U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

79–010 

" ! SENATE 110TH CONGRESS

2d Session 

REPORT

2008

110–517 

Calendar No. 1108 

SENIOR EXECUTIVE SERVICE DIVERSITY 

ASSURANCE ACT 

R E P O R T 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

S. 2148 

TO PROVIDE FOR GREATER DIVERSITY WITHIN, AND 

TO IMPROVE POLICY DIRECTION AND OVERSIGHT 

OF, THE SENIOR EXECUTIVE SERVICE 

OCTOBER 1 (legislative day, SEPTEMBER 17), 2008.—Ordered to be printed 


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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

BARACK OBAMA, Illinois 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

SUSAN M. COLLINS, Maine 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

PETE V. DOMENICI, New Mexico 

JOHN WARNER, Virginia 

JOHN E. SUNUNU, New Hampshire 

MICHAEL L. ALEXANDER, Staff Director 

KEVIN J. LANDY, Chief Counsel 

KENYA N. WILEY, Counsel 

THOMAS J.R. RICHARDS, Professional Staff Member, Subcommittee on Oversight of Government 

Management, the Federal Workforce, and the District of Columbia 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

AMANDA WOOD, Minority Director of Governmental Affairs 

JENNIFER A. HEMINGWAY, Minority Staff Director, Subcommittee on Oversight of Government 

Management, the Federal Workforce, and the District of Columbia 

TRINA DRIESSNACK TYRER, Chief Clerk 


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C O N T E N T S 

Page 

I. Purpose and Summary .................................................................................. 1 

II. Background .................................................................................................... 1 

III. Legislative History ......................................................................................... 7 

IV. Section-by-Section Analysis .......................................................................... 8 

V. Estimated Cost of Legislation ....................................................................... 10 

VI. Evaluation of Regulatory Impact .................................................................. 12 

VII. Changes in Existing Law .............................................................................. 12 


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Calendar No. 1108 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–517 

SENIOR EXECUTIVE SERVICE DIVERSITY ASSURANCE ACT 

OCTOBER 1 (legislative day, SEPTEMBER 17), 2008.—Ordered to be printed 

Mr. LIEBERMAN, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany S. 2148] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 2148) to provide for greater diversity within, and to improve policy direction and oversight of, the 

Senior Executive Service, having considered the same, reports favorably thereon with an amendment and recommends that the bill 

(as amended) do pass. 

I. PURPOSE AND SUMMARY

The purpose of S. 2148 is to promote diversity in the SES. S. 

2148, as amended, would create a new Senior Executive Service 

Resource Office (SESRO) at the Office of Personnel Management 

(OPM) to develop and monitor programs for the advancement and 

training of senior executives, including the Senior Executive Service Federal Candidate Development Program. The bill also requires 

each agency to submit a plan to OPM on how the agency is identifying and eliminating barriers to minorities, women, and individuals with disabilities to obtain appointments to the SES. The involvement of individuals with a variety of experiences and perspectives in the consideration of SES candidates helps ensure the selection of a strong and diverse SES workforce. S. 2148 requires agencies, to the extent practicable, to include minorities, women, and 

individuals with disabilities on their Executive Resources Boards 

(ERB) as well as any other panels that evaluate SES candidates. 

II. BACKGROUND

GENERAL BACKGROUND ON THE SENIOR EXECUTIVE SERVICE

The SES was established by Title IV of the Civil Service Reform 

Act of 1978, P.L. 95–454, and encompasses managerial, superVerDate Aug 31 2005 05:34 Oct 04, 2008 Jkt 079010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR517.XXX SR517

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1 U.S. Office of Personnel Management, Senior Executive Service Survey Results, May 2008. 

2Statement of Katherine Siggerud, Director of Physical Infrastructure Issues, and George 

Stalcup, Director of Strategic Issues, Government Accountability Office, Human Capital: Diversity in the Federal SES and Senior Levels of the U.S. Postal Service and Processes for Selecting 

New Executives (GAO–08–609T) (hereinafter ‘‘GAO Statement’’), for the Joint Hearing on ‘‘Managing Diversity of Senior Leadership in the Federal Workforce and Postal Service’’ Senate 

Homeland Security and Governmental Affairs Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia and the House Oversight and 

Government Reform Subcommittee on the Federal Workforce, the Postal Service, and the District of Columbia: April 3, 2008 (hereinafter ‘‘Joint Hearing’’). 3 5 U.S.C. § 7103. 

