several instances of misidentified SGEs and, after discussion with 

the agencies, they provided corrected data. We found that one of the 

selected agencies, HHS, provided unreliable effective dates for SGEs not 

serving on federal boards. We found that the OPM data did not have 

complete information that would allow us to report on annual totals of 

SGEs not serving on federal boards in the executive branch agencies.

To assess how selected agencies appoint, utilize, and oversee SGEs, we 

examined agency documentation and interviewed agency officials on the 

(1) process for designating and hiring SGEs not serving on federal 

boards; (2) hiring authorities used; (3) internal coordination among hiring, 

ethics, and general counsel offices; (4) types of roles and responsibilities 

SGEs performed; and (5) agency tracking of whether SGEs’ stay within 

the 130-day service estimate. To examine how, if at all, OGE oversees 

and ensures compliance with ethics requirements for SGEs, we examined 

selected agency documentation and interviewed officials on OGE ethics 

program reviews and open recommendations. We also examined 

statutory and regulatory provisions covering OGE’s roles and 

responsibilities. For more information on our objectives, scope, and 

methodology, see appendix I.

We conducted this performance audit in Washington, D.C., from January 

2015 through July 2016 in accordance with generally accepted 

government auditing standards. Those standards require that we plan 

and perform the audit to obtain sufficient, appropriate evidence to provide 

a reasonable basis for our findings and conclusions based on our audit 

objectives. We believe that the evidence obtained provides a reasonable 

basis for our findings and conclusions based on our audit objectives.
Page 4 GAO-16-548 Federal Workforce 

A SGE is an employee expected to perform temporary duties for no more 

than 130 days during a 1-year period.5 An individual hired under a 

temporary appointment can be designated a SGE where the employing 

agency makes a good-faith estimate that the individual is not expected to 

serve more than 130 days in the succeeding 1-year period.6 Under the 

executive branch’s longstanding interpretation, while SGEs are expected 

to serve no more than 130 days in a 1-year period, if an individual was 

designated a SGE but unexpectedly exceeds the 130 days of service, 

that person is still considered a SGE for the current year.7 However, OGE 

advises that if the SGE is to serve beyond the 1-year period, the agency 

will need to make a new estimate for the following year, and the prior 

year’s experience will have a bearing on whether the agency reasonably 

can conclude that the employee is likely to serve no more than 130 days 

in the next year (see appendix II for a legislative history of the 

establishment of the SGE status).8

SGEs are covered by most ethics rules, but the application of some of 

those rules to SGEs is less restrictive than for other employees and 

permits them to engage in more outside activities (see appendix III for a 

comparative overview of select ethics rules for SGEs and other 

5

SGEs are employees of the federal government and are distinguished from other 

individuals who provide services to the federal government as independent contractors.

Independent contractors are not employees and therefore not covered under the ethics 

and conflict of interest provisions applicable to federal employees.

6

An employee hired under an appointment that is not to exceed 130 days is also a SGE. 7 

Op. Off. Legal Counsel 123, 126 (1983).

7

3 Op. Off. Legal Counsel 321, 323 (1979) and 3 Op. Off. Legal Counsel 451, 454 (1979); 

OGE Informal Advisory Memorandum, 00 x 1, at 5 (Feb. 15, 2000) and OGE Informal 

Advisory Letter 05 x 7 (Nov. 1, 2005). As noted subsequently, this executive branch 

interpretation set forth in Office of Legal Counsel opinions and followed by OGE advisory 

documents dates back to shortly after enactment of the act establishing the SGE category. 

But compare United States v. Baird, 29 F.3d 647 (D.C. Cir. 1994) (in a case involving a 

reserve officer on active duty, the D.C. Circuit Court articulated a contrary interpretation 

under which an employee serving beyond 130 days could no longer be considered a SGE, 

but did so in dicta and therefore the court’s decision would not serve to require the 

executive branch to depart from its long-standing interpretation).

8

February 2000 OGE Informal Advisory Memorandum.

Background

SGEs Serve Temporarily 

and Have Fewer Ethics 

Restrictions Than Other 

Employees
Page 5 GAO-16-548 Federal Workforce 

employees). Employees of the executive branch are covered under 

numerous prohibitions and requirements set forth under statute (criminal 

and noncriminal), executive order, and regulation. The criminal statutes 

establishing the foundation for acceptable conduct while serving the 

public include the bribery and illegal gratuities prohibitions (18 U.S.C. § 

201) and the criminal conflict of interest prohibitions (principally 18 U.S.C. 

§§ 203, 205, 207, 208, and 209).

SGEs are covered by most, but not all, of these criminal statutes and in 

some instances are afforded distinct treatment from other employees. 

Like other employees, SGEs are subject to prohibitions on bribery and 

illegal gratuities,9 and prohibited from participating in matters that directly 

affect their own financial interests (or the financial interests of individuals 

or entities attributed to the employee).10 SGEs are generally not afforded 

special treatment under the various post-employment bans on the 

activities of former employees.11 However, SGEs are subject to 

substantially narrower restrictions than other employees on their outside 

representational activities (including the receipt of compensation related 

to such activities).

12

As illustrated in figure 1 below, SGEs are not covered under the ban on 

outside supplementation of government salaries.13 More specifically, a 

regular employee cannot receive compensation from anyone (other than 

the government) for performing government service. SGEs are subject to 

the standards of conduct regulations,14 which implement the principles of 

ethical conduct established under Executive Order No. 12674,15 and 

9

18 U.S.C. § 201.

1018 U.S.C. § 208.

1118 U.S.C. § 207. 

1218 U.S.C. §§ 203 and 205.

1318 U.S.C. § 209(c). 

14Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. part 

2635.

15Exec. Order No. 12674, Principles of Ethical Conduct for Government Officers and 

Employees, 54 Fed. Reg. 15159 (Apr. 12, 1989) as amended, Exec. Order No. 12731, 55 

Fed. Reg. 42547 (Oct. 17, 1990).
Page 6 GAO-16-548 Federal Workforce 

prohibits SGEs from, among other things, receiving compensation for 

teaching, speaking, and writing that is undertaken as part of the 

employee’s official duties. While the treatment of SGEs is generally the 

same as for other employees under these standards of conduct, there are 

exceptions.

Figure 1: Differences in Ethics Requirements for Other Government Employees 

Compared to Special Government Employees (SGE) 

Notes: There are also additional bans on the earning of outside income which are only applicable to 

certain noncareer political appointees. These bans do not apply to regular employees or SGEs.

a

18 U.S.C. § 209.

b

5 C.F.R. § 2635.807.

c

18 U.S.C. § 209(c).

d

Nor would a regular employee be prohibited if the subject of the activity deals generally with a 

subject within the agency’s responsibility and is within the regular employee’s inherent area of 

expertise based on educational background or experience.
Page 7 GAO-16-548 Federal Workforce 

Apart from the government-wide ethics requirements, some agencies 

have developed supplemental agency-specific ethics requirements 

covering their employees, including SGEs.16 Four of the five selected 

agencies for this review have supplemental regulations covering ethics 

restrictions. For example, NRC has a list of prohibited securities that 

certain covered employees, including SGEs, cannot own, including stock, 

bonds, or other security interests in certain companies.

17

OGE provides overall leadership and oversight of the executive branch 

ethics program designed to prevent and resolve conflicts of interest with 

all employees, including SGEs. OGE established the standards of

conduct regulations—covering issues such as gifts, conflicting financial 

interests, impartiality, seeking employment, misuse of position, and 

outside activities—which address not only actual conflicts of interest but 

also activities that give rise to the appearance of such conflicts.18 In 

addition, OGE issued regulations addressing the management of agency 

ethics programs, including procedures related to reviewing public and 

confidential financial disclosure.19 It also provides ethics training to 

agency officials. 

OGE officials said there is no standardized way for agencies to approach 

the SGE designation process. However, OGE stated that pursuant to the 

executive branch’s longstanding interpretation of 18 U.S.C. § 202, a 

proper designation requires a prospective good faith determination at the 

time of an appointment that the individual is not expected to perform

16As authorized by Executive Order 12674 and implemented by 5 C.F.R. § 2635.105, an 

agency may supplement the ethics standards, with the concurrence of OGE, to meet the 

particular needs of that agency. A supplemental agency regulation is issued jointly by the 

agency and OGE and is published in title 5 of the Code of Federal Regulations.

17See 5 C.F.R. § 5801.102. See also supplemental agency regulations for DOJ (5 C.F.R. 

part 3801), NSF (5 C.F.R. part 5301), and HHS (5 C.F.R. parts 5501 and 5502).

185 C.F.R. part 2635.

19See 5 C.F.R. part 2638 (agency ethics program management) and part 2634 (financial 

disclosure, including certificates of divestiture). OGE has also issued regulations (with the 

concurrence of the Attorney General) interpreting certain of the conflicts of interest 

statutes. See 5 C.F.R. part 2640 (interpreting and implementing 18 U.S.C. § 208) and part 

2641 (interpreting and implementing 18 U.S.C. § 207).

Roles of OGE, OPM, 

and Agency Offices in 

SGE Oversight, 

Designation, and Hiring 
Page 8 GAO-16-548 Federal Workforce 

services for more than 130 days of the succeeding 1-year period.20 OGE 

believes that a prospective determination is important so that employees 

are on notice with respect to the ethics laws and rules that will apply to 

them.

