REORGANIZATION PLAN NO. ______OF 1978

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00314R000600010001-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 216
• Document Creation Date: December 9, 2016
• Document Release Date: July 28, 2000
• Sequence Number: 1
• Content Type: REGULATION

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NO. OF 1978
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Reorganization Plan No. of 1978
Prepared by the President and transmitted to the Senate and the House
of Representatives in Congress assembled, (date), pursuant to the pro-
visions of Chapter 9 of title 5 of the United States Code.
Section 101. Transfer of functions. Except as otherwise specified in
Part II of this Plan, all functions of the United States Civil Service
Commission, all functions of the Chairman of the Commission, and all
functions of the Boards of Examiners (5 U.S.C. 1105) are hereby trans-
ferred to the Office of Personnel Management hereinafter established by
this Plan.
Section 102. Establishment of the.Office of Personnel Management.
There is hereby established as an independent establishment in the
Executive branch, an Office of Personnel Management hereinafter
referred to as the Office. The Office shall have an official seal
which shall be officially noticed and shall have its principal office
in the District of Columbia, but it may have field offices in any
other appropriate location.
Section 103. Director, Deputy Director, and Associate Directors. (a)
There shall be at the head of the Office a Director of the Office of
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Personnel Management hereinafter referred to as the Director. The
Director shall be appointed by the President, by and with the advice
and consent of the Senate, and shall be compensated at the rate now or
hereafter provided for Level II of the Executive Schedule (5 U.S.C.
5313).
(b) There shall be in the Office a Deputy Director of the Office
of Personnel Management who shall be appointed by the President, by
and with the advice and consent of the Senate, and shall be
compensated at the rate now or hereafter provided for Level III of the
Executive Schedule (5 U.S.C. 5314). The Deputy Director shall perform
such functions as the Director may from time to time prescribe and
shall act as Director during the absence or disability of the Director
or in the event of a vacancy in the Office of the Director.
(c) No person shall, while holding office as Director or Deputy
Director, hold another office or position in the Government of the
United States except where provided by law or by the President.
(d) There shall be within the Office of Personnel Management not
more than five Associate Directors, as determined from time to time by
the Director of the Office of Personnel Management. Each such
Associate Director shall be appointed by the Director, in the excepted
service, shall have such title as the Director shall from time to time
determine, and shall receive compensation at the rate now or hereafter
prescribed for officers and positions at Level IV of the Executive
Schedule (5 U.S.C. 5315).
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Section 104. Functions of the Director. (a) The Director shall super-
vise and direct the Office of Personnel Management and may appoint
such employees as the Director considers necessary to carry out the
functions of the Office.
(b) The Director shall advise the President on the issuance of
rules for the administration of the competitive -service. The Director
shall request, consider; and forward to the President without change
the views of the Merit Systems Protection Board, hereinafter provided
for, pertaining to the issuance of such rules.
(c) The Director shall be the principal adviser to the President
on all matters pertaining to civilian employment in Executive and
other Federal agencies within the jurisdiction of the Office of
Personnel Management, except Presidential appointments outside the
Office of Personnel Management. The Director shall, in support of
this function, have the power to require statistical and narrative
reports of all Executive and other Federal agencies within the juris-
dication of the Office of Personnel Management, and to review the
personnel policies and practices of such agencies as necessary.
(d) The Director shall exercise program leadership in all aspects
of personnel management, shall develop and promulgate personnel poli-
cies and regulations consistent with law and Presidential directive,
and shall provide technical and other assistance to Executive and
other Federal agencies within the jurisdiction of the Office of Per-
sonnel Management to assure effective overall management of personnel
resources. This responsibility shall include:
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(1) providing effective programs for examination for
employment, recruitment and staffing, affirmative action, job
evaluation, training and development, employee relations and
services, selection and development of executives, and personnel
management evaluation;
(2)'providing effective mechanisms for workforce planning,
staff utilization, position management, and compensation. The
development of such efforts shall take into account the program
responsibilities of the Office of Management and Budget;
(3) establishing and maintaining a program for the policy
guidance of agencies on labor-management relations in the Federal
service and assisting agencies by providing technical services
related to the conduct of labor-management relations, including
advice and information programs and training assistance; and
(4) conducting, or otherwise providing for studies and
research for the purpose of assuring improvements in personnel
management to enhance the productivity and effectiveness of the
Federal workforce.
Section 105. Evaluation, Investigation, and Enforcement. (a) The
Director shall conduct evaluations of the personnel policies, programs
and operations of Executive and other Federal agencies within the
jurisdiction of the Office of Personnel Management to determine their
effectiveness, and shall require such corrective actions as needed to
assure compliance with public policy as defined in the Civil Service
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Rules and regulations of the President and the Office of Personnel
Management, the statutes governing same and Presidential directives.
(b) When in the course of an evaluation the Director finds
violations of applicable laws, rules, regulations, or directives, an
appropriate investigation will be conducted, the results of which
shall be reported to the agency concerned, with such instructions for
corrective action as may be necessary. The head of the agency
concerned shall take those actions which the Director specifically
requires.
(c) The Director shall not order disciplinary action against any
employee in the Executive branch (other than subordinate employees of
the Office of Personnel Management). If, during the course of an
evaluation or investigation under this section, the Director finds
evidence of matters that come within the investigative and
prosecutorial jurisdiction of the Special Counsel of the Merit System
Protection Board, hereinafter provided for, the Director shall refer
such evidence to the Special Counsel for appropriate disposition. The
Special Counsel shall raport to the Director on the disposition of the
matter referred.
Section 106. Authority to Delegate Functions. The Director may, from
time to time, make such provisions as the Director shall deem
appropriate authorizing the performance of any function transferred to
him/her hereunder by any organizational entity or employee of the
Office. The Director may delegate, subject to law and such conditions
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as the Director deems necessary, the performance of any function or
any portion thereof transferred under this Plan to the head of any
agency employing persons in the competitive civil service, if in the
judgment of the Director such delegation would contribute to the
efficiency and effectiveness of the service, and provided adequate
provision is made for the oversight and supervision of the agency's
performance of such function. The Director may suspend or revoke, in
whole or in part, any delegation when in his/her judgment the
revocation would be in the interest of good administration.
Section 201. Merit Systems Protection Board. (a) The United States
Civil Service Commission, as established by the Civil Service Act of
1883, as amended, and as subsequently organized in Chapter 11 of title
5, United States Code, is redesignated the Merit Systems Protection
Board, hereinafter referred to as the Board. The Merit Systems
Protection Board shall have an official seal which shall be officially
noticed and shall have its principal office in the District of
Columbia, but may have field offices in any other appropriate
location.
(b) The Chairman of the Board shall be its chief executive ar.d
administrative officer. The Office of Executive Director, as provided
for in section 1103(d) of title 5, United States Code, is hereby
abolished.
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(c) There shall be located within the Merit Systems Protection
Board a Special Counsel, who shall be an attorney appointed by the
President, by and with the advice and consent of the Senate, and who
shall be compensated at the rate now or hereafter provided for Level
IV of the Executive Schedule (5 U.S.C. 5315).
Section 202. Functions remaining with the Merit Systems Protection
Board After the Transfer of Functions Authorized in Part I. (a) The
Board shall exercise the adjudication and appeals authority vested in
the Civil Service Commission by statute (5 U.S.C. 5335, 7521, 7701,
8347(d), 29 U.S.C. 633a, 38 U.S.C. 2023, and 42 U.S.C. 2000e-16), by
Executive Order (Executive Order 11491, as amended, Section 22), by
regulations and directives of the Commmission, pursuant to statute (5
CFR Sections 300.104(a), 302.501-03, 315.806, 330.202, 351.901,
352.209, 352.313, 352.508, 352.607, 352.707, 353.401, 531.517,
731.401, 754.105, 831.107, 831.1101-12, 831.1205, 870.205, 871.206,
890.103, and 891.105, Federal Personnel Manual Letter No. 551-9, and
Civil Service Commission Minute Number 5 of April 29, 1974, concerning
examination ratings pertaining to applicants for appointment as
administrative law judges).to hear and decide appeals from Federal
employees and applicants, except that the administrative review of
examination ratings (5 CFR. 300.104(b)), of classification and job
grading decisions (5 U.S.C. 5112 and 5346), and of decisions of
insurance carriers denying claims of employees, annuitants, or family
members (5 U.S.C. 8902(j)) is reserved to the office of Personnel
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Management. The Board shall exercise its authority in accordance with
the provisions of pertinent statutes and Executive orders. Nothing in
this section shall preclude the amendment or revocation of an
Executive order or regulation cited in this section.
(1) Whenever the Director of the Office of Personnel
Management proposes to accord a right of appeal to the Board by
the exercise of regulatory authority granted him/her by statute
or Executive order, he/she shall first notify the members of the
Board.
(2) A member of the Board may request from the Director an
advisory opinion concerning interpretation of regulations or
other policy directives promulgated by the Office of Personnel
Management in connection with a matter before the Board for
adjudication.
(3) Whenever a regulation or other policy directive issued
by the Office of Personnel Management is at issue in an appeal
before the Board, the Board shall timely notify the Director, and
the Director shall have standing to intervene in the proceedings
and shall have all the rights of a party to the proceeding.
(4) The Director may request that the Board re-open an
appeal and reconsider its decision on the grounds that the
decision was based on an erroneous interpretation of law or of
controlling regulations or other policy directive issued by t'ie
Office of Personnel Management.
(b) The Board shall designate one memeber, who shall serve as
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chairman, of a performance rating board established pursuant to
section 4305 of title 5, United States Code.
(c) The Chairman of the Board shall designate a representative,
who shall serve as chairman, of a board of review established pursuant
to section 3383(b) of title 5, United States Code.
(d) The Board shall perform the functions of the International
Organizations Employees Loyalty Board, established by Executive Order
10422, January 9, 1953 (relating to security and the loyalty of
applicants for employment with international organizations).
(e) The Board shall perform the functions prescribed for the
Civil Service Commission in connection with appeals under 35 CFR
253. 241.
(f) The Board may from time to time conduct special studies
relating to the competitive civil service, and to other merit systems
in the Executive branch as the President may direct, and report to the
President and the Congress concerning whether the public- interest in a
workforce free of prohibited personnel practices is being adequately
protected. In carrying out this function the Board shall make such
inquiries and investigations as may be necessary, shall have access, to
statistical and other personnel records or information collected by
the Office of Personnel Management and may require additional reports
from agencies as needed. The Board shall make such recommendations to
the President and the Congress as it deems appropriate.
(g) The Board may make such provision as it shall deem appropri-
ate authorizing the performance of any function described in this
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section by any organizational entity, office, or employee of the
Board.
(h) The Board shall have the authority to prescribe such
regulations as may be necessary for the performance of the functions
enumerated in this section. The Board shall issue no advisory opinion
concerning any law, statute, Presidential order or directive or any
regulations or other policy directive of the office of Personnel
Management. In connection with its appellate functions the Board
shall issue regulations consistent with statutory requirements
defining its review procedures, the time limits within which an appeal
must be filed, and the rights and responsibilities of the parties to
an appeal. All regulations of the Board shall be published in the
Federal Register.
(i) Savings provision. The provisions of this Reorganization
Plan shall not affect appeals pending on the effective date of this
Plan. The Merit Systems Protection Board shall accept appeals from
agency actions effected prior to the effective date of this Plan, ;_n
accord with law and regulations in effect on that date. Proceedings
before the Federal Employee Appeals Authority shall continue before an
appeals officer of the Merit Systems Protection Board; proceedings
before the Appeals Review Board and proceedings before the Civil
Service Commission on appeal from decisions of the Appeals Review
Board shall continue before the Merit Systems Protection Board. Other
employee appeals heard by boards or other bodies pursuant to statute
or regulation shall continue to be processed pursuant to those
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statutes or regulations. Nothing herein shall affect the right of a
Federal employee to Judicial review under applicable law.
Section 203. Functions of the Special Counsel. (a) The Special
Counsel may receive and investigate allegations of the following:
(1) prohibited political activity on the part of Federal
employees in accordance with the provisions of Subchapter III of
Chapter 73 of title 5, United States Code;
(2) prohibited political activity on the part of certain
State and local employees in accordance with the provisions of
Chapter 15 of title 5, United States Code;
(3) arbitrary or capricious withholding of information by a
Federal official under the Freedom of Information Act in
accordance with section 552(a)(4)(F) of title 5, United States
(4) such personnel practices as may be prohibited by the
Civil Service Rules, including, but not limited to, prohibited
political intrusion in personnel decision-making and reprisal
against employees for lawful disclosure of information concerning
violation of law or regulation;
(5) discrimination by an official or employee of the
Government in personnel actions, when a finding of discrimination
has already been made by a court or an appropriate administrative
authority;
except when the Special Counsel concludes that an allegation under
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paragraphs (1), (4), or (5) may more appropriatelytbe resolved under
an administrative appeals procedure. A report of an investigation
under this section shall be made available to the head of the agency
concerned and to the Director of the Office of Personnel Managemenl_.
(b) During the pendency of an investigation initiated under
subsection (a) of this section, the head of an agency shall not order
disciplinary action against an employee whose culpability is at issue
in such investigation for offenses covered by the investigation.
(c) When in the judgment of the Special Counsel, the results of
an investigation warrant the taking of disciplinary action against any
civilian employee in the Executive branch subject to the coverage :)f
the laws or rules cited in subsection (a) of this section, except
Presidential appointees, or against a State or local officer or
employee subject to the coverage of paragraph (2) of subsection (a) of
this section, the Special Counsel shall prepare charges against such
employee and present them with supporting documentation to the members
of the Board sitting en banc or to an administrative law judge
designated by the Board. Evidence supporting the need for
disciplinary action against a Presidential appointee shall be
submitted by the Special Counsel to the President.
(d) Any employee not appointed by the President against whom
charges are brought by the Special Counsel shall be entitled to an evi-
dentiary hearing with the right to cross-examine witnesses and to be
represented by counsel or other representative. Hearings relating to
State or local officers or employees shall be conducted in accordance
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with Section 1505 of title 5, United States Code.
(e) The Board shall consider all cases brought by the Special
Counsel and the Board's decision shall be final with no further right
of administrative appeal. The employing agency shall take the
disciplinary action ordered by the Board. When the Board orders the
removal of a State or local officer or employee, it shall act in
accordance with the provisions of section 1506 of title 5, United
States Code.
(f) The Special Counsel may appoint such legal, administrative,
and support personnel as may be necessary to perform his/her
functions.
(g) The Special Counsel shall have the authority to prescribe
regulations as may be necessary pertaining to the receipt and
investigation of matters under this section. Such regulations shall
be published in the Federal Register.
(h) The Special Counsel shall issue no advisory opinion
concerning any law, statute, Presidential order or directive or any
regulation or other policy directives of the office of Personnel
Management.
Section 301. Incidental transfers. (a) So much of the personnel,
property, records, and unexpended balances of appropriations, allo-
cations, and other funds employed, held, or used by, or available to,
or to be made available to the Civil Service Commission, in connection
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with functions affected by the provisions of this Reorganization Plan,
as the Director of the Office of Management and Budget shall deter--
mine, shall be transferred to the Office of Personnel Management a:
such time or times as the Director of the Office of Management and
Budget shall direct.
(b) Such further measures and disposition as the Director of the
Office of Management and Budget shall deem to be necessary in order to
effectuate the transfers provided for in subsection (a) of this
section shall be carried out in such manner as the Director of the
Office of Management and Budget shall direct and by such agencies as
the Director of the Office of Management and Budget shall designate.
Section 302. Interim officers. (a) The President may authorize any
person who immediately prior to the effective date of this Reorgani-
zation Plan held a position in the Executive branch of the Government
to act as Director or Deputy Director of the Office of Personnel
Management, or to act as Special Counsel of the Board, until those
offices are for the first time filled pursuant to the provisions o:E
this Reorganization Plan or by recess appointment, as the case may
(b) The President may authorize any person who serves in an
acting capacity under the foregoing provision of this section to
receive the compensation attached to the office in respect of which
he/she so serves. Such compensation, if authorized, shall be in lieu
of, but not in addition to, other compensation from the United States
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Section 303. Effective date. The provisions of this Reorganization
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Section Analysis
To accompany Reorganization Plan No. of 1978
to Transfer Certain Functions of the United States
Civil Service Commission and to Re-Designate the
Commission as the Merit Systems Protection Board.
This Plan establishes the Office of Personnel Management to perform the
policy-making and executive responsibilities currently assigned to the
Civil Service Commission, re-designates the Commission as the Merit
Systems Protection Board and enumerates its appellate and merit enforce-
ment authorities.
Part I. Office of Personnel Management
Section-101. Transfer of Function.
This section transfers the policy-making, executive, and managerial
functions (sometimes referred to as the "positive personnel management"
functions) assigned by law or Executive order to the U.S. Civil Service
Commission, its Chairman, or to Boards of Examiners under 5 USC 1105, to
the Office of Personnel Management. The adjudicatory and merit enforce-
ment functions of the Commission are otherwise provided for in Part II
of the Plan.
Section 102. Establishment of Office of Personnel Management.
This section provides for an independent establishment in the Executive
branch to be called the Office of Personnel Management. The Office will
have an official seal that will be officially noticed and will have its
primary office in the District of Columbia, with field offices located
as may be necessary.
Section 103. Director, Deputy Director, and Associate Directors.
The section provides for the appointment by the President of a Director
and Deputy Director of the Office of Personnel Management, by and with
the advice and consent of the Senate, and for their compensation at
Levels II and III respectively of the Executive Schedule. (The compensa-
tion levels parallel those for the Director and Deputy Director of the
Office of Management and Budget.) The duties of the Deputy are to be
prescribed by the Director and the Deputy shall act for the Director
during his absence or disability or during a vacancy in the Office of
the Director.
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The section further provides that while serving as Director or Deputy
Director, no person shall hold another office or position in the Govern-
ment of the United States. The section does not exclude the Director or
Deputy Director from accepting and performing ex officio duties that may
be assigned by law or by the President, such as membership on committees,
councils, or-other bodies.
This section provides for the appointment within the excepted service
of as many as five-Associate Directors who shall be compensated at
Level IV of the Executive Schedule and whose position titles shall be
determined by the Director. The Associate Director positions are
justified both on the basis of the expanded role of the Office of
Personnel Management in providing policy advice and assistance to the
President on civilian personnel matters (except Presidential appoint-
ments) in the Executive branch, and on the need for forceful management
of improved personnel programs.
Section 104. Functions of the Director.
Subsection (a) of this section sets forth the administrative authority
of the Director to supervise and direct the Office of Personnel Manage-
ment and appoint such employees as he/she considers necessary for the
mission of the agency.
Subsection (b) of this section provides that the Director shall advise
the President on the issuance of rules for the administration of the
competitive service. This duty was assigned to the Civil Service
Commission by the Pendleton Act of 1883. Since both the Office of
Personnel Management and the Merit Systems Protection Board, provided
for in Part II of the Plan, will have a strong interest in the content
of the Presidential rules, provision is made for the Director to solicit,
consider, and pass on to the President without change the views of tae
Board.
Subsection (c) sets forth the responsibility of the Director to act as
the principal Presidential advisor on all aspects of civilian employment
in Executive agencies and other Federal agencies within the jurisdiction of
the Office of Personnel Management. The subsection makes clear, however,
that the Director is to have no role in advising the President concerning
Presidential appointments other than with regard to his/her successor
as Director or the appointment of a Deputy Director of the Office of
Personnel Management. Since the Director will require an information
base and an evaluation authority adequate to his/her advisory role,
the subsection empowers the Director to levy statistical and other re-
porting requirements on Executive agencies and to review their personnel
policies and operations.
Subsection (d) articulates the Director's leadership role and responsi-
bility for developing and issuing personnel policies pursuant to law and
Presidential directive, and for assisting Executive agencies (and others
that may come within the Office's jurisdiction) to assure the most effec-
tive management of personnel resources. The specific duties enumerated
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in paragraphs (1) through (4) are illustrative rather than all inclusive
of the Director's leadership responsibility. Cooperation with the
Office of Management and Budget is indicated for those areas--workforce
planning, staff utilization, position management, and compensation--in
which personnel management and budgetary considerations are most closely
allied.