4Pub. L. No. 95–454 (Oct. 10, 1978). 

visory, and policy positions above the GS–15 level that are not 

filled by presidential appointment. The SES includes nearly 7,000 

federal employees.1 Of those, approximately 6,000 are career appointed executives.2 SES career appointments do not have time 

limitations, whereas non-career SES employees are limited in their 

promotion potential and time in service. Career SES employees are 

provided more job protections and advancement potential than noncareer SES employees, such as adherence to merit system principles and whistleblower rights. However, career-SES employees 

still do not have rights such as collective bargaining that are afforded other federal employees.3

Career appointees are selected for the SES on the basis of leadership qualifications. Candidates are initially evaluated by an internal agency Executive Resources Board (ERB) made up of SES volunteers or selected by an agency head. The candidates are ranked 

by the ERB and written recommendations are made to the Office 

of Personnel Management (OPM). OPM is required to establish 

Qualifications Review Boards (QRBs) to certify candidate qualifications. The appointing authority in an agency makes the final determination of which candidate will be hired. Non-career appointees 

do not have to meet the same competitive selection requirements 

as career SES candidates and do not receive the same entitlements 

as career senior executives. 

The Civil Service Reform Act of 1978 required that OPM have 

primary oversight of the SES and help agencies establish programs 

for systematic and continuing development of senior executives.4

OPM had a centralized office that handled the programs and policy 

development of the SES. However, in 2003, OPM decentralized 

those office functions as part of a larger internal management reorganization. Since then, senior executives have not had a central office to provide needed resources. According to the Senior Executives 

Association (SEA): 

Until several years ago, a central office at the Office of 

Personnel Management dealt with all issues regarding 

SES policy and programs, allowing for appropriate changes 

in policy to reflect the realities of managing the SES workforce. It has become evident that, with no focal point for 

the SES at OPM, policy and implementation have been 

disconnected, and problems have ensued. The most glaring 

example of this has been the poor implementation of certification of SES performance management systems at the 

agency level. With inadequate support from OPM, congressional oversight and investigation ultimately forced OPM 

to take note and provide agencies with greater guidance on 

the requirements for certification. By having an office that 

is responsible for developing and implementing policy with 


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5Letter to Senator Daniel K. Akaka, Chairman, Senate Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia, and Representative 

Danny K. Davis, Chairman, House Subcommittee on Federal Workforce, the Postal Service, and 

the District of Columbia, from Carol Bonosaro, President, Senior Executives Association: October 

9, 2007. 6Statement of Carson Eoyang, Executive Director, Asian American Government Executive 

Network for the Joint Hearing (hereinafter Eoyang Statement). 7Statement of Nancy Kichak, Associate Director, Office of Personnel Management for the 

Joint Hearing (hereinafter Kichak Statement). 8GAO, Senior Executive Service: Enhanced Agency Efforts Needed to Improve Diversity as 

the Senior Corps Turns Over, GAO–03–34, Washington, DC: January 2003. 9See GAO Statement at p. 2. 

10See Eoyang Statement at p. 3. 

is responsible for developing and implementing policy with 

regard to the executive corps, as well as conducting oversight, there will be greater accountability and response to 

concerns from both agencies and Congress.5

As the Executive Director of the Asian American Government 

Executive Network (AAGEN) testified at the Joint Hearing, a single office providing effective oversight of the SES is essential to ensuring that OPM’s and agencies’ SES recruitment efforts adequately address diversity.6 S. 2148 requires OPM to re-establish 

the SESRO at OPM. The SESRO will serve as a central resource 

for agencies and will provide oversight of agency recruitment and 

candidate development efforts. 

OPM believes that the requirement under S. 2148 to establish a 

Senior Executive Service Resource Office (SESRO) would undo significant aspects of their 2003 reorganizational structure and have 

substantial cost implications.7 Based on the concerns raised by senior executives, the Committee recognizes the need for a central office at OPM to address policy and program development for the 

SES. 

