Human Capital: HHS and EPA Can Improve Practices Under Special Hiring Authorities
Released: 2012-07-12T00:00:00

Letter

Background

The authority to appoint and set pay for special consultants and fellows was provided as part of the Public Health Service Act in 1944. Section 209(f) authorizes the employment of special consultants to assist and advise in the operation of the PHS. The PHS is comprised of most operating divisions within HHS—including the National Institutes of Health (NIH), the Food and Drug Administration (FDA), and the Centers for Disease Control and Prevention (CDC)—as well as some staff divisions within the Office of the Secretary. See figure 1 for HHS’s organizational structure, including those operating divisions and main staff divisions considered to be within the PHS. Section 209(g) authorizes fellowships in the PHS for individual scientists who may be assigned for studies and investigations either in the United States or abroad. Sections 209(f) and (g) both authorize the establishment of regulations to further implement these authorities. HHS Office of the Secretary develops agencywide policy and guidance and operating divisions may set additional or supplemental policy as necessary. In 2005, Congress provided EPA with the authority to use section 209 to make a limited number of appointments in its Office of Research and Development (ORD).Congress initially granted this authority to EPA for fiscal years 2006 through 2011, but Congress amended the authority twice and currently EPA is permitted to employ up to 30 persons at any one time through fiscal year 2015. EPA issued regulations in 2006 implementing this authority, which closely follow HHS regulations.

HHS regulations for section 209(f) provide that special consultants may only be appointed when the PHS cannot obtain services through regular civil service appointments or under the compensation provisions of the Classification Act of 1949. The regulations further provide that rates of compensation for special consultants are to be set in accordance with criteria established by the Surgeon General. The Surgeon General is part of the Office of the Assistant Secretary for Health. HHS has used this authority, for example, to appoint doctors and others with expertise in specialty fields to initiate or provide assistance in conducting medical research and set pay for those individuals at rates above those allowed under other federal government pay systems.

HHS regulations covering section 209(g) provide that fellowships may be provided to secure the services of talented scientists for limited duration (up to 5 years) for health-related research, studies, and investigations. The regulations further provide that the Secretary may authorize procedures to extend the term of fellowships, may authorize stipends for the fellows, and is responsible for establishing appointment procedures beyond those set forth in the regulations.

Some Title 42 employees earn pay within or exceeding pay levels found in the Executive Schedule. The Executive Schedule is a five-level, basic pay schedule applicable to the highest-ranking executive appointments in the federal government. Executive Schedule pay rates range from Executive Level V ($145,700 since 2010) to Executive Level I ($199,700 since 2010).

Only HHS and EPA are authorized to use Title 42 hiring authority. By contrast, regular hiring authorities such as those under title 5 of the U.S. Code—commonly referred to as Title 5—may be used by any federal agency. Pursuant to HHS and EPA policy, employees at HHS and EPA originally hired under Title 5 or other authorities may be converted to Title 42 in some circumstances. Under these policies, employees hired under Title 42 are eligible for performance bonuses, incentives, and other nonsalary payments made available to federal employees compensated under Title 5.

Title 42 employees most frequently work within one of three operating divisions:

NIH is the nation’s medical research agency and is comprised of the Office of the Director and 27 institutes and centers, including the National Cancer Institute; National Institute on Aging; National Heart, Lung, and Blood Institute; and the National Center for Complementary and Alternative Medicine. Each institute and center has its own specific research agenda, often focused on a particular disease or body system. As the central office at NIH, the Office of the Director establishes NIH-specific policy and oversees the institutes and centers to ensure they operate in accordance with said policy. While most of its budget goes to extramural research personnel at more than 3,000 universities and research institutions, NIH also has intramural research laboratories on the NIH main campus in Bethesda, Maryland. The main campus is also home to the NIH Clinical Center, which is the largest hospital in the world totally dedicated to clinical research.

FDA is responsible for, among other things, protecting the public health by assuring the safety, efficacy, and security of human and veterinary drugs, biological products, medical devices, the nation’s food supply, cosmetics, and products that emit radiation. FDA is also responsible for regulating tobacco products.

CDC conducts activities such as identifying and defining preventable health problems and maintaining active surveillance of diseases; serving as the PHS lead agency in developing and implementing operational programs relating to environmental health problems; and operational research aimed at developing and testing effective disease prevention, control, and health promotion programs.

EPA uses section 209(g) as the basis for hiring some scientists within ORD, the scientific research arm of EPA. ORD’s work at EPA laboratory and research centers provide the science and technology to identify environmental hazards, assess risks to public health and ecosystems, and determine how best to control or prevent pollution. According to EPA documents and officials, EPA uses Title 42 to secure the services of experienced and talented scientists for renewable appointments where, because of the nature of the work and expertise needed, regular hiring authorities are impractical. EPA has not made appointments using section 209(f).

HHS Has Increased Its Use of Title 42, but More Reliable Data Could Improve HHS’s Oversight

During 2010, HHS had 6,697 employees who were appointed under sections 209(f) or (g). All but 27 of these employees served at NIH, FDA, or CDC, while the remaining employees served in the Office of the Secretary or within other operating divisions, as shown in figure 2.