To help carry out its oversight role, OGE collects data on agency ethics 

programs. Executive branch agencies are required to submit an annual 

report to OGE concerning certain aspects of their ethics programs.

21 OGE 

provides an annual questionnaire to each executive branch agency to 

assist agencies in fulfilling this requirement. The annual questionnaire 

covers a range of issues, including the agency’s ethics program structure 

and staffing, as well as ethics education and training policies. According 

to agency officials, OGE also uses the annual questionnaire to gain 

knowledge about individual programs as well the overall program and to 

make informed decisions about agency resource allocations and

priorities.

OPM provides guidance to agencies on government-wide hiring 

authorities to ensure that agencies properly utilize these authorities, such 

as the expert and consultant appointment authority, which may be used to 

on-board employees ultimately categorized as SGEs (see appendix IV for 

examples of government-wide hiring authorities used by selected 

agencies to hire SGEs). OPM requires all federal agencies to identify that 

an employee is a SGE on the government records documenting an 

individual’s personnel action—Standard Form 50. Agencies also can 

identify an employee as a SGE by using a specific remark code—E21 on 

the personnel action form. OPM collects data on federal employees, 

203 Op. Off. Legal Counsel at 454 (agency should make good faith designation in advance 

of appointment and if an agency does so, the employee will continue to be regarded as a 

SGE for the duration of the 1-year period even if the employee serves for more than 130 

days). This Office of Legal Counsel opinion reflects the interpretation communicated 

shortly after enactment of the 1962 act in a presidential memorandum advising agencies 

on, among other things, the appropriate designation of SGE’s under the new act.

Memorandum on Preventing Conflicts of Interest on the Part of Special Government 

Employees, 28 Fed. Reg. 4539, 4541 (May 2, 1963).

215 U.S.C. App. 4, § 402(e)(1). 
Page 9 GAO-16-548 Federal Workforce 

including SGEs, from agencies that submit personnel data through the 

Enterprise Human Resources Integration (EHRI) Statistical Data Mart.

22

Some, but not all, of the information on the personnel action form is 

collected in OPM’s EHRI. The use of the specific remarks code for SGE is 

not mandatory for agencies.

At individual agencies, multiple offices may play a role in on-boarding and 

designating SGEs. Those offices may include the hiring or appointing 

office, the human capital office, the ethics office, and the office of general 

counsel. Generally, the hiring office takes the lead role in identifying the 

skill set and length of service needs. The agency’s human capital office 

advises on the appropriate use of hiring authorities, processes the 

personnel action to on-board the SGE, and enters the personnel action 

information into the personnel database. Agencies are required to identify 

the SGE designation on the personnel action Standard Form 50. The 

agency’s ethics office is responsible for training employees, including 

SGEs, on their ethics requirements so that they are able to identify 

potential problems and seek the advice and counsel of ethics officials, 

when appropriate. Ethics offices may also provide technical assistance to 

the hiring office by advising on how to make a good faith service days 

estimate for the purposes of making a SGE designation, and evaluating 

whether the individual has potential conflicts of interest. At agencies 

where the ethics functions are not within the general counsel’s office, then 

the agency’s general counsel’s office may also have a role in helping to 

ensure that ethics statutes and regulations are applied appropriately to a 

SGE.

22EHRI contains information on personnel actions and other data, and is the primary 

government-wide source for information on federal employees. 
Page 10 GAO-16-548 Federal Workforce 

OGE data show SGEs not serving on federal boards make up a small 

portion of total SGEs in the executive branch. According to OGE data, 

federal agencies reported 40,424 total SGEs in the executive branch as 

of December 31, 2014.23 As of that date, about 3 percent of those SGEs 

(1,138 of 40,424) were not serving on federal boards and employed as 

experts or consultants. At the end of 2013, that figure was about 1 

percent (515 of 41,335). Over a 10-year period (from 2005 to 2014), we 

found that agencies generally reported more limited use in 2014 than 

in 2005, and used an annual average of approximately 2,000 SGEs not

serving on federal boards, with a peak of about 3,100 in 2009 and a low 

of about 500 in 2013.

As shown in figure 2, OGE data show the numbers of SGEs not serving 

on federal boards in the executive branch varied over the 10-year period.

According to OGE, agencies’ use of SGEs not serving on federal boards 

varies depending on their need for particular expertise at any given time.

Figure 2: Special Government Employees Not Serving on Federal Boards, Calendar 

Years 2005-2014

23OGE asks agencies for snapshot data when reporting the number of SGEs. Therefore, it 

should be noted that these numbers represent a point in time assessment —the last day 

of the calendar year—and may not include individuals who were employed during the 

year, but were not employed on the last day of the calendar year. 

Agencies’ Use of 

SGEs Not Serving on 

Federal Boards Is 

Limited
Page 11 GAO-16-548 Federal Workforce 

Note: These are the required public and confidential financial disclosure report filers in the 

“expert/consultant” SGE category, reported in OGE’s annual questionnaire.

As shown in figure 3, most SGEs not serving on federal boards were 

employed at the 24 CFO Act agencies and the CFPB—about 94 percent 

(484 of 515) at the end of 2013 and about 99 percent (1,276 of 1,288) at 

the end of 2012.24 In 2012 and 2013, the selected agencies comprised 63 

percent (805 of 1,288) and 29 percent (149 of 515) of SGEs in the

executive branch, respectively (see appendix V for a complete breakout 

of SGEs not serving on federal boards at each of the 24 CFO Act 

agencies and CFPB).

Figure 3: Special Government Employees (SGE) Not Serving on Federal Boards at 

CFO Act Agencies and the CFPB, as a Portion of the Executive Branch SGEs Not 

Serving on Federal Boards, Calendar Years 2012 and 2013

Since 2012, OGE officials reported the agency has taken a number of 

steps to improve individual agency’s reporting on SGEs. For example, in 

2014, OGE began posting agencies’ responses, unedited, and some of 

the results from its annual questionnaire on its website. OGE officials 

believe publicizing agency responses will increase reporting 

accountability. Also, in 2014, OGE officials convened focus groups with 

executive branch ethics officials to identify any challenges with 

24Our analysis was limited to those 2 years since OGE only had SGE data in a method 

that allowed agency matching for 2012 to 2013.
Page 12 GAO-16-548 Federal Workforce 

understanding ethics reporting requirements, including for SGEs, in the 

annual questionnaire. In 2015, OGE officials added a skip-ahead feature 

to its annual questionnaire to help streamline agencies’ responses. This 

feature helps to prevent agencies from responding to questions that are 

not germane to their agency. OGE also directed executive branch 

agencies to centralize their annual reporting strategy by requiring that all 

submissions be sent to OGE directly from the CFO Act department, rather 

than from component agencies. Through these and other efforts, OGE 

officials said their goals are to expand the reach of ethics guidance for 

federal employees, and to increase both the consistency and the 

accuracy of ethics training across the executive branch. Officials at all five 

of the selected agencies we spoke with told us that OGE’s oversight and

guidance was effective, and that they felt comfortable contacting OGE if 

they had a SGE or ethics-related question.

Agencies are responsible for identifying SGEs and reporting these data to 

OGE (through its annual questionnaire) and OPM (through information on 

personnel actions in EHRI).

Generally, OGE’s data reflected what agencies reported on SGEs not 

serving on federal boards. As part of our assessment of the reliability of 

OGE data on these SGEs not serving on federal boards, we compared 

OGE data with data from the selected agencies for 2012 and 2013—the 

most recent data available. In 2012, we found that the five selected 

agencies had data that closely matched OGE data. In 2013, we found 

data for three of the five selected agencies closely matched (see figure 

4). We attribute most of the difference between OGE and NSF data in 

Four of Five Selected 

Agencies Had 

Reliable Data on 

SGEs Not Serving on 

Federal Boards While 

HHS Had Challenges 

Reporting Reliable 

Data

OGE Data Reflected

Agency Reporting
Page 13 GAO-16-548 Federal Workforce 

2013 to differences in the reporting time frame (fiscal year versus 

calendar year). At HHS, we found a significant difference between OGE 

data and agency data. HHS told us it had 609 SGEs not serving on 

federal boards in 2013, but reported 4 to OGE. When we asked about the 

discrepancy, HHS said 609 was correct, but could not explain the 

discrepancy.

Figure 4: Comparison of OGE and Selected Agency Data on Special Government Employees Not Serving on Federal Boards, 

2012 and 2013

Note: Agency data was for the fiscal year and OGE data was for the calendar year, which accounts 

for some of the differences between the datasets.

OGE has a process for reviewing agency submissions, but it does not 

verify the data for every agency. During the review of the responses to its 

Annual Agency Ethics Program Questionnaire, OGE officials follow up
Page 14 GAO-16-548 Federal Workforce 

with agencies for an explanation in instances where agencies reported 

data that represented a 20 percent increase or decrease compared to the 

prior year’s submission. OGE officials conducted follow-up efforts with 

agencies when a submission showed a difference between the number of 

employees required to receive ethics training and the number of 

employees that received training, or the number of financial disclosure 

reports filed. OGE also conducts spot checks of some of the agencies’ 

responses to determine the level of variance from year to year, according 

to agency officials.