IMPROVING DIVERSITY IN THE SENIOR EXECUTIVE SERVICE

According to a 2003 Government Accountability Office (GAO) report, ‘‘Senior Executive Service: Enhanced Agency Efforts Needed 

to Improve Diversity as the Senior Corps Turns Over,’’ as the demographics of federal employees change, ‘‘diversity has evolved 

from public policy to a business need.’’ 8 Diversity within the SES 

will help better ensure the executive management of the federal 

government is responsive to the needs, policies, and goals of the 

Nation. As GAO witnesses testified at the Joint Hearing, having 

‘‘[a] diverse SES corps, which generally represents the most experienced segment of the federal workforce, can be an organizational 

strength that can bring a wider variety of perspectives and approaches to bear on policy development and implementation, strategic planning, problem solving, and decision making.’’ 9 At the 

same hearing, the witness for AAGEN said, ‘‘[t]he federal government should have a diverse workforce not only to demonstrate that 

it represents the American population, but also because diversity 

enhances the effectiveness of government.’’ That witness specified 

law enforcement agencies as an example of how diversity among 

senior executives can impact the public: ‘‘our various law enforcement agencies at all levels and across the country must begin to 

mirror our nation’s diversity if they are to maintain domestic peace 

and equitably enforce our laws within and across our social strata.’’ 10


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11Federal Equal Opportunity Recruitment Program Report for Fiscal Year 2007, Linda 

Springer, Director, Office of Personnel Management, http://www.opm.gov/AboutlOPM/Reports/FEORP/2007/feorp2007.pdf. 12See GAO Statement. 13See id. 14 Enhanced Agency Efforts Needed to Improve Diversity as the Senior Corps Turns Over, 

Government Accountability Office, GAO–03–34, January 17, 2003. 15 Building and Maintaining a Diverse and High Qualified Workforce, A Guide for Federal 

Agencies, Office of Personnel Management, 2003, http://www.opm.gov/diversity/guide.htm. 16 News Release: OPM Launches the SES Candidate Development Program, Office of Personnel Management, April 10, 2003, http://www.opm.gov/pressrel/2003/EB-SESCDP.asp. 17Supra note 13. 18 Id. 

The percentage of minorities and women at senior pay levels in 

the federal government, including the SES, is lower than in the civilian workforce and the federal workforce as a whole. According to 

the 2007 Federal Equal Opportunity Recruitment Program report 

by OPM, minorities represent 32.8 percent of the overall federal 

workforce and women represent 43.9 percent of the overall federal 

workforce.11 GAO reports that in the SES, minorities represent less 

than 16 percent of the senior executive workforce and women represent 29 percent of the senior executive workforce.12

There also are lower numbers of minorities and women in the 

SES compared to the numbers of minorities and women employed 

in the GS–14 and GS–15 levels, the feeder pools for the SES. GAO 

reports that in 2007, minorities made up 22.5 percent of the employees in the SES development pool (compared to the previously 

cited 16 percent of career SES employees), and that women made 

up 34 percent of the employees serving at the GS–14 and GS–15 

levels (compared to the previously cited 29 percent of the career 

SES in 2007).13

In a GAO report from January 2003, OPM cited a number of 

steps it had taken to diversify the SES, including fostering the establishment and growth of agency development programs.14 OPM’s 

subsequent strategy, launched in 2003, for increasing executive diversity included efforts to encourage agencies to enhance diversity 

at entry and middle levels, identify individuals with leadership 

ability early in their careers, and provide experience and learning 

opportunities to prepare them for senior level positions.15

In 2003, OPM announced the Candidate Development Program 

(CDP) to ‘‘bring together a diverse cadre of potential executives.’’ 16

The CDP was designed to create pools of qualified executives for 

SES positions and was intended to include a variety of elements 

that prepare candidates for career success. Elements of the program include rotational assignments, formal training, mentoring, 

and performance assessment. Graduates of the CDP are certified 

by the SES Qualifications Review Board and may be selected for 

an SES position anywhere in the federal government without further competition. The program is open to individuals at the GS–14 

and GS–15 grade levels, or the equivalent from outside the federal 

government, with the duration of the candidate’s participation lasting 12 to 24 months. 