This section provides that the Director shall evaluate the performance
of the personnel function in Executive agencies and other Federal agen-
cies and report his/her findings and conclusions to the head of the agency
concerned. The purpose of the evaluation is twofold: (1) to assess the
strengths and weaknesses of the agency's performance and recommend
managerial and systemic improvements; and (2) to assure agency compli-
ance with the laws, rules, regulations, and other public policies that
govern the personnel function. The Director is required to report all
violations to the head of the agency with instructions for corrective
action, and the head of the agency must take those actions which the
Director specifically requires.
The Director is not authorized to order disciplinary action against em-
ployees of other agencies. In the event the Director finds evidence of
violations that come within the investigative and prosecutorial juris-
diction of the Special Counsel, as defined in Part II of the Plan, the
Director is required to refer the evidence to the Special Counsel. The
Special Counsel is required to,report to the Director on the resolution
of the matter referred..
This section, while making the Director responsible for managerial audits
and for general agency compliance with laws, rules, and regulations, in-
cluding corrective action, is intended to remove the Director from any
prosecutorial role with regard to employees of other agencies. The Director
will, of course, have the usual disciplinary powers over employees of the
Office of Personnel Management.
Section 106. Authority to Delegate Functions.
This section provides that the Director may delegate any function
assigned to the Office to any subordinate employee or organizational
entity in the Office. The Director may also delegate, subject to law,
any function or portion thereof assigned to the Office to the head of
any Executive agency, if it is believed that delegation would enhance
the efficiency and effectiveness of the service. In making a delegation
to the head of an Executive agency, the Director may stipulate in a per-
formance agreement the conditions and standards of the delegation. The
Office must provide adequate oversight and supervision of the agency
head's performance of the function. The Director must also reserve the
right to revoke or suspend in whole or in part the delegation when such
suspension or revocation is in the interest of good administration. The
intent of this section is to enable the Director to allow agencies that
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show the interest and competence to do so, to perform more speedily
and efficiently for themselves, and possibly for other agencies, certain
functions and services now performed on a centralized basis by the Civil
Service Commission.
Part II. Merit Systems Protection Board.
Section 201. Merit Systems Protection Board.
Section 201 changes the designation of the Civil Service Commission to
the Merit Systems Protection Board; provides that the Board will have
a seal which will be officially noticed; and requires that the Board
be headquartered in the District of Columbia with field offices located
as need may dictate.
Section 201 also affirms that the Chairman of the Board will be its
chief executive and administrative officer and abolishes the Office
of the Executive Director currently established in section 1103(d) of
title 5, United States Code. The section further provides for the
appointment by the President (subject to confirmation by the Senate)
of a Special Counsel who shall be located in the Board, and who shall
be an attorney compensated at Level IV of the Executive Schedule.
By re-designating the Civil Service Commission the Merit Systems
Protection Board rather than abolishing the Commission and creating
a new entity by that name, tfie six-year terms of the Commissioners are
preserved. (The Reorganizaion Act does not allow for the creation cf
an office with a term of longer duration than that of the President.)
Since the insulation of the Board from political pressure is essential
to its proper functioning, legislation will be submitted lengthening
the terms of members, prohibiting their reappointment, and forbidding
their removal except for cause.
Since the Board will not have extensive administrative responsibilities
and no operating programs, the position of Executive Director will not
be needed.
The establishment of an Office of Special Counsel is intended to
strengthen and increase the emphasis on the "watchdog" investigation
and enforcement capabilities of the Federal Government with regard to
alleged merit abuses.
Section 202. Functions of the Merit Systems Protection Board After the
Transfer of Functions Authorized in Part I.
This section sets forth the adjudicatory authority of the Board. It.
authorizes the Board to hear and decide appeals and complaints concerning
the following matters which currently are adjudicated by the Commission:
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(1) Withholding of within-grade salary increases (5 USC 5335);
(2) Removal of a hearing examiner (5 USC 7521);
(3) Adverse actions against preference eligibles (5 USC 7701);
(4) Determinations by the Bureau of Retirement, Insurance, and Occupa-
tional Health concerning retirement applications and annuities (5
USC 8347(d) and 5 CFR 831.107, 831.1101-12, and 831.1205);
(5) Restoration to duty following military service or following recovery
or partial recovery from a compensable injury (38 USC 2023 and 5 CFR
302.501-03, 353.401);
(6) Complaints of discrimination based on race, color, religion, national
origin, age, or sex (29 USC 633a and 42 USC 2000e-16);
(7) Adverse actions against non-preference eligibles in the competitive
service (E.O. 11491, as amended);
(8) Employment practices administered or required by the Civil Service
Commission (5 CFR 300.104(a));
(9) Terminations during probationary periods (5 CFR 315.806);
(10) Reemployment priority lists (5 CFR 330.202);
(11) Reduction in force (5 CFR 351.901);
(12) Reemployment rights based on movement between Executive agencies
during emergencies (5 CFR 352.209);
(13) Reemployment rights following details or transfers to international
organizations (5 CFR 352.313);
(14) Reinstatement rights after service under the Foreign Assistance
Act of 1961 (5 CFR 352.508);
(15)- Reemployment rights after service in the Economic Stabilization
Program (5 CFR 352.607);
(16) Reemployment rights after service under the Indian Self-Determina-
tion Act (5 CFR 352.707);
(17) Retention of salaries of employees demoted to General Schedule
positions without personal cause, not at their own request, and not
in a reduction in force due to lack of funds or curtailment of work
(5 CFR 531.517);
(18) Disqualification of employees or applicants by the Commission
based on suitability determinations (5 CFR 731.401 and 754.105);
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(19) Denials by employing agencies of regular or optional life insurance
coverage (5 CFR 870.205 and 871.206);
(20) Refusal by employing agencies to permit employees to enroll, or to
change their enrollment, in a health benefits plan (5 CFR 890.103);
(21) Determinations by the Commission's Bureau of Retirement, Insurance,
and Occupational Health that annuitants are not eligible to elect
health benefits plans or to receive Government contributions related
to such plans (5 CFR 891.105);
(22) Complaints of agency non-compliance with the Fair Labor Standards
Act (FPM Letter No. 551-9); and
(23) Appeals from an examination rating or the rejection of an applica-
tion in connection with an administrative law judge position (CSC
Minute Number 5 of April 29, 1974).
The Board will not have the authority to adjudicate appeals from examina-
tion ratings or rejection of applications (other than those pertaining to
administrative law judge positions), from position classification or job
grading determinations (other than those related to adverse actions), or
from decisions of insurance carriers denying claims of employees, annu-
itants, or family members. These matters have been determined to be more
suitable for administrative review to determine accuracy and consistency
with the intentions of the administrative authority.
The enumeration of appeal rights granted by Executive order and by
regulation in this section should not be construed to prejudice or other-
wise alter the power of the President or of the issuing agency to amend
or revoke such rights. The Board is to exercise its authority in accord-
ance with the provisions of pertinent statutes, Executive orders, and
regulations as they currently read or as they may from time to time be
changed by the appropriate authority.
Paragraphs (1) through (4) of subsection (a) define the relationship
between the Board and the Office of Personnel Management with regard
to appeals. Paragraph (1) provides that the Director of the Office of
Personnel Management must notify the Board before extending any right of
appeal to the Board by regulation. Paragraph (2) provides that a member
of the Board may request an interpretation of regulations issued by the
Office of Personnel Management in connection with an appeal; paragr~.ph
(3) provides that the Board must notify the Director whenever a regulation
or other policy directive issued by his/her office is at issue in a case,
and gives the Director standing to intervene in the proceedings and all
the rights of a party to the proceeding and; paragraph (4) provides that
the Director of the Office of Personnel Management may request that the
Board reconsider a decision believed to be based on an erroneous interpre-
tation of law or regulation issued by his/her Office. The articulation of
the prerogatives of the Board and the Office of Personnel Management in
the appellate area recognizes the desirability of open communications be-
tween the agency primarily responsible for issuing personnel regulations
and the agency responsible for applying them in individual appellate cases.
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Subsections (b) and (c) of this section provide for the designation of
chairmen of performance rating boards and of chairmen of boards of re-
view in connection with the removal of air traffic controllers from air
traffic controller positions, respectively.
Subsection (d) provides that the Board shall perform the duties of the
International Organizations Employees Loyalty Board relating to
security and loyalty of applicants for employment with international
organizations. Subsection (e) provides for the Board to perform the
functions of the Civil Service Commission in connection with appeals
of employees of the Canal Zone Government and the Panama Canal Company.
Subsection (f) accords the Board authority to conduct special studies
relating to the competitive civil service and other merit systems in
the Executive branch and to report to the President and the Congress
concerning whether the public interest in a workforce free of prohibited
practices is being protected. The Board is not authorized to make studies
focused on other personnel matters. The Board will have access to per-
sonnel records and information collected. by the Office of Personnel
Management and will be authorized to gather further information by on-
site reviews or by requesting reports from agencies.
Subsection (g) of this section authorizes the Board to delegate its
functions and authorities under this section to its staff. Subsection
(h) authorizes the Board to issue regulations governing its functions
and authorities, including regulations defining its review procedures,
the time limits for appealing, and the rights and responsibilities of
parties to appeals. These regulations will be published in the Federal
Register prior to their effective date. Subsection (h) also provides
that the Board shall not issue advisory opinions concerning any law,
statute, Presidential order or directive or any regulation or other
policy directive of the Office of Personnel Management.
Finally, subsection (i) contains the savings provision. It provides
that this Plan shall not affect pending appeals of employees and that
the Board shall accept appeals from agency actions effected prior to
the effective date of the Plan in accord with the laws and regulations
in effect on the effective date of the Plan. It provides for the carry-
over of proceedings before the Federal Employee Appeals Authority and
the Appeals Review Board of the Civil Service Commission and the Civil
Service Commissioners to the Board and for the completion of other
appeals in process, such as appeals of performance ratings, in accord
with the laws, rules, and regulations in effect on the effective date
of the Reorganization Plan. The Plan does not affect the right of any
employee to judicial review.
Section 203. Functions of the Special Counsel.
Subsection (a) of this section sets forth the investigative jurisdiction
of the Special Counsel. It accords the Special Counsel power to investi-
gate allegations of prohibited political activity on the part of Federal
employees and of certain State and local employees. The Special Counsel
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is also authorized to investigate, pursuant to a court finding that such
investigation is warranted, to ascertain whether information that should
have been disclosed under the Freedom of Information Act has been with-
held by a Federal official in a capricious or arbitrary manner. The
Special Counsel is also given investigative jurisdiction over personnel
practices prohibited by the Civil Service Rules. These practices
include political interference in personnel decision-making (except
with regard to those positions for which political considerations are
publicly and officially recognized) and reprisal actions against employees
for lawful. disclosure of information related to violations of law or
regulation (whistle-blowing). Finally, the Special Counsel is authorized
to investigate when a finding has been made, either under an administrative
complaint procedure or by a court, of discrimination as prohibited by title
VII of the Civil Rights Act of 1964, as amended, by the age discrimination
provisions of the Fair Labor Standards Amendments of 1974, or by Subchapter
II of Chapter 71 of title 5, United States Code, to determine whether dis-
ciplinary action is needed.
The agency and employee coverage of matters within the Special Counsel's
jurisdiction shall be determined under the provisions of the pertinent
statutes and rules. The Special Counsel's investigative authority is
limited to those specifically enumerated abuses committed by individuals
and is not intended to prevent the Director of the Office of Personnel
Management from directing agency compliance with rules and regulations.
The Special Counsel may decide not to investigate a matter that is brought
to his/her attention under this section, when in his/her judgment the
issue could more appropriately be resolved under an available appeal.
procedure. If an investigation is conducted, a report of the investiga-
tion must be made available to the head of the agency concerned and to
the Director of the Office of Personnel Management.
Subsection (b) of this section provides that after the Special Counsel
has initiated an investigation and pending its completion, the head of
an agency may not order any disciplinary action against an employee
who is a subject of the investigation for offenses covered by the investi
gation. This is to prevent the agency head from pre-empting the pro-
secutorial role of the Special Counsel set forth below.
Subsection (c) authorizes the Special Counsel to prepare charges based
on investigations carried out under this section against State and local
employees as defined in 5 USC 1504(a) and against Federal employees in
the Executive branch, except Presidential appointees. Charges are pre-
sented to the Board members or to an administrative law judge designated
by the Board. (In the case of a Presidential appointee, the Special.
Counsel refers the results of the investigation to the President.)
Subsection (d) provides that an employee against whom charges are brought
is entitled to an evidentiary hearing with right to representation, and
proceedings against State or local employees are conducted in accord-
ance with 5 USC 1505. Subsection (e) stipulates that decisions of the
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Board in such cases are final with no administrative right of appeal.
The agency is required to take the action determined by the Board to be
necessary. When the Board orders the removal of a State or local employee,
it must do so in accordance with the provisions of 5 USC 1506.
Subsections (f) and (g) authorize the Special Counsel to appoint personnel
needed to perform the functions of his/her office and to issue regulations
governing the receipt and investigation of matters under this section. The
Special Counsel's regulations must be published, prior to their effective
date, in. the Federal Register. Finally, subsection (h) provides that the
Special Counsel shall not issue advisory opinions concerning any law, statute,
Presidential order or directive or any regulation or other policy directive
of the Office of Personnel Management.
Section 301. Incidental Transfers.
Section 301 provides for the transfer to the Office of Personnel Manage-
ment of Commission personnel, property, records, and funds which the
Director of the Office of Management and Budget determines should be
transferred.
Section 302. Interim Officers.
Section 302 authorizes the President to appoint employees in the
Executive Branch at the time of the reorganization to act as Director
and Deputy Director of the Office of Personnel Management and as
Special Counsel of the Board, until those offices are filled under the
provisions of this plan or by recess appointment. In addition, the
President would be entitled to authorize that these officials be com-
pensated in accordance with the salaries specified for the offices men-
tioned above, instead of in accordance with the offices from which they
were detailed. The redesignation of the Civil Service Commission as
the Merit Systems Protection Board in no way alters or interferes with
the incumbency or term of office of any duly appointed Chairman, Vice-
Chairman,-or Member of the Civil Service Commission who becomes by
virtue of this Plan, Chairman, Vice-Chairman, or Member of the Board.
Section 303. Effective Date.
This section prescribes July 1, 1978, as the date on which the proposed
reorganization will take effect.
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PREAMBLE...... ................................................
.01
TITLE I
MERIT SYSTEM PRINCIPLES ........................
1.01
TITLE II
PROTECTION OF EMPLOYEE RIGHTS ..................
2.01
TITLE III
STAFFING .......................................
3.01
TITLE IV
SENIOR EXECUTIVE SERVICE .......................
4.01
TITLE V
COMPENSATION SYSTEMS ...........................
5.01
TITLE VI
RESEARCH AND DEMONSTRATION AUTHORITY ...........
6.01
TITLE VII
STATE AND LOCAL PROGRAMS .......................
7.01
TITLE VIII
MISCELLANE-OUS ..................................
8.01
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ERRATA
1. Title II - Protection of Employee Rights
a. Legislative language will be added to title II to retitle chapter
75 of title 5, United States Code, as "Disciplinary and Adverse
Actions".
b. Page'2.20, line 19, is corrected to read:
"the Board, of costs, including reasonable attorney fees,
incurred by an employee, when"
c. Page 2.21, line 6, is corrected by deleting the phrase
"at the request of the Office of Personnel Management".
2. Title II - Staffing
Page 3.07, line 18, is corrected by deleting subsection (k)(i) relating to
the repeal of section 3306 (related to apportionment). Corresponding
deletions will be made in the accompanying section analysis and statement
of purpose and justification.
3. Title.V - Pay foriPerformance.
a. Page 5.02, line 8 is corrected to read:
"being granted automatically as provided under this
subsection"
and the word "section" deleted from line 9.
b. Page 5.06, lines 10 - 13, is corrected by deleting Sec. 503. Pay
Saving, in its entirety and renumbering Sec. 504 in line 14 as
Sec. 503.
4. Title VI Research and Demonstration Authority
Page 6.05, line 20 is corrected to read:
or negotiation as appropriate, with the organization."
The first paragraph on page 6.03 of the accompanying section analysis is
corrected to read;
"Subsection (e) requires observances of exisiting negotiated
agreements and of the obligation to consult, or to negotiate
as appropriate, with the employee organization accorded
exclusive recognition, prior to conducting demonstration
projects. Arrangements which are negotiated between an agency
and exclusive union relative to a demonstration project, and
pursuant to the authority therefor, will be tied to the duration
of such project and shall not exceed the scope or term of the
authority conferred. Subsection (t) requires agency consul-
tation with employees when no exclusive representative exists,
prior to conducting demonstration projects."
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2
3 To improve the management of personnel resources in the competitive
4 service and the Executive branch by establishing the basic merit
principles governing the Federal personnel system, proscribing
those personnel practices which undermine the integrity of the
merit system, strengthening the protections afforded Federal
8 employees, enabling more efficient staffing of positions in the
9 Federal service, establishing a comprehensive system for managing
10 executive personnel, simplifying the system for removing employees
11 with poor performance records, improving the basis for providing
12 certain pay increases, authorizing research and demonstration
13 projects for further improvement of personnel management, and
14 improving intergovernmental personnel programs, and for other
15 purposes.
16 Be it enacted by the Senate and House of Representatives of the United
17 States of America in Congress assembled, that this Act may be cited as
18 the "Civil Service Reform Act. of 1978."
19 Findings and Declaration of Policy
20 Sec. 2. The Congress finds and declares that it is the policy of the
21 United States that:
(1) the merit system principles which shall govern in the
competitive civil service and in the Executive branch of the
Federal Government be expressly stated to furnish guidance to
Federal agencies in carrying out their responsibilities in
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administering the public business and prohibited personnel
2 practices be statutorily defined to enable government officers
3 and employees to avoid conduct which undermines the merit
4 principles and the integrity of the merit system.
5 (2) Federal employees shall receive greater protection
increasing the authority and powers of the independent ':Merit
Systems Protection Board in processing hearings and appeals
affecting Federal employees and by increasing the authority and
power of the Special Counsel to investigate allegations involving
10 prohibited personnel practices and reprisals against government
11- employees for the lawful disclosure of information concerning
12 violation of law or regulations and his/her authority to bring
13 disciplinary charges against agency officials and employees who
14 engage in such conduct;
15 (3) the function of filling position in the competitive service
16 and in the Executive branch may be delegated in appropriate cases
17 to the agencies to expedite processing appointments, with the
18 control and oversight of this delegation being maintained by the
19 Office of Personnel Management to protect against prohibited
20 personnel practices and the use of unsound management practices
21 by the agencies;
22 (4) a Senior Executive Service shall be established to provide
23 the flexibility needed by Executive agencies to recruit and
24 retain the highly competent and qualified managers needed to
25 provide more effective management of the Executive agencies and
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,d3
their functions, and the more expeditious administration of the
2 public business;
3 (5) in appropriate instances pay increases shall be based on
4 quality of performance rather than length of service;
5 (6) a research and demonstration program shall be authorized to
permit Federal agencies to experiment with new and different
personnel management concepts in controlled situations to achieve
more efficient management of the Government's human resources and
9 greater productivity in the delivery of service to the public;
10 (7) the training program of the Federal government shall include
11 retraining of employees for positions in other agencies to avoid
12 separations during reductions in force and the loss to the
13 government of the knowledge and experience that these employees
14
15
16
17
22
23
24
25
possess, and that this policy will result in maintaining the
morale of the workforce and productivity of employees; and
(3) a flexible and consistent Federal approach to State merit
system standards required in connection with grant programs be
established.
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3
4 Sec. 101. Establishment of merit system principles; prohibited
5 personnel practices.
6 Title 5, United States Code, is amended by inserting, after
7 Chapter 1, the following new chapter:
8 "CHAPTER 2 - MERIT SYSTEM PRINCIPLES
9
10
11
12
13
14
"201. Coverage of principles.
"202. Enumeration of merit principles.
"203. Presidential authority.
"204. Prohibited personnel practices.
"205. Responsibility of the General Accounting Office.
"Sec. 201. Coverage of principles
16 "The merit system principles shall apply to
17 "(1) an Executive agency as defined in section 105 of this
13 title;
19 "(2) the Administrative Office of the United States Courts;
20 "(3) the Library of Congress;
21 "(4) the Botanic Garden;
22 "(5) the Government Printing Office;
23
24
25
"(6) the Office of Architect of the Capitol;
"(7) United States Postal Service; and
"(8) Postal Rate Commission.
