Personnel Practices: Conversions of Employees from Noncareer to Career Positions May 2001 - April 2005
Published: 2006-05-01T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: A federal employee conversion occurs whenever an individual changes from one personnel status or service to another without a break in federal government service of more than 3 days. This report focuses on conversions of individuals from noncareer to career positions. Federal agencies must use appropriate authorities and follow proper procedures in making these conversions. GAO was asked to determine for departments and selected agencies (1) the number and characteristics of all noncareer to career conversions occurring during the period from May 1, 2001, through April 30, 2005, and (2) whether appropriate authorities were used and proper procedures were followed in making these conversions at the GS-12 level and above.
section_title: What GAO Found
paragraphs: Twenty-three of the 41 departments and agencies selected for review reported converting 144 individuals from noncareer to career positions from May 1, 2001, through April 30, 2005. The other 18 departments and agencies reported making no conversions during this period. Four agencies accounted for 95, or 66 percent, of the 144 reported conversions: the Departments of Health and Human Services (36), Justice (23), Defense (21), and Treasury (15). Of the 144 reported conversions, almost two-thirds were from Limited Term Senior Executive Service (SES) positions (47) and Schedule C positions (46). Limited Term SES appointments may be made for up to 36 months and can include federal employees who previously held career positions. Schedule C appointments are generally noncompetitive and are for positions graded GS-15 and below that involve determining policy or that require a close confidential relationship with key agency officials. Of these 144 individuals, 64 were converted to career SES positions, 47 to career competitive service positions, and 33 to career excepted service (non-Schedule C) positions. Agencies used appropriate authorities and followed proper procedures in making the majority (93) of the 130 conversions reported at the GS-12 level or higher. However, for 37 of these conversions it appears that agencies did not follow proper procedures or agencies did not provide enough information for us to make an assessment. For 18 of the 37 of these conversions, it appears that agencies did not follow proper procedures. Some of the apparent improper procedures included: selecting former noncareer appointees who appeared to have limited qualifications and experience for career positions, creating career positions specifically for particular individuals, and failing to apply veteran's preference in the selection process. Seven of the 18 conversions were subject to OPM review and approval; 2 because they fell within the presidential election pre-appointment review period as prescribed by OPM and 5 because they were to SES level positions. For the remaining 19 conversions, agencies did not provide enough information for GAO to fully assess the process used by the agency in making the conversion. This was largely attributable to the types of appointments involved. Sixteen of these 19 conversions were to career excepted service (non-Schedule C) positions at the Department of Justice. For appointments to excepted service positions, OPM does not require agencies to follow OPM's competitive hiring provisions or to maintain records of the rating, ranking, and selection process, as it requires for competitive service appointments (although most of these conversions are subject to the merit system principles). These unique hiring procedures and limited documentation requirements for excepted service positions resulted in GAO having insufficient information to reconstruct the Department of Justice's decision-making process to convert these individuals. For the remaining three cases, the Department of Health and Human Services could not locate certain files.

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