Based on our assessment, OPM does not have complete data on SGEs 

not serving on federal boards in its EHRI database. We compared OPM 

data on individual SGEs with agency data for 2005 to 2014. Our 

comparison of selected agency data to OPM’s EHRI database revealed 

close matches in two of the five selected agencies. NSF and DOJ data 

mostly matched OPM’s EHRI database over the 10-year period of fiscal 

years 2005 to 2014. We experienced some challenges in attempting to 

match OPM’s data on individual SGEs for the other three selected 

agencies (State, HHS, and NRC). For example, HHS officials provided 

inaccurate dates for when SGEs were hired. We found the OPM data had 

incomplete information on individual SGEs for the 10-year period. OPM 

officials said it is very difficult to reliably identify a complete list of SGEs in 

their database since agencies do not consistently identify SGEs in 

personnel data collected by OPM in the EHRI database. According to 

OPM, there is no policy or legal requirement for the agency to capture 

SGE data in its EHRI database.

Four of the five selected agencies had data reliable enough for the 

purposes of reporting annual totals. Still, three of the selected agencies in 

our review—HHS, State, and NRC—encountered challenges in 

identifying SGEs not serving on federal boards due to weak coordination 

and misunderstandings about SGE designations. At HHS, we found that 

staff in the agency’s human capital office did not coordinate with its ethics 

office before providing the agency’s SGE totals, which contributed to 

challenges in identifying and reporting on their SGEs.

After submitting an initial list of SGEs, State and NRC required additional 

meetings to clarify our request for their SGE totals. At State, human 

resources and ethics officials disagreed about which individuals should be 

identified as SGEs not serving on federal boards for SGEs hired prior to 

2008. Both agencies ultimately provided corrected data.

Weak Coordination and 

Misunderstandings Can 

Contribute to Challenges 

in Identifying SGEs for 

Reporting Purposes
Page 15 GAO-16-548 Federal Workforce 

All the selected agencies generally had a designation and on-boarding 

process that involved some degree of coordination between a hiring 

office, a human capital office, and an ethics or general counsel office (or 

both) before on-boarding a SGE. Some of the selected agencies operate 

in a more structured and formal way than others. State recently instituted 

a formal coordination process and, in April 2014, issued written guidance 

and procedures on the process, including explicit instructions for 

coordinating among the hiring office, the human capital office, and the 

ethics office.

Conversely, HHS had a less structured coordination process for 

identifying SGEs not serving on federal boards. HHS experienced 

difficulty identifying employees categorized as SGEs not serving on 

federal boards, in part, because the departmental human capital office is 

not consistently coordinating with human capital offices in its components 

or with the Office of the General Counsel, Ethics Division to ensure that 

SGEs not serving on federal boards are appropriately identified. In 

addition, HHS’s human capital officials misunderstood the SGE 

designation and, at times during our audit, could not distinguish between 

SGEs not serving on federal boards and SGEs who serve on federal 

advisory boards, committees, or commissions. For example, the HHS 

human capital office provided data that showed 500 to 600 SGEs not 

serving on federal boards at one of its components, the Food and Drug 

Administration (FDA), every year between fiscal years 2005 and 2014.

However, FDA human capital officials disagreed and said they were only 

aware of one SGE not serving on federal boards at FDA for that period. A 

FDA human capital official told us that most of the SGEs at FDA are 

serving on advisory boards or are committee members. The FDA human 

capital official said it generally only has a few experts or consultants, and 

those individuals may be hired on indefinite appointments or not to 

exceed 5-year appointments.

When asked about the reason for the discrepancy, HHS provided no 

explanation. According to the HHS Office of General Counsel Ethics staff, 

the office relies on data provided by components and staff offices, and 

takes no additional steps to verify data for the annual OGE ethics survey.
Page 16 GAO-16-548 Federal Workforce 

In Internal Control Standards for the Federal Government, we have 

previously reported that information should be recorded and 

communicated in a form that enables entities to carry out their internal 

control and other responsibilities.25 HHS’s Human Resource Manual 

instructions on the appointment of experts and consultants contains 

guidance on identification of expert and consultants, for instance, but no 

guidance on appropriately identifying an expert or consultant as a SGE 

not serving on federal boards. Additionally, the instructions do not include 

any mention of the circumstances under which experts and consultants 

may be considered a SGE or when coordination among the hiring, human 

capital, or ethics offices is appropriate. Without clarifying guidance on 

identifying SGEs not serving on federal boards, HHS cannot be assured 

that the agency is reporting reliable data to OGE and OPM.

We did not review whether these issues are occurring at other executive 

branch agencies. However, issues such as these reduce the reliability of 

the government’s data on SGEs. By strengthening data, agencies will be 

better positioned to identify SGEs not serving on federal boards, perform 

the appropriate ethics review for their SGEs not serving on federal 

boards, and provide the appropriate ethics training. Moreover, accurate 

and complete data are important to allow OGE and Congress to provide 

informed oversight of agencies using SGEs not serving on federal boards.

25GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1

(Washington, D.C.: November 1999). 

Selected Agencies 

Appointed SGEs 

Primarily Using 

Expert and 

Consultant Hiring 

Authority and Utilized 

Them in Specialized 

Areas
Page 17 GAO-16-548 Federal Workforce 

Three of the five selected agencies hired most of their SGEs not serving 

on federal boards under the government-wide expert and consultant 

hiring authority, 5 U.S.C. § 3109. Section 3109 permits agencies to 

appoint experts or consultants without regard to the competitive service 

hiring rules. Additional government-wide temporary hiring authorities were 

used, but to a lesser degree. State officials, for example, said the agency 

also uses government-wide temporary hiring authorities under which 

retired former Foreign Service or civil service retirees, among others,

would be eligible for noncompetitive appointment for on-boarding SGEs.26

Two of the five agencies, NSF and NRC, more often used their own 

agency-specific hiring authorities when on-boarding SGEs.27 NSF officials 

use an agency-specific hiring authority under the National Science 

Foundation Act of 1950, as amended, to on-board most of their SGEs.28

Similarly, NRC officials said they primarily use their hiring authority under 

section 161d of the Atomic Energy Act of 1954, as amended, to hire 

SGEs (see appendix IV for more information on hiring authorities used by 

the selected agencies, including government-wide and agency-specific 

authorities).29

Four of the five selected agencies had written policies specifically for 

SGEs or experts and consultants, while one—DOJ—did not. As 

mentioned earlier, in 2014, State issued written guidance and procedures 

on the on-boarding and designation process for SGEs not serving on 

boards. The written guidance included critical questions for managers to 

consider when determining SGE status, the primary hiring authorities to 

use, roles and responsibilities for the appropriate offices, and instructions 

for documenting appointments. The guidance is explicit about preparing 

the personnel action and including the use of the appropriate OPM

265 C.F.R. § 316.402(b)(1) and (3).

27It should be noted that not all experts or consultants or individuals hired under agencyspecific hiring authorities are SGEs. 

28This provision, codified at 42 U.S.C. § 1873(a), authorizes NSF to make temporary or 

limited term appointments without regard to the competitive hiring rules for the competitive 

service.

29This provision, codified at 42 U.S.C. § 2201(d), permits NRC to appoint its employees 

without regard to the civil service laws. NRC has implemented this authority to appoint 

individuals consistent with 5 U.S.C. § 3109 (and 5 C.F.R. part 304). 

Most Selected Agencies 

Use the Expert and 

Consultant Hiring Authority 

and Have Guidance or 

Require Documentation 

for the Designation 

Process
Page 18 GAO-16-548 Federal Workforce 

remark code indicating the individual is a SGE. For example, the contents 

of State’s SGE on-boarding package include

• electronically completed OGE 278 or OGE 450 in the agency’s

Financial Disclosure Management system;

• conflict of interest clearance request checklist from State’s Legal

Office of Ethics and Financial Disclosure;

• individual’s position description;

• hiring manager’s certification that it is not anticipated that the

employee’s duties will require more than 130 days of service;

• individual’s acknowledgement of ethics guidance review by signing

and dating the last page of the seven page document on Government

Ethics Guidance;

• individual’s resume; and

• in certain cases, a signed Ethics Agreement, if required by State’s

Legal Office of Ethics and Financial Disclosure.

Specifically, State’s human capital staff circulates a SGE ethics clearance 

and request package to the hiring bureau’s human capital as well as to 

the ethics office, housed in State’s office of general counsel. HHS, NSF, 

and NRC had written guidance on human capital policies and procedures 

for experts and consultants that agency officials said was applicable to 

SGEs not serving on federal boards. DOJ’s Departmental Ethics office 

had no written guidance on human resources policies specifically for 

SGEs not serving on federal boards.

Three of the five selected agencies (NRC, NSF, and State) required 

documentation for the SGE on-boarding. For example, at NRC, the hiring 

office must submit a justification for on-boarding an expert/consultant that 

is a SGE not serving on federal boards. The justification required an 

explanation of why the expertise is needed, what projects the expert will 

work on, and why the expertise is not already available in house. NRC 

also has a checklist for the steps that should be followed by the 

appropriate offices that play a role in on-boarding a SGE. Conversely, 

NSF has requirements for documenting expert/consultants in its internal 

guidance, but nothing specific for SGEs is required on the personnel 

manual. 