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"Sec. 202. Enumeration of merit principles
"To provide the people of the United Scates with a high'_y
competent, honest and productive Federal work force reflective of the
4 nation's diversity, and to improve the quality of public service,
Federal personnel administration is to be implemented consistent with
6 the following principles --
7 "(1) recruiting qualified candidates from appropriate
10
11
12
13
14
15
16
17
18
19
sources in an endeavor to achieve a work force from all segments
of society, with selection and advancement solely on the. basis of
objective determinations of relative ability, knowledge and
skills, as determined through fair and open competition which
assures that all receive equal opportunity;
"(2) assuring all. applicants and employees. of fair and
equitable treatment in all aspects of personnel administration
without regard to political affiliation, race, color, religion,
national origin, sex, marital status, age or handicapping
condition and with proper regard for their privacy and
constitutional rights as citizens and Federal employees;
providing equal pay for work of equal value to attract
20 and retain highly qualified personnel, with appropriate
21
incentives and recognition for excellence in performance;
22
"(4) assuring a competent work force in which all =mployees
23
maintain high standards of integrity,
conduct and concern for the
24
public interest;
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 y
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1 - "(5) assuring that the work force is efficiently and
2 effectively utilized;
3 "(6) retaining employees on the basis of the adequacy of
4 their performance, correcting inadequate performance, and
5 separating employees who can not or will not improve their
6 performance to meet required standards;
7 "(7) developing and utilizing employees for better
8 organizational and individual performance through effective
9 education and training; and
10 "(8) assuring that employees are protected against
11 arbitrary action, personal favoritism or coercion for partisan
12 political purposes and are prohibited from using their official
13 authority for the purpose of interfering with, or affecting the
14 result of an election or a nomination for office.
15 "Sec. 203. Presidential authority
?16 "The President is authorized to issue Executive orders and
17 directives as the President determines are necessary to assure that
18 personnel management in the agencies covered by the merit system
19 principles is based on and embodies the merit principles enumerated in
20 section 202 of this title.
21
22
25
"Sec. 204. Prohibited personnel practices
"(a) for the purpose of this section, 'personnel action' means
"(1) an appointment;
"(2) a promotion;
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I.0
14
15
16
17
(3) an adverse action under chapter 75 of this title,
suspension for 30 days or less, or other disciplinary or
corrective action;
(4) a detail, transfer, or reassignment;
"(5) a reinstatement;
"(6) a restoration;
"(7) a reemployment;
"(8) a performance evaluation under chapter 43 of this
title; and
"(9) a decision concerning pay, benefits, awards, education
or training when the training leads to one of the action;
enumerated above; with respect to an employee in, or applicant or
eligible for, a position in the competitive service or a position
in the excepted service in an Executive agency other than a
position for which it is proper to consider political background,
responsiveness, or sensitivity.
"(b) The head of each Executive agency and of any Federal
authority employing persons in the competitive service with respect
19 to such employees shall be responsible for personnel management,
20 including the prevention of prohibited personnel practices hereinafter
21 enumerated, and for the compliance with and enforcement of applicable
22 civil service laws, Executive orders and directives, rules, and
regulations. Any individual to whom the head of an Executive agency
or other Federal authority delegates authority for personnel
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1, 0s'
1 management or for any aspect thereof, shall be similarly responsible
2 within the limits of the delegation.
3 "(c) Any employee who takes, directs others to take, recommends
4 or approves any personnel action, or fails to take such action
5 pursuant to his/her own authority or that delegated to him/her shall
6 in exercising such authority or failing to exercise such authority be
7 enjoined from:
8 "(1) unlawfully discriminating against any employee or
9 applicant for employment on the basis of political affiliation,
10 race, color, religion, national origin, sex, marital status, age,
11 or handicapping condition;
12 "(2) soliciting, or considering any recommendation or
13 statement, oral or written, with respect to any individual who
14 requests or is under consideration for any personnel action
15 unless the material consists solely of the types of information
16 hereinafter described and is based on the personal knowledge of
17 the person furnishing the statement or recommendation:
18 "(A) an evaluation of the work performance, ability
19 aptitude, or general qualifications of such individual;
20 and/or
21 "(B) an evaluation of the character, loyalty, and
22 suitability of such individual.
23 "(3) using his/her official authority to take, direct
24, others to take, recommend, or approve personnel actions to coerce
25 the political activity of any person, to obligate any person to
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1 contribute to any political fund or to render any political
2 service, or to take any reprisal action against any person for
refusal to engage in such political activity, contribute to such
4 fund or render such service;
5 "(4) intentionally deceiving or obstructing any individual
6 with respect to his/her- right to compete for Federal employment;
7 "(5) influencing any individual to withdraw from
8 competition for any position for which competition is required
9 for the purpose of improving or injuring the prospects of any
10 applicant for employment.
11 "(6) granting any preference or advantage not authorized by
12 law to any employee or applicant for employment, including
13 defining the scope or manner of competition or the requirements
14 for any position so as to enhance or injure the prospects of any
15 particular individual;
16 "(7) appointing, employing, promoting, advancing, or
17 advocating for appointment, employment, promotion, or
18 advancement, in or to a civilian position in the agency in which
19 he/she is a public official as defined in section 3110(a)(2) of
this title and is serving or over which he/she exercises
jurisdiction or control, any individual who is his/her relative
as defined in section 3110(a)(3) of this title;
"(8) taking reprisal action against any employee or
24 applicant for the exercise of any appeal right granted by law or
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 -41
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(, cc'I
1 regulation or for the lawful disclosure of information concerning
2 violations of law or regulations.
3 "(d) This section shall not be construed to extinguish or lessen
4 any effort to achieve equal employment opportunity through affirmative
5 action or any right or remedy available to any employee or applicant
6 for employment in the civil service under any law, Executive order,
7 rule or regulation prohibiting discrimination based on political
8 affiliation, race, color, religion, national origin, sex, marital
9 status, age, or handicapping condition.
10 "Sec. 205. Responsibility of the General Accounting Office
11 "On a continuing basis, the General Accounting Office shall
12 conduct audits and reviews to assure compliance with the laws,
13 Executive orders and directives, rules, and regulations governing
14 employment in the Executive branch and in the competitive service and
15 to assess the effectiveness and systemic soundness of Federal
16 personnel management.".
17
20
21
22
23
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8
9
10
11
12
13
14
15
16
17
21
22
23
24
Sec. 201. Merit Systems Protection Board Organization.
(a) Section 1101 of title 5, United States Code, is amended by
striking out "Commissioners" in the catch-line and "United States
Civil Service Commission" in the. text and inserting in lieu thereof
"Board members" and "Merit Systems Protection Board", respectively.
(b) Section 1102 of title 5, United States Code, is amended
(1) by striking out "Civil Service Commissioner" and
"Commissioner" each place they appear and inserting in lieu
thereof "Merit Systems Protection Board member" and "Board
member", respectively;
(2) by striking out "6 years" in subsection (a) and in lieu
thereof inserting "7 years";
(3) by striking out the period at the end of the first
sentence in subsection (a) and the entire second sentence in that
'subsection. and in lieu thereof inserting the following:
", except that the terms of the Merit System Protection
Board members in effect on July 1, 1978, shall. continue
and, upon expiration, appointments shall be made under
the terms and. conditions of this section.";
(4) by striking out entire subsection (d) and inserting in
lieu thereof a new subsection (d) as follows:
"A member may be removed by the President, upon notice
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15
16
17
18
19
20
21
22
and hearing, only for misconduct, inefficiency, neglect
of duty, or malfeasance in office, but for no other
cause."; and
(5) by adding a new subsection (e) as follows;
"Any person appointed for a 7 year term shall not be
eligible for reappointment to an additional term.".
(c) Section 1103 of title 5, United States Code, is amended by
striking out "Commissioners", "Civil Service Commission", and
"Commission" each place they appear and inserting in lieu thereof
"Board members", "Merit Systems Protection Board", and "Board"
respectively, and by deleting from the catch-line, "Executive
Director" and by repealing subsection (d).
Sec. 202. Special Authority Amendments.
Chapter 13 of title 5, United States Code, is amended by adding
the following:
"SUBCHAPTER III -- MERIT SYSTEMS PROTECTION BOARD AND SPECIAL COUNSEL
"Sec. 1331. Powers of the Merit Systems Protection Board and Special
Counsel
"(a) Any member of the Board, the Special Counsel,
administrative law judge, or supervisory appeals officer designated by
the Board may issue subpoenas requiring the attendance and testimony
of witnesses and the production of documentary or other evidence from
any place in the United States or any territory of possession thereof,
the Commonwealth of Puerto Rico or the District of Columbia,
administer oaths, take or order the taking of depositions, examine
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witnesses, and receive evidence. In the case of contumacy or failure
to obey a subpoena, the United States District Court for the judicial
district in which the person to whom the subpoena. is addressed resides
or is served may issue an order requiring such person to appear at any
designated place to testify or to produce documentary or other
evidence. Any failure to obey the order of the court may he punished
by the court as a contempt thereof. Witnesses shall be paid the same
fee and mileage allowances that are paid witnesses in the courts of
the United States.".
13
Sec. 203. Provision for Special Counsel.
Chapter 11 of title 5, United States Code, is amended by adding
the following:
"Sec. 1106. Special Counsel; appointment and removal
"The Special Counsel in the Merit Systems Protection Board shall
be an attorney appointed by the President, by and with the advice and
consent of the Senate, for a term of seven years. The Special Counsel
may be removed by the President, upon notice and hearing, only for
17
misconduct, inefficiency, neglect of duty, malfeasance in office, but
for no other cause.".
Sec. 204 Authority and Responsibilities of the Special Counsel.
Chapter 13 of title 5, United States Code, is amended by adding
the following:
"Sec. 1332. Authority and responsibilities of the Special Counsel with
respect to whistle-blower complaints and other prohibited
personnel practices
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"(a) The Special Counsel shall conduct.an investigation upon
~2, O`j
2 request of an employee or a member of the public upon a preliminary
3 showing that a personnel action was taken as a reprisal against an
4 employee for having made a lawful disclosure of information concerning
5 violation of law, Executive order, rules or regulations. In
6 conducting the preliminary investigation, the Special Counsel shall
7 not disclose the identity of the complainant without the consent of
8 the complainant unless the matter warrants full investigation and such
9 disclosure is unavoidable during the course of the investigation.
"(b) In cases involving alleged reprisal for the lawful
11 disclosure of information concerning violation of law, Executive
12 orders, rules or regulations, the Special Counsel shall have the
13 authority, except where the personnel action is subject to an appeal
14 to the Merit Systems Protection Board, to take the following actions:
15 "(1) To order a stay of geographic reassignment or any other
16 personnel action which may have a substantial economic impact on
17 the employee if the status quo is not maintained until such time
18 as the Special Counsel completes the investigation; and
19 "(2) If the Special Counsel determines that reprisal has
20 been taken against an employee, to report the matter to the head
21 of the agency, and to require the head of the agency to take the
22 action ordered by the Special Counsel including cancellation of
23 actions substantially impacting the economic welfare of the
24 employee and putting an end to harassing techniques. Refusal to
25 carry out actions ordered by the Special Counsel may be a cause
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for the filing of disciplinary charges by the Special Counsel
14
15
16
17
19
20
21
22
"(c) When the Special. Counsel determines that there are
prohibited personnel practices which require corrective action, he/she
may report his/her findings to the agency affected and to the Office
of Personnel Management. The Special Counsel may include suggestions
on how the corrective action may be effected when the agency has
alternative ways to accomplish the correction, but the final decision
on how the corrective action will be effected shall be made by the
agency, subject to guidance and instruction from the Office of
Personnel Management. The Special Counsel may furnish a copy of
his/her report to the President and to the Congress.
"(d) If, in the course of the investigation, the Special Counsel
determines that there is reasonable cause to believe that a criminal
violation by a Government employee has occurred, it shall be reported
to the Attorney General or the appropriate United States Attorney and
to the head of the affected agency, with a copy to the Director,
Office of Personnel Management and the Director, Office of Management
and Budget. Any other violation of law, rules, regulations or
improper action of substantial impact shall be reported to the head of
the agency. The Special Counsel may require within 30 days of receipt
of such report a certification by the head of the agency that he has
reviewed the report; the certification shall include a statement of
the action taken or to be taken and the estimated time by which it
will be completed.
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c. Ob
"(e) The Special Counsel may file disciplinary charges against a
2 Federal employee before the Board. The employee shall be entitled to
a hearing on the record before the Board or an administrative law
judge designated by the Board. The final decision shall be made by
the Board, which may impose disciplinary action including removal,
demotion, debarment from Federal employment for a period not exceeding
five years, suspension, reprimand, or a monetary fine not to exceed
$1,000.00. An employee so disciplined may obtain judicial review of
9
the final decision of the Board in the United States Court of Appeals
10
for the circuit in which he/she resides.
11
"(f) The Special Counsel may prescribe such regulations as may
12
be necessary to carry out the purposes of this section.".
13
Sec. 205. Performance Appraisal.
14
Chapter 43 of title 5, United States Code, is amended to read as
15
follows
--
17
"SUBCHAPTER I -- PERFORMANCE APPRAISAL - GENERAL
18
"Sec.
19
"4301.
Definitions.
20
,4302.
Performance appraisal systems; establishment of.
21
"4303.
Actions based on unacceptable performance.
22
"4304.
Responsibilities of Office of Personnel Management.
23
"4305.
Regulations.
24
"Sec. 4301. Definitions
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,;.o7
10
11
12
13
14
15
16
17
1s
19
20
21
22
"(1) 'agency' means --
"(A) Executive agency as defined in section 105 of this
title;
"(B) the Administrative Office of the United States
Courts;
"(C) the Library of Congress;
"(D) the Botanic Garden;
"(E) the Government Printing Office; and
"(F) the Office of Architect of the Capitol;
but does not include ---
"(i) the Tennessee Valley Authority;
"(ii) the Foreign Service of the United States;
"(iii) a physician, dentist, nurse or other employee in
the Department of Medicine and Surgery, Veterans' Adminis-
tration, whose pay is fixed under chapter 73 of title 38;
"(iv) an agency or component of an agency excluded from
coverage of this subchapter by regulation of the Office of
Personnel Management;
"(2) 'employee' means an individual employed in or under an
agency, but does not .include---
"(A) an employee outside the United States who is paid
in accordance with local native prevailing wage rates for
the area in which employed;
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2 section 3105 of this title;
3 "(C) an individual in the Senior Executive Service as
4 defined in section. 3131 of this title;
8
9
10
11
"(D) an individual appointed by the President; or
"(E) an individual occupying a position excluded from
coverage of this chapter by regulations of the Office of
Personnel Management, and
"(3) 'unacceptable performance' means performance which is
not acceptable as a continuing level of performance.
"Sec. 4302. Performance appraisal systems; establishment of
"(a) Each agency shall develop one or more appraisal systems
13 designed to encourage quality in the performance of work by employees
14 and enhance productivity by 15 "(1) providing for periodic appraisals of job performance of
16 employees;
17 "(2) encouraging employee participation in establishing
18 performance objectives; and
19 "(3) using the results of performance appraisals as a basis.
20 for developing, rewarding, reassigning, promoting, demoting, and
21 retaining or separating employees,
22 "(b) Each performance appraisal system shall conform tc
23 regulations prescribed by the Office of Personnel Management which
24 shall include provisions for:
"(1) recognizing and rewarding employees whose performance
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16
17
18
19
20
21
22
so warrants;
"(2) assisting employees to improve whose performance is
marginal or unsatisfactory; and
"(3) separating employees for unacceptable performance.
"Sec. 4303. Actions based on unacceptable performance
"(a) An agency may demote or remove an employee because of
unacceptable performance at any time.
"(b) An employee whose demotion or removal from the service is
proposed because of unacceptable performance is entitled to: (1) at
least 30 days' advance written notice of the action proposed which
identifies the expected standard of performance and the areas in which
the employee's performance is unacceptable; (2) a representative; (3)
reply to the notice orally and in writing; (4) an opportunity during
the notice period to demonstrate acceptable performance; and. (5) a
written decision stating them reasons for the decision which is
concurred in by a higher level official than the official who proposed
the action.
"(c) An agency may, in accordance with agency regulations,
provide a notice period of not more than 60 days. An agency may
provide a notice period of more than. 60 days only in accordance with
regulations issued by the Office of Personnel-Management. An agency
shall effect a decision to retain, remove, or demote an employee
within 30 days of the date of expiration of the notice period.
"(d) When no action is taken because of performance improvement
during the notice and the employee's performance continues to be
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4 personnel folder.
5 "(e) An employee who has been demoted or removed under the
6 provisions of subsections (b) and (c) of this section is entitled to
acceptable for one year from the date of the written advance warning
specified in subsection (b) of this section, the record of the
unacceptable performance shall be removed from the employee's official
appeal the action to the Merit Systems Protection Board. The appeal
8 shall be conducted in accordance with the procedures established in
9 section 7701 of this title. The appeals officer may conduct an
10 evidentiary hearing only when there are disputes concerning rr..aterial
11 issues of fact requiring presentation of evidence. The appeals
12 officer shall base his/her decision solely on the following factors
13 and no others: (1) whether the agency's procedures are free of any
14 error that substantially impairs the rights of the employee; (2)
15 whether there has been discrimination within the meaning of prohibited
personnel practices as provided by section 204(c)(1) of this title;
and (3) whether the decision to demote or remove is based on
reasonable evidence of unacceptable performance.
"(f) This section does not apply to the demotion to the grade
previously held of a supervisor who has not completed the pro-
bationary period under section 3321(a)(2) of this title in an initial
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, 7 , 1 1
supervisory position, to the separation or demotion of an. individual
in the competitive service. who has not completed a probationary or
trial period or who has not completed one year of ,current continuous
service under other than a temporary appointment limited to one year
or less, or to the separation or demotion of an individual in the
6 excepted service who has not completed one year of current continuous
7 service in the same line of work.
8 "Sec. 4304. Responsibilities of the Office of Personnel Management
9 "(a) The Office of Personnel Management shall make technical
10 assistance available to agencies in the development of performance
11 appraisal systems.
12 "(b) When the Office of Personnel Management determines that a
13 system does not meet the requirements of this subchapter and its
14
15
16
19
20
21
22
23
regulations, the Office of Personnel Management shall direct the
agency to implement an appropriate system or to correct operations
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under the system. The agency shall take the action required.
"Sec. 4305. Regulations
"The Office of Personnel Management is authorized to issue
4 regulations to carry out the purposes of this subchapter.".
(a) Chapter 75 of title 5, United States Code, is amended by
7 striking out subchapters I and lI and inserting in lieu thereof the
8 following:
9 "SUBCHAPTER I -- SUSPENSION FOR 30 DAYS OR LESS
10 "Sec. 7501. Definitions; application
"(a) For the purpose of this subchapter --
"(1) 'employee' means an individual in the competitive
service who has completed a probationary or trial period or who
has completed one year of current continuous employment under
other than a temporary appointment limited. to one year or less
but does not include an individual in the Senior Executive
Service as defined in section 3131 of this title; an individual
18 occupying a position excluded from coverage of this subchapter
19 by regulation of the Office of Personnel Management; and an
20 individual appointed by the President; and
21 "(2) 'suspension' means the placing of an employee in a
22 temporary nonduty-nonpay status for disciplinary reasons.
23 "(b) This subchapter does not apply to an employee --
24 "(1) whose appointment has been required by the Congress to
25 be confirmed by, or made with the advice and consent of, the
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 S
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13
14
15
16
17
18
19
20
Senate; or
"(2) whose position has been determined to be of a
confidential or policy determining character by --
"(A) the Office of Personnel Management for a position
that it has excepted from the competitive service; or
"(B) the head of an agency for a position which is
excepted from the competitive service by statute.
"Sec. 7502. Actions covered
"This subchapter applies to a suspension for 30 days or less, but
does not apply to a suspension under section 7532 of this title or an
action initiated under section 203 of Reorganization Plan No. of
1978.
"Sec. 7503. Cause and procedure
"(a) Under regulations prescribed by the Office of Personnel
Management, an employee may be suspended for 30 days or less only for
such cause as will promote the efficiency of the service.
