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# Ch. 12 - Senior Positions Outside the SES

## Executive Schedule Positions

At the top of the Federal civilian personnel hierarchy are positions placed by statute in the Executive Schedule or established at pay rates equivalent to the Executive Schedule. This compensation system is divided into five levels, EX-I (the highest) through EX-V (the lowest). The Executive Schedule includes cabinet secretaries; under, deputy, and most assistant secretaries; heads of most of the independent agencies; members of regulatory commissions; and other key officials (e.g., general counsels and bureau directors). Executive Schedule and equivalent positions are generally filled by Presidential appointment with Senate confirmation.

### Title 5 Listings

Positions placed by statute in the Executive Schedule are listed in 5 U.S.C. 5312 through 5316. By Executive order, the President may also place up to 34 positions in EX-IV and V combined, under 5 U.S.C. 5317. Requests should be sent to the Office of Management and Budget; however, section 5317 is not appropriately applied to any position that would meet the definition of an SES position at 5 U.S.C. 3132(a)(2) if placed in EX-IV or V.

## Note:

Many positions listed in 5 U.S.C.5315 (EX-IV) and 5316 (EX-V) or that have been placed in EX-IV or V under section 5317 are established as positions in the SES if they are in an agency to which the SES applies and meet the definition of an SES position at 5 U.S.C.3132(a)(2), e.g., a position at EX-IV or EX-V, or equivalent, that performs SES functions and is not required to be filled by Presidential appointment with Senate confirmation.

Occasionally, a new law will establish a position that performs SES functions and place it in level IV or V of the Executive Schedule without providing for it to be filled by Presidential appointment with Senate confirmation. Unless the law specifies that the position is exempt from the SES definition at 5 U.S.C. 3132(a)(2), the position is to be established in the SES and becomes subject to SES provisions, including determination of pay by the agency head under 5 U.S.C. 5382 and 5383. 

### Pay

Section 5318 of title 5, United States Code, provides for annual adjustment of the rates of pay for Executive Schedule positions at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes place under 5 U.S.C. 5303 in the rates of basic pay under the General Schedule. OPM calculates the rates of basic pay for levels I through V of the Executive Schedule annually based upon the formula in section 5318 and publishes them online at: http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/.

See the chapter notes for Chapter 5 regarding the pay freeze for certain senior political appointees. 

## Senior-level (SL) and Scientific and Professional (ST) Positions****

## Note:

Information on SL and ST positions is now available in the SL/ST Desk Guide. 

## Miscellaneous Positions 

### Experts and Consultants

In accordance with 5 U.S.C. 3109 and 5 CFR part 304, agencies may make expert and consultant appointments without regard to competitive civil service requirements, to positions which primarily require performance of advisory services rather than performance of operating functions.

**Experts.** Have unique or superior education, skills, and accomplishments in a particular field, and are regarded as authorities by others in the field. The expert performs unusually difficult work beyond the usual range of competent employees in the field.

**Consultants.** Provide advice, options, or recommendations on issues or problems and usually have a high degree of administrative, professional, or technical experience. A consultant may also be a person affected by a program who can provide public input based on personal experience.

**Limitations on work.** There are limits on the nature of the work. Experts and consultants may not serve in an SES position or a position requiring Presidential appointment with or without Senate confirmation, but an agency may appoint an individual awaiting final action on a Presidential appointment to an expert or consultant position. It is not appropriate to assign consultants to the policy-making or managerial work that characterizes the SES.

Experts and consultants may not do work performed by the agency’s regular employees or function in the agency’s chain of command. For example, they may not supervise agency employees, direct the preparation of a report or special study, or make decisions regarding agency policies or programs. Their work must be strictly advisory in nature (reviewing/recommending) or limited to a special project requiring an exceptional level of expertise.

## Interchange Agreements and Cooperation

Under Civil Service Rule 6.7 and 5 CFR 214.204, OPM and any agency with an executive personnel system essentially equivalent to the SES may, pursuant to legislative and regulatory authorities, enter into an agreement providing for the movement of persons between the SES and the other system. Such agreements may be established when it is mutually determined that movement between the two systems is in the interest of good administration and is consistent with the intent of civil service and other applicable laws. Each agreement must prescribe the conditions for interchange of persons and define the status and tenure acquired by persons when they move from one system to another. 

### Criteria for Approval

The criteria OPM considers in a proposal to authorize the interchange of personnel between the SES and another Federal executive system are—
              - the basic framework of the system is established through law, rules, regulations, or instructions in written form; is designed to ensure that personnel management is based on and embodies merit system principles; and is free from prohibited personnel practices;
              - positions covered by the system are fully comparable to Senior Executive Service positions, as defined in  5 S.C. 3132(a)(2) , i.e., being classified above GS-15 and performing work characteristic of the SES functional criteria;
              - provisions for career-type appointment in the system include competition and certification of qualifications commensurate with Senior Executive Service requirements such that appointees who will be eligible for noncompetitive movement can be expected to perform effectively in SES positions; and
              - provisions for movement between systems specify that executives eligible for movement are serving in permanent, continuing career-type positions and that executives meet the technical and managerial qualifications of any position to which movement is proposed.

An interchange agreement may not be established if the statute providing for the executive system requires the agency to credit veterans’ preference when selecting executives, since this is not compatible with the provision of 5 U.S.C. 2108(3) that the term “preference eligible” does not include applicants for, or members of, the Senior Executive Service.

Procedures allow for periodic personnel management evaluations conducted by OPM, or by the independent agency with OPM representatives on the evaluation team.

The system includes a stipulation for discontinuance of the interchange agreement at the request of either party.

### Current Agreements

Currently, only the following agencies have an interchange agreement:
              - the Government Accountability Office;
              - the Transportation Security Agency; and
              - the Office of the Inspector General of the United States Postal Service.