The number of employees appointed under sections 209(f) and (g) increased overall at HHS by 25 percent from 2006 through 2010, as shown in table 1. Since 2006, the number of Title 42 employees grew by 15 percent at NIH, by 54 percent at FDA, and by 81 percent at CDC, while declining by 48 percent at the Office of the Secretary and all other operating divisions.

The increased use of Title 42 authority came during a period when HHS made recruiting and retaining mission-critical elements of its workforce a priority. HHS’s 2007-2012 Strategic Plan included strategic objectives: (1) recruiting, developing, and retaining a competent health care workforce, and (2) strengthening the pool of qualified health and behavioral science researchers. HHS officials generally attributed the increases in Title 42 employees to the agency’s response to urgent public health matters and effects of the economic downturn on the private sector and academia, which, according to officials, made the agency more attractive to prospective or on-board employees. Specifically, according to HHS:

The 15 percent increase from 2006 through 2010 at NIH can be attributed, in part, to the effects of the economic downturn on the biomedical research labor market. Officials told us that as extramural research funding available in the private sector and academia is shrinking, NIH is able to use Title 42 to more successfully recruit and retain biomedical investigators and clinical specialists.

The spike in Title 42 appointments at FDA in 2008 and 2009 is a result of the Food and Drug Administration Amendments Act of 2007 and the Food Protection Plan, FDA’s strategy for protecting the nation’s food supply. Additionally, in 2008 FDA launched its first class of Commissioner’s Fellows (hired under section 209 (g) for up to a two year period) beginning with 50 fellows, another class of 50 in 2009, and a third class of 45 in 2010.

At CDC, increased use of Title 42 was attributed to the urgency of certain programs such as the overseas Global AIDS Program and those under the Office of Public Health Preparedness and Response. For these programs, officials told us they needed employees with specialized scientific skills or training and experience and would not have been able to obtain them without Title 42.

As discussed later, we were unable to determine which section authority—sections 209(f) or (g)—was used more often because HHS section authority data was not reliable for this purpose.

As shown in table 2, NIH relies on Title 42 authority for a greater percentage of its total workforce than does FDA and CDC. In 2010, 25 percent of all NIH employees were Title 42 employees, while 10 percent of CDC employees and 6 percent of FDA employees were Title 42. NIH relied on Title 42 authority for a substantial portion—44 percent—of its total research and clinical practitioner workforce.

Title 42 employees at HHS serve in a variety of functional areas, including scientific and medical research support and in senior, director-level leadership positions. Base salary ranges for Title 42 employees varied by operating division and occupation. In 2010, almost 60 percent of Title 42 employees at NIH served in one of five general occupations: staff scientist, research fellow, senior investigator, clinical research nurse, and clinical fellow. Table 3 describes some of the general responsibilities and duties, educational characteristics, and salary data for these occupations at NIH.

At FDA and CDC, the most common occupation of Title 42 employees is a fellow. In 2010, 340 (39 percent) of FDA’s Title 42 employees were staff fellows. These positions are for promising research and regulatory review scientists. In general, staff fellows at FDA conduct or support research, provide technical direction and supervision to other researchers, publish scientific articles, and review contract and grant proposals designed to support their research projects. Staff fellows must have a doctoral degree in bio-medical, behavioral, or related science and, according to FDA policy, total compensation may not exceed certain pay limits ($155,500 in 2010) unless the Director of Human Resources and Management and Services grants an exception. FDA staff fellows’ base salary range in 2010 is approximately $42,000 to $224,000, with an average base salary of about $96,000 and a median salary of about $92,000. Three of 340 staff fellows at FDA earned more than $155,500 in 2010.

Of CDC’s Title 42 employees in 2010, 687 (74 percent) were senior service fellows or associate service fellows appointed to study areas such as basic and applied research in medical, physical, biological, mathematical, social, biometric, epidemiological, behavioral, computer sciences, and other fields directly related to the mission of CDC. Senior service fellows must have a doctoral degree and associate service fellows must have a master’s degree. Senior service fellows had a base salary range in 2010 of approximately $49,000 to $155,500, with an average base salary of about $103,000 and a median salary of about $100,000. Associate service fellows had a base salary range of approximately $44,000 to $93,000, with an average base salary of about $69,000 and a median salary of about $71,000.

Some Title 42 Employees Are Paid Above Executive Salary Levels

The average base salary for all HHS Title 42 employees in 2010 was about $116,000 and the median salary was about $101,000. More than one-fifth of all Title 42 employees at HHS, however, earned a base salary above Executive Level IV ($155,500 in 2010). Congress regularly refers to executive salary levels in order to express minimum or maximum levels of pay authorized for positions in the federal government. For example, Congress has imposed a cap of Executive Level IV on salary (i.e., basic pay) rates where pay is fixed by administrative action under 5 U.S.C. § 5373. In a related effort to this audit, we are issuing a legal opinion on whether there are any statutory caps on pay for consultants and fellows appointed under 42 U.S.C. §§ 209(f) or (g), including whether the cap under section 5373 applies. Table 4 shows the number of Title 42 employees whose base salary is within or above the various Executive Salary Levels in 2010.