In addition to SGEs that are individuals hired from outside (including 

those reemployed retired federal employees who are SGEs), three of our 
Page 19 GAO-16-548 Federal Workforce 

selected agencies identified examples of an employee who became a 

SGE after a conversion (or change) in the individual’s appointment. 

Selected agencies said such conversions are infrequent. Generally, a 

conversion is a change of appointment (under either the same or a

different appointment authority) in the same agency without a break in 

service.30 Conversions are appointment actions taken according to the

rules related to the appointment into which the conversion results.

Appointment rules would prescribe, among other things, the process

required for making the appointment, eligibility, and qualification 

requirements. For example, a conversion action into an expert position 

under section 3109 would have to comply with the requirements under

that authority, including that the expert position requires the services of a

specialist with skills superior to those of others in the same activity, and

that the individual to be appointed is regarded as an authority or

practitioner of unusual competence and skill in a professional, scientific,

technical, or other activity.31 These conversions included:

• DOJ officials reported that a senior noncareer employee, who wished

to return to academia, resigned and the following day was appointed

to an intermittent consultant position. The consultant appointment was

not to exceed 5 months and therefore since the employee would be in

a temporary appointment that would not exceed 130 days, the

employee was a SGE. Agency officials explained that the conversion

was justified because there were a number of pending matters for

which the office had a continuing need for the employee’s expertise,

which they viewed as essential for program stability.

• NRC officials reported two instances when regular employees

became SGEs through conversion actions. In both instances, retired

NRC employees had been reemployed as regular (non-SGE)

employees. Subsequently, both employees’ appointments were

converted to consultant appointments (in conformance with NRC’s

guidance on consultants), resulting in the employees becoming SGEs.

NRC said the conversions resulted from changes to the work

assignments and responsibilities of both individuals.

30A break in service of 3 days or less is permitted in conversion actions in the excepted 

service.

31See OPM regulations implementing 5 U.S.C. § 3109 at 5 C.F.R. part 304.
Page 20 GAO-16-548 Federal Workforce 

• State officials reported that a senior presidential appointee, who 

intended to retire, was appointed to an expert/consultant position, 

resulting in the employee becoming a SGE. The department justified 

the appointment because the employee had deep expertise on foreign 

policy issues (he had served in the Foreign Service for decades) and 

the appointment would enable the department to call upon him from 

time to time to provide expert advice to the foreign affairs community.

The selected agencies used SGEs not serving on federal boards for their 

expertise in a variety of policy areas: science, health care, foreign affairs, 

legal, and inspections, as shown in figure 5. 

SGEs Work in Highly 

Specialized Areas and 

Supervisors Generally 

Track Days
Page 21 GAO-16-548 Federal Workforce 

Figure 5: SGEs Not Serving on Federal Boards Fill a Variety of Roles for Short-Term Expertise at Selected Agencies

Officials from the selected agencies said SGEs not serving on federal 

boards are typically used for short-term needs and often in response to 

unforeseen events such as natural disasters, terrorist attacks, a 

resignation, or an increase of work on issues requiring specific scientific 

expertise. Some SGEs were hired to fill administrative positions, as well; 

for example, NRC hired a budget specialist and NSF employed a SGE 

with expertise in organizational equal employment issues.
Page 22 GAO-16-548 Federal Workforce 

Selected agency officials told us that their SGEs provide services in a 

variety of ways, including the following:

• At NSF, SGEs provided scientific expertise on specific initiatives, 

conducting evaluations and advising on NSF programs, including 

international programs, and providing oversight of cross-directorate 

programs. NSF SGEs may also advise and assist in the development 

of short- and long-range plans, and assist in establishing goals and 

objectives for research programs.

• At DOJ, SGEs served on the September 11th Victim Compensation 

Fund initiative. For example, DOJ SGEs included the Special Master 

who presided over the Compensation Fund proceedings and staff who 

supported the Special Master.32 Other SGEs at DOJ provided quick 

turnaround assistance to the agency in preparing for congressional 

testimonies or other very narrowly tailored needs.

• At HHS, SGEs often served as intermittent employees who worked for 

the National Disaster Medical System (NDMS).33 For example, many 

NDMS SGEs provided support to the Federal Emergency 

Management Agency after a disaster. HHS also used SGEs not 

serving on a federal board to 1) advise and consult on acquiring 

materials for its medical library to administer health coaching 

programs, 2) develop and implement a health coaching program, and 

3) advise on a strategy to achieve accreditation for one of its 

operating divisions.

• At NRC, SGEs often served in areas such as engineering, scientific, 

and other technical (professional) occupational series. NRC SGEs 

roles and responsibilities included providing services related to 

 

32The September 11th Victim Compensation Fund of 2001, Pub. L. No. 107-42, title IV, 

115 Stat. 230, 237 (Sept. 22, 2001). The Fund was reactivated and amended under title II 

of the James Zadroga 9/11 Health and Compensation Act of 2010, Pub. L. No. 111-347, 

124 Stat. 3623, 3659 (Jan. 2, 2011). Title II of the Act reactivated the September 11th 

Victim Compensation Fund that operated from 2001 to 2004 and requires a Special 

Master, appointed by the Attorney General, to determine eligibility and provide 

compensation for any individual (or a personal representative of a deceased individual) 

who suffered physical harm or was killed as a result of the terrorist-related aircraft crashes

of September 11, 2001, or the debris-removal efforts that took place in the immediate 

aftermath of those crashes.

33NDMS is a section of HHS responsible for managing the federal government’s medical 

response to major emergencies and disasters. 
Page 23 GAO-16-548 Federal Workforce 

security administration, human factors, budget analysis, technical 

writing and editing, and visual information.

• At State, SGEs most often served as Foreign Affairs officers, senior 

advisors, management analysts, and physical scientists. For example, 

State officials highlighted initiatives and issues that require quick 

action in hiring appropriate experts, such as a public outreach position 

for the Arab community. 

Officials from four of the selected agencies told us that supervisors are 

generally responsible for tracking whether the SGE stays within the 130-

day service estimate. DOJ officials permit their SGEs to track their own 

days of service. State officials reported that they have examples of SGEs 

exceeding the 130-days in 1 year and human resources reevaluating their 

status for the next year. NSF has built a feature into its personnel system 

that alerts the supervisor and human resources office when a SGE is 

approaching the end of expected days of service for the agency.

OGE reviews of executive branch agencies’ ethics programs have found 

few issues specific to SGEs and none for SGEs not serving on federal 

boards. We issued two SGE-related reports since 2004 where we discuss 

guidance and policies available to agencies and potential conflicts of 

interest of individuals who serve on advisory committees and boards.34

Our analysis of 23 OGE reviews conducted at the CFO Act and 

Consumer Financial Protection Bureau for fiscal years 2005 to 2014 

showed no issues specific to SGEs not serving on federal boards. 

According to OGE and officials at our selected agencies, at the time of 

our review, there were no outstanding OGE recommendations at the five 

agencies.

OGE primarily conducts two types of ethics program reviews: plenary 

reviews and inspections. During a plenary review, OGE generally 

examines all elements of an agency’s ethics program, including its

• structure and general administration;

 

34GAO, FDA Advisory Committees: Process for Recruiting Members and Evaluating 

Potential Conflicts of Interest, GAO-08-640 (Washington, D.C.: Sept. 30, 2008) and 

Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure 

Independence and Balance, GAO-04-328 (Washington, D.C.: Apr. 16, 2004).

OGE Reviews Have 

Found No Issues for 

SGEs Not Serving on 

Federal Boards
Page 24 GAO-16-548 Federal Workforce 

• public and confidential financial disclosure process;

• ethics training, advice, and counseling program;

• enforcement of ethics-related statutes and regulations, including 

supplemental standards of conduct regulations; and

• administration of its ethics program as it applies specifically to 

advisory committees and SGEs.

As part of the plenary reviews, OGE evaluates whether an agency made 

an affirmative determination as to whether or not a member of an 

advisory committee is a SGE rather than a representative. OGE officials 

said this helps ensure that those advisory committee members who will 

be expected to provide advice to the government (rather than on behalf of 

a group or industry the member represents) are designated as SGEs and 

therefore appropriately covered by ethics and conflicts of interest 

provisions. In 2015, OGE’s Program Review Branch examined all ethics 

program review reports issued from January 1, 2009, through September 

30, 2015, to determine how they addressed issues involving SGEs.35 The 

examination covered 238 review reports and identified model practices 

related to SGEs and recommendations, and suggestions regarding 

management of SGEs during the specified period.

According to OGE officials, the majority of the recommendations OGE 

makes about SGEs following plenary reviews are focused on the 

determinations agencies made between designating an advisory 

committee member as a representative or as a SGE. According to OGE 

officials, an agency that fails to properly designate a member of an 

advisory committee as a SGE, but rather designates the member as a 

representative, poses a risk to the government because that member is 

not subject to ethics and conflicts of interest provisions (including agency 

reviews for conflicts of interest). Based on its reviews and the results from

its annual questionnaire, OGE officials said they believe agencies are 

more routinely properly designating advisory committee members as 

SGEs in recent years.