Despite these efforts, there is room for improvement. In 2003, 

GAO evaluated data from 2000 on diversity in the SES.17 At the 

time, the report showed 67 percent of senior executives were white 

males; 19 percent were white females; and about 14 percent were 

minority males and females.18 According to GAO’s testimony at the 

April 3, 2008, joint hearing, by the end of fiscal year 2007, there 


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19See GAO Statement at p. 4. 20 Congressional Budget Justification, Performance Budget, Fiscal Year 2009, U.S. Office of 

Personnel Management, February 4, 2008. 21See Kichak Statement at p. 3. 22Letter to Congressman Henry Waxman, Chairman, House Oversight and Government Reform Committee, from the U.S. Department of Justice, Office of Legislative Affairs, April 30, 

2008. 23 Id. 

were small improvements made in the overall representation of 

women and minorities over the past six years, but gains were inconsistent among the 25 federal agencies analyzed and offset by 

losses of women and minorities at nine agencies.19 More than 60 

percent of SES employees serving in 2000 had retired by 2007, and 

in the next ten years, 90 percent of senior executives serving today 

will be eligible for retirement.20 The new hiring required as a result of turnover in the SES workforce presents an opportunity for 

improving diversity among SES employees. 

S. 2148, as amended, attempts to improve the diversity of the 

SES by encouraging diversity in the ERB panels that review applicants. This provision would allow the reviewing panels to reflect 

the diversity of the candidate pool. The SESRO would be required 

to develop a range of programs focused on recruitment and mentoring for women, minorities, and individuals with disabilities. 

Agencies would have to work with OPM and the Chief Human Capital Officers Council to develop plans to improve diversity in the 

SES. In addition, the SESRO would be required to collect data on 

diversity in the SES and report that information to Congress. 

CONSTITUTIONAL CONCERNS

OPM and the Department of Justice (DOJ) have expressed concerns over the constitutionality of the provisions in S. 2148, as introduced, and the provisions of the companion House legislation, 

H.R. 3774. Specifically, they argued that provisions in the two bills 

violated the equal protection requirements under the Due Process 

Clause of the Fifth Amendment and the Appointments Clause of 

the Constitution.21 In a letter to Congressman Henry Waxman, 

DOJ elaborated on the concerns that several of the provisions in 

the legislation violated the equal protection requirements pursuant 

to the Due Process Clause of the Fifth Amendment.22 For example, 

DOJ argued that requiring ‘‘at least one woman and one minority’’ 

sit on a three-person review panel would impose an unconstitutional racial and gender quota. DOJ also argued that provisions requiring targeted recruitment of minorities and women, and requiring that hiring officials be notified of the racial and gender demographics of the applicant pool, may be held unconstitutional on 

equal protection grounds.23

During its consideration of S. 2148, the Committee adopted a 

substitute amendment offered by Senator Akaka that included provisions addressing the agencies’ constitutional concerns. For example, the amendment removed the requirement for a three-person 

review panel to be made up of one woman and one ethnic or racial 

minority. The substitute amendment requires that ‘‘to the extent 

practicable’’ agencies create diversity in the existing Executive Review Boards, which evaluate and select candidates for the SES. 

In a memo prepared for the Senate Subcommittee on Oversight 

of Government Management, the Congressional Research Service 


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24 Congressional Research Service (CRS) memorandum of legal analysis on the Akaka Substitute Amendment to S. 2148 to Senate Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia, by Jody Feder, June 24, 2008 (hereinafter ‘‘CRS Memo’’) at p. 5. 25See CRS Memo at p. 3 (citing Allen v. Alabama State Bd. of Educ., 164 F.3d 1347, 1352 

(11th Cir. 1999) (racially conscious outreach efforts to broaden applicant pool not subject to 

strict scrutiny), vacated 216 F.3d 1263 (11th Cir. 2000); Duffy v. Wolle, 123 F.3d 1026, 1038– 

39 (8th Cir. 1997) (‘‘An employer’s affirmative efforts to recruit female and minority applicants 

does not constitute discrimination.’’); Ensley Branch, NAACP, 31 F.3d 1548, 1571 (11th Cir. 

1994) (describing efforts to actively encourage minorities to apply for jobs, including waivers of 

application fees, as ‘‘race-neutral’’); Billish v. City of Chicago, 962 F.2d 1269, 1290 (7th Cir. 

1992) (describing aggressive recruiting as ‘‘race-neutral procedures’’) rev’d on other grounds, 989 

F.2d 890 (7th Cir. 1993) (en banc)). 26Supra note 23. 27See CRS Memo at p. 3 (citing Sussman v. Tanoue, 39 F.Supp.2d 13, 24 (D.D.C. 1999) 

(quoting U.S. v. New Hampshire, 539 F.2d 277, 280 (1st Cir. 1976) (‘‘Statistical information as 

such is a rather neutral entity, which only becomes meaningful when it is interpreted’’). 