HHS has converted a number of employees from positions under the General Schedule or other pay systems to positions under Title 42. Of the 1,183 new Title 42 appointees in 2010, 45 of them—or about 4 percent— were current HHS employees that were converted to Title 42 positions. Thirty of these conversions occurred at NIH. We also found that employees converted to Title 42 from other pay systems generally earned higher compensation than in their previous position. Employees converted in 2010 earned, on average, $34,000 more in base salary than earned in their previous position. However, many did not receive the same amount of nonsalary payments (including retention incentives) received while employed under the General Schedule or other pay system. Therefore, the average increase in total compensation (base salary and incentive or other nonsalary payments) was about $14,000 in 2010.

Under HHS policy, Title 42 employees are eligible to receive performance bonuses; recruitment, retention, and relocation incentives; and other nonsalary payments that are available to other HHS employees. In 2010, HHS issued nonsalary payments to 6,336 of its 6,697 Title 42 employees. Seventy-one percent of Title 42 employees earned ratings- based individual cash awards. Less than 1 percent (60) of Title 42 employees received nonsalary payments in the form of recruitment, retention, or relocation incentives.

According to senior officials at HHS’s human resource office and NIH, Title 42 authority provides two primary benefits—appointment agility and compensation flexibility. These officials said appointment agility enables the agency to hire scientists, doctors, and other consultants to quickly fill knowledge, skill, and ability gaps so that medical research can move forward and to respond to medical emergencies. For example, according to HHS officials, the agency used Title 42 authority to quickly hire experts needed to develop a vaccine in response to the H1N1 flu pandemic of 2009. Appointment agility is also important because many research projects, particularly those at NIH, are not meant to be long-term and Title 42 appointments can align with project time frames better than hiring full- time permanent staff under regular hiring authorities. In some cases, the temporary appointment of a researcher with highly-specialized skills to assist with a limited-scope, limited-duration study may be more appropriate than a permanent position.

According to officials, compensation flexibility helps HHS compete with the private sector and academia to hire and retain highly qualified employees with rare and critical skill sets, such as neuroscientists, applied researchers in dietary intakes, and engineers that can operate particle accelerators. HHS human resource officials stated the salaries HHS can offer to its top researchers are often not commensurate with private sector salaries. However, they said the higher compensation limits under Title 42 combined with other benefits—such as name recognition and access to advanced research equipment and technology not often available in the private sector or academia—can help offset compensation disparities and make HHS attractive to researchers, doctors, and scientists.

HHS Does Not Have Reliable Data on the Use of Its Title 42 Authority

Because HHS does not consistently electronically record the authority under which many of its Title 42 employees were appointed, the number of employees hired under either section 209(f) or (g) could not be determined. When an employee is hired under Title 42 authority, HHS human resource officials create a personnel record in its central personnel transaction system, the Enterprise Human Resources and Payroll (EHRP) system. A required field in the personnel record exists to select a code from a drop-down menu designating the general authority under which the individual was hired, such as Title 42 or Title 5 authority. The personnel record also contains an open-ended text field to manually enter a specific section authority such as sections 209(f) or (g), applicable to Title 42 authority. Our analysis of HHS data found thousands of cases where the section authority applicable to Title 42 was not recorded in EHRP. We also found that when the section authority field was used, there were more than 400 different types of entries made in the EHRP records.

According to HHS officials, there are some data elements in the EHRP system—including the section authority under Title 42—that are unreliable. The majority of the unreliable data elements are those from nonrequired data entry fields. Whereas required fields must be completed before a personnel action is saved in the system, Title 42 section authority is a free-form, open-ended field and there is no system control in place to ensure the field is recorded or recorded accurately prior to saving the personnel action. Our case reviews found the section authority for appointment—such as sections 209(f) or 209(g)—was always documented on hard copy personnel action forms, but in many cases was not recorded in personnel records in the EHRP system.

We have previously reported that effective workforce planning and management require that human capital staff and other managers base their workforce analyses and decisions on complete and accurate personnel data. The lack of reliable information in this area may preclude HHS, Congress, and other organizations from providing effective oversight of the Title 42 program and evaluating its effectiveness. For example, the lack of section authority data in EHRP has made it difficult for HHS to provide accurate headcounts of employees hired under sections 209(f) or (g) and resulted in HHS overstating the number and operating division of its employees hired under these sections to oversight bodies, including Congress, and in response to this audit. We identified more than 600 instances where HHS erroneously included employees in its data submission to us that were not appointed under sections 209(f) or (g). Some erroneous cases included individuals we later found were hired under appointing authorities other than sections 209(f) or (g), including appointing authorities under 42 U.S.C. §§ 247b-8 and 210(g). One result of including these cases in error was HHS reported it had made appointments under 209(f) or (g) at the Centers for Medicare and Medicaid Services, which would be prohibited by law. Our analysis found these appointments were made under different authorities.