According to OGE, its inspections are a streamlined version of the 

plenary review process. Inspections focus on the core elements of an 

 

35OGE Compliance Division, Summary Report: Special Government Employees (October 

2015). 
Page 25 GAO-16-548 Federal Workforce 

agency’s ethics program, which include overall program administration, 

public and confidential financial disclosure systems, ethics training, and 

ethics advice and counseling. Inspections do not focus specifically on 

advisory committees or SGEs. However, if a concern specific to SGEs 

was to be identified during the inspection, the issue would be addressed 

and noted in the inspection report. Alternatively, according to OGE’s 

procedures, if the issue was of sufficient magnitude, OGE would initiate a 

more comprehensive plenary review of the agency’s ethics program.

OGE is responsible for ordering action it deems necessary to correct 

deficiencies in agency ethics programs.36 If OGE orders corrective action 

and the agency does not comply, OGE may notify the President and 

Congress.37 Additionally, OGE is responsible for ordering action it deems 

necessary with respect to individual employees and, to do so, is 

authorized (among other things) to recommend that an agency 

investigate possible violations of any rule, regulation, or Executive order 

relating to conflicts of interest or standards of conduct.38 OGE officials 

said that agency Inspectors General are better positioned to investigate 

potential ethics or conflicts of interest violations by individual employees. 

OGE does not review or intervene in ongoing agency investigations; 

however, it may provide the agency with technical assistance if 

requested.

 

365 U.S.C. app. 4, § 402(b)(9) and (f)(1). OGE orders corrective action under the 

procedures set forth under 5 C.F.R. part 2638, subpart D. Under these procedures, initially 

OGE will issue a notification to the agency of any programmatic deficiency and request 

the agency report relevant information back to OGE concerning those deficiencies. Based 

on the agency’s report, if OGE determines that a deficiency is not being corrected by the 

agency, OGE will issue an order to the agency specifying, in part, the corrective action 

required to be taken to remedy the deficiency and any agency reporting required to 

establish that the corrective action has been accomplished (or plans for doing so). 5 

C.F.R. part 2638, subpart D. 

375 U.S.C. app. 4, § 402(f)(1). If the agency fails to comply with this order, OGE will report 

the noncompliance to the President and Congress, after providing the agency with notice 

of such action and the opportunity to provide comments. 5 C.F.R. §§ 2638.403-404. 

385 U.S.C. app. 4, § 402(b)(9) and (f)(2). This authorization does not extend to making a 

finding that a criminal statute relating to conflicts of interest has been violated. Neither 

OGE nor individual agencies have authority to make such findings. 5 U.S.C. app. 4, § 

402(f)(5). 5 C.F.R. § 2638.501(c). Suspected violations of criminal conflicts of interest 

statutes are to be referred for possible prosecution to the Attorney General pursuant to 28 

U.S.C. § 535. OGE requires that an agency concurrently notify it when making such a 

referral. 5 C.F.R. § 2638.603.
Page 26 GAO-16-548 Federal Workforce 

Given the enormous complexity involved in delivering the wide array of 

services the federal government provides to U.S. citizens daily, agencies 

need the ability to obtain temporary outside skills, opinions, and expertise 

for improvement of government services and operations. The SGE 

category helps to ensure that the government can satisfy recruitment 

needs while ensuring integrity of government service. While agencies are 

overwhelmingly using SGEs for federal advisory committees and boards, 

a very small number of SGEs not serving on federal boards is filling a 

niche for short-term, unique, or unforeseen situations requiring specific 

skillsets.

Agencies are responsible for reporting on SGEs not serving on federal 

boards to OGE and OPM requires agencies to identify SGEs on an 

individual’s personnel action. However, agencies may have reporting 

challenges as a result of weak internal coordination among offices with a 

role in designating and identifying SGEs not serving on boards and 

misunderstandings about which individuals are in this category. Although 

OGE has taken recent steps to improve agencies’ reporting, the reliability 

of agencies’ data is dependent on how well they coordinate internally and 

how well agencies understand the SGE designation. Given the 

misunderstanding about SGEs that we found at selected agencies, 

additional research may be needed to determine whether other agencies 

are experiencing challenges similar to those we identified at selected 

agencies. Stronger internal coordination among offices that maintain SGE 

data would strengthen the SGE data that agencies report to OGE and 

OPM. In particular, unless HHS takes steps to reconcile differences 

between data held by components and its headquarters, and reconcile 

differences in data held by its ethics office with data held by its human 

capital office, the agency cannot be assured of the reliability of its data on 

SGEs not serving on federal boards. By strengthening data, agencies will 

be better positioned to report reliable data on SGEs not serving on federal 

boards to OGE and OPM. Moreover, OGE and Congress may provide 

better oversight of agencies using SGEs not serving on federal boards.

Conclusions
Page 27 GAO-16-548 Federal Workforce 

To help ensure HHS has reliable data on SGEs not serving on federal 

boards, we recommend that the Secretary of HHS take steps to improve 

the reliability of data on SGEs not serving on boards. For example, the 

agency could reconcile human capital data with general counsel and 

ethics office data, or issue clarifying guidance to human capital staff on 

appropriately identifying SGEs in human capital databases. 

To help ensure that agencies report consistent and reliable data, the 

Director of OGE should determine (e.g., through a survey of Designated 

Agency Ethics Officials and/or by analyzing agency data) whether other 

executive branch agencies are experiencing data challenges similar to 

HHS, State, and NRC. If they are, the Director should take steps to help

the agencies strengthen their data.

We provided a draft of this report to the Directors of OGE, OPM, and 

NRC; the Secretaries of HHS and State; the Senior Staff Associate of 

NSF; and the Assistant Attorney General for Administration at DOJ for 

review and comment. OGE and HHS provided us with written comments 

(reproduced in appendixes VI and VII). In its written comments, HHS 

concurred with our recommendations. In OGE’s written comments, it 

partially concurred with our recommendation to determine whether other 

executive branch agencies are experiencing data challenges similar to 

HHS, State, and NRC. OGE said it concurs with the emphasis on 

ensuring that agencies report consistent and reliable data and that it will 

survey ethics officials or otherwise analyze agency data as 

recommended. However, OGE stated it has no authority to direct human 

resources offices to collect or share data or to otherwise coordinate with 

agency ethics offices. We maintain that OGE has the inherent authority to 

require agencies to ensure that their reported information is reliable. We 

did not suggest that OGE direct agency human resources officials to take 

specific steps regarding SGE data. Rather, we believe that through 

collaborative actions between agency ethics and human resources 

officials, agencies can ensure reported information on SGE is reliable.

Although none of the other agencies provided comments on the report’s 

findings, conclusions, or recommendations, all of the agencies provided 

technical comments that were incorporated, as appropriate.

Recommendations for 

Executive Action

Agency Comments 

and Our Evaluation
Page 28 GAO-16-548 Federal Workforce 

As agreed with your office, unless you publicly announce the contents of 

this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies to the Director of the Office 

of Government Ethics, the Director of the Office of Personnel 

Management, as well as to the appropriate congressional committees and 

other interested parties. In addition, the report will be available at no 

charge on the GAO website at http://www.gao.gov. 

If you or your staff have any questions about this report please contact 

me at (202) 512-6806 or jonesy@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 who made key contributions to this report 

are listed in appendix VIII. 

Sincerely yours,

Yvonne D. Jones 

Director, Strategic Issues
Appendix I: Objectives, Scope, and 

Methodology

Page 29 GAO-16-548 Federal Workforce 

The objectives of this engagement were to review agencies’ use and 

oversight of the special government employee (SGE) designation in the 

federal workforce for SGEs not serving on federal boards at the 24 

agencies covered under the Chief Financial Officers (CFO) Act of 1990, 

as amended, and the Consumer Financial Protection Bureau (CFPB). 

This report (1) describes what is known about the total number of SGEs 

not serving on federal boards in the executive branch as well as at CFO 

Act agencies and CFPB; (2) assesses the extent to which the Office of 

Government Ethics (OGE), Office of Personnel Management (OPM), and 

selected agencies identify and report data on SGEs not serving on 

federal boards; (3) assesses how selected agencies appoint, utilize, and 

oversee SGEs not serving on federal boards, and describes the relevant 

hiring authorities and ethics requirements; and (4) examines how, if at all, 

OGE oversees and ensures compliance with ethics requirements for 

SGEs, including the proper identification of individuals as SGEs, 

consistent with 18 U.S.C. § 202(a).

To address these objectives, we reviewed the federal statutes, 

regulations, and agency guidance that address ethics requirements for 

federal executive branch employees, including the proper designation of 

SGEs and statutes and regulations related to hiring authorities that 

agencies use to on-board SGEs, and we interviewed agency officials 

responsible for ensuring compliance with ethics and hiring requirements 

for SGEs.

We selected five agencies—the Department of Health and Human 

Services (HHS), Department of Justice (Justice), Department of State 

(State), National Science Foundation (NSF), and Nuclear Regulatory 

Commission (NRC) —to provide case illustrations of agencies’ use of 

SGEs not serving on federal boards. We selected the agencies based on 

the following factors: (1) number of SGEs, (2) ratio of non-Federal 

Advisory Committee Act (FACA) SGEs compared to the agency’s 2-year 

on-board average of all employees over the period of fiscal years 2014 to

2015, (3) agency size, (4) OGE ethics program review results, and (5) 

agency responses to OGE on the amount of time the agency indicated it 

spends overseeing SGEs.