28Supra note 23. 29 Allen v. Alabama State Bd. of Educ., 164 F.3d at 1352. 

(CRS) provided a legal analysis of the amended version of S. 2148 

as it pertains to the equal protection concerns raised by OPM and 

DOJ, and concluded that the new provisions contained in Senator 

Akaka’s substitute amendment likely would survive a constitutional challenge.24 CRS noted that ‘‘the distinction between ‘inclusive’ forms of affirmative action—such as recruitment, advertising 

in minority media, and other outreach to minority communities— 

and ‘exclusive’ affirmative action—such as quotas, set-asides, or 

layoff preferences—has featured prominently in many decisions.’’ 25

OPM and DOJ had raised concerns that requiring the collection 

of data and statistical information on diversity in the SES violated 

equal protection requirements. OPM and DOJ argued that under 

the original legislation a provision requiring that demographic information be given to hiring officials ‘‘is likely to be construed as 

a means of impelling the consideration of race in hiring decisions.’’ 26 The requirement to provide hiring officials with this statistical data was removed in the amended bill, although the 

SESRO is still required to collect the data. CRS noted that courts 

generally have not found data collection activities concerning the 

racial or gender makeup of a workforce to violate the Constitution.27

In addition, DOJ raised concerns with the requirement for the 

minority recruitment program proposed by the bill.28 However, 

there is already a requirement under section 7201 of title 5, U.S.C., 

for OPM to conduct a minority recruitment program. Furthermore, 

under section 2302(b) of title 5, hiring officials may not take into 

consideration ‘‘race, color, religion, sex, or national origin’’ when 

making employment decisions. According to the U.S. Court of Appeals for the Eleventh Circuit, ‘‘where the government does not exclude persons from benefits based on race, but chooses to undertake outreach efforts to persons of one race, broadening the pool of 

applicants, but disadvantaging no one, strict scrutiny is generally 

inapplicable.’’ 29 CRS noted in its legal analysis: 

The SES recruitment provision as currently drafted, appears strikingly similar to the dozens, if not hundreds, of 

existing federal statutory and regulatory provisions that 

specifically refer to race, ethnicity, gender, or disability as 

factors to be considered in the administration of federal 

programs. Such measures may include, but are not limited 

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30See CRS Memo at p. 5 (citing CRS Report RL32565, Survey of Federal Laws and Regulations Mandating Affirmative Action Goals, Set-Asides, or Other Preferences Based on Race, Gender, or Ethnicity, by Charles V. Dale and Cassandra Foley). 31Supra note 23. 

cruitment, and quotas, and few, if any, of these provisions 

appear to have been subject to constitutional scrutiny.30

DOJ also expressed concerns that the legislation violated the Appointments Clause of the Constitution. DOJ argued that the authority proposed for the SESRO in S. 2148 ‘‘would entail the kind 

of delegated sovereign authority, or significant governmental authority, that can only be exercised by Officers of the United States 

appointed in accordance with the Appointments Clause, U.S. Constitution Article 2, section 2, clause 2.’’ 31 Senator Akaka’s substitute amendment addressed the Appointments Clause concern by 

explicitly giving the Director of OPM the authority to appoint employees to staff the SESRO. 

III. LEGISLATIVE HISTORY

S. 2148, the Senior Executive Service Diversity Assurance Act, 

was introduced by Senator Daniel K. Akaka on October 4, 2007. 

The bill was read twice and referred to the Committee on Homeland Security and Governmental Affairs. S. 2148 was referred to 

the Senate Homeland Security and Governmental Affairs Subcommittee on Oversight of Government Management, the Federal 

Workforce, and the District of Columbia on October 19, 2007. Representative Danny K. Davis introduced a companion bill, H.R. 

3774, on October 9, 2007. 