HHS officials acknowledged there were potentially many cases included that were not employees hired under sections 209(f) or (g) as it was sometimes difficult to discern from available data whether employees were hired under sections 209(f) or (g), rather than other authorities under Title 42. According to human resource officials, when attempting to report on the agency’s Title 42 employees, they chose to include questionable cases rather than risk an undercount.

HHS Did Not Consistently Adhere to Sections of Its Title 42 Policy and Lacks Guidance for Some Authority Provisions

Section 209(f) Hiring and Conversions

HHS did not consistently adhere to certain sections of its policy for hiring and converting employees under section 209(f). We conducted 28 case file reviews of appointments made under existing section 209(f) policy to determine the extent to which HHS practices were consistent with its policy.employees, the case file reviews indicate that HHS appointment practices are consistent with some aspects of its section 209(f) policy. For example, all appointees met education requirements for the type of scientific position being filled. While not an explicit requirement of the policy, HHS consistently documented the basis for compensation and any recruitment or retention incentives provided to section 209(f) employees. In some cases, however, HHS did not consistently adhere to its requirements, as shown in table 5.

While not generalizable across the population of Title 42 incumbent is directly involved in or manages scientific research or activities, and administrative positions that require the incumbent to have scientific credentials.

Requires that the same recruitment plan be used for both Title 5 and Title 42 to demonstrate that other available personnel systems failed to yield qualified candidates. Further, the policy also explains the process and documentation requirements necessary to demonstrate that other available personnel systems, including Title 5, the Senior Biomedical Research Service, and PHS Commissioned Corps, have failed to yield qualified candidates. Identifies specific positions and/or categories of positions at NIH that may be filled through section 209(f) without “exhausting” other recruitment mechanisms or authorities.

Section 209(g): Appointing and Compensating Fellows

HHS has no agencywide implementing policy for appointing and compensating employees hired as fellows under section 209(g), including details about what documents are needed to support the basis for appointments and compensation. We have previously reported that agencies should have clearly defined, well-documented, transparent, and consistently applied criteria for appointing and compensating personnel.

In lieu of guidance from HHS, the individual operating divisions established their own policies and guidance for appointing and compensating fellows under 209(g), each with different levels of detail, compensation limits, and documentation requirements. NIH has instructions for appointing fellows as well as guidance for the use of recruitment and retention incentives. FDA’s Service Fellowship Plan provides appointment and compensation setting procedures for section 209(g) fellows and caps total compensation at Executive Level IV, with some exceptions above that cap available for consideration. CDC’s policy for its 209(g) Fellowship Program provides provisions for all fellows and general compensation guidance. Top pay for a fellow is set at the equivalent of the Grade 15, Step 10 pay level.

The lack of an HHS-wide policy poses the risk that compensation decisions for section 209(g) fellows at HHS may not be made consistently across operating divisions. Although some guidance exists at the operating division level for setting compensation targets, in 11 of the 20 case studies we conducted of section 209(g) fellows, we found either no or insufficient documentation to support the basis for compensation. Without an agencywide policy, an agency cannot be assured that it is allocating its resources most appropriately. According to senior human resource officials at HHS, an agencywide policy is needed and the agency is developing a policy for appointment and compensating fellows under 209(g). However, it is not clear that the policy will address important issues such as documenting the basis for compensation. The section 209(g) policy was still in development as of May 2012.

EPA Employs a Limited Number of Title 42 Fellows, Primarily in Leadership Roles

Congress provided EPA with the authority to use 42 U.S.C. § 209 to employ up to 30 persons at any one time through fiscal year 2015. EPA has appointed 17 fellows in ORD from 2006 to 2011 under section 209(g). Of the 17 fellows appointed under Title 42, 12 were hired from outside EPA, while the remaining 5 converted from other positions within EPA. Of the 17 appointments, 14 were selected through advertised competition. To date, all 17 fellows remain with EPA and appointments for the three fellows hired in 2006 have been renewed for another 5-year term.or conversion.

See figure 3 for the cumulative onboard Title 42 staff, by new hire integrated systems toxicology research program, was previously an Associate Dean at a university where the individual led similar research efforts, and leads an ORD division with more than 80 staff.

Another leads a research program by developing biological measures to assess the impact of environmental exposure on human health and serves as Director for the Environmental Public Health Division.

The lead scientist for bioinformatics within the National Center for Computational Toxicology (NCCT) is a Title 42 fellow, responsible for conducting data analysis and developing solutions for data management, and serving as senior advisor to the center’s director.