To describe what is known about the total number of SGEs not serving on 

federal boards in executive branch agencies, as well as at CFO Act 

agencies and CFPB, we examined agency use of SGEs reported by OGE 

for calendar years 2005 through 2014. Each executive branch agency is 

required to submit an annual report to OGE on the agency’s ethics 

program including, among other things, data on agency use of SGEs. To 

Appendix I: Objectives, Scope, and 

Methodology
Appendix I: Objectives, Scope, and 

Methodology

Page 30 GAO-16-548 Federal Workforce 

assist agencies in fulfilling this requirement, OGE provides an annual 

questionnaire to each executive branch agency that covers the preceding 

year. OGE’s data represent a point in time assessment—the last day of 

the calendar year—and may not include individuals who were employed 

during the year but were not employed on the last day of the calendar 

year. We also reviewed documentation and interviewed OGE officials 

about recent steps the agency took to improve OGE’s reporting on SGEs.

To assess the extent to which OGE, OPM, and selected agencies 

identify, collect, and report data on SGEs not serving on federal boards, 

we analyzed OGE’s, OPM’s, and selected agencies’ data related to the 

number of SGEs not serving on federal boards at CFO Act agencies and 

CFPB for fiscal years 2005 through 2014. We assessed the reliability of 

OGE’s, OPM’s, and selected agencies’ data on SGEs not serving on 

federal boards. We compared OGE’s data on the total number of SGEs 

not serving on federal boards with selected agencies’ data for the most 

recent years available—2012 and 2013. We also compared data on 

individual SGEs not serving on federal boards from the five selected 

agencies with records for SGEs for these agencies in OPM’s Enterprise 

Human Resources Integration (EHRI) system using the effective date of 

the SGE appointment and other variables, such as grade, step, and 

gender, which is a method we have used in previous reports. Generally, 

we found OGE’s and four of the selected agencies’ data sufficiently 

reliable (State, NSF, NRC, and DOJ) to report annual totals of SGEs not 

serving on federal boards. We also found that one of the selected 

agencies, HHS, provided unreliable effective dates for SGEs not serving 

on federal boards. Specifically, the SGE on-board dates provided by HHS 

were invalid when compared to effective dates of personnel actions in 

EHRI, which are reliable for this field. For two agencies, we found several 

instances of misidentified SGEs not serving on federal boards, and after 

discussion with the agencies, they provided corrected data. We found that 

OPM data did not have complete information that would allow us to 

identify SGEs not serving on federal boards.

To assess how selected agencies appoint, utilize, and oversee SGEs, we 

examined agency documentation and interviewed agency officials on the 

(1) process for designating and hiring SGEs not serving on federal 

boards, (2) hiring authorities used, (3) types of roles and responsibilities 

SGEs performed, and (4) agency tracking of whether SGEs stay within 

the 130-day service estimate. We examined internal coordination on 

SGEs not serving on federal boards among hiring, ethics, and general 

counsel offices by interviewing agency officials at the department level 

and component/sub-agency level, reviewing agency documentation, and 
Appendix I: Objectives, Scope, and 

Methodology

Page 31 GAO-16-548 Federal Workforce 

comparing human resource data maintained by department level human 

resource offices with data maintained at the component or sub-agency 

level on SGEs not serving on federal boards. 

To examine how, if at all, OGE oversees and ensures compliance with 

ethics requirements for SGEs, we examined statutes and regulations 

covering OGE’s role and responsibilities. We examined 23 OGE reviews 

of agency level ethics programs at 24 CFO Act agencies and the CFPB 

for fiscal years 2005 to 2014 to determine whether OGE identified issues 

relating to SGEs not serving on federal boards and whether OGE had any 

related open recommendations. Since the Department of Defense did not 

have a review during that period, we included reviews conducted at 

component agencies (Army, Navy, and Air Force). We also examined 

agency documentation such as the Summary Report: Special 

Government Employees, October 2015, and interviewed officials on 

OGE’s roles, responsibilities, and compliance activities. 

We conducted this performance audit from April 2015 to July 2016, in 

accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives. 
Appendix II: Legislative History of the Special 

Government Employee Designation

Page 32 GAO-16-548 Federal Workforce 

Congress created the special government employee (SGE) category in 

1962 when revising the criminal laws relating to bribery, graft, and conflict 

of interest prohibitions.1 With regard to conflict of interest prohibitions, the 

1962 law was intended, in part, to establish more appropriate prohibitions 

for a category of employees consisting of consultants and other 

temporary employees to facilitate the government’s recruitment of such 

persons from outside the government. 

The 1962 act was the culmination of years of study by groups inside and 

outside of government concerning how best to assure high ethical 

standards in the conduct of the federal government.2 Their work revealed, 

in part, that the existing conflict of interest laws had an unnecessarily 

harsh impact on temporary employees and made it harder for agencies to 

obtain temporary service of persons with specialized knowledge and 

skills, advisers who provide essential counsel, and highly skilled 

technicians. During congressional testimony, examples were provided 

concerning the impact the existing conflict of interest laws had on agency 

recruitment. For example, an attorney declined a position on an advisory 

committee concerning the civil service system because he was 

concerned that to serve he would have to resign from his firm, which 

represented individuals in their dealings with federal agencies (such as 

the Internal Revenue Service). In another example, an individual who had 

served full time in the Department of State but left was asked to return as 

a part-time consultant to leverage the considerable knowledge he had 

acquired while employed with the department overseas. He declined 

 

1

Act of October 23, 1962, Pub. L. No. 87-849, 76 Stat. 1119.

2

One of the most notable studies conducted was by a special committee on Federal 

Conflict of Interest Laws of the New York City Bar Association which culminated in a 

report published in 1960. One of the key recommendations of this Bar Association report 

was to recognize in statute a distinction between full-time and intermittent employees. 

Roswell B. Perkins, Chairman, Special Committee on Federal Conflict of interest laws, 

Association of the Bar of the City of NY, testified before congressional committees 

regarding this study’s findings and recommendations. The report was published by 

Harvard University Press. Association of the Bar of the City of New York, Conflict of 

Interest and Federal Service (1960). 

Appendix II: Legislative History of the 

Special Government Employee Designation
Appendix II: Legislative History of the Special 

Government Employee Designation

Page 33 GAO-16-548 Federal Workforce 

because the application of the law would have exposed him to criminal 

liability.3

 

Prior to the act, most of the existing laws originated in the 19th Century, 

at a time when persons outside the government rarely served as 

consultants or advisers. Therefore, the laws were aimed at the activities 

of regular full-time employees, rather than at a consultant or other 

temporary employee whose main work was performed outside the 

government. While Congress had recognized the adverse impact these 

laws had on temporary employees and granted specific statutory 

exemptions from time to time, this approach created an inconsistent 

range of exemptions.4 To address this issue, Congress created a uniform 

means of imposing special rules on all temporary employees expected to 

serve within specified time limits. In doing so, Congress aimed to balance 

efforts to ensure integrity of government service with recruitment needs.5

 

 

3

Federal Conflict of Interest Legislation; Hearings Before the Antitrust Subcommittee. of 

the House Comm. on the Judiciary, 86th Cong. 406-407 (1960) (testimony of Roswell B. 

Perkins, Chairman, Special Committee on federal conflict of interest laws, Association of 

the Bar of New York). 

4

H.R. Rep. No. 87-748, at 2-8 and S. Rep. No. 87-2213, at 4-7. 

5

H.R. Rep. No. 87-748, at 2 (1961) and S. Rep. No. 87-2213, at 4 (1962). 
Appendix III: Ethics Provisions Applicable to 

Non-Special Government Employees 

Compared to Special Government Employees 

Not Serving on Federal Advisory Committees 

or Other Boards

Page 34 GAO-16-548 Federal Workforce 

A special government employee (SGE) is an employee of the federal 

government and therefore generally subject to ethics rules applicable to 

employees. SGEs must be distinguished from individuals that work for the 

federal government as independent contractors (rather than employees), 

who would not be covered by federal employee ethics rules. While some 

ethics rules apply differently to SGEs (or in fewer instances, do not apply 

at all), most ethics provisions apply to SGEs. 

The following is an overview of selected government-wide ethics 

provisions for executive branch employees and how they apply to SGEs 

that are not serving on Federal Advisory Committee Act (FACA) 

committees. Under the heading “Non-SGEs” is a general description of 

each provision. Under the heading “SGEs (Non-FACA)” is a general 

description of modifications to SGE coverage (if any). This is not a 

comprehensive listing of ethics provisions.1 Moreover, we have excluded 

differences in coverage which are exclusively applicable to SGEs serving 

on FACA committees as these SGEs are outside the scope of this report. 

 

1

This summary does not reflect any agency-specific ethics provisions applicable to our 

case study agencies.

Appendix III: Ethics Provisions Applicable to 

Non-Special Government Employees 

Compared to Special Government 

Employees Not Serving on Federal Advisory 

Committees or Other Boards
Appendix III: Ethics Provisions Applicable to 

Non-Special Government Employees 

Compared to Special Government Employees 

Not Serving on Federal Advisory Committees 

or Other Boards

Page 35 GAO-16-548 Federal Workforce 

Table 1: Ethics Provisions for Executive Branch Employees

Ethics Provisions for Executive Branch Employees 

Non-Special Government Employees (SGE) SGEs 

(Non-Federal Advisory Committee Act) 

Financial Disclosure

Publica: Generally, employees above GS-15 (or equivalent) are 

required to file a public disclosure form which is available to the 

public.b Employees are required to file within 30 days of 

assuming their position, annually, and by 30 days after 

termination of employment.