"(b) An employee against whom a suspension for 30 days or less
is proposed is entitled to --
"(1) a written notice stating reasons for the proposed
action;
"(2) a reasonable time to answer orally and in writing the
proposed action-and to furnish affidavits and other documentary
evidence in support of the answer;
"(3) be accompanied by a representative; and
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1~. fy
"(4) a written decision at the earliest practicable date.
2 "Sec. 7504. Regulations
3 "The Office of Personnel Management is authorized to issue
4 regulations to carry out the purposes of this subchapter.
5 "SUBCHAPTER II - REMOVAL, SUSPENSION FOR MORE THAN 30 DAYS,
6 REDUCTION IN GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS
7 "Sec. 7511. Definitions; application
8 "(a) For the purpose of this subchapter --
9 "(1) 'employee' means --
10 "(A) an individual in the competitive service who has
11 completed a probationary or trial period or who has
12 completed one year of current continuous employment under
13 other than a temporary appointment limited to one year or
14 less; and
15 "(B) a preference eligible in an Executive agency in
16 the excepted service, including the United States Postal
17 Service and the Postal Rate Commission, who has completed
18 one year of current continuous service in the same line of
19 work;
20 "(2) 'suspension' has the meaning as set forth in section
21 7501 of this title;
22 "(3) 'grade' means a level of classification under a
23 position classification system;
"(4) 'pay' means the rate of basic pay fixed by law or
25 administrative action for the position held by an employee;
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"(5) 'furlough' means the placing of an employee in a
2 temporary nonduty-nonpay status because of lack of work or funds
or other nondisciplinary reasons; and
"(6) 'hearing' means a proceeding whereby the employee and
the agency, and their representatives, may introduce evidence,
including testimony of the employee, agency officials, and other
witnesses, and may cross-examine witnesses and challenge the
introduction of evidence before an impartial official authorized
to conduct the hearing and to recommend or make a decision.
"(b) This subchapter does not apply to an employee --
"(1) whose appointment has been required by the Congress to
be confirmed by, or made with the advice and consent of, the
Senate;
14 "(2) whose position has been determined to be of a
15 confidential or policy-determining character by --
16 "(A) the Office of Personnel Management for a. position
17 that it has excepted from the competitive service; or
18 "(B) the head of an agency for a position which is
19 excepted from the competitive service by statute; or
20 "(3) whose position is in the Senior Executive Service as
21 defined by section 3131 of this title.
22 "(c) The Office of Personnel Management may extend the
23 protections of this subchapter to any position or group of positions
24 excepted from the competitive service by regulation of the Office of
25 Personnel Management.
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a.&
2 "This subchapter applies to a removal, suspension for more than
30 days, reduction in grade, reduction in pay of an amount exceeding
4 one step of the employee's grade or 3% of the employee's basic pay,
5 and to a furlough for 30 days or less; but does not apply to a
6 suspension or removal under section 7532 of this title, a reduction in
7 force action under section 3502 of this title, the demotion of a
8 supervisor who has not completed the probationary period under section
9 3321(a)(2) of this title in an initial supervisory position to the
10 grade previously held, a demotion or removal under section 4303 of
11 this title, or an action initiated under section 203 of Reorganization
12 Plan No. of 1978.
13 "Sec. 7513. Cause and procedure
14 "(a) Under regulations prescribed by the Office of Personnel
15 Management an agency may take action against an employee only for such
cause as will promote the efficiency of the service.
17 "(b) An employee against whom an action is proposed is entitled
18 to--
19 "(1) at least 30 days' advance written notice, except when
20 there is reasonable cause to believe him/her guilty of a crime
21 for which a sentence of imprisonment can be imposed, stating any
22 and all reasons, specifically and in detail, for the proposed
23 action;
24 "(2) a reasonable time to answer orally and in writing and
25 to furnish affidavits and other documentary evidence in Support
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(_ I
of the answer;
"(3) be accompanied by a representative; and
"(4) a written decision and reasons therefor at the earliest
practicable date.
"(c) A hearing is not required in the agency but an agency may
by appropriate regulation provide for one in lieu of or to supplement
the oral reply.
"(d) An employee as defined in section 7511 of this title,
against whom an adverse action is taken, is entitled to appeal to the
Merit Systems Protection Board under section 7701 of this title.
"(e) Copies of the notice of proposed action, the answer of the
employee when written, a summary thereof when made orally, the notice
of decision and reasons therefor, and any order effecting a
disciplinary action shall be made a part-of records of the agency and
shall be furnished to the Merit Systems Protection Board upon its
request and to the individual affected upon his/her request.
"Sec. 7514. Regulations
, "The Office of Personnel management is authorized to issue
regulations to carry out the purposes of this subchapter.".
(b)The analysis of subchapters I and II of chapter 75 is amended
to read as follows:
"CHAPTER 75 -- ADVERSE ACTIONS
"7501. Definitions; application.
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1 "7502. Actions covered.
2 "7503. Cause and procedure.
3 "7504. Regulations.
6 "Sec.
"SUBCHAPTER II -- REMOVAL, SUSPENSION FOR MORE THAN 30 DAYS,
REDUCTION IN GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS
7 "7511. Definitions; application.
"7512. Actions covered.
"7513. Cause and procedure.
10 "7514. Regulations.".
Chapter 77 of title 5, United States Code, is amended by striking
13 out section 7701 and inserting in lieu thereof the following:
"Sec. 7701. Appellate procedures
15 "(a) A Federal employee or applicant for employment may submit
16 an appeal to the Merit Systems Protection Board from any action which
17 is appealable to the Board under statute, Executive order or
18 directive, or regulations issued by the Office of Personnel
19 Management. An appellant shall have the right to be accompanied by a
20 representative. The appeal shall be processed in accordance with
21 regulations issued by the Board.
22 "(b) The appeals officer or administrative law judge
23 adjudicating a case appealed to the Board shall have the authority to:
24 "(1) make a decision on the record after receipt of the
25 written representations of the parties; or
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"(2) conduct an evidentiary hearing.
d. q
2 "(c) The decision of the deciding official shall be final unless
3 a party to the appeal or the Office of Personnel Management petitions
4 the Board for a review within 30 days of receipt of notice of the
5 decision, except where the Beard, for good cause shown, extends the 30
6 day period, or unless the Board reopens and reconsiders a case on its
7 own motion. One member of the Board may grant a petition or otherwise
8 direct that a decision be reviewed by the full Board. This procedure
9 shall not apply where, by statute, a decision of an administrative law
10 judge is required to be acted upon by the Board.
11 "(d) For such time as complaints of discrimination under Title
12 VII of the Civil Rights Act of 1964, as amended, are heard by the
13 Board, an appeals officer assigned to hear discrimination complaints
14 filed under section 717(b) of the Civil'Rights Act of 1964, as
15 amended, (42 U.S.C. 2000e-16) shall have the authority to make a
16 decision on the record or to conduct an evidentiary hearing as the
17 circumstances may warrant, pursuant to regulations prescribed by the
18 Board. A Federal employee or applicant for Federal employment first
19 shall submit the discrimination complaint to the agency, which shall
20 have 60 days to resolve the complaint. If the complaint is not
21 resolved to the employee's or applicant's satisfaction or the agency
22 fails to issue a final decision thereon within 60 days, the employee or
23 applicant may appeal to the Board. Such an appeal must be submitted
24 within 30 days of notice to the employee or applicant of the agency's
25 decision or following expiration of the 60-day period if the agency
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1 has failed to issue a decision on the complaint. Class complaints of
2 discrimination may be processed by an appeals officer pursuant to
3 regulations prescribed by the Board.
4 "(e) The Merit Systems Protection Board or appeals officers may
5 (1) consolidate appeals filed by two or more appellants or (2) join
6 two or more appeals filed by the same appellant and hear and decide
7 them concurrently when, it is determined in the exercise of sound
8 judgment, the appeals can thereby be processed more expeditiously than
9 they otherwise would be and without prejudice to the parties.
10 "(f) Notwithstanding the provisions of any other law, a Federal
11 employee who has been affected by an action appealable to the Board
12 and who alleges that discrimination prohibited by section 204(c)(1) of
13 this title was a basis for the action shall have both the issue of
14 discrimination and the appealable action decided by the Board in the
15 appeal decision under the Board's appellate procedures.
16 "(g) Members of the Board and its administrative law judges and
17 appeals officers or arbitrators assigned by the Board may require
18 payment by the agency which is the losing party to a proceeding before
19- the Board, of reasonable attorney fees incurred by an employee, when
21 officials determine that payment by the agency is warranted by the
22 circumstances of the case.
"(h) As an alternative to the procedures for processing appeals
subject to the jurisdiction of the Board, Federal employees and
applicants for employment may elect referral of the matter concerned
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oil ;-k
1 for decision through an arbitration procedure, pursuant to regulations
2 prescribed by the Board. When arbitration is elected, a qualified
3 private arbitrator will be selected by the parties from lists prepared
4 by the Board from an appropriate source. The decision of the
5 arbitrator will be final, unless the Board reopens and reconsiders a
6 case at the request of the Office of Personnel Management as provided
7 for in subsection (c) of this section.
8 "(i) All agencies subject to the jurisdiction of the Merit
Systems Protection Board shall comply with final decisions and orders
of the Board. The Special. Counsel may initiate disciplinary action
against any officer or employee who knowingly and willfully refuses or
fails to comply with an order of the Board. Such a disciplinary
action shall be processed in accordance with the procedures set forth
in section 1332(e) of this title. Noncompliance by an official who is
15 a presidential appointee shall be reported to the President by the
16 Special Counsel.
17 "(j) The Merit Systems Protection Board is authorized to issue
18 regulations to carry out the purposes of this section.
19 "Sec. 7702. Judicial review of decisions of the Merit Systems
20 Protection Board
21 "(a) Any Federal employee or applicant for employment adversely
22 affected or aggrieved by an order or final decision of the Merit
23 Systems Protection Board may obtain judicial review of such an order
25 "(b) A petition to review a decision or order of the Board shall
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be filed in the Court of Claims or a United States Court of Appeals as
provided in chapters 91 and 158, respectively, of. title 28, except for
actions filed in the United States District Courts under section
2000e-16 of title 42, under sections 8715 and 8912 of this title, or
under section 633a(c) of title 29. Notwithstanding the provisions of
any other law, the petition for review must be filed within 30 days
7 after the date the employee received notice of the final decision of
8 the Board.
9 "(c) In cases filed in the Court of Claims or a United States
10 Court of Appeals, the court shall review the administrative record for
11 the purpose of determining whether the decision was arbitrary or
12 capricious, and not in accordance with law, and whether the procedures
13 required by statute and regulations were followed. The administrative
14 decision of the Board is conclusive when supported by substantial
evidence in the administrative record. When the court determines that
further evidence is necessary, it shall remand the case to the Board.
17 The Board, after such further proceedings as may be required, may
proceedings. The Board decision is conclusive when supported by
substantial evidence in the administrative record as supplemented.
"(d) The Director of the Office of Personnel Management also may
obtain review of any final order or decision of the Board by filing a
petition for judicial review in the United States Court of Appeals for
the District of Columbia whenever he/she disagrees with a legal
interpretation by the Board of a statute or regulation involving
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13
14
15
16
17
19
20
21
22
23
25
personnel administration management and for which that Office has
official responsibility. In addition to the named respondent, all
other parties to the proceedings before the Board and Board itself
shall have the right to appear in the proceeding before the Court of
Appeals. The granting of the petition for judicial. review shall be at
the discretion of the Court of Appeals.".
Sec. 208. Jurisdiction of Court of Appeals Amendment.
Section 2342 of title 28, United States Code is hereby amended by
striking out "and" at the end of paragraph (3) and by striking out the
period at the end of paragraph (4) and inserting in lieu thereof ";
and" and by adding the following paragraph: "all final orders of the
Merit Systems Protection Board except as provided for in section
7702(b) of title 5, United States Code.".
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3.01
3
4 Sec. 301. Organization.
5 (a) Section 1104(a)(1) of title 5, United States Code is amended
6 to read as follows:
7 "(a) The following functions are vested in the Director, Office
g of Personnel Management, and shall be performed by him/her or subject
g to his/her direction and. control by such employees under his/her
10 jurisdiction as he/she designates --
11 "(1) securing accuracy, uniformity, and justice in their
activities;".
(b) Section 1105 is amended to read as follows:
"Sec. 1105. Delegation of authority
15 "Notwithstanding any other provision of this title --
16 "(1) the President may delegate, in whole or in part,
17 responsibility for personnel management functions, including
18 examining responsibility, to the Director of the Office of
19 Personnel Management; and
20 "(2) the Director may delegate, in whole or in part, any
21 'function vested in the Office of Personnel Management, including
22 examining responsibility, to the heads of otter agencies
23 employing persons in the competitive service.
24 (c) The analysis of chapter 11 is amended by striking out
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2.67
"1104. Functions of the Chairman." and inserting in lieu thereof
"1104. Functions of the Director."; by striking out "1105. Boards of
3 examiners." and inserting in lieu thereof "1105. Delegation of
4 authority." and by adding the following: "1106. Special Counsel;
5 appointment and removal.".
6 Sec. 302. Definitions.
7 Section 2108 is amended by striking out "and" at the end of
8 paragraph (2), by str~king out the period after paragraph (3) and by
9 adding a semicolon in lieu thereof and by adding new paragraphs (4) and
10 (5) to read as follows.
11 "(4) 'a retired member of the armed forces' means a member or
12 former member of the armed forces who is entitled, under statute,
13 to retired, retirement, or retainer.pay on account of service as
14 a member; and
15 "(5) a 'preference eligible' means a retired member of the
16 armed forces only if 17 "(A) the individual is a disabled veteran under
18 paragraph (2) of this section; or
19 "(B) the individual did not retire at a field grade or
20 general officer rank or the equivalent, except if the
21 - individual is a disabled veteran under paragraph (2) of this
22 section.".
23 Sec. 303. Authority for Employment.
24 (a) Chapter 31 is amended by adding at the end thereof the
25 following:
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"Sec. 3111. Acceptance of volunteer service.
2 "(a) For the purpose of this section 'student' means an
3 individual who is enrolled, not less than half-time, in an institution
4 of higher education or a secondary school.
5 "(b) Notwithstanding section 665(b) of title 31, the head of an
6 agency may accept, subject to regulations issued by the office of
7 Personnel Management, voluntary and uncompensated service for the
8 United States if the service --
is performed by a student, with the permission of
10 his/her school, as part of an organized agency program
11 established for the purpose of providing meaningful experience
12 for the student volunteer;
13 "(2) will not be used to displace Federal workers employed on
14 a full-time, part-time, or seasonal basis; and
15 "(3) can be accommodated within agency programs which
16 provide meaningful experience in an organized and systematic
17 manner.
18 "(c) An individual who provides voluntary service under
19 subsection (b) of this section is not considered a Federal employee for
20 the purposes of any Federal laws except injury compensation under
21 chapter 81 of this title and tort claims under sections 2671-2680 of
22 title 28.".
23 (b) The analysis of chapter 31 is amended by adding at the end
24 thereof:
25 "Sec. 3111. Acceptance of volunteer service.".
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Sec. 304. Examination, Certification and Appointment.
2 (a) Chapter 33 is amended by inserting after section 3303 a new
3 section 3303a to read as follows:
4 "Sec. 3303a. Preference eligibles; appointment; time limit
5 ."(a) For the purpose of this subchapter --
6 "(1) a preference eligible under section 2108(3)(A) or (B)
7 of this title is entitled to preference in consideration for
8 appointment for a period of not more than 10 years from the
9 individual's separation from the armed forces;
10 "(2) a preference eligible under section 2108(3)(A) or (B)
11 of this title, who is a retired member of the armed forces who
12 did not retire at a field grade or general officer rank or the
13 equivalent, is entitled to preference in consideration for
14 appointment for a. period of not more than 3 years from the
15 individual's separation from the armed forces;
16 "(3) a preference eligible under section 2108(3)(C)--(G) of
17 this title is entitled to preference in consideration for
18 appointment without regard to the limitation in paragraphs (1)
19 and (2) of this section.".
20 (b) Section 3305 is amended to read as follows:
21 "Sec. 3305. Competitive service; preference eligibles; applications
22 from
23 "A preference eligible may reopen a closed examination for any
24 position for which there is an appropriate list of eligibles resulting
25 from competitive examination.".
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19
20
21
22
23
3, a5''
(c) Section 3309 is amended to read as follows:
"Sec. 3309. Preference eligibles; examinations; additional credit for
"(a) Preference eligibles shall be referred for appointment
according to the regulations issued under section 3318(c) of this
title. A preference eligible who qualifies in an examination for
entrance into the competitive service is entitled to be advanced
beyond the earned rating, as follows --
"(1) a preference eligible under section 3303a (1) or (2) of
this title - 5 points;
"(2) a preference eligible under section 2108(3)(C)-(G) of
this title - 10 points; and
"(3) a preference eligible under section 2108(3)(C) of this
title, who has a compensable service connected disability of 10
per cent or more, is entitled to be placed at the head of the
list of eligibles, except for scientific and professional
positions in GS-9 or higher, in which case the eligible is
entered on the list of eligibles in the order of his/her rating.
"(b) Where other rating systems are used, preference eligibles
are entitled to comparable preference.".
(d) Section 3314 is amended by striking out "Civil Service
Commission" and inserting in lieu thereof "Office of Personnel
Management" and by striking out ", in the order named by section 3313
of this title".
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5. C 40
1 (e) Section 3315 is amended by striking out ", in the order
2 named by section 3313 of this title" in the first sentence o::
3 subsection (a); by striking out "Civil Service Commission" in the
4 second sentence of subsection (a) and inserting in lieu thereof
5 "Office of Personnel Management"; and by striking out "Commission" in
6 the first sentence of subsection (b) and inserting in lieu thereof
7 "Office of Personnel Management".
8 (f) Section 3317 (a) is amended to read as follows:
9 "(a) The Office of Personnel Management shall prescribe
10 regulations for the referral of candidates to a nominating or
11 appointing authority for consideration for appointment to each vacancy
12 in the competitive service.".
13 (g) Section 3318 (a) is amended to read as follows:
14 "(a) The nominating or appointing authority shall select for
15 appointment to each vacancy from the highest seven eligibles available
16 for appointment, unless the Office of Personnel Management determines
17 that another referral and selection procedure is appropriate.".
18 (h) Section 3318 (c) is amended to read as follows:
19 "(c) The Office of Personnel Management may prescribe
20 regulations for the referral and selection of qualified applicants.".
21 (i) Section 3321 is amended to read as follows:
22 "Sec. 3321.. Competitive service; probation; period of
23 "(a) The President may issue orders and directives which shall
24 provide, as nearly as conditions of good administration warrant, that
25 there shall be a period of probation --
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"(1) before an appointment in the competitive service
2 becomes final; and
3 "(2) before initial appointment to a supervisory or
4 managerial position becomes final.
5. "(b) An individual who does not satisfactorily complete the
6 probationary period under subsection (a)(2) of this section shall be
7 returned to a position of no lower grade or pay than the position
8 occupied by the individual prior to the supervisory or managerial
9 assignment. Nothing in this section prohibits an agency from
10 instituting an adverse action against an individual serving a
11 probationary period under subsection (a)(2) for cause unrelated to
12 supervisory or managerial performance.".
13 (j) Section 3326 is amended by striking out ", and, if the
14 position is in the competitive service, after approval by the Civil
15 Service Commission" in subsection (b)(1); and by striking out ", or
16 the authorization and approval, as the case may be," in subsection (c).
17 (k) The following sections of chapter 33 are repealed:
18 (1) section 3306 (related to apportionment);
19 (2) section 3313 (related Co registers of eligibles); and
20 (3) section 3319 (related to members of family restriction).
21 (1) The analysis of chapter 33 is amended as follows:
22 (1) by inserting "3303a. Preference eligibles; appointment;
23 time limit." after "3303. Competitive service, recommendations of
24 Senators or Representatives.";
25
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9
10
11
12
13
14
3, ?-) i''
(2) by striking out "3305. Competitive service;
examinations; when held." and inserting in lieu thereof
"3305. Competitive service; preference eligibles; applications
from.";
(3) by striking out."3306. Competitive service; departmental
service; apportionment.." and inserting in lieu thereof "3306.