On April 3, 2008, the Subcommittee on Oversight of Government 

Management, the Federal Workforce, and the District of Columbia 

held a joint hearing with the House Subcommittee on Federal 

Workforce, the Postal Service, and the District of Columbia on the 

Senior Executive Service Diversity Assurance Act. Testimony was 

received from: Nancy Kichak, Associate Director, OPM; George 

Stalcup, Director, Strategic Issues, GAO; Katherine Siggerud, Director, Physical Infrastructure Issues, GAO; William Bransford, 

General Counsel, Senior Executives Association; William Brown, 

President, African American Federal Executives Association; 

Rhonda Trent, President, Federally Employed Women; Carson 

Eoyang, Executive Director, Asian American Government Executives Network; Jose Osegueda, President, National Association of 

Hispanic Federal Executives; and Darlene Young, President, Blacks 

in Government. 

The Committee considered S. 2148 on June 25, 2008. By voice 

vote the Committee ordered the bill favorably reported, as amended 

by Senator Akaka’s amendment in the nature of a substitute, with 

Senator Coburn recorded as ‘‘no.’’ Members present were 

Lieberman, Akaka, Carper, Pryor, McCaskill, Collins, Coleman, 

Coburn, and Sununu. The substitute amendment offered by Senator Akaka added a findings section to the bill to demonstrate the 

need for improving diversity in the SES. It also assigned specific 

duties to the SESRO that included tracking statistical data on diversity in the SES, establishing a diversity recruitment program, 

and helping agencies improve diversity in their SES. The substitute amendment deleted the language from the original bill establishing a diversity panel, and instead required agencies to make 


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the ERBs diverse to the extent practical. Finally, language was 

added requiring agencies to develop plans to improve diversity, coordinate the development of those plans with OPM and the Chief 

Human Capital Officers Council, and report the progress to Congress on the extent to which the agency has demonstrated a commitment to diversity. 

IV. SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

This section provides that the short title of the bill is the ‘‘Senior 

Executive Service Diversity Assurance Act.’’ 

Section 2. Findings 

This section provides findings, including statistics from GAO and 

OPM that demonstrate the need for this legislation. The statistics 

reveal the under-representation of women and minorities in the 

SES. 

Section 3. Definitions 

This section includes the following definitions: 

• The term ‘‘Director’’ means the Director of OPM. 

• The term ‘‘Senior Executive Service’’ means Senior Executive 

Service positions, which include any position in an agency which is 

classified above GS–15 or in level IV or V of the Executive Schedule, or an equivalent position which fits certain criteria and does 

not require a Senate confirmed presidential appointment. • The term ‘‘agency’’ has the meaning provided in 5 U.S.C. 3132 

which is an executive agency, except a government corporation and 

GAO, and excluding some agencies identified in section 3132 such 

as the Federal Bureau of Investigation, the Drug Enforcement 

Agency, and the Central Intelligence Agency. • The term ‘‘career appointee’’ means an individual in an SES 

position whose appointment to the position or previous appointment to another SES position was based on approval by OPM of 

the individual’s executive qualifications. • The term ‘‘career reserved position’’ means a position which is 

required to be filled by a career appointee and which is designated 

as a career reserved position by the head of the agency. • The term ‘‘SES Resource Office’’ refers to the Senior Executive 

Service Resource Office established by section four of the bill. 

Section 4. Senior Executive Service Resource Office 

This section re-establishes the Senior Executive Service Resource 

Office (SESRO) within OPM. Subsection (a) requires the Director 

of OPM to establish the SESRO within six months of enactment. 

This subsection provides that the mission of the new office is to improve the efficiency, effectiveness, and productivity of the SES; to 

advance the professionalism of the SES; and to ensure that in seeking to achieve an SES that is reflective of the nation’s diversity, recruitment is from qualified individuals. 

Subsection (b) describes the functions of the SESRO, including 

recommending regulations to the Director of OPM and providing 

guidance to agencies on the structure, management, and diverse 

composition of the SES. This subsection provides a number of ways 


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that the SESRO must carry out its responsibilities, including: creating policies for the management and improvement of the SES; 

providing oversight of the performance, structure, and composition 

of the SES; managing the SES pay system; developing standards 

for certification of each agency’s SES performance management 

system; and developing programs for the advancement and training 

of senior executives. OPM is currently required by 5 U.S.C. 

§ 3393(c) to establish qualifications review boards (QRBs) to certify 

the qualifications of SES candidates. Under subsection (b), the 

SESRO will be responsible for administering QRBs. 