Employees may not be required to file a new entrant, annual, or 

termination report where the employee is not expected to 

perform (or does not perform) services for more than 60 days 

during the relevant period. Public: Same rules apply

Confidentialc: Generally, employees at the GS-15 level or below 

(or equivalent) do not file a confidential disclosure form unless 

their duties involve the exercise of discretion (e.g., contracting, 

administration of grants). Employees are required to file within 30 

days of assuming position and annually, except where the 

employee is not expected to perform (or does not perform) 

services for more than 60 days during the relevant period. 

Confidential: Generally, SGEs who are not required to file a 

public disclosure form are to file a confidential form without 

regard to their length of service, unless it is determined that the 

duties of the position make the possibility of a real or apparent 

conflict of interest remote. This includes SGEs who were 

excluded from filing a public disclosure form due to the short 

period of expected service. 

SGEs do not file annual reports, rather must file new entrant 

reports (covering the preceding 12 months) upon each 

appointment or reappointment due to the temporary nature of 

their appointments. 

Financial Conflicts of Interest

Employees are prohibited under the criminal statute, 18 U.S.C. §

208, from personally and substantially participating in any 

particular matter that would have a direct and predictable effect 

on the employee’s financial interest or the financial interest of 

those imputed to the employee (e.g., financial interests of 

spouse, minor child, an outside organization with whom 

employed or negotiating for employment). Same rule applies. 

While section 208 would require disqualification from 

participating in those matters referenced above, it authorizes 

waivers of the disqualification requirement, either by regulation 

under subsection (b)(2) (where the financial interest is too remote 

or inconsequential to affect the integrity of an employee’s 

service) or by individual agency determinations under subsection 

(b)(1) (where the financial interest is not so substantial as to 

affect the integrity of the employee’s service). Same rules apply. 

In addition to waivers under section 208(b)(1), an employee may 

be able to participate if he divests himself of the disqualifying 

financial interest. Same rule applies. 

An employee may obtain a certificate of divestiture allowing more 

favorable tax treatment under these circumstances.

SGEs are not eligible to receive a certificate of divestiture if 

required to sell property to resolve a conflict of interest.d
Appendix III: Ethics Provisions Applicable to 

Non-Special Government Employees 

Compared to Special Government Employees 

Not Serving on Federal Advisory Committees 

or Other Boards

Page 36 GAO-16-548 Federal Workforce 

Limits on Representational Activities of Current Employees

Employees are prohibited under the criminal provision, 18 U.S.C.

§ 205(a)(2), from personally representing another (with or without 

compensation) before any court, federal agency (or other federal 

entity) in connection with any particular matter in which the 

United States is a party or has a direct and substantial interest. 

SGEs are prohibited only concerning certain particular matters

involving specific parties (such as contracts, grants, requests for 

rulings, litigation, investigations). SGEs are not prohibited where 

the particular matter is of general applicability, such as broad 

policies, rulemaking proceedings, and legislation which do not 

involve specific parties. 

The prohibition applies to those matters involving specific parties 

(1) which are pending in the SGE’s agency or (2) in which the 

SGE participated (as a government employee or SGE). 

For those who have served no more than 60 days (during 

preceding year), the prohibition on matters involving specific 

parties pending in the SGE’s agency does not apply. 18 U.S.C. 

§ 205(c). 

Employees are prohibited under the criminal provision, 18 U.S.C. 

§ 203(a), from receiving compensation related to 

representational services provided in connection with any 

particular matter in which the United States is a party or has a 

direct and substantial interest, including when those services are 

provided either personally or by another. 

Same differences in application noted above (for section 

205(a)(2)). 

Misuse of Position

Employees are prohibited under the standards of conduct (5 

C.F.R. part 2635, subpart G) from

• using their public office for their own private gain, 

including the private gain of friends and those with 

whom they are affiliated,

• using nonpublic information to further their own private 

interest or that of another, and

• using government property for unauthorized purposes. Same rules apply. 

Outside Payments, Income, and Gifts

Employees are subject to the criminal bribery and illegal gratuity 

statute which prohibits employees, under specified 

circumstances, from receiving anything of value in connection 

with official acts. 18 U.S.C. § 201(b), (c). Same rules apply. 

Employees are prohibited from receiving supplementation of their 

government salary under the criminal statute 18 U.S.C. § 209. 

No source other than the government can pay for performing 

government service. 

SGEs are not covered under 18 U.S.C. § 209, but are subject to 

other restrictions in the standards of conduct regulations on 

receiving outside compensation. See below. 

Employees are prohibited from receiving outside compensation 

for teaching, speaking, or writing that relates to their official duties 

by the standards of conduct. 5 C.F.R. § 2635.807. 

SGEs are covered under this prohibition but the definition of what 

is related to official duties is narrower. 

SGEs are still prohibited from receiving outside compensation 

where the activity is undertaken as part of a SGE’s official duties.

Employees above GS-15 (or equivalent), in covered noncareer 

positions, are prohibited from receiving outside earned income in 

any calendar year (attributable to that calendar year) in excess of 

15 percent of the annual rate of basic pay for level II of the 

Executive Schedule under the non-criminal statute 5 U.S.C. app. 

4, § 501.e SGEs are not covered under this restriction.f 
Appendix III: Ethics Provisions Applicable to 

Non-Special Government Employees 

Compared to Special Government Employees 

Not Serving on Federal Advisory Committees 

or Other Boards

Page 37 GAO-16-548 Federal Workforce 

Employees who are appointed by the President to certain full-time 

noncareer positions are under a total ban on outside earned

income during the individual’s presidential appointment, pursuant 

to section 102(a) of Executive Order No. 12674, Principles of 

Ethical Conduct for Government Officers and Employees.

g SGEs are not covered under this restriction.h

Employees are prohibited from accepting gifts from certain 

prohibited sources or given because of the their position pursuant 

to 5 U.S.C. § 7353 unless permitted under an exception set forth 

in the standards of conduct. 5 C.F.R. part 2635, subpart B. Same rule applies. 

Limits on Representational Activities of Former Employees

Former employees are under a lifetime (of a particular matter) ban 

on making contact with the intent to influence a federal employee 

on behalf of another concerning a particular matter involving 

specific parties in which the former employees were personally 

and substantially involved as an employee under criminal 

provision 18 U.S.C. § 207(a)(1). Same rule applies. 

Former employees are under a 2-year ban on making contact with 

the intent to influence a federal employee on behalf of another 

concerning a particular matter (involving specific parties) that was 

pending under the former employees’ official responsibility during 

their last year of service under criminal provision 18 U.S.C. § 

207(a)(2). Same rule applies. 

Former employees may not represent, aid, or advise another on 

the basis of nonpublic information in connection with trade or 

treaty negotiations in which the former employees were personally 

and substantially involved during the last year of the former 

employees’ service under criminal provision 18 U.S.C. § 207(b). Same rule applies. 

Former senior employees are under a 1-year ban on making 

contact with their former agency on any matter seeking official 

action on behalf of another under criminal provision 18 U.S.C. § 

207(c).

Former senior SGEs who serve less than 60 days in the year 

before terminating service are not covered by this ban. 18 U.S.C. 

§ 207(c)(2)(B). 

Source: GAO analysis. | GAO-16-548.

a

5 U.S.C. app. 4 § 101; 5 C.F.R. subpart B of part 2634.

b

An individual who is not under the GS, but is in a position for which the rate of basic pay 

is equal to or greater than 120 percent of the minimum rate of basic pay payable for GS- 15 is required to file a public disclosure form.

c

5 U.S.C. app. 4 § 107; Exec. Order No. 12674; 5 C.F.R. subpart I of part 2634.

d

26 U.S.C. § 1043(b)(1)(A). 

e

Covered noncareer employees include certain presidential appointees, noncareer 

members of the Senior Executive Service, and Schedule C appointees, among others. 

Implementing regulations are contained in 5 C.F.R. part 2636, subpart C.

f

5 U.S.C. app. 4, § 505(2).

g

Executive Order No. 12674, Principles of Ethical Conduct for Government Officers and 

Employees, 54 Fed. Reg. 15159 (Apr. 12, 1989) as amended, Exec. Order No. 12731, 55 

Fed. Reg. 42547 (Oct. 17, 1990), at 5 U.S.C. § 7301 note.

h

Executive Order No. 12674, § 102(a); and OGE Informal Advisory Memorandum, 00 x 1 

(Feb. 15, 2000), at 18.
Appendix IV: Government-wide and AgencySpecific Hiring Authorities Used to On-Board 

Special Government Employees by Selected 

Agencies

Page 38 GAO-16-548 Federal Workforce 

Agencies in our review used a number of government-wide and agencyspecific hiring authorities to on-board SGEs. The selected agencies 

frequently designated as SGEs individuals who had been appointed to 

serve as experts or consultants (under 5 U.S.C. § 3109, or a similar 

agency-specific authority). Under the government-wide authority 5 U.S.C. 