According to EPA officials, Title 42 provides two important tools EPA needs to achieve its mission. First, EPA reported that Title 42 provides the flexibility to be competitive in recruiting top experts who are also sought after by other federal agencies, private industry, and academia. Prior to using Title 42, EPA had difficulty recruiting and retaining scientists in certain highly specialized disciplines under regular hiring authorities. We reported in 2001 that EPA faced significant challenges in recruiting and maintaining a workforce with mission-critical skills in key technical areas such as environmental protection, environmental engineering, toxicology, and ecology. EPA officials told us Title 42 has helped the agency recruit individuals in cases where, because of the specialization of expertise needed, authority to set pay over the limits of other hiring authorities was needed to be competitive in the labor market. As such, the minimum base salary for Title 42 employees at EPA is equal to the highest base pay level for employees paid under the General Schedule, and the maximum base salary is $250,000.

EPA officials also stated Title 42 provides the appointment flexibility needed to align experts with specific skills to changing scientific priorities. One specific program where EPA cited the importance of using Title 42 in that way was in the development of the NCCT. There are four Title 42 fellows at NCCT, including its director. The fellows assist in the development of NCCT initiatives, such as the Computational Toxicology Research Program, a program that is developing alternatives to traditional animal testing. A 2010 review by the National Academy of Sciences National Research Council reported “the use of Title 42 appointments to develop NCCT is an excellent example of how such appointments can be used to build new capacity and advance the state of science.” EPA officials stated it is not the agency’s intention to hire a fellow long-term under Title 42, but rather employ the individual as long as a priority remains high. For the three fellows hired in 2006, EPA renewed the terms for another 5-year appointment.

Annual salaries range from approximately $153,000 to $216,000, with an average salary of about $176,000 and a median salary of about $171,000. As shown in table 6, 15 of the 17 EPA fellows had salaries exceeding Executive Level IV.

Of the 12 new hires from outside EPA, 8 earned more in annual pay than earned in the position previously held, 3 earned less than in their previous position, and 1 appointee’s salary did not change. Salary changes from previous positions ranged from a decrease of $85,000 to an increase of $40,000, not including recruiting incentives. Eight of the 12 new hires received recruitment incentives ranging from $10,000 to $50,000. EPA documents indicate that the recruitment incentives were offered to compete with private industry and to aid in career transition. All five employees converted from other positions within EPA received a salary increase, ranging from $6,000 to $15,000. None of the converted employees received incentive payments.

Converted employees generally assumed additional responsibilities as a Title 42 employee. Our case studies included four of the five EPA employees who converted to Title 42. Of the four appointees who came from within EPA, one was promoted from the lead oil research program scientist to the director of the land remediation and pollution division, one moved from being an associate director to a division director within the same national center, one was promoted from a branch chief to a division director, and one remained a director.

In December 2010, EPA began a pilot of using market salary data to estimate salaries of what Title 42 candidates could earn in positions outside of government given their education, experience, professional standing, and other factors. EPA used the market salary data to inform salary negotiations for the five fellows appointed since the implementation of the pilot. According to EPA officials, the market salary pilot concludes in December 2012 and its effect will be analyzed at that time.

EPA Appointment and Compensation Practices Were Generally Consistent with Its Guidance, but EPA Could Improve Resolution of Potential Conflicts of Interest

In appointing Title 42 fellows, EPA generally followed appointment guidance described in its Title 42 Operations Manual. The manual provides guidance for managers, supervisors, and human resources specialists implementing Title 42. In all 10 case files we reviewed, documents provided by EPA show Title 42 practices were generally consistent with its guidance and requirements. Table 7 shows some selected Title 42 appointment requirements and observations from our case reviews.

We conducted 10 case file reviews of EPA Title 42 employees and in 2 cases we discovered issues related to EPA’s procedures for mitigating potential financial conflicts of interest. EPA’s Title 42 employees are subject to the same laws and regulations that govern the ethical conduct of other federal employees. For example, covered Title 42 employees are required to submit a public financial disclosure report (SF-278) as part of the appointment process and annually thereafter. Title 42 employees are also covered under the criminal conflict of interest law, 18 U.S.C. § 208. Section 208 prohibits a federal employee from participating personally and substantially in a particular matter in which he or she has a personal financial interest. The statute is intended to prevent an employee from allowing personal interests to affect his or her official actions and to protect governmental processes from actual or apparent conflicts of interest. The application of the statute can be waived so that an employee need not divest his or her financial interest or recuse themselves from the particular matter, where the nature and size of the financial interest and the nature of the matter in which the employee would participate are unlikely to affect an employee’s official actions.

EPA’s Title 42 guidance includes pre-employment ethics clearance procedures for identifying and mitigating potential conflicts of interest prior to appointment. As part of the procedures, an ethics official in EPA’s Office of General Counsel (OGC/Ethics) works with the candidate to ensure that all required information is reported on the disclosure form and to develop an ethics agreement, as necessary, to mitigate or resolve any identified potential conflicts. A job offer may only be extended after OGC/Ethics signs the public financial disclosure report. Although EPA has preappointment ethics clearance procedures as noted above, it does not have postappointment procedures in place to ensure Title 42 employees meet ethics requirements to which they have previously agreed. In two cases we reviewed, employees had potential conflict of interest situations arise after appointment resulting, in part, from the agency’s failure to ensure Title 42 employees followed agreed upon ethics requirements.