Subsection (b) also requires the SESRO to compile and maintain 

annual statistics related to the composition of the SES and requires 

OPM to make those statistics publicly available on its website. The 

SESRO must collect information such as the number of career reserve positions at each agency; the number of vacant career reserve 

positions at each agency; the time it takes to fill a position; how 

long the position is vacant; the number of individuals who have 

been certified as having the qualifications necessary to be appointed to the SES and the make-up of that group with regard to 

race, ethnicity, sex, age, and individuals with disabilities; and the 

make-up of the SES with regard to race, ethnicity, sex, age, and 

individuals with disabilities. The SESRO must also collect data on 

the makeup of executive resources boards (ERBs) with regard to 

race, ethnicity, sex, and individuals with disabilities. OPM does not 

currently collect data on the composition of these boards. 

Subsection (b) also requires the SESRO to establish mentoring 

programs for potential SES candidates, conduct a continuing program to recruit women, minorities, and individuals with disabilities 

for SES positions, advise agencies on how an agency’s equal employment or diversity office could be helpful in the SES appointments process, and evaluate and implement strategies to ensure 

that agencies conduct outreach to identify SES candidates in other 

agencies. 

Subsection (c) provides that, in making the annual statistics publicly available, the SESRO may combine data for smaller agencies 

to protect individually identifiable information. 

Subsection (d) requires the head of each agency to provide OPM 

with the information needed for the SESRO to compile its annual 

statistics. 

Subsection (e) provides that the Director of the OPM shall appoint employees to staff the SESRO. 

Section 5. Career appointments 

Subsection (a) requires the head of an agency, to the extent practicable, to ensure diversity of the agency’s ERBs by including minorities, women, and individuals with disabilities on these boards. 

Subsection (b) requires OPM to issue regulations to implement 

subsection (a) within one year of enactment. 

Subsection (c) requires OPM to report to the House Committee 

on Oversight and Government Reform and the Senate Committee 

on Homeland Security and Governmental Affairs within one year 

of enactment with an evaluation of agency efforts to improve the 

diversity of ERBs based on the annual statistics maintained by the 

SESRO. 


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Section 6. Encouraging a more diverse senior executive service 

Subsection (a) requires each agency, in consultation with OPM 

and the Chief Human Officers Council, to submit to OPM a plan 

to improve opportunities for the advancement and appointment of 

minorities, women, and individuals with disabilities to the SES. 

Each agency plan must address how the agency will identify and 

eliminate barriers that impair the ability of minorities, women, and 

individuals with disabilities to obtain SES appointments and any 

actions the agency is taking to provide opportunities for advancement. Such plans will be included in agencies’ overall human capital plan. Subsection (a) provides examples of ways agencies can 

help employees advance, including conducting outreach, providing 

training programs to foster leadership development, identifying opportunities for employees to enhance their careers, assessing internal availability of candidates for SES positions, and taking inventory of employee skills and addressing any gaps in skills identified. 

Under subsection (a), agency plans are required to be updated at 

least every two years during the ten years following enactment of 

this Act. OPM is required to evaluate whether each agency plan 

sufficiently demonstrates the agency’s commitment to providing opportunities for SES appointments of minorities, women, and individuals with disabilities and determine whether to approve the 

plan. 

Subsection (b) requires OPM, within six months after the deadline for agencies to submit a report or update, to submit a summary and evaluation of agency plans to the House Committee on 

Oversight and Government Reform and the Senate Committee on 

Homeland Security and Governmental Affairs. 

Subsection (c) requires OPM to evaluate existing reporting requirements such as section 717 of the Civil Rights Act of 1964 and 

determine how agency reporting can be done in a way that is consistent with similar reporting requirements but does not duplicate 

those requirements. 

V. ESTIMATED COST OF LEGISLATION

JUNE 27, 2008. 

Hon. JOSEPH I. LIEBERMAN, 

Chairman, Committee on Homeland Security and Governmental Affairs, U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 2148, the Senior Executive 

Service Diversity Assurance Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

PETER R. ORSZAG. 

Enclosure. 

S. 2148—Senior Executive Service Diversity Assurance Act 

Summary: S. 2148 would establish a Senior Executive Service 

Resource Office within the Office of Personnel Management (OPM) 

to oversee executive agencies’ efforts to improve the management 

of the Senior Executive Service (SES). The bill also would require 

agencies to prepare plans to increase diversity within the SES. 