Repealed.";
(4) by striking out "3309. Preference eligibles;
examinations; additional points for." and inserting in lieu
thereof "3309. Preference eligibles; examinations; additional
credit for. ";
(5) by striking out "3313. Competitive service; register of
eligibles." and inserting in lieu thereof "3313. Repealed.";
(6) by striking out "3317. Competitive service;
certification from registers." and inserting in lieu thereof
"3317. Competitive service; referral of candidates.";
(7) by striking out "3318. Competitive service; selection
from certificates." and inserting in lieu thereof "3318.
Competitive service; selection."; and
(8) by striking out "3319. Competitive service; selection;
members of family restriction." and inserting in lieu thereof
"3319. Repealed."
Sec. 305. Retention Preference.
(a) Section 3501(a) is amended by striking out "and" at end of
paragraph 2 and striking out the period at the end of paragraph 3 and
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1 inserting in lieu thereof ";and" and adding a new paragraph 4 as
2 follows:
"(4) a preference eligible employee --
preference in retention only where the effective date of
7 reduction in force is within three years of the date of
8 initial appointment or within three years of the date of
9 initial return from a leave of absence after performing
10 active military duty; or
11 "(B) under section 2108(3)(C)-(G) of this title or
12 subsection (a)(3)(A) of this section is entitled to a
13 preference in retention without regard to the limitation is
14 subparagraph (A) of this paragraph.".
15 (b) Section 3502(a)(2) is amended by striking out "3501(a)(3)"
16 and inserting in lieu thereof "3501(a)(4)".
17 (c) Section 3502(a) is amended by redesignating existing
18 paragraphs (A), (B), and (C) as (B), (C), and (D) respectively and
19 inserting a new paragraph (A) as follows:
20 "(A) who is a preference eligible under section
21 2108(3)(A) or (B) of this title but is no longer entitled to
22 preference in retention under section 3501(a)(4) of this
23 title is entitled to an additional 5 years added to his/her
24 length of service;".
25 (d) Section 3502(b) is amended to read as follows:
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3. i0
"(b) A preference eligible employee whose performance appraisal
meets a standard of adequacy under a performance appraisal system
implemented under chapter 43 of this title is entitled to be retained
in preference to other competing employees.".
(e) Section 3503 is amended by striking out "each preference
eligible employed" from subsection (a) and inserting in lieu :hereof
"each competing employee"; and by striking out "each preference
8 eligible employed" from subsection (b) and inserting in lieu thereof
9 "each competing employee.".
10 Sec. 306. Training.
11 Section 4103 is amended by inserting the subsection identification
12 (a) at the beginning of the section and then adding the following
13 subsection:
14 "(b)(1) Notwithstanding any other-provision of this chapter, an
agency may train its employees to prepare them for placement in
another agency if the head of the agency determines that the employees
must otherwise be separated under conditions that would entitle them to
severance pay under section 5595 of this title.
"(2) Prior to undertaking any training under this
subsection, the head of the agency shall obtain verification from
the Office of Personnel Management that there exists a reasonable
expectation of placement in another agency.
23 "(3) In selecting an employee for training under this
24 subsection, the head of the agency shall consider --
25
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1
2
3.1 /
"(A) the extent to which the current skills, knowledge,
and abilities of the employee may be utilized in the new
position;
"(B) the employee's capability to learn new skills and
acquire new knowledge and abilities needed in the new
position.; and
"(C) the benefits to the Government which would result
8 from retaining competent employees in the Federal service.".
9 Sec. 307. Travel, Transportation, and Subsistence.
10 Section 5723(d) is amended by striking out "Commission" and
11 inserting in lieu thereof "Office of Personnel Management"; and by
12 striking out "not".
13 Sec. 308. Retirement.
14 Section 8336(d)(2) is amended to read as follows:
15 "(2) voluntarily, during a period when the agency in which
16, the employee is serving is undergoing a major reorganization, a
17 major reduction-in-force, or a major transfer of function, as
18 determined by the Office of Personnel Management, and who is
19 serving in such geographic areas as may be designated by the
20 Office;".
21 Sec. 309. Extension of Veterans Readjustment Appointment
22 Authority.
23 Section 2014(b) of title 38, United States Code, is amended by
24 striking out the language after "Executive Order Numbered 11521" and
25 inserting in place thereof the following:
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3. /z
"(March 26, 1970). Notwithstanding any limitations with respect
to the period of eligibility as prescribed in Executive Order Yumbered
11521, a veteran of the Vietnam era who was eligible for appointment
under that Executive order on its effective date, April 9, 1970, or a
veteran of the Vietnam era who was separated on or after that date,
6 may be appointed at any time. No veterans readjustment appointment
7 may be made under authority of this subsection after September 31,
8 1980.".
9 Sec. 310. Effective date.
10 The amendments to the following sections of title 5, United
11
12
13
14
15
16
17
19
20
21
22
States Code, will take effect on October 1, 1980:
(1) section 2108 (4) and (5)
(2) section 3303a
(3) section 3305
(4) section 3309
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20
21
22
TITLE IV SENIOR EXECUTIVE SERVICE
4.01
(a) Chapter 21 of title 5, United States Code is amended by
inserting after section 2101 the following new section:
"Sec. 2101a. The Senior Executive Service
"The 'Senior Executive Service' consists of positions properly
classified above General Schedule 15 and below Executive Level III, or
their equivalents, which meet the definition in section 3132 (b)(2) of
this title and which are not excluded as provided for in section 3132
(c) of this title.".
(b) Section 2103 (a) is amended by striking out the period at
the end thereof and inserting in lieu thereof the following: "or the
Senior Executive Service.".
(c) Section 2108(3) is amended by striking out the period at the
end of subparagraph (G)(iii) and adding ";" and by adding to paragraph
3 the following: "but does not include applicants for, or members of,
the Senior Executive Service.".
Sec. 402. Authority for Employment.
(a) The chapter analysis of chapter 31 is amended by inserting
the following:
"SUBCHAPTER I -- EMPLOYMENT AUTHORITIES" after "CHAPTER 31 --
AUTHORITY FOR E 7LOYMENT" and by inserting at the end thereof the
following:
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1
2
"Sec.
3
"3131.
Establishment of the Senior Executive Service.
4
"3132.
Definitions and exclusions.
5
"3133.
Authorization for number of Senior Executive Service
6
positions.
7
"3134.
Limitations on noncareer Senior Executive Service appointments.
8
"3135.
Biennial Report.
9
"3136.
Regulations.";
10
(b)
by adding immediately below new section 3111 (acceptance of
11
volunteer service) the following new subchapter:
12
"SUBCHAPTER II -- THE SENIOR EXECUTIVE SERVICE
13
"Sec. 3131. Establishment of the Senior Executive Service
14
"(a)
It is the purpose of this subchapter to establish and
15
provide for a Senior Executive Service in order to ensure that the
16
executive management of the Government of the United States is of the
17
highest quality and is responsive to the needs, policies, and goals of
18
the nation it serves.
The Senior Executive Service shall be
19
administered to accomplish the following objectives:
20
"(1) provide for a compensation system, including salary,
21
benefits, incentives, and other conditions of employment,
22
designed to attract, reinforce and retain excellent Government
23
managers;
24
"(2) establish a link between managerial success and
compensation and retention. Managerial effectiveness will be
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measured by individual performance and organizational
2 accomplishment, including economy and efficiency of operations;
3 "(3) make tenure as an executive contingent on successful
4 performance;
5 "(4) recognize exceptional accomplishment;
6 "(5) enable the head of an agency to reassign and transfer
7 Senior Executive Service employees to best accomplish its
8 mission;
9 "(6) provide for severance pay, retirement benefits, and
10 placement assistance for those who are removed from the Service
11 for nondisciplinary reasons;
12 "(7) protect Senior Executive Service employees from
13 arbitrary or capricious actions;
14 "(8) provide for both program continuity and policy advocacy
15 in the management of public programs;
16 "(9) maintain a merit personnel system free of improper
17 political interference;
18 "(10) ensure accountability for honest, economical, and
19 efficient Government;
20 "(11) see that there is faithful adherence to the laws and
21 requirements regarding equal employment opportunity, political
22 d fl f
d
23
24
25
actvty, an con acts o interests, an
"(12) provide for the systematic development of talented and
effective executives- and for the continuing development of
incumbents.
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4.0L4
1 "Sec. 3132. Definitions and exclusions
2 "(a) The provisions of this subchapter shall apply to those
3 agencies set forth in section 201 of this title except as hereinafter
4 provided.
5 "(b) For the purpose of this subchapter --
6 "(1) 'agency' does not include any agency or component
7 thereof excluded from coverage by the President under subsection
8 (c) of this section;
9 "(2) 'Senior Executive Service position' means a position
10 above the GS-15 or equivalent level in which the incumbent.--
11 "(A) directs the work of an organizational unit;
12 "(B) is held accountable for the success of specific
13 line or staff programs or projects;
14 "(C) monitorsthe progress of the organization toward
15
16
17
18
19
goals and periodically evaluates and makes appropriate
"(D) supervises the work of employees other than
personal assistants.
"(3) 'executive' means a member of the Senior Executive
Service;
"(4) 'career reserved position' means a position that can
only be filled by a career appointee or under a limited emergency
or term appointment. Career reserved positions are positions in
which it is justifiable to restrict appointments to career
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9
10
11
12
13
14
15
16
17
18
19
21
22
23
24
25
4.05
employees in order to insure impartiality or the public's
confidence in the impartiality of the Government. The Office of
Personnel Management shall prescribe the position criteria and
regulations governing the designation of career reserved
positions. The designation of a career reserved position is made
by the agency; non-designation is subject to post audit by the
Office of Personnel Management.
"(5) 'general position' means any position other than those
identified as career reserved positions. General positions may
be filled by either a career or noncareer appointee or under a
limited emergency or term appointment;
"(6) 'career appointee' means an individual appointed to a
Senior Executive Service position based on selection through a
merit staffing process consistent with Office of Personnel
Management regulations and, in the case of initial appointment,
approval of managerial qualifications by the Office of Personnel
Management;
"(7) 'noncareer appointee' means an individual appointed to
a. Senior Executive Service position without approval of,,
managerial qualifications by the Office of Personnel Management;
"(8Y 'limited emergency appointment' means a nonrenewable
appointment not to exceed eighteen months to a position
established to meet a bona fide, unanticipated, urgent need; and
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2 appointment for a maximum of three years to a position the duties
3 of which will expire during that time period.
4 "(c) An agency may file with the Office of Personnel Management
5 an application, setting forth reasons why it, or a component thereof,
6 should be excluded from placing positions in the Senior Executive
7 Service. The Office of Personnel Management shall review the.
8 application and reasons and undertake such other investigation as it
9 considers appropriate to determine whether the agency or agency
10 component should be excluded from coverage of this subchapter. Upon
11 completion of its review, the Office of Personnel Management shall
12 recommend to the President whether the agency or component should be
13
14
15 coverage under subsection (c) of this section shall make a sustained
16 effort to bring its personnel system into conformity with the Senior
17 Executive Service and revocation of the exclusion shall be effected
18
19
20
21
22
23
24
"(9) 'limited term appointment' means a nonrenewabi.e
so excluded, upon written determination by the President.
"(d) Any agency or agency component which is excluded from
upon written determination by the President.
"(e) The Office of Personnel Management may at any time
recommend to the President that the exclusion from coverage previously
granted to an agency or agency component under subsection (c) of this
section be revoked.
"(f) If any exclusion from this subchapter of any agency or
agency component is made under subsection (c) of this section;, the
Office of Personnel Management forthwith shall transmit to Congress,
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for reference to the appropriate committee of the Senate and the
2 appropriate committee of the House of Representatives, information
3 concerning the exclusion.
4 "(g) The Office of Personnel Management shall also forthwith
5 transmit to Congress, for reference to the appropriate committee of
6 the Senate and the appropriate committee of the House of
7 Representatives, information as to any revocation of exclusion made
8 under subsection (d) of this section.
9 "Sec. 3133. Authorization for number of Senior Executive Service
10 positions
11 "(a) Each agency shall in odd numbered years --
12 "(1) examine its total needs for Senior Executive Service
13 positions for the next following two fiscal years; and
14 "(2) submit to the office of Personnel Management, in
15 accordance with regulations prescribed by the Office, a written
16 request for authority to establish the specific number of
17 positions as Senior Executive Service positions.
18 "(b) Each agency request submitted under subsection (a) of this
19 section shall --
20 "(1) be submitted at such time and in such form as the
21 Office of Personnel Management shall prescribe; and
22 "(2) be based on the following factors:
23 "(A) the anticipated program activity and budget
.24 requests of the agency for the next two fiscal years;
25
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"(B) the anticipated level of work to be performed by
the agency in the next two fiscal years; and
"(C) such other factors as may be prescribed from time
to time by the Office of Personnel Management.
"(c) The Office of Personnel Management, upon consultation with
6 the Office of Management and Budget, shall review the request of each
7 agency and subject to section 3135 of this title, shall authorize --
8 "(1) the establishment of a specific number of Senior
Executive Service positions in each agency; and
10 "(2) the number of positions in the entire Senior Executive
11 Service together with an unallocated pool of not more than 5% of
12 the number of allocated positions.
"(d) Authorizations made under subsection (c) of this section
14 shall remain in effect until changed in accordance with subsection
15 (e), (g) or (h) of this section.
16 "(e) Each agency may submit to the Office of Personnel
17 Management, in accordance with regulations prescribed by the Office, a
18 written request for adjustments to its authorized number of Senior
19 Executive Service positions. The Office of Personnel Management may,
21
22
23
24
on its own initiative, make reductions in the numbers of positions
assigned to particular agencies.
"(f) Each agency adjustment request submitted under subsection
(e) of this section shall be submitted in such form as the Office of
Personnel Management shall prescribe and be based on the then current
budget and program activity in the agency.
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Z/ 0
1 "(g) Subject to subsections (e) and (f) of this section, the
2 Office of Personnel Management may make changes in the allocations
3 made under subsection (c) of this section. The total of all
4 adjustments made during a fiscal year under this subsection may not
5 enlarge the entire Senior Executive Service beyond the number
6 identified in subsection (c) of this section.
7 "(h) The Office of Personnel Management report to Congress,
8 provided for in section 3135 of this title, relating to the projected
9 number of positions in the total Senior Executive Service and in each
10 agency,.becomes effective as the authorized number on the next
11 succeeding October 1 following submission of the report unless an
12 alternative number is approved by both Houses of Congress prior to the
13 October 1 date.
14 "Sec. 3134. Limitations on_noncareer Senior Executive Service
15 appointments
16 "(a) Each agency shall each year --
17 "(1) examine its needs for employment of noncareer Senior
18 Executive Service appointees for the next following fiscal year;
19 and
20 "(2) submit to the Office of Personnel Management, in
21 accordance with regulations prescribed by the Office, a written
22 request for authority to make a specific number of noncareer
23 Senior Executive Service appointments.
24 "(b) The number of noncareer appointments for each agency will
25 be determined biennially by the Office of Personnel Management
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1 according to demonstrated need of the agency for such positrons,
2 provided that the number of noncareer appointees to the Senor
3 Executive Service, Government-wide, does not exceed 15 percent of the
4 total number of Senior Executive Service positions, Government-wide,
5 based on the authorizations made according to section 3133 of this
title.
7 "(c) The number of noncareer positions authorized for any agency
8 under subsections (a) and (b) of this section may be adjusted by the
9 Office of Personnel Management for emergency needs that were not
10 anticipated when the original authorizations were made, provided that
11 the number of noncareer executives, Government-wide, does not exceed
12 15 percent of the total number of Senior Executive Service positions.
13 "Sec. 3135. Biennial Report
14 "(a) The Office of Personnel Managment shall submit to Congress,
15 at the time the budget is submitted to the first session of each
16 Congress, a report on the Senior Executive Service. The report shall,
17 include --
18
19
20
21
22
23
24
"(1) the current authorized number of positions in the
Senior Executive Service and in each agency and the projected
number of positions to be authorized for the next two fiscal
years;
"(2) each exclusion in the then current fiscal year from
this subchapter of any employee or group of employees under
authority of section 3132(c) of this title; and
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+1, /!
"(3) such other information on the overall program for the
2- managment of the Senior Executive Service as the Office of
3 Personnel Management considers appropriate.
4 "(b) The Office of Personnel Management shall submit to
5 Congress, at the time the budget is submitted to the second session of
6 each Congress, an interim report showing adjustments to the biennial
7 report as authorized in section 3133(e),(f),(g) and (h) of this
8 title.
9 "Sec. 3136. Regulations
10 "The Office of Personnel Management shall prescribe regulations
11 necessary to carry out the purpose of this subchapter.".
12 (c) Section 3104(a) is amended by inserting the word
13 "nonmanagerial" after the word "establish".
14 (d) Section 3109 is amended by inserting at the end thereof the
15 following:
16 "(c) Positions in the Senior Executive Service may not be filled
under the authority of subsection (b) of this section.".
18 Sec. 403. Examination, Certification and Appointment.
19 Chapter 33 of title 5, United States Code, is amended 20 (1) by inserting the following in the chapter analysis after
21 subchapter VII:
22 "SUBCHAPTER VIII -- SENIOR EXECUTIVE SERVICE
23 APPOINTMENT, PLACEMENT, TRANSFER AND DEVELOPMENT
24 "Sec.
25 "3391.
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1 "3392. Career appointments to the Senior Executive Service.
2 "3393. Noncareer appointments to the Senior Executive Service.
3 "3394. Limited appointments to the Senior Executive Service.
4 "3395. Placement and transfer within the Senior Executive Service.
5 "3396. Development for and within the Senior Executive Service.
6 "3397. Regulations."; and
7 (2) by inserting immediately after section 3385 the
8 following new subchapter:
9 "SUBCHAPTER VIII -- SENIOR EXECUTIVE SERVICE
10 APPOINTMENT, PLACEMENT, TRANSFER AND DEVELOPMENT
11 "Sec. 3391. General appointment provisions '
12 "(a) Qualification standards for all Senior Executive Service
13 positions shall meet the requirements established by the Office of
14 Personnel Management and in the case of most Presidential appointees
15 the confirmation of the Senate.
16 "(b) Appointees shall meet the qualifications of the positions
17 to which they are appointed.
18 "(c) The appointing authority is responsible for determining
19 that a selectee meets the qualification requirements for a particular
20 position.
21 "(d) Discrimination on account of race, color, religion,
22 national origin, sex, marital status, age and handicapping condition
23 is prohibited.
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413
1 "(e) The pay level for each employee will be set by the
2 appointing authority according to criteria established by the Office
3 of Personnel Management.
4 "Sec. 3392. Career appointments to the Senior Executive Service
5 "(a) Career recruitment may
6 "(1) include all current Federal employees; or
7 "(2) be open to Federal employees and persons outside of
8 Government.
9 "(b) The recruitment process shall attempt to reach all groups
10 of qualified applicants, including women and minorities.
11 "(c) Competitive staffing shall be conducted by an agency
12 executive resources board and the staffing process shall meet
13 requirements established by the Office of Personnel Management.
14 "(d) The Office of Personnel Management may appoint members of
15 Qualifications Review Boards from within and outside the Federal
16 service to certify the managerial qualifications of candidates for
17 entry into the Senior Executive Service, according to regulations
18 promulgated by the Office of Personnel Management. The Office of
19 Personnel Management, working with the various Review Boards, shall
20 set the criteria for establishing managerial qualifications for
21 appointment to the Senior Executive Service. Such criteria shall
22 include:
23 "(1) Demonstrated performance in managerial work;
24
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"(2) Successful participation in a centrally sponsored or
L,1.
2 agency career executive development program approved by the
3 Office of Personnel Management; or
4 "(3) Unique or special individual qualities predictive of
5 success in managerial work to apply in those exceptional cases
6 wherein an outstanding candidate would otherwise be excluded from
8 "(e) Employees with career status from other Government
9 personnel systems shall have their managerial qualifications approved
10 by the Office of Personnel Management for a career appointment.
11 "(f) Employees entering the Senior Executive Service under
12 career appointments will serve a one year probationary period.
13 "Sec. 3393. Noncareer appointments to the Senior Executive Service
14 "(a) Noncareer recruitment and appointment may be made by the
15 appointing authority without managerial qualifications approval by the
16 Office of Personnel Management.
17 "(b) The employee given a ncncareer appointment may be removed
18 by the appointing authority.
19 "(c) Employees given noncareer appointments do not acquire
20 credit toward career status.