In one case, EPA general counsel determined stock owned by the candidate could be a potential conflict of interest and directed the candidate to either recuse himself from certain duties or divest himself of the stock as a condition of employment. The candidate agreed to divest of the stock and was subsequently hired. A year later, during the routine review of the employee’s annual financial disclosure form, EPA discovered that the employee still owned the stock. The employee was ordered to divest of the stock and this time immediately complied. EPA also reviewed the projects for which the employee was involved while still owning the stock and determined that the employee had not participated in any particular matter which would have constituted a conflict of interest. According to EPA, there was confusion concerning who, if anyone, was tasked to ensure the divestiture occurred. In another case, based on the review of the candidate’s public financial disclosure form, EPA and the candidate entered into an ethics agreement, which documented ethical constraints that would apply to the candidate and to caution the candidate about certain assets held. The agreement listed entities in which the individual held stock and advised that, as required by 18 U.S.C. § 208, the individual should not participate in any particular matter that affected any of the listed entities unless the individual first obtained a written waiver from EPA/OGC or the value of the asset was low enough to qualify under a regulatory de minimis exemption. Despite these efforts, a year later, while responding to the employee’s request for additional time to file the annual public financial disclosure form, EPA discovered that the employee was participating in a matter while holding stock in a company (a listed entity in the ethics agreement) that EPA/OGC initially believed could be affected by this matter. Concluding that the employee’s participation was a conflict of interest, EPA/OGC directed the employee, who had been working on the matter for approximately 3 days, to immediately stop working on the matter. The employee immediately complied and sold the stock holding in question in order to resume working on the matter. OGC/Ethics made no inquiry into the specific activities the employee engaged in during those 3 days. Almost 2 years later, OGC/Ethics officials now conclude that this company was not sufficiently affected by the matter to present a violation of 18 U.S.C. § 208 in light of facts that subsequently emerged.

EPA officials acknowledge that beyond these two cases, its efforts to identify and mitigate potential conflicts of interest after appointment can be improved and have taken steps to improve ethics oversight. For example, in order to increase overall awareness of ethics responsibilities, EPA reported it provided additional training to a senior ethics official and now copies Deputy Ethics Officials – officials responsible for assisting employees in being compliant with ethics requirements – when cautionary memoranda are issued. EPA also told us it has plans to develop mandatory training sessions for ethics officials in its field laboratories and centers and implement a process where employees hired under the Title 42 and other authorities send EPA OGC confirmation of such actions as stock divestitures or signed recusals. As details and implementation timelines for these plans were not available at the time of our review, it is not clear that these plans fully consider and address ethics issues that arise after appointment and ensure previously agreed upon ethics requirements are followed, as was the issue in the two cases above.

Conclusions

HHS and EPA have used Title 42 to recruit and retain highly skilled, in- demand personnel to government service. Although HHS relies on Title 42 to fill some of its most critical scientific and medical research positions, the lack of complete data and guidance may limit the agency’s ability to strategically manage the use of the authority. HHS erroneously reported appointments made under sections 209(f) and (g) that would have been prohibited by law, indicating the agency’s data management practices may preclude effective oversight of the program and workforce planning. Effective oversight is particularly important in light of HHS’s increasing use of Title 42 and the number of employees earning salaries higher than most federal employees. Inconsistencies between HHS’s policies and practices related to section 209(f) may result in that authority being used in ways for which it was not intended. Recent changes to 209(f) policy issued by HHS should help the agency more consistently follow requirements. As appointments have been made under 209(g) without documentation showing the basis for compensation, relying on 209(g) guidance issued only at the operating division level may not be sufficient to ensure appointments and compensation under this authority are appropriate and consistent. HHS has acknowledged the need for agencywide 209(g) guidance, but has not determined if it will include requiring documentation showing the basis for compensation. EPA generally followed its Title 42 policies and has incorporated some modifications to improve its appointment and compensation practices; however, EPA’s current ethics guidance does not sufficiently ensure Title 42 employees meet ethics requirements after appointment. EPA acknowledged it could improve its postappointment ethics oversight and reported it has plans to ensure that Title 42 employees send OGC confirmation of stock divestitures and other ethics requirements. However, at the time of our review, EPA had not provided us with implementation plans or timeframes. Although its plans appear to be prudent steps for addressing the specific issues that arose in the cases we reported, it will be important for EPA to implement them as soon as possible to mitigate the risk of future potential conflict of interest issues.

Recommendations for Executive Action

To help ensure HHS has the data and guidance necessary to effectively oversee and manage its Title 42 authority, we recommend that the Secretary of HHS take the following three actions:

Ensure section authority—sections 209(f) or (g)—be consistently entered in appropriate automated personnel systems, such as making section authority a required, drop-down field in its personnel system where this information is initially entered.