§ 3109, agencies may appoint experts and consultants, as needed, for 

temporary or intermittent work when authorized by an appropriation or 

other statute. Tables 2 and 3 show government-wide and agency-specific 

hiring authorities that our selected agencies reported using when hiring 

SGEs.1

Table 2: Government-wide Hiring Authorities Used at Selected Agencies

 

1

As noted below, this appendix may not contain all the relevant agency-specific hiring 

authorities used by HHS.

Appendix IV: Government-wide and AgencySpecific Hiring Authorities Used to On-Board 

Special Government Employees by Selected 

Agencies 

Government-wide hiring 

authority Purpose

Selected agencies

using this authority

Experts and Consultants

5 U.S.C. § 3109, 5 C.F.R. part 304

An agency may appoint (without regard to competitive examination 

requirements) a qualified expert or consultant to an expert or consultant 

position that requires only intermittent and/or temporary employment. 

OPM regulations provide criteria for circumstances in which it is 

appropriate to employ an expert or consultant, including defining who is 

a consultant or expert and what is a consultant or expert position.

HHS, DOJ, NSF, and 

State

Temporary Limited Appointments 

5 C.F.R. part 316, subpart D

An agency may fill a short-term position or meet an employment need 

that is scheduled to terminate (for such reasons as abolishment, 

reorganization, contracting of the function, anticipated reduction in 

funding, or completion of a specific project or peak workload).

a

• Under 5 C.F.R. § 316.402(b)(1), an agency may noncompetitively 

appoint a qualified individual who would be eligible for 

reinstatement (including a person who was previously employed 

under a career appointment).

• Under 5 C.F.R. § 316.402(b)(3), an agency may noncompetitively 

appoint a qualified individual who would be eligible for a careerconditional appointment, including current or former career Foreign 

Service officers or employees. 

State

Reinstatement Authority

5 C.F.R. § 315.401

An agency may reinstate (competitively or noncompetitively) a person 

who was previously employed under a career appointment. 

Reinstatements may be made noncompetitively when, for example, it is 

to a position having no greater promotion potential than a position 

previously held by the person. 

HHS
Appendix IV: Government-wide and AgencySpecific Hiring Authorities Used to On-Board 

Special Government Employees by Selected 

Agencies

Page 39 GAO-16-548 Federal Workforce 

Legend: 

HHS = Department of Health and Human Services

DOJ = Department of Justice

State = Department of State 

NSF = National Science Foundation 

NRC= Nuclear Regulatory Commission

Source: GAO analysis of data provided by selected agencies. | GAO-16-548

a

State uses these authorities for its Reemployed Annuitant Program. Individuals under this program 

work on a “when actually employed” schedule and are commonly referred to as WAEs. Specifically, 

WAEs work on an intermittent basis for no more than 1040 hours during a one year period.

Schedule A Appointments

5 C.F.R. part 213, subpart C

The Office of Personnel Management (OPM) has authorized excepted 

service appointment authorities under Schedule A when it is not 

practicable to use competitive examining (including application of 

qualification standards).

DOJ (Under 5 C.F.R. § 

213.3102(d), an agency 

may hire an attorney 

under excepted service 

hiring rules.) 

HHS

(Under 5 C.F.R. § 

3102(i)(3), an agency 

may fill temporary and 

less than full-time 

positions under 

excepted service hiring 

rules where OPM has 

determined that 

examination is 

impracticable.) 

Direct Hire

5 U.S.C. § 3304(a)(3), 5 C.F.R. 

part 337, subpart B

An agency may fill a permanent or nonpermanent position in the 

competitive service without following the competitive service hiring rules 

if it provides public notice of the opening and OPM determines that 

there is either a severe shortage of candidates or a critical hiring need 

for such a position. 

HHS

42 U.S.C. § 5149 This authority provides a federal agency, when performing disaster 

relief efforts, the authority to appoint (1) temporary personnel without 

regard to competitive examining requirements, and (2) experts and 

consultants in accordance with 5 U.S.C. § 3109.

HHS
Appendix IV: Government-wide and AgencySpecific Hiring Authorities Used to On-Board 

Special Government Employees by Selected 

Agencies

Page 40 GAO-16-548 Federal Workforce 

Table 3: Agency-Specific Hiring Authorities Used at Selected Agencies

Specific hiring authority Purpose Agency

42 U.S.C. § 1873(a) This hiring authority permits NSF to appoint technical and professional 

employees without regard to competitive examining requirements, 

including scientists and engineers (on leave of absence from academic, 

industrial, or research institutions) for a limited term or on a temporary 

basis.

NSF

42 U.S.C. § 209(f)

42 U.S.C. § 5149

42 U.S.C. § 284(c)(3)

This authority authorizes appointment (without regard to the civilservice laws) of special consultants to assist and advise in the 

operation of the Public Health Service. 

This authority provides a federal agency, when performing disaster 

relief efforts, the authority to appoint (1) temporary personnel without 

regard to competitive examining requirements, and (2) experts and 

consultants in accordance with 5 U.S.C. § 3109. 

This authority authorizes national research institute directors to appoint 

members of technical and scientific peer review groups, in consultation 

with the advisory council for the Institute and with the approval of the 

Director of the National Institutes of Health.

a

HHS

HHS

HHS

42 U.S.C. § 2201(d) This authority permits NRC to appoint employees without regard to the 

civil service laws and NRC has implemented this authority to hire 

individuals consistent with the government-wide expert and consultant 

authority.

NRC

§ 404(a) of the September 11th

Victim Compensation Fund of 

2001

This provision authorized the Attorney General to appoint a Special 

Master to administer the September 11th Victim Compensation Fund.

b DOJ

Legend: 

HHS = Department of Health and Human Services

DOJ = Department of Justice

NSF = National Science Foundation 

NRC= Nuclear Regulatory Commission

Source: GAO analysis of data provided by selected agencies. | GAO-16-548

a

HHS provided additional agency-specific hiring authorities, including several which appeared to 

involve hiring for advisory committees, boards, or councils and therefore outside the scope of this 

report. We were unable to obtain clarification from HHS regarding its list and excluded these 

authorities from our report. As a result this appendix may not contain all the agency-specific hiring 

authorities which HHS used in hiring its SGEs not serving on federal boards.

b

September 11th Victim Compensation Fund of 2001, Pub. L. No. 107-42, title IV, 115 Stat. 230, 237 

(Sept. 22, 2001). The Fund was reactivated and amended under title II of the James Zadroga 9/11 

Health and Compensation Act of 2010, Pub. L. No. 111-347, 124 Stat. 3623, 3659 (Jan. 2, 2011). 

 
Appendix V: Use Of Special Government 

Employees At Chief Financial Officer Act 

Agencies And The Consumer Financial 

Protection Bureau, 2012-2013

Page 41 GAO-16-548 Federal Workforce 

Agency

Special Government 

Employees (SGE) on 

12/31/12

SGEs on 

12/31/13

Agency for International Development 1 0

Consumer Financial Protection Bureau 2 5

Department of Agriculture 0 0

Department of Commerce 20 11

Department of Defense 112 83

Department of the Air Force 33 29

Department of the Army 115 96

Department of the Navy 29 0

Department of Education 6 9

Department of Energy 7 8

Department of Health and Human Services 646 4

Department of Homeland Security 17 10

Department of Housing and Urban Development 10 6

Department of Justice 14 4

Department of Labor 0 0

Department of State 74 80

Department of the Interior 0 0

Department of the Treasury 0 1

Department of Transportation 8 3

Department of Veterans Affairs 0 0

Environmental Protection Agency 111 74

General Services Administration 0 0

National Aeronautics and Space Administration 0 0

National Science Foundation 63 46

Nuclear Regulatory Commission 8 15

Office of Personnel Management 0 0

Small Business Administration 0 0

Social Security Administration 0 0

Non-Chief Financial Officers Act agency and 

Consumer Finance Protection Bureau

experts/consultants required 

to file public or confidential disclosure reports 12 31

Total 1,288 515

Source: GAO analysis of Office of Government Ethics annual ethics questionnaire. | GAO-16-548

Appendix V: Use Of Special Government 

Employees At Chief Financial Officer Act 

Agencies And The Consumer Financial 

Protection Bureau, 2012-2013
Appendix VI: Comments from the Department 

of Health and Human Services

Page 42 GAO-16-548 Federal Workforce 

Appendix VI: Comments from the 

Department of Health and Human Services
Appendix VI: Comments from the Department 

of Health and Human Services

Page 43 GAO-16-548 Federal Workforce 
Appendix VII: Comments from the Office of 

Government Ethics

Page 44 GAO-16-548 Federal Workforce 

Appendix VII: Comments from the Office of 

Government Ethics
Appendix VII: Comments from the Office of 

Government Ethics

Page 45 GAO-16-548 Federal Workforce 
Appendix VIII: GAO Contacts and Staff 

Acknowledgments

Page 46 GAO-16-548 Federal Workforce 

Yvonne D. Jones, (202) 512-6806 or Jonesy@gao.gov. 

In addition to the individual name above, Signora J. May, Assistant 

Director; Anthony Patterson, Analyst-in-Charge; Jessica Lewis, Sara 

Daleski, Karin Fangman, Amanda Miller, Susan Sato, and Robert 

Gebhart made major contributions to this report.

GAO Contact

Appendix VIII: GAO Contacts and Staff 

Acknowledgments

Staff 

Acknowledgments

(451140)
The Government Accountability Office, the audit, evaluation, and 

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