21 "(d) Noncareer appointments cannot be made to career reserved
22 positions as defined in section 3132(b)(4) of this title.
23 "Sec. 3394. Limited appointments to the Senior Executive Service
24 "(a) Limited emergency appointments to the Senior Executive
25 Service --
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"(1) may only be made when filling new positions established
2 under a bona fide emergency as defined in the regulations of the
3 Office of Personnel Management;
4 "(2) may not exceed 18 months and are not renewable; and
5 "(3) may be filled by the agency without regard to the
6 competitive merit staffing process.
7 "(b) Limited. term appointments --
"(1) may only be made for positions the duties of which will
9 expire in three years or less;
10 "(2) are not renewable; and
11 "(3) may be filled by the agency without regard to the
12 competitive merit staffing process.
13 "(c) A Senior Executive Service employee does not acquire credit
14 toward career status under limited appointment.
15 "(d) The Office of Personnel Management shall approve use of
16 limited appointment authority before an appointment under this
17 authority may be made.
18 "Sec. 3395. Placement and transfer within the Senior Executive Service
19 "(a) An executive with a career appointment 20 "(1) may be reassigned to a Senior Executive Service
21 position in the same agency;
22 "(2) may transfer to a Senior Executive Service position in
23 another agency; and
24 "(3) may request assignment outside the Senior Executive
25 Service.
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1 "(b) An executive with a limited appointment --
2 "(1) may be reassigned to another Senior Executive Service
3 position which meets the criteria under which the executive was
4 appointed, except that continuous service in any one agency under
5 a limited emergency appointment may not exceed 18 months and
6 under a limited term appointment may not exceed three years;
7 "(2) may not be given a career appointment in the Senior
8 Executive Service except under the competitive merit staffing
9 process; and
10 "(3) may not be given another limited appointment in the
11 same agency after completing the maximum period of service
12 authorized for the employee's original appointment, within one
13 calendar year of the expiration of the limited appointment.
14 "(c) An executive with a noncareer appointment --
15 "(1) may be reassigned to any general Senior Executive
16 Service position in the same agency;
17 "(2) may transfer to a general Senior Executive Service
position in another agency;
19 "(3) may be appointed to a noncareer position outside the
21
22
23
24
Senior Executive Service; and
,"(4) may not be given a career appointment except under the
merit staffing process.
"(d) A career executive may not be involuntarily reassigned or
transferred within 120 days after the appointment of an agency head.
91
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1 "Sec. 3396. Development for and within the Senior Executive Service
2 "(a) The Office of Personnel Management shall establish programs
3 for the systematic development of candidates for the Senior Executive
4 Service or require the establishment of such programs by agencies
5 which meet criteria prescribed by the Office of Personnel Management.
6 "(b) The Office of Personnel Management shall establish programs
7 for the continuing development of executives or require the
8 establishment of such programs by agencies which meet criteria
9 prescribed by the Office of Personnel Management.
10 "(c) The Office of Personnel Management will assist agencies in
11 the establishment of programs required under subsections (a) and (b)
12
13
14
16
17
18
19
20
21
22
23
24
25
of this section and will monitor the implementation of such programs.
The Office of Personnel Management shall direct agencies to take
corrective action when required.
"(d) It shall be the duty of the Office of Personnel Management
to encourage: and assist individuals to improve their skills and
increase their contribution by service in a variety of agencies as
well as by accepting placements in State or local governments or in
the private sector.
n(e) An agency head may grant administrative leave to a career
executive for a sabbatical period not exceeding eleven months to
permit such person to engage in study or uncompensated work experience
which will contribute to the individual's development and
effectiveness. The agency head may authorize travel and per diem
costs where essential to the developmental period. A sabbatical may
not be granted more than once in a ten year period.
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4,1g
"Sec. 3397. Regulations
"The Office of Personnel Management shall prescribe regulations
necessary to carry out the purpose of this subchapter.".
4
Sec. 404. Retention Preference.
5
Chapter 35 of title 5, United States Code is amended --
6
(1) by inserting the following in the chapter analysis after
7
subchapter IV:
8
"SUBCHAPTER V - REMOVAL, REINSTATEMENT AND GUARANTEED
9
PLACEMENT PROVISIONS IN THE SENIOR EXECUTIVE SERVICE
10
"Sec.
11
"3591.
Removal from the Senior Executive Service.
12
"3592.
Reinstatement in the Senior Executive Service.
13
"3593.
Guaranteed placement in other personnel systems.
14
"3594.
Regulations.";
15
(2) by adding the following at the end of subsection (b) in
16
section 3501:
17
"This subchapter does not apply to employees in the Senior
18
Executive Service established in section 3131 of this title."; and
19
(3) by adding the following after subchapter IV:
20
"SUBCHAPTER V - REMOVAL, REINSTATEMENT AND GUARANTEED
21
PLACEMENT PROVISIONS IN THE SENIOR EXECUTIVE SERVICE
22
"Sec. 3591. Removal from the Senior Executive Service
23
"(a)
Career appointees may be removed from the Senior Executive
24
Service --
25
"(1) during the one year period of probation in the Senior
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"(2) for less than fully successful managerial performance
,i9
2 appraisals determined under the provisions of subchapter II,
3 chapter 43 of this title; or
4 "(3) for misconduct, neglect. of duty, or malfeasance.
5 "(b) Limited emergency appointees may be removed at any time
6 from the Federal service by the appointing authority and shall be
7 separated after 18 months.
8 "(c) Limited term appointees may be removed at any time from the
9 Federal service by the appointing authority before the expiration of
10 that period and shall be separated after three years.
11 "(d) Noncareer employees can be removed at any time from the
12 Federal service by the appointing authority.
13 "Sec. 3592. Reinstatement in the Senior Executive Service
14 "A former Senior Executive Service employee with career status
15 may be reinstated to any Senior Executive Service position if --
"(1) the individual has successfully completed the
probationary period in the Senior Executive Service; and
"(2) the removal from the Senior Executive Service was not
for misconduct, neglect of duty, malfeasance, or less than fully
successful performance.
"Sec. 3593. Guaranteed placement in other personnel systems
"(a) Career appointees who are appointed from a career or career-
type position within.the civil service as determined by the Office of
Personnel Management and who are removed for reasons other than
misconduct, neglect of duty, or malfeasance from the Senior Executive
Service during Senior Executive Service probation shall have the right
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L.ar
to placement in a Federal position outside the Senior Executive
Service.
"(b) Career appointees who are removed from the Senior Executive
Service for less than fully successful performance shall have the
right to placement in a Federal position outside the Senior Executive
Service.
"(c) Career appointees in the Senior Executive Service who accept
Presidential appointments outside the Senior Executive Service and who
are removed from these appointments for reasons other than misconduct,
neglect of duty, or malfeasance shall have the right to placement in
the Senior Executive Service if the appointee applies within 90 days
after the separation from the Presidential appointment.
"(d) Under subsection (a) and (b) of this section, placement
14 shall be in a continuing career position at either the salary held
15 prior to Senior Executive Service appointment or a salary which is
16 equal to the last Senior Executive Service base pay, whichever is
17 higher. Placement shall not cause the separation or reduction in grade
18 of any other employee in the agency.
19 "(e) Career appointees removed from the Senior Executive Service
20 whose base pay exceeds the top pay rate for the position into which
21 they are placed shall retain their pay. If there are comparability
22 increases under section 5305 of this title, these employees will
23 receive half of each comparability increase until their pay equals the
24 top rate payable fcr their position.
25 "Sec. 3594. Regulations
"The Office of Personnel Management shall prescribe regulations
necessary for the administration of this subchapter.".
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Sec. 405. Performance Rating.
2 Chapter 43 of title 5, United States Code is amended --
3 (1) by inserting at the end of the chapter analysis:
4 "SUBCHAPTER II -- PERFORMANCE APPRAISAL IN THE
5 SENIOR EXECUTIVE SERVICE
6 "Sec.
7 "4311. Senior Executive Service performance appraisal systems.
8 "4312. Criteria for performance appraisals.
9 "4313. Ratings for managerial performance appraisal.
10 "4314. Regulations."; and
11 (2) by inserting the following at the end of Chapter 43:
12 "SUBCHAPTER II -- PERFORMANCE APPRAISAL IN THE
13 SENIOR EXECUTIVE SERVICE
14 "Sec. 4311. Senior Executive Service performance appraisal systems
15 "(a) Each agency, as defined by section 3132(a) of this title
16 shall, in accordance with standards established by the Office of
17 Personnel Management, develop one or more performance appraisal
18 systems designed to --
19 "(1) provide for systematic appraisals of job performance of
20 individuals in the Senior Executive Service established by
21 section 3131 of this title;
22 "(2) encourage excellence in performance for individuals in
23 the Senior Executive Service; and
24
25
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4.11
"(3) link the performance of each individual in the Senior
2 Executive Service with eligibility for retention and performance
3 awards.
4 "(b) Each performance appraisal system for individuals in the
Senior Executive Service shall provide --
"(1) that performance requirements for each indivdual be
7 established at the beginning of the rating period and
8 communicated to the employee;
9 "(2) for written appraisals of performance based on the
10 accomplishment of the previously established personal and
11 organizational requirements; and
12 "(3) that each individual be shown his/her appraisal and
13 rating and be given an opportunity to respond in writing and have
14 the rating reviewed by a higher managerial level in the agency.
15 "(c) Upon determination by the Office of Personnel Management
16 that an agency performance appraisal system does not meet the
17
18
19
20
21
22
23
24
requirements of this subchapter and the regulations prescribed
thereunder, the Office of Personnel Management shall order corrective
action.
"Sec. 4312. Criteria for performance appraisals
"Managerial success in the Senior Executive Service will take
into account both individual performance and organizational
accomplishment.
"Sec. 4313. Ratings for managerial performance appraisal
"(a) Each performance appraisal system shall provide for annual
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H.13
1 summary ratings representing a number of levels of performance
2 including one or more fully successful levels,. an unsatisfactory level
3 and a level of performance which is minimally satisfactory but not
4 acceptable as a continuing level of performance.
5 "(b) The head of each agency shall establish a system to
17
18
19
20
appraise the performance. of members of the Senior Executive Service.
The system shall provide that the appraisal will --
"(1) take place at least annually on a fixed schedule,
except that no evaluation can be made of a career employee within
120 days after the beginning of a new administration;
"(2) not be appealable; and
"(3) have the following results:
"(A) employees receiving ratings at any of the fully
successful levels may be given performance awards as
prescribed in section.5396 of this title;
"(B) an unsatisfactory rating requires corrective
action by removal of the employee from the current position
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4.14
2 Senior Executive Service. Employees who receive two
3 unsatisfactory annual ratings in five consecutive years shall
4 be separated from the Senior Executive Service.
"(C) employees who twice in any 3-year period. receive
an annual rating, reflecting a level of performance which is
minimally satisfactory but not acceptable as a continuing
level of performance shall be separated from the Senior
9 Executive Service according to the provisions in section
10 3591 of this title and the regulations of the Office of
11 Personnel Management.
12 "Sec. 4314. Regulations
13 "The Office of Personnel Management may prescribe regulations
14 necessary for the administration of this subchapter.".
15 Sec. 406. Incentive Awards and Ranks.
16 Chapter 45 of title 5, United States Code is amended by adding
17 the following after section 4506:
18 "Sec. 4507. Incentive Awards and Ranks in the Senior Executive
19 Service
20 "(a) Each agency shall forward annually its recommendation to
21 the Office of Personnel Management of career executives in the Senior
22 Executive Service for ranks to be conferred on active duty senior
23 executives. The Office of Personnel Management shall review the
24 recommendations and recommend to the President appointments to ranks
25 as set forth in subsection (b) of this section. The President shall
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commission persons conferring a rank of (1) Meritorious Executive for
sustained excellence or (2) Distinguished Executive for sustained
extraordinary accomplishment.
4 "(b) No more than 5 percent of the members of the Senior
Executive Service may be appointed to the rank of Meritorious
6 Executive in a calendar year. No more than 15 percent of the active
7 duty members of the Senior Executive Service may hold the rank of
9
10
11
12
1.3
"(c) No more than 1 percent of the active duty members of the
Senior Executive Service may hold the rank of Distinguished
Executive.
"(d) Receipt of a meritoriou-s rank shall entitle the individual
to an annual award of $2,500 for a period of five years of active
14 service in the Senior Executive Service.
15 "(e) Distinguished Executives shall receive an annual award of
16 $5,000 for a period of five years of active service in the Senior
17 Executive Service.
18 "(f) An employee in the Senior Executive Service appointed by
19 the President to another position outside the Senior Executive
20 Service shallbe entitled to continue to receive any incentive award
21 granted for service prior to the Presidential appointment.
"(g)
Funds for awards may be appropriated to and paid by the
23 Office of Personnel Management.".
24
25
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411t.
1 Sec. 407. Pay Rates and Systems.
2 Chapter 53 of title 5, United States Code is amended --
3 (1) by amending section 5308 to read as follows:
4 "Pay may not be paid, by reasons of any provision of this
5 subchapter, at a rate in excess of the rate of basic pay for
6 Level V.of the Executive Schedule, except that executives in the
7 Senior Executive Service may be paid up to a rate of basic pay
8 equal to 96 percent of the rate provided for Executive Level
9 III.";
10 (2) by adding the following new subchapter at the end
11 thereof:
12 "SUBCHAPTER X - PAY FOR THE SENIOR EXECUTIVE SERVICE
13 "Sec. 5394. Purpose, definitions
14 "(a) It is the purpose of this subchapter to provide a pay system
15 for the Senior Executive Service, established under subchapter II of
16 chapter 31 of this title, that shall facilitate the accomplishment of
17 the goals of that service, as set forth in section 3131 of this title.
18 "(b) For the purpose of this subchapter, 'agency',, 'Senior
19 Executive Service position' and 'executive' have the meanings given
them by section 3132 of this title.
"Sec. 5395. Establishment and adjustment of rates of pay for the
Senior Executive Service
"(a) There shall be five or more rates of basic pay for the
Senior Executive Service, and the incumbent of each position shall be
paid at one of these rates. These rates of basic pay shall be
initially established and thereafter adjusted by the President in
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1 accordance with the provisions of this section.
2 "(b) In setting rates of basic pay, the lowest rate for the
3 Senior Executive Service shall not be less than the rate for the sixth
4 step of GS-15 and the highest rate shall not exceed 96 percent of the
5 rate of level III of the Executive Schedule. -
6 "(c) The rates of basic pay for the Senior Executive Service
7 shall be adjusted by the President at the same time he adjusts the
8 rates of pay of the national compensation systems under section 5305
9 of this title, and the adjusted rates of basic pay for the Senior
10 Executive Service shall he included in the report transmitted to the
11 Congress by the President under section 5305(a)(3) or (c)(l) of this
12 title.
13 "(d) The rates of basic pay that are established and adjusted
14 under this section shall be printed in the Federal Register and shall
15 supersede any prior rates of basic pay for the Senior Executive
16 Service.
17 "(e) The sum total of all monies paid to an executive for any
18 calendar year under sections 4507, 5395, and 5396 of this title shall
19 not exceed 95 percent of the rate provided for Executive Schedule II.
20 "Sec. 5396. Performance awards for the Senior Executive Service
21 "(a) To encourage excellence in performance by executives under
22 the Senior Executive Service, performance awards shall be paid to
23 executives in accordance with the provisions of this section, and
24 shall be in addition to the rate of basic pay paid under section 5395
25 of this title and shall not be subject to the limit placed on salaries
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1 under section 5308. It shall be the responsibility of each agency
8
9
10
13
14
15
16
17
head to see that the provisions of this section are administered in
the agency in such a way that excellence is encouraged in the
performance of the agency's executives.
"(b) Each executive shall annually be eligible to receive a
performance award subject to the following criteria:
"(1) no performance award is to be paid to an executive
whose performance was determined to be less than fully successful
at the time of the executive's most recent performance evaluation
under subchapter II of chapter 43 of this title;
"(2) a performance award of an amount to be determined by
the agency head but not more than 20 percent of the executive's
rate of basic pay; and
"(3) performance awards may not be paid in any fiscal year
to more than 70 percent of the executives in an agency which
employs 3 or more members of the Senior Executive Service.
"(c) A performance award under this section shall be paid in a
lump sum not subject to retirement or life insurance deductions.
provided in section 8339 of this title, for each year for which a
performance award is received a 2 1/2 percent annuity calculation will
be used in lieu of any lower percentage.
"Sec. 5397. Regulations
"Subject to such policies and procedures as the President may
prescribe, the Office of Personnel Management shall issue regulations
necessary for the administration of this subchapter."; and
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(3) by adding at the end of the analysis of chapter 5.3 the
2
following new items:
3
"SUBCHAPTER X - PAY FOR THE SENIOR EXECUTIVE SERVICE
4
"Sec.
5
"5394.
Purpose; definitions.
6
"5395.
Establishment and adjustment of rates of pay for the Senior
7
Executive Service.
8
"5396.
Performance awards for the Senior Executive Service.
9
"5397.
Regulations.".
10
Sec. 408. Pay Administration.
11
Chapter 55 of title 5, United States Code is amended --
12
(1) by inserting "other than an employee or individual
13
excluded by section 5541(2)(xvi) of this section" immediately
14
before the period at the end of section 5504(a)(B);
15
(2) by amending section 5541(2) by striking out "or" after
16
paragraph (xiv), by striking out the period after (xv) and
17
inserting ";or" in lieu thereof, and by adding the following
18
paragraph:
19
"(xvi) executive managers occupying Senior Executive Service
20
positions under the Senior Executive Service established under
21
subchapter II of chapter 31 of this title."; and
22
(3) by striking out in Section 5595(a)(2)(i):
23
" or is in excess of the maximum rate for GS-18".
24
Sec. 409. Travel, Transportation, and Subsistence.
25
Chapter 57 of title 5, United States Code is amended -
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4.30
(1) In section 5723(a)(1) by striking out ";and" and adding
2 in lieu thereof "or of a new member of the Senior Executive
3 Service; and";
4 (2) by adding to subchapter IV the following section:
5 "Sec. 5752. Travel expenses of Senior Executive Service candidates
6 "Employing agencies may pay candidates for Senior Executive
7 Service positions travel expenses incurred incident to preemployment
8 interviews requested by the employing agency."; and
9 (3) by adding to the analysis of subchapter IV the following
10 new item:
11 "5752. Travel expenses of Senior Executive Service candidates.".
12 Sec. 410. Leave.
13 Chapter 63 of title 5, United States Code is amended by inserting
14 in subsection (a) of section 6304 "(e), and (f)" in lieu of "and (e),"
15 and. by adding at the end of the section the following new subsection:
16 "(f) Annual leave accrued by an individual serving in a position
17 under the Senior Executive Service established under subchapter II of
18 chapter 31 of this title shall not be subject to the limitation on
19 accumulation otherwise imposed by this section.".
20 Sec. 411. Adverse Actions.
21 Chapter 75 is amended --
22
(1) by inserting the following in the chapter analysis after
subchapter IV:
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3 "7541. Definitions.
4 "7542. Actions covered.
5 "7543. Cause and procedure."; and
6 (2) by adding the following after subchapter IV:
7 "SUBCHAPTER V -- SENIOR EXECUTIVE SERVICE
8 "Sec. 7541. Definitions
9 "For the purpose of this subchapter --
10
11
12
13
14
"(1) 'employee' means an individual in the Senior Executive
Service established under section-3131 of this title who --
"(A) has completed a year of current continuous service
in the Senior Executive Service; or
"(B) when appointed to a position in the Senior
Executive Service was covered by the provisions of
subchapter II of this chapter;
"(2) 'disciplinary action' means an action based on the
conduct of the employee including, but not limited to, misconduct,
neglect of duty, or malfeasance, and not including less than
fully successful performance, and which results in involuntary
removal or suspension for more than 30 days of the employee;
"(3) 'removal' means separation from the Federal service;
"(4) 'suspension' means the placing of an employee in a
temporary nonduty nonpay status for disciplinary reasons.
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4.3'2,
1 "Sec. 7542. Actions covered
"Sec. 7543. Cause and procedure
"(a) Under regulations prescribed by the Office of Personnel
Management, an agency may take disciplinary action against a-:n employee
3 for more than 30 days, but does not apply to a suspension or removal
4 under section 7532 of this title.
