Personnel Practices: Conversions of Employees from Noncareer to Career Positions May 2001 - April 2005
Released: 2006-05-25T00:00:00

Letter

Background

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.

Agencies Made 144 Noncareer to Career Conversions from May 2001 through April 2005

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.

Agencies Appeared to Have Used Appropriate Authorities and Proper Procedures in Making the Majority of These Conversions

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.

In 93 Conversions, Agencies Appeared to Have Used Appropriate Authorities and Followed Proper Procedures

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.

In 18 Conversions, Appropriate Authorities and Proper Procedures May Not Have Been Followed

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.

In 19 Conversions, There Was Insufficient Information to Make a Determination as to Whether Appropriate Authorities and Proper Procedures Were Followed

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.

Conclusions

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.

Recommendations for Executive Action

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.

Agency Comments and Our Evaluation

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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If you or your staff have questions about this report, please contact me at (202) 512-6806 or stalcupg@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff that made major contributions to this report are listed in appendix VII.

Executive Branch Departments and Selected Agencies Covered in This Review and Their Number of Conversions

Scope and Methodology

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.

Noncareer Appointees Converted to Career Positions by Departments and Selected Agencies from May 1, 2001 - April 30, 2005

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.

Conversions Where Appropriate Authorities and Proper Procedures May Not Have Been Followed

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.

Case 1:

Department of Defense (DOD)

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

Since this conversion did not occur in the presidential election review period, it was not subject to OPM’s pre-appointment review.

Case 2:

Department of Health and Human Services (HHS)

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

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.

Case 3:

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

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.

Case 4:

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

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.

Case 5:

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

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.

Case 6:

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

The selectee’s executive qualifications were approved by an OPM- administered QRB on July 30, 2002.

Case 7:

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

The selectee’s executive qualifications were approved by an OPM- administered QRB on April 2, 2004.

Case 8:

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

Since this conversion did not occur in the presidential election review period, it was not subject to OPM’s pre-appointment review.

Case 9:

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

The selectee’s executive qualifications were approved by an OPM- administered QRB on May 21, 2004.

Case 10:

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

The selectee’s executive qualifications were approved by an OPM- administered QRB on February 21, 2003.

Case 11:

From Schedule C GS-0301-13/02, Staff Assistant, Federal Emergency Management Agency (FEMA)

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

Since this conversion did not occur in the presidential election review period, it was not subject to OPM pre-appointment review.

Case 12:

Issues:

Details:

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.

Conclusions:

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.

OPM’s Role:

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.

Case 13:

Department of Housing and Urban Development (HUD)

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

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.

Case 14:

Department of Justice (DOJ)

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

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.

Case 15:

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)

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

This conversion was not subject to pre-appointment review because OPM does not review appointments to the excepted service.

Case 16:

Consumer Product Safety Commission (CPSC)

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

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.

Case 17:

Environmental Protection Agency (EPA)

Positions:

Issues:

Details:

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.

Conclusions:

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.

OPM’s Role:

This conversion was not subject to OPM’s pre-appointment review because it occurred before the presidential election review period.

Case 18:

Small Business Administration (SBA)

Positions:

Issue:

Details:

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.

Conclusions:

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.

OPM’s Role:

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.

Conversions Where It Could Not Be Determined Whether Appropriate Authorities and Proper Procedures Were Followed

Comments from Office of Personnel Management

GAO Contact and Staff Acknowledgments

GAO Contact

Acknowledgment

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.