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CBO estimates that implementing S. 2148 would cost $2 million 

in 2009 and $22 million over the 2009–2013 period, assuming appropriation of the necessary amounts. Enacting the legislation 

would not affect direct spending or revenues. S. 2148 contains no 

intergovernmental or private-sector mandates as defined in Unfunded Mandates Reform Act (UMRA) and would not affect the 

budgets of state, local, or tribal governments. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 2148 is shown in the following table. The costs 

of this legislation fall primarily within budget function 800 (general 

government). 

By fiscal year, in millions of dollars— 

2009 2010 2011 2012 2013 2009– 

2013 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Estimated Authorization Level .................................................................. 2 5 5 5 5 22 

Estimated Outlays .................................................................................... 2 5 5 5 5 22 

Basis of estimate: For this estimate, CBO assumes that the bill 

will be enacted near the start of fiscal year 2009 and that spending 

would follow historical patterns for similar programs. 

The SES was created in 1979 to provide a systematic program 

to recruit, retain, develop, and manage senior executives in the federal government. Its members generally represent the most experienced segment of the federal workforce and operate and oversee approximately 75 federal agencies. OPM manages the overall program and assists agencies as they select, develop, and manage federal executives. According to the Government Accountability Office 

(GAO), there are currently about 6,500 SES employees. 

According to OPM, GAO, and selected agencies with SES employees, most of the provisions of S. 2148 would expand the current 

SES-related duties of OPM and affected agencies. The legislation 

would establish a new office within OPM to provide additional 

oversight of executive agencies’ efforts to recruit and develop candidates for SES positions. In addition, the legislation would require 

individual agencies to develop and implement plans to enhance the 

diversity of their SES employees and to report on those efforts. 

Based on information from OPM and other affected agencies, 

CBO estimates that implementing S. 2148 would cost $2 million in 

2009 and $22 million over the 2009–2013 period, assuming appropriation of the necessary amounts. Those costs would cover additional staff and expenses related to the new office in OPM, which 

CBO expects would be fully operational in 2010. Our estimate also 

includes increased costs for other agencies to comply with new reporting requirements. 

Intergovernmental and private-sector impact: S. 2148 contains no 

intergovernmental or private-sector impact as defined in UMRA 

and would not affect the budgets of state, local, or tribal governments. 

Previous CBO estimate: On May 22, 2008, CBO provided a cost 

estimate for H.R. 3774, the Senior Executive Service Diversity Assurance Act, as ordered reported by the House Committee on Oversight and Government Reform on May 1, 2008. The two pieces of 

legislation are similar, and the CBO cost estimates are identical. 


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Estimate prepared by: Federal Costs: Matthew Pickford; Impact 

on State, Local, and Tribal Governments: Elizabeth Cove, Impact 

on the Private Sector: Paige Piper/Bach. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

VI. EVALUATION OF REGULATORY IMPACT

Pursuant to the requirements of paragraph 11(b) of rule XXVI of 

the Standing Rules of the Senate, the Committee has considered 

the regulatory impact of this bill. CBO states that there are no 

intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and no costs on State, local, or tribal 

governments. The legislation contains no other regulatory impact. 

VII. CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new matter is printed in italic and 

existing law, in which no change is proposed, is shown in roman): 

TITLE 5 

PART III—EMPLOYEES 

* * * * * * * 

Subpart B—Employment and Retention 

* * * * * * * 

CHAPTER 33—EXAMINATION, SELECTION, AND 

PLACEMENT 

* * * * * * * 

Subchapter VIII—Appointment, Reassignment, Transfer, 

and Development in the Senior Executive Service 

* * * * * * * 

§ 3393. Career appointments 

(a) * * * 

(b) Each agency shall establish one or more executive resources 

boards, as appropriate, the members of which shall be appointed by 

the head of the agency from among employees of the agency or 

commissioned officers of the uniformed services serving on active 

duty in such agency. In establishing an executive resources board, 

the head of the agency shall, to the extent practicable, ensure diversity of the board and of any subgroup thereof or other evaluation panel related to the merit staffing process for career appointees, by including members of racial and ethnic minority 

groups, women, and individuals with disabilities. The boards shall, 

in accordance with merit staffing requirements established by the 


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Office, conduct the merit staffing process for career appointees, including— 

(1) all groups of qualified individuals within the civil service; 

or 

(2) all groups of qualified individuals whether or not within 

the civil service. 

* * * * * * * 

Æ 


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