8
only for such cause as shall promote the efficiency of the service.
"This subchapter applies to a disciplinary removal or suspension
9 Removal from the Senior Executive Service for less than fully
10 successful performance is not a disciplinary action within the meaning
14
15
16
17
18
19
20
21
22
this provision.
"(b) An employee against whom a disciplinary action is proposed
entitled to --
"(1) at least 30 days advance written notice, except when
there is reasonable cause to believe that the employee is guilty
of a crime for which a sentence of imprisonment can be imposed,
stating any and all reasons, specifically and in detail, for the
proposed action;
"(2) a reasonable time to answer orally and in writing and
to furnish affidavits and other documentary evidence in support
of the answer;
"(3) be accompanied by a representative; and
"(4) a written decision and reasons therefor at the earliest
practicable date.
"(c) A hearing is not required but an agency may by appropriate
regulation provide for one.
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1 "(d) Copies of the notice of proposed action, the answer of the
2 employee when written and a summary thereof when made orally, the
3 notice of decision and reasons therefor, and any order effecting a
4 disciplinary action shall be made a part of records of the agency and,
5 on request, shall be furnished to the Merit Systems Protection Board
6 or the Office of Personnel Management."
7 "(e) An employee in the Senior Executive Service, against whom
8 an adverse action as defined in section 7541(2) of this title is
9 taken, is entitled to appeal to the Merit Systems Protection Board
10 under section 7701 of this title.
11 Sec. 412. Retirement.
12 Chapter 83 of title 5, United States Code is amended:
13 (a) by redesignating subsection (h) of section 8336 of
14 subchapter III as subsection (i) and inserting immediately after
15 subsection (g) the following new subsection:
16 "(h) An executive in the Senior Executive Service is entitled to
17 an immediate annuity if he/she is separated from the Senior Executive
18 Service for less than fully successful performance and has completed
19 25 years of Federal service or has become 50 years of age and
20 completed 20 years of Federal service."; and
21 (b) by adding at the end of section 8339 the following new
22, subsection:
23 "(n) The. annuity of a member or former member of the Senior
24 Executive Service established by subchapter II of Chapter 31 of this
25 title, retiring under this subchapter, is computed under subsection
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255-222 0 - 78 - 8
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4.3y
1 (a) of this section, except if the employee has received one or more
2 annual performance awards as a member of the Senior Executive Service
3 his/her annuity is computed by multiplying 2 1/2 percent of average
4 pay, in lieu of any lesser percent, by the number of full years of
5 service for which an award is received.".
6 Sec. 413. Conversion to the Senior Executive Service.
7 (a) During the period following enactment and prior to the
8 effective date of this title, each agency under the guidance and
9 review of the Office of Personnel Management and the definitions in
10 chapter 31 of title 5 as amended by this title, shall designate those
11 positions which are to be incorporated into the Senior Executive
12 Service and shall designate those positions which are career reserved.
13 (b) Each agency shall also submit a request for total Senior
14 Executive Service space allocations and for the number of noncareer
15 appointments needed. The Office of Personnel Management shall
16 establish interim authorizations within the limits defined in sections
17 3133 and 3134 of title 5, United States Code, as amended by this Act.
18 (c) Each employee serving in a position at the time it is
19 officially designated as a position in the Senior Executive Service
20 shall have the option to --
21 (1) remain in the current appointment and pay system,
22 retaining all the associated benefits and provisions; or
23 (2) convert to a Senior Executive Service appointment
24 according to the automatic appointment conversion provisions of
25 subsections (d), (e), (f), (g), and (h) of this section. The
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employee shall be notified in writing that his position has been
2 brought into the Senior Executive Service and what his/her
3 options are as defined in subsections (d), (e), (f), (g),
4 and (h) of this section. The employee shall be given 90 days
5 from the date of this notification to elect one of these options.
Each employee who has elected
7 conversion, is serving immediately before the effective date in a
8 position designated as a Senior Executive Service position, and is
9 currently under --
10
11 (2) a similar type of appointment in an excepted service as
12 determined by the Office of Personnel Management;
13
14
(e) Each
conversion and
position which
an automatic appointment
or career-conditional appointment;
appointment
that position in the
subject to section 3392(f) of this title.
employee who has elected an automatic appointment
is currently under an excepted appointment in a
is not designated a career reserved position in
Senior Executive Service, but is --
(1) a position in Schedule C of subpart C of part 213 of
title 5, Code of Federal Regulations;
(2) a position filled by noncareer executive assignment
under subpart F of part 305 of title 5, Code of Federal
Rgulations; or
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1+.36
(3) a position in the Executive Schedule under subchapter II
2 of chapter 53 of title 5, United States Code, except career
3 Executive Schedule positions;
4 shall receive a noncareer appointment in the Senior Executive Service.
5 (f) Each employee described in subsection (e) of this section
6 who is serving immediately before the effective date in a position
7 designated as a Senior Executive Service career reserved position
8 shall be reassigned to an appropriate Senior Executive Service general
9 position or terminated.
10 (g) Each employee described in subsection (e) of this section
11 who is serving immediately before the effective date, in a position
12 designated as a Senior Executive Service position and who has
13 reinstatement eligibility to a position in the competitive service,
14 may request the reinstatement of his/her career status from the Office
15
16
17
18
19
20
21
22
23
of Personnel Management and be converted to a career appointment in
the Senior Executive Service. The names and grounds for status of all
such employees who are so reinstated and converted shall be published
in the Federal Register.
(h) Each employee who has elected an automatic appointment
conversion and is under a limited executive assignment under subpart F
of part 305 of title 5, Code of Federal Regulations shall --
(1) be converted to a Senior Executive Service limited term
appointment if the position encumbered immediately before the
effective date will terminate within three years of the.e:ffective
date;
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4.3}
2 appointment if the position encumbered immediately before the
3 effective date is designated as a Senior Executive Service
4 general position;
5 (3) be converted to a Senior Executive Service noncareer
6 appointment and reassigned to a Senior Executive Service general
7 position if the encumbered position immediately before the
8 effective date is designated as a Senior Executive Service career
9 reserved position.
10 (i) Employees whose actual base pay at the time of conversion
11 exceeds the pay of the rate to which they are converted shall retain
12 their pay. If there are comparability increases under section 5305 of
13 this title, these employees will receive half of each comparability
14 increase until the base pay equals the established Senior Executive
15 Service rate.
16 (j) The Office of Personnel Management shall prescribe
17 regulations to carry out the purpose of this section. The regulations
19
20
21
22
shall provide a right of appeal to the Merit Systems Protection Board
for an employee who believes his/her employing agency has violated
his/her rights under this section. An agency shall take the
corrective action that the Merit Systems Protection Board orders in
its decision on an appeal under this subsection.
Sec. 414. Repealer.
All authority in effect immediately before the effective date of
this section for the establishment or the pay, or both, as the case
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may be, of each position subject to section 401 of this Act is
repealed.
Sec. 415. Savings Provision.
The enactment of this title does not decrease the present: pay,
allowances, or compensation, or future annuity of any person.
Sec. 416. Effective Date.
The provisions of this title shall take effect nine months after
the enactment of the title with the exception of section 413,
regarding conversion procedures, which shall take effect immediately
upon enactment.
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5 al
1 Sec. 501. Pay For Performance Amendments
2 Chapter 53 of title 5 United States Code is amended by adding the
.3 following subchapter:
4 "SUBCHAPTER VII--MERIT PAY
5 "Sec. 5371. Policy
6 It is the policy of Congress that the merit pay plan shall, within
7 available funds:
8 ? "(a) recognize and reward quality performance by varying merit pay
9 adjustments;
10 "(b) utilize performance appraisals as the basis for eligibility
11 for merit pay;
12 "(c) provide for training. to improve objectivity and fairness in
13 the evaluation of performance; and
14 "(d) regulate the costs of merit pay by establishing a merit pay
15 budget and other control. techniques.
16 "Sec. 5372. Merit Pay Plan
17 "(a) In accordance with the principles contained in section 5371 of
18 this title, the Office of Personnel Management shall establish a merit
19 pay plan which shall cover any employee who occupies a position as a
20 manager or supervisor in grades 9 through 15 of the General Schedule or
21 a non-managerial position in grades 16 through 18 of the General Schedule.
22 "(b) The merit pay plan shall include a range of basic pay for each
23 grade to which it applies consisting of the minimum and maximum of each
24 grade as specified in section 5332(a) of this title.
25 "(c) Concurrent with each adjustment under section 5305 of this title,
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5.02
1 the Office of Personnel Management shall determine the extent to which
2 such adjustment shall be granted automatically to all employees covered
3 by the merit pay plan.
4 Funding for that portion of the merit pay plan which permits increases
5 to base pay shall be determined annually by the Office of Personnel
6 Management. It shall consist of funds available as a result of any
7 portion of the adjustment granted under section 5305 of this title not
.8 being granted automatically as provided under subsection (c) of this
9 section, plus an additional amount which takes into consideration the
10 level of expenditure for within-grade increases and quality step
11 increases for other employees in the General Schedule who are not
12 covered by this plan.
13 "(d) An automatic increase in pay under this section is not an
14 equivalent increase in pay within the meaning of section 5335 of this
15 title.
16 "(e) No employee may be paid less than the minimum of his or her
17 assigned grade.
18 "(f) An employee covered by this subchapter shall be advanced within
19 the pay range of his or her grade in accordance with regulations pre-
20 scribed by the Office of Personnel Management.
21 "(g) The head of an agency may pay a cash award to, and incur necessary
22 expense for the honorary recognition of, an employee who--
23 "(1) by his/her suggestion, invention, superior accomplishment,
24 or other improvement of Government operations; or
25 "(2) performs a special actor service in the public interest
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1 in connection with or related to his/her official employment.
2 "(h) The President may pay a cash award to, and incur necessary
.3 expense for the honorary recognition of, an employee who--
4 "(1) by his/her suggestion, invention, superior accomplishment,
5 or other personal effort contributes to the efficiency, economy, or
6 other improvement of Government operations; or
7 "(2) performs an exceptionally meritorious special act or
8 service in the public interest in connection with or related to
9 his/her official employment.
10 "A Presidential award may be in addition to an agency award under
11 subsection (g) of this section.
12 "(i) A cash award under this section is in addition to the basic
13 pay and any merit increase to basic pay of the recipient. Acceptance of
14 a cash award under this section constitutes an agreement that the use by
15 the Government of an idea, method, or device for which the award is made
16 does not form the basis of a further claim of any nature against the
17 Government by the employee, his heirs, or assigns.
18 "(j) A cash award to, and expense for the honorary recognition of,
19 an employee may be paid from the fund or appropriation available to the
20 activity primarily benefiting or the various activities benefiting. The
21 head of the agency concerned determines the amount to be paid by each
22 activity for an agency award under subsection (g) of this section. The
23 President determines the amount to be paid by each activity for a
24 Presidential award under subsection (h) of this section.
25 "(k) Except as provided by subsection (n) of this section, a cash
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I award under this section may not exceed $10,000.
2 "(1) When the head of an agency certifies to the Office of Personnel
.3 Management that the suggestion, invention, superior accomplishment, or
4 other meritorious effort for which the award is proposed is h:ghly
5 exceptional and unusually outstanding, a cash award in excess of $10,000
6 but not in excess of $25,000 may be granted with the approval of that
7 office.
8 "(m) An agency may pay or grant an award under this section not-
9 withstanding the death or separation from the service of the employee
10 concerned, if the suggestion, invention, superior accomplishment, other
11 personal effort, or special act or service in the public interest for
12 which the award is proposed was made or performed while the employee was
13 in the employ of the Government.
14 "(n) Under regulations prescribed by the Office of Personnel
15 Management, the benefit of advancement through the range of basic pay
16 shall be preserved for an employee covered by the merit pay p:Lan, whose
17 continuous service is interrupted in the public interest by service with
18 the armed forces, or by service in essential non-Government c_Lvilian
19 employment during a perior of war or national emergency.
20 "(o) Increases in basic pay granted under the merit pay plan are
21 considered pay fixed by statute.
22 "Sec. 5373. Regulations
23 "The Office of Personnel Management shall prescribe regu:'_ations
24 necessary for the administration of this subchapter.
25 "Sec. 502. Conforming and Technical Amendments
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I "(a) Section 4501(2)(A) is amended by striking out ", and" and
2 inserting, in lieu thereof, "but does not include an individual paid
3 under the merit pay plan established under section 5372 of this title; and".
4 "(b) Section 4502(a) is amended by striking out "5,000" and
5 inserting, in lieu thereof, "10,000".
6 "(c) Section 4502(b) is amended--
7 (1) by striking out "Civil Service Commission" and inserting
8 in lieu thereof, "Office of Personnel Management";
9 (2) by striking out "$5,000" and inserting, in lieu thereof,
10 "$10,000"; and
11 (3) by striking out "the Commission" and inserting, in lieu
12 thereof, "the Office".
13 "(d) Section 4506 is amended by striking out "Civil Service
14 Commission may" and inserting, in lieu thereof, "Office of Personnel
15 Management shall".
16 "(e) Section 5332(a) is amended by inserting after "applies" "except
17 an employee covered by subchapter VII of this chapter."
18 "(f) Section 5334 is amended (1) in paragraph (2) of subsection (c)
19 by inserting after "step" ", or for an employee appointed to a position
20 covered by the merit pay plan, any dollar amount, "; and
21 (2) by adding at the and thereof the following subsection
22 "(g) For an employee covered by the merit pay plan all references
23 in this section to 'two steps' or 'two step-increases' shall be deemed
24 to mean six percent."
25 "(g) Section 5335(e) is amended icy inserting after "individual"
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"covered by subchapter VII of this title; or,"
2
"(h) Section 5336(c) is amended by inserting after "individual"
3
"covered by subchapter VII of this title; or,".
4
"(i) The analysis of chapter 53 is amended by adding the following
5
items at the end thereof:
6
"SUBCHAPTER VII--MERIT PAY
7
"5371.
Policy
8
? "5372.
Merit Pay
9
"5373.
Regulations
10
Sec. 503. Pay Saving.
11
Any changes in pay required by the initial implementation of this
12
title are not adverse actions as defined in chapter 75 of title 5,
13
United States Code.
14
Sec. 504. Effective Date
15
The provisions of this title are effective on the first day of
16
the first applicable pay period which begins on or after the ninetieth
17
day after the date of enactment of this title.
19
20
21
22
23
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3
4 Sec. 601. Chapter 13 of title 5, United States Code, is amended
5 by designating the existing chapter as "SUBCHAPTER I -- GENERAL" and
6 by adding the following subchapter:
7 "SUBCHAPTER II -- RESEARCH AND DEMONSTRATION PROJECTS
8 "Sec. 1321. Definitions
9 "For the purposes of this subchapter --
10 "(1) 'agency' means an agency as defined in section 105 of
11 this title;
12 "(2) 'employee' means an individual employed in or under an
13 agency;
14 "(3) 'eligible' means an individual who has qualified for
15 appointment in an agency and whose name has been entered on the
16 appropriate register of eligibles or employment list;
17 "(4) 'demonstration project' means an action project
18 conducted by the Office of Personnel Management, or under its
19 supervision, to determine whether a specified change in personnel
20 policies or procedures may result in improved Federal personnel
21 administration and mission accomplishment; and
22 "(5) 'research program' means a planned study of the manner
23 in which public management policies and systems are operating,
24 the effects of those policies and systems, the possibilities for
25 change, and comparisons among policies and systems.
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1 "Sec. 1322. Research support functions
2 "The Office of Personnel Management is authorized and directed
3 to --
4 "(1) initiate and support research programs;
5 "(2) foster and support the development and use of new and
6 improved methods and technologies;
7 "(3) evaluate the status and need for new, additional, or
8 continuing research as required by agency needs or as evidenced
9 by programs, projects and studies being undertaken by agencies;
10 "(4) foster, support, and cooperate in public management
11 research and demonstration projects being conducted by Federal
12 agencies, State and local governments, private sector
13 organizations, educational institutions, and public interest
14 organizations concerned with improving and strengthening the
15 public service;
16 "(5) maintain a central clearinghouse for the collection of
17 public management research information, encourage and facilitate
1S information interchange among governmental agencies, educational
19 institutions, and public interest groups, and disseminate
20 research information to public or private agencies or
21 organizations;
22 "(6) encourage the application of research findings to the
23 solution of public management problems; and
24
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"(7) carry out these research support functions either
2 directly or through agreement or contract with other public and
3 private organizations.
4 "Sec. 1323. Demonstration projects
5 "(a) Subject to the provisions and limitations contained in
6 this section, the Office of Personnel Management is authorized to
7 conduct, or enter into agreements or contracts with one or more Federal
8 agencies and other public and private organizations to conduct and
9 evaluate demonstration projects. The conduct of demonstration projects
10 shall not be limited by any lack of specific authority to take the
11 action contemplated, or by any provision or provisions of law existing
12 at the time inconsistent with such action, including laws or
13 regulations relating to --
14 "(1) the methods of establishing qualification requirements
15 for, recruitment for, and appointment to positions;
16 "(2) the methods of classifying positions and compensating
17 employees, except that no variation is hereby authorized in
1$ employee benefits provided by chapter 63 or by Part III, Subpart G
19 of this title;
20 "(3) the methods of assigning, reassigning, or promoting
21 employees;
22 "(4) the methods of disciplining employees;
23 "(5) the methods of providing incentives to employees,
24 including the provision of group or individual incentive bonuses
25 or pay;
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"(6) hours of work;
"(7) the methods of involving employees, unions, and
3 employee organizations in personnel decisions; and
4 "(8) the methods of reducing overall agency staff and grade
5 levels.
6 "(b) Prior to conducting or sponsoring a demonstration project,
7 the Office of Personnel Management shall --
8 "(1) develop a project plan which identifies --
9 "(A) the purpose or purposes of the project;
10 "(B) the categories of employees, eligibles, or
11 applicants; or the occupational series, grades, or
12, organizational unit of employees covered by the project;
13 "(C) the numbers of employees or eligibles to be
14 included in the project;
15 "(D) the methodology for the project;
16 "(E) the duration of the project;
17 "(F) the training to be provided in connnection with
18 the project;
19 "(G) the anticipated costs of the project; and
20
21
22
23
"(H) the methodology and criteria for evaluation of the
project; and
"(2) have the proposed project plan --
"(A) published in the Federal Register;
"(B) considered in public hearing; and
"(C) approved by the participating agency or agencies.
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. 0!;*'
1 "(c) A demonstration project shall not --
2 "(1) include more than 5,000 employees or eligibles
3 exclusive of such control group members as are necessary to
4 validate the results of the project; nor
5 "(2) extend more than five years from the date of approval
6 by the Office of Personnel Management except for such follow up
7 research as is necessary to validate the results of the project.
8 "(d) Subject to the terms of any written agreement between the
9 Office of Personnel Management and an agency, a demonstration project
10 may be terminated by the Office of Personnel Management, or the agency,
11 if either determines that the project creates a substantial hardship
12 or is not in the best interest of the public, the Government,
13 employees, or eligibles.
14 "(e) Employees within a unit with respect to which an
15 organization of Government employees has been accorded exclusive
16 recognition shall not be included within any project under subsection
17 (b) if such project would violate a negotiated agreement unless there
18 is written agreement with the organization, or if the matter is not
19 covered by a negotiated agreement, until there has been consultation
20 with the organization.
21 "(f) Employees within a unit with respect to which an
22 organization of Government employees has not been accorded exclusive
23 recognition shall not be included within any project under subsection
24 (b) of this section except after agency consultation with these
25 employees.
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c, Off.
I "(g) Evaluation of the results of the project and its impact on
2 improving public management shall be undertaken for each project.
3 "(h) Upon the request of the Director of the Office of Personnel
4 Management, Federal agencies shall cooperate with and assist the
5 Office as far as practical in the performance of this function and
6 provide the Office with requested information and reports relating to
7 the conduct of research and demonstraton projects in their respective
9 "Sec. 1324. Appropriation authorized
10 "(a) There are authorized to be appropriated such sums as may be
11 necessary to carry out the provisions of this subchapter.
12 "(b) Funds made available to the Office of Personnel Management
13 for this subchapter may be allocated or transferred by the Office of
14 Personnel Management to any agency conducting demonstration projects
15 or assisting the Office of Personnel Management in conducting projects.