As part of its effort to implement new section 209(f) guidance, systematically document how policy requirements were fulfilled when hiring or converting 209(f) employees. This could include such items as: − − the basis for which the position is considered scientific, recruitment and retention efforts made under other hiring authorities before using Title 42, − a conversion’s recognition as a national or international expert in − a conversion’s original scientific or scholarly contributions of major significance in the field, − a conversion’s leadership in the field equivalent to a full-tenured professor in academia, and − a conversion’s special knowledge and skills of benefit to the agency.

As part of its ongoing effort to develop agencywide policy for appointing and compensating employees hired under section 209(g), ensure the policy requires and provides guidance for documenting the basis for employee compensation.

To help improve enforcement of ethics requirements, we recommend the Administrator of the EPA direct the Designated Agency Ethics Official:

As part of its efforts to improve postappointment ethics oversight, develop and document a systematic approach for ensuring Title 42 employees are compliant with ethics requirements after appointment. Implement, as part of this approach, reported plans to require Title 42 employees to provide proof of compliance with ethics agreements to a designated ethics official within a reasonable timeframe after appointment.

Agency Comments and Our Evaluation

We provided the Secretary of Health and Human Services and the Administrator of the EPA an opportunity to comment on a draft of this report. The HHS Assistant Secretary for Legislation and EPA’s Acting Assistant Administrator for Research and Development provided written responses and technical comments, which we incorporated as appropriate. The agencies’ comments appear in appendix II and III.

In a June 7, 2012, letter responding to a draft of this report, HHS agreed with each of the three recommendations. HHS’s ongoing and proposed actions noted in the response address our concerns and are likely to improve the agency’s management and oversight of its Title 42 authority.

HHS agreed with our first recommendation to ensure section authority is consistently entered in appropriate automated personnel systems. Specifically, HHS stated that as it moves forward with the implementation of a new enterprise human resources system, it will explore the possibility of using a drop-down field to enter Title 42 section authority. HHS stated that its Office of Human Resources will continue to work with the Operating Divisions and Staff Divisions to ensure that Title 42 personnel actions are processed in a consistent and accurate manner.

HHS also agreed with our two recommendations addressing Title 42 policies. HHS stated that, in part due to our findings, it updated its section 209(f) policy to address our concern that HHS document how policy requirements were fulfilled when hiring or converting section 209(f) employees. In addition, HHS agreed with our recommendation to develop agencywide policy for appointing and compensating employees hired under section 209(g) authority. HHS stated that the section 209(g) policy will be implemented in the near future.

In a June 6, 2012, letter responding to our draft, EPA disagreed with the recommendation directed to EPA and our discussion of the second ethics case. Specifically, EPA requested that we update our discussion to note that the individual had not yet visited a site related to work on the matter. EPA stated that since the individual had not yet visited the site, EPA is not aware of any evidence that the employee personally and substantially participated in the matter.

We do not believe a change in the discussion of this ethics matter is warranted. GAO made no independent conclusions as to whether the individual’s participation during the brief period of time we note constituted personal and substantial participation in the matter and whether this was a conflict of interest in violation of 18 U.S.C. § 208. Rather, our discussion of this case, including whether the individual’s participation was a conflict of interest, was based exclusively on and attributed to conclusions made by EPA/OGC, both at the time of the event and in subsequent interviews conducted for this engagement.

Specifically, documentary evidence at the time of our review supports the fact that EPA’s concern was the individual’s participation in the matter in general, and that EPA’s concern was not influenced by the fact that the individual was not yet on site. As we reported, EPA/OGC directed the individual to stop working on the matter when it found he owned stock in a company that could be affected by the matter he was working on (the individual immediately stopped working on the matter and sold the stock in order to resume working on this matter.)

EPA disagreed with our statement that it is not clear that EPA plans to develop an approach to address ethics issues that arise after appointment and ensure previously agreed upon ethics requirements are followed. In its comments, EPA noted that on February 17, 2012, it sent us a letter documenting the steps it has taken and plans to take to address postappointment ethics issues and ensure previously agreed upon ethics requirements are followed. Specifically in its February letter, EPA reported it recently implemented a process in which they now copy Deputy Ethics Officials when cautionary memoranda are issued to OGE 278 filers. EPA also reports it has plans to implement a process for public filers, including employees hired under the Title 42 special hiring authority, to ensure that they send OGC confirmation of stock divestitures, for example, or signed recusals.

We agree that providing cautionary memoranda to the officials responsible for assisting the employee in remaining compliant with ethics requirements is a step that could improve EPA’s postappointment ethics oversight and added this example to the report accordingly. However, because EPA did not provide a firm date or timelines for implementing its reported plan to ensure employees send OGC confirmation of stock divestitures or signed recusals, we did not revise the finding.

EPA disagreed with the recommendation that it develop and document a systematic approach for ensuring Title 42 employees are compliant with ethics requirements after appointment and consider adding steps to the ethics clearance process that require Title 42 employees to provide proof of compliance with ethics agreements. EPA asked that we remove the recommendation or revise it to acknowledge the plans mentioned above and that EPA continues working towards implementation.

We acknowledge EPA is considering a plan to require proof of compliance with ethics agreements and, because we believe this is a prudent and needed step for improved ethics oversight, have revised the recommendation to reflect EPA’s plans. As the two ethics issues we reported occurred over two years ago and EPA has acknowledged improvements in its postappointment ethics oversight are needed, such plans should be implemented as soon as possible. We maintain that the recommendation is still necessary to ensure EPA develops detailed plans and begins moving toward implementation as soon as possible to mitigate the risk of additional potential conflict of interest issues.

As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies of this report to the appropriate congressional committees. We are also sending copies to the Secretary of Health and Human Services and the Administrator of the Environmental Protection Agency. In addition, the report is available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-2757 or goldenoffr@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix IV.

Appendix I: Objectives, Scope, and Methodology

This report examines the extent to which the Department of Health and Human Services (HHS) and the Environmental Protection Agency (EPA) have (1) used authority under 42 U.S.C. §§ 209(f) and (g) to appoint and set pay for employees since January 2006, and (2) followed applicable agency policy, guidance, and internal controls for Title 42 appointments and compensation.

To address the first objective, we obtained and analyzed personnel data from HHS and EPA to describe Title 42 appointment and compensation trends at HHS and EPA since 2006, including the number of Title 42 employees; the types of occupations and positions held by Title 42 employees; compensation rates, including the number of Title 42 employees earning more than certain federal salary levels; the number of nonsalary payments (e.g., performance bonuses and retention incentives) provided to Title 42 employees and their purpose; and the number of civil servants that have been converted to Title 42 appointments and compensation changes associated with those conversions. We determined 2006 was the most appropriate beginning year for our analysis because, according to HHS human resource officials, personnel data prior to 2006 was likely not sufficiently reliable for our analysis. Also, EPA began using Title 42 in 2006. HHS data presented in this report is 2006 through the end of 2010, the last year of complete data available; and at EPA, 2006 through the end of 2011.

We conducted a variety of data tests and interviews with agency officials to correct and refine HHS Title 42 data and were able to develop a data set that was sufficiently reliable for our purposes. We could not, however, report on the number of HHS Title 42 employees hired under a particular section authority—sections 209(f) or (g)—because section authority is not consistently recorded by HHS. For EPA, we performed data testing and interviewed agency officials to identify any data gaps or inconsistencies with compensation data provided and compared EPA data to information found in official agency documents. We determined that EPA’s data were sufficiently reliable for the purposes of our report.

To assess the extent to which HHS and EPA have followed applicable policy, guidance, and internal controls, we reviewed the policies and guidance at HHS and EPA in order to understand the conditions under which Title 42 appointees are to be recruited, appointed, compensated, and managed. We determined case file reviews would be the most appropriate approach to obtain the information needed to (1) compare practices with policy and guidance, and (2) provide illustrations and context for data analysis results. We conducted a total of 63 case file reviews out of 1,502 HHS cases within selected strata in two phases. In the first phase, we conducted 23 case file reviews to address data reliability concerns. The number of case file reviews in this phase was proportional to the frequency with which we identified and observed cases with data characteristics that deviated from our understanding of the purpose and use of sections 209(f) and (g). In the second phase, we conducted 40 case file reviews based on a random selection of cases that had characteristics related to various areas of HHS Title 42 policy and guidance.

For the HHS case file selection, cases were grouped into strata based on certain characteristics—such as hired under section 209(f), hired under section 209(g), newly hired in 2010, converted in 2010, or with aspects of data inconsistent with our understanding of Title 42’s purpose—and randomly selected from within those strata. For EPA, we selected 10 of the 17 Title 42 employees for case file reviews based on a cross section of (1) labs and centers within EPA to understand if Title 42 was implemented uniformly across the agency; (2) Title 42 candidate sources such as the private sector, academia, and conversions to determine if differences existed in recruitment and pay setting; (3) length of service as a Title 42 employee to understand the effect of recent appointment and compensation guidance; and (4) compensation characteristics. We developed a data collection instrument for both HHS and EPA file reviews to capture information that was uniform and comparable.

At the conclusion of each phase of our case file reviews, we analyzed the results and recorded our observations and listed the next steps—such as interviews with agency officials and further data analysis—needed to obtain further context for our observations. The results from the case file reviews and subsequent activities enabled us to understand the results of our data analyses and provided the basis for findings. We determined the number of case file reviews was sufficient to identify incidences where practices were or were not consistent with policies and guidance, but our findings are not generalizable to the entire population of sections 209(f) and (g) employees at HHS or EPA.

We conducted this performance audit from May 2011 through July 2012 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Comments from the Department of Health and Human Services

Appendix III: Comments from the Environmental Protection Agency

Appendix IV: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the individual named above, Trina Lewis, Assistant Director; Shea Bader; Carl Barden; Laurel Beedon; Andrew Ching; Sara Daleski; Jeffrey DeMarco; Karin Fangman; Ellen Grady; James Lager; Cynthia Saunders; Jeff Schmerling; and Gregory Wilmoth made major contributions to this report.