16 Funds so allocated or transferred shall remain available for such
17 period as may be specified in the Appropriation Acts making these funds
18 available.
19 "Sec. 1325. Reports
20 "The Office of Personnel Management shall include in the annual
21 report required by section 1308 of this title a summary of research and
22 demonstration projects conducted during the year, the effect of that
23 research on improving public management and increasing efficiency, and
24 recommendations of policies and procedures which will improve the
25 attainment of general research objectives.
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2 "The Office of Personnel Management shall prescribe regulations
3 for the administration of this subchapter.".
4 Sec. 602. The analysis for chapter 13 of title 5, United States
5 Code is amended by inserting immediately before the item relating to
6 section 1301 the following item:
7 "SUBCHAPTER I -- GENERAL"
8 and adding at the end of the item relating to section 1308 the
9 following new items:
10 "SUBCHAPTER II -- RESEARCH AND DEMONSTRATION PROJECTS
11 "Sec. 1321. Definitions.
12 "Sec. 1322. Research support functions.
13 "Sec. 1323. Demonstration projects.
14 "Sec. 1324. Appropriations authorized.
15 "Sec. 1325. Reports.
16 "Sec. 1326. Regulations.".
17
18
19
20
21
22
23
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3
4 Sec. 801. Separability.
5 If any provision of this Act or the application thereof to any
6 person or circumstance is held invalid, neither the remainder of this
7 Act nor the application of such provision to other persons or
8 circumstances shall be affected thereby.
9 Sec. 802. Savings Provisions.
10 (a) Except as provisions of the Act may govern, all Executive
11 orders, rules and regulations affecting the Federal service shall
12 continue in effect, according to their terms, until modified,
13 terminated, superseded, or repealed by the Office of Personnel _
14 Management or the Merit Systems Protection Board as to matters within
15 their respective jurisdictions.
16 (b) No provision of this Act shall adversely affect any
17 administrative proceedings pending at the time such provision takes
18 effect. Orders shall be issued in such proceedings and appeals shall
19 be taken therefrom as if this Act had not been enacted.
20 (c) No suit, action or other proceeding lawfully commenced by or
21 against the Director of the Office of Personnel Management or the
22 board members of the Merit Systems Protection Board, or any officer or
23 employee thereof in his/her official capacity or in relation to the
24 discharge of his/her official duties, as in effect immediately prior
25 to the effective date of the provision of this Act applicable thereto
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1 shall abate by reason of enactment of this Act. Such suits, actions,
2 or other proceedings shall be determined under statutes, Executive
3 orders, directives, rules, or regulations at the time of the events or
4 events which are the basis of the cause of action.
5 Sec. 803. Authorization of Appropriations.
6 There are authorized to be appropriated, out of any monies in the
7 Treasury not otherwise appropriated, such sums as may be necessary to
8 carry out the provisions of this Act.
9 Sec. 804. Powers of President Unaffected Except by Express
10 Provisions.
11 Except as expressly provided in this Act, nothing contained
12 herein shall be construed to limit, curtail, abolish, or terminate any
13 function of, or authority available to, the President which he had
14 immediately before the effective date of this Act; or to limit,
15 curtail, or terminate his authority to delegate, redelegate, or
16 terminate any delegation of functions.
17 Sec. 805. Effective Dates.
18 - Except as otherwise expressly provided in this Act, the
19 provisions of this Act shall take effect ninety days after the date of
20 enactment.
21
22
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SECTION ANALYSES
TO ACCOMPANY THE INDIVIDUAL
TITLES OF A BILL ENTITLED
"CIVIL SERVICE REFORM ACT OF 1978"
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TITLE I MERIT SYSTEM PRINCIPLES
Title I of the bill, Merit System Principles, adds to title 5, United
States Code, a chapter 2.
Section 201 provides that the merit system principles shall apply to
departments and agencies in the Executive branch, the General
Accounting Office, the Administrative Office of the United States
Courts, the Library of Congress, the Botanic Garden, the Government
Printing Office, the Office of the Architect of the Capitol and to the
United States Postal Service and the Postal Rate Commission.
Section 202 enumerates the merit system principles which will be
applied in administering the Federal personnel system. It sets forth
the principles managers are to follow in order to improve the quality
of the Federal civil service and to provide a civil service which is
competent, honest and responsive. On recruiting, selecting and
advancing employees, the object will be to achieve a workforce from
all segments of society which implements the Government's commitment
to equal employment opportunity and complies with merit requirements.
Discrimination against applicants or employees, based on political
affiliation, race, color, religion, national origin, sex, marital
status, age or handicapping condition, is to be fully eliminated from
Federal personnel administration. Privacy and constitutional rights
of applicants and employees are to be fully protected. Employees are
to be compensated based on equitable considerations with appropriate
incentives and recogition for excellence in performance. A competent
workforce is to be assured, in which all employees maintain high
standards of integrity and conduct including avoidance of conflicts of
interest and responsiveness to the public interest by providing prompt
and courteous service. The workforce is to be efficiently and
effectively utilized, and corrective action is to be taken when needed
to maintain high standards.
Employees are to be retained on the basis of the adequacy of their
performance. Efforts must be made to correct inadequate performance.
Employees who cannot or will not improve to meet required standards
must be separated. Training will be provided to employees to improve
organizational and individual. performance. Finally, the principles
provide that employees are to be protected from arbitrary action,
personal favoritism, and partisan political coercion and that they are
to be prohibited from using their official authority to interfere with
or affect the result of an election or a nomination.
Section 203 gives the President broad implementation authority to
effectuate the application of the merit system principles and
compliance with laws which relate thereto.
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Subsection 204(a) contains a definition of the term "personnel action"
which includes primarily the same actions now covered for the purposes
of most civil service laws, rules, and regulations, and also includes
decisions concerning pay, benefits, incentive or other awards and
training when the training leads to another of the enumerated
personnel actions. Excluded from coverage, however, are actions
relating to positions for which it is proper to consider political
background, responsiveness, or sensitivity. These definitions specify
the types of actions to which the prohibited practices listed in
subsection (c) are applicable.
Subsection (b) provides that not only heads of agencies in the
Executive branch and other Federal entities, but also individuals to
whom the heads of Executive agencies delegate personnel management
authority (to the extent of that delegation), will be held responsible
for preventing prohibited personnel practices and for executing all
applicable civil service laws, Executive orders and directives, rules,
and regulations.
Subsection (c) enjoins any employee who takes, directs others to take,
recommends, or approves any personnel action, or fails to take such
action, either under his own authority or authority delegated to
him/her from another source, from comitting any of the prohibited
personnel practices.
Paragraph (1) restates exisiting prohibitions against unlawful
discrimination on the basis of political affiliation, race, color,
religion, national origin,-sex, marital status, age, or handicapping
condition. These restrictions are now found among Title VII of the
Civil Rights Act of 1964 (42 USC 2000-16), the Fair Labor Standards
Act Amendements of 1974, the Civil Service Act of 1883 and the civil
service rules and various Executive orders.
Paragraph (2) restates, and expands the current provision in 5 U.S.C.
3303 which prohibits receipt, or consideration by examining or
appointing officers of recommendations by Senators and Representatives
except as to character or residence of applicants for employment.
Paragraph (2) adds a prohibition against soliciting such
recommendation or statement, and broadens the coverage of the
prohibition by including all individuals rather than limiting the
restrictions to Senators and Representatives. Moreover, it excludes
from coverage certain information which has validity in the
appointment process.
Paragraph (3) prohibits using official authority to coerce the
political action of any person; to obligate any person to contribute
to any political fund, or render any political service; or to take any
reprisal action against any person for refusal to do these things.
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Paragraph (4) prohibits deliberate deceit or obstruction in regard to
an individual's right to compete for Federal employment.
Paragraph (5) prohibits influencing an individual to withdraw from
competition for the purpose of either improving or injuring the
prospects of any applicant for employment.
Paragraph (6) is a further extension of paragraphs (4) and (5)
prohibiting the granting of preference or unfair advantage not
authorized by law to any employee or applicant for employment by
defining the scope and manner of competition and the requirements of a
position so as to enhance or injure the prospects of particular
person.
Paragraph (7) restates the current restrictions against nepotism found
in both 5 U.S.C. 3110 and 5 CFR Part 310.
Paragraph (8) provides that no reprisal action will be taken for the
exercise of any appeal rights granted by law or regulation to
employees, or for their lawful disclosure of information concerning
violations of law or regulation (so-called "whistleblower"
protection.)
Subsection (d) is an affirmation of the principle of equal employment
opportunity, and a statement indicating that there is no disharmony
between this principle and the protection of the merit system and
makes clear that any affirmative action right or remedy available to
the employee under law, Executive Order, rule or regulation is
maintained as defined by the prohibited personnel practices set out
above.
Section 205 gives the General Accounting Office express authority to
conduct audits and reviews to assure compliance with laws, rules and
regulations governing employment in Federal agencies. This provision
has been placed in title 5 in recognition of Congress' interest and
oversight responsibilities of the Federal personnel system and gives
express authority to the General. Accounting Office as Congress' agent.
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Section 201
Section 201 substitutes the term "Merit Systems Protection Board" for
the term "United States Civil Service Commission" in 5 U. S. C. 1101
and the terms "Merit Systems Protection Board Member" and "Board
member" for the terms "Civil Service Commissioner" and "Commissioner"
in 5 U. S. C. 1102. This section also changes the length of the
Board members' terms from six to seven years; prohibits the serving
of more than one full seven year term; eliminates the statutory re-
quirement for an Executive Director; and provides that members may
be removed by the President only for cause and after notice and hearing.
The section substitutes the terms "Merit Systems Protection Board" and
"Board member" for the terms "Civil Service Commission" and "Commis-
sioners", repeals the subsection which provides for an Executive
Director and deletes reference to an Executive Director in the catch
line.
Section 202
Under the provisions of section 202, any Board member, the Special
Counsel, administrative law judge, or supervisory appeals officer
designated by the Board is authorized to subpoena witnesses and docu-
ments, and to seek a court order enforcing the subpoena.
Section 203
Section 203 provides for the appointment by the President (subject to
confirmation by the Senate) of a Special Counsel for a term of seven
years, subject to removal by the President only for cause, and
only after notice and hearing.
Section 204
Section 204 authorizes the Special Counsel to receive and investigate
employee and citizen complaints. The Special Counsel is authorized to
conduct investigations upon a preliminary showing that a personnel
action was taken in reprisal for the lawful disclosure of information
concerning violations of laws, Executive orders, and regulations. The
Special Counsel may not disclose the identity of the complainant, with-
out the consent of that person, except when the matter warrants full
investigation and disclosure is unavoidable. In cases other than those
which are appealable to the Board, the Special Counsel would be authorized
to stay personnel actions (such as reassignments to different geographic
areas) which could have a substantial economic impact on the employees
if the status quo were not maintained during the Special Counsel's
investigation. When the Special Counsel determines that such reprisal
has occurred in a case not appealable to the Board, he would be author-
ized to report the matter to the agency head and to require appropriate
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action; the agency head would be required to certify to the Special
Counsel that the matter had been reviewed and that the action had been
taken. Refusal to carry out the actions ordered by the Special Counsel
may be a cause for the filing of disciplinary charges by the Special
Counsel. The Special Counsel may file disciplinary charges against
a Federal employee before the Board. The board would issue a final
decision in the case which would be subject to review by the U. S.
Court of Appeals for the District of Columbia. The Board would be
authorized to impose disciplinary action including removal, demotion,
debarment from Federal employment for up to five years, suspension,
a fine of up to $1,000.00, or a reprimand.
The Special Counsel also would be authorized to report prohibited per-
sonnel practices which require correction to the appropriate agency
head and to the Office of Personnel Management, and would be author-
ized to provide copies of his report to the President and to the
Congress. While the Special Counsel could suggest methods of cor-
recting these practices, the final decision regarding the corrective
action to be taken would be made by the agency, subject to guidance
and instruction by the Office of Personnel Management. The agency
could be required to certify to the Special Counsel, within 30 days
after he or she receives the Special Counsel's report, that he or
she has reviewed the report; the agency head also would be required
to advise the Special Counsel of the nature of the corrective action
to be taken and of the estimated date by which the action would be
completed. Cases in which the Special Counsel determines there is
reasonable causes to believe that a Federal employee has committed
a criminal violation would-be reported by the Special Counsel to
the Attorney General or the appropriate U S. Attorney, and the head
of the affected agency.
Finally, section 204 authorizes the Special Counsel to issue regula-
tions necessary to carry out the purposes of this section.
Section 205
Section 205 amends chapter 43, Performance Evaluation and Rating, of
title 5, United States Code.
The principal purposes of revised subchapter I are: 1) to provide for
performance appraisal systems to serve as a basis for decisions on
developing, rewarding, reassigning, promoting, demoting, and retaining
or separating employees, and 2) to abolish present requirements for
summary adjective ratings and appeals of performance ratings.
Section 205 amends chapter 43 by striking out existing sections and
substituting five new sections.
Subchapter I. Performance Apraisal - General
Section 4301. Definitions.
Section 4301 defines the coverage of this subchapter. It would extend
the coverage of this subchapter to include the Tennessee Valley
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Authority, the Department of Energy, the Central Intelligence Agency,
the National Security Agency, or a civilian officer or member of a crew
of a vessel operated by the Department of the Army or the Department of
the Navy, thus terminating several exclusions which are no longer
justifiable as statutory exceptions to requirements for appraisals of
employee performance. Performance appraisal requirements for the Senior
Executive Service are covered in proposed subchapter II of this chapter.
In addition, this section authorizes the Office of Personnel Management
to except an agency, component of an agency, or group of positions from
this subchapter. This authorization permits the OPM the flexibility to
make exceptions to the coverage of this subchapter whenever it determines
that an exception is in the interest of good administration and revoke
an administrative exception when no longer warranted.
Finally, "unacceptable performance" is defined as performance which
is not acceptable as a continuing level of performance.
Section 4302. Performance appraisal systems; establishment of
Subsection (a) requires agencies to develop and establish one or more
performance appraisal systems which will encourage quality performance
and enhance productivity. It requires periodic appraisals of job per-
formance under regulations established by the Office of Personnel
Management.
Employee participation in establishing performance objectives is encour-
aged since experience has shown that doing so motivates employees to
accomplish the objectives. It does not, however, abridge management's
rights to establish performance standards for fully satisfactory per-
formance.
Performance appraisals made under the provisions of this subchapter are
used as a basis for decisions to develop, reward, reassign, promote,
demote, and retain or separate employees. Under current provisions,
performance appraisals and performance-related decisions are made under
several different statutory and regulatory requirements. For example,
performance ratings are assigned under the provisions of this chapter.
Quality step increases are granted under current chapter 53 but incentive
awards are granted under chapter 45. A single integrated framework for
performance appraisals for all purposes is needed to better interrelate
the various decisions made based on performance.
It is specifically intended that merit pay and bonus decisions for
employees in the Professional and Administrative Service and within-
grade increase eligibility for Clerical and Technical Service employees
based on performance appraisals.
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Subsection (b) sets forth the basic requirement that performance apprais-
al systems conform to regulations issued by the Office of Personnel
Management. The regulations shall include provisions for rewarding,
assisting improvement of, and separating employees based on their
performance.
Agencies are required to take action, based on performance appraisals,
to:
(1) recognize employees whose performance exceeds requirements;
(2) improve employees' performance which is minimal or unsatis-
factory
(3) remove employees from their positions when performance is
unacceptable.
Section 4303. Actions based on unacceptable performance
This section establishes a new procedure for demoting or separating
employees from the service because of unacceptable performance.
Unacceptable performance means performance which is not acceptable as
a continuing level of performance. What period of time may be involved
is not definable since it depends on the nature of the job. An employee
may be removed or demoted any time that his or her performance becomes
unacceptable.
Under this new procedure, an employee is entitled to:
1. at least 30 days' written advance warning of the action proposed
which identifies the expected standard of performance, and the areas
in which the employee's performance is not fully acceptable;
2. be represented;
3. reply orally and in writing to the proposed action;
4. an opportunity within the time specified in the written
notice to demonstrate acceptable performance; and
5. a written decision which states the reasons for the decision. The
decision must be concurred in by a higher level official than ':he
official who proposed the action.
The purpose of this procedure is to provide the employee with notice
that his/her performance is not acceptable, to give the employee
opportunity to improve, and to permit the employee to provide a reply to
the proposed action and the reasons for the action. The employee may
not be represented by an individual whose activities as representative
would cause a conflict of interest or position. The requirement for
concurrence in the decision by a higher level official is a safeguard
against taking unwarranted actions.
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Two restrictions on agencies are added to avoid their delaying decisions
on proposed demotions and removals and in carrying out these decisions.
These restrictions also give the employee faster resolution of a proposed
action. First, an agency can provide the employee with a notice period
of more than 60 days only in accordance with regulations issued by the
Office of Personnel Management. For example, the OPM may determine that
for more complex jobs, a 90 day or longer notice period is necessary in
order for an employee to have a fair opportunity to demonstrate satis-
factory performance. Alternatively, the OPM could establish general
criteria to be followed by agencies in setting the lengths of notice
periods. Second, an agency has a maximum of thirty days in which to
separate or demote an employee once the notice period expires.
Subsection (d) provides that when no action is taken because the
employee's performance improved during the notice period and continues
to be acceptable for one year from the date of the advance warning,
that the record of the unacceptable performance be removed from the
employee's official personnel folder. The purpose of this subsection is
to provide that when an employee improves his or her performance to an
acceptable level and maintains that improved level of performance,
that he or she not be adversely affected by a record of previously
unacceptable performance.
Subsection (e) grants a right of appeal to the Merit Systems Protection
Board to employees who are demoted or separated for unacceptable perfor-
mance. The appeal would be conducted under the appeal rights and
procedures established in proposed action 7701. In order to avoid the
delay and cost entailed by unnecessary hearings, a restriction is added
which permits the appeals officer to hold an evidentiary hearing only
when there are disputes concerning material evidence of fact requiring
presentation of evidence. No right to a hearing is provided because
actions based on performance usually are based on a written record which
do not require a hearing to present the facts of the case.
The appeals officer's decision must be based on the following factors and
no others: (1) whether the agency action contained error which substan-
tially affected the employee's rights; (2) whether there was discrimina-
tion prohibited by proposed section 204 (c)(1) of this title; and (3)
whether the agency decision to demote or separate was based on reasonable
evidence of unacceptable performance -- i.e., whether it was arbitrary or
capricious. These criteria are' included to establish a standard by which
these actions are to be decided which both protects the employee's rights
and avoids unwarranted reversal of an agency's action.
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Subsection (f) provides that section 4303 does not apply to the demotion
of a supervisor, who has not completed the probationary period established
under section 3321(a)(2) of this title in an initial supervisory position,
to the grade previously held. This provision permits a limited proba-
tionary period and demotion without following the procedure established
in subsection (b) for a newly selected and promoted supervisor who does
not perform the supervisory duties acceptably. It also guarantees that in
such case, the individual is entitled to be returned to the grade held prior
to selection for the supervisory position.
Subsection (f) further provides that the procedures'in this section do
not apply to the separation or demotion of an individual in the competi-
tive service who has not completd a probationary or trial period or who
has not completed one year of current continuous service under other
than a temporary appointment limited to one year or less or to an
individual in the excepted service who has not completed one year of
current continuous service in the same line of work. The language of
this provision is parallel to that for adverse action coverage under
chapter 75. The probationary or trial period, or the first year of
service under an appointment for which there is no probationary or
trial period, is an extension of the examining process to determine an
employee's ability to actually perform the duties of the position. It
is inappropriate to restrict an agency's authority to separate an
employee when he or she does not perform acceptably during this period.
Finally, nonpreference eligible employees in the excepted service who do
not currently have a statutory right to appeal or grieve separations or
demotions based on performance would not be given that right.
Section 4304. Responsibilities of the Office of Personnel Management
This section identifies the responsibilities of the Office of Personnel
Management in providing technical assistance to agencies in developing
performance appraisal systems and requiring corrective action when a
system does not meet the requirements of this subchapter and implementing
regulations. The present requirement for prior approval of plans is not
continued in this proposed revision.
Section 4305. Regulations
This section authorizes the OPM to issue regulations to carry out the
purposes of this subchapter.
Section 206
Section 206 amends chapter 75, Adverse Actions, of title 5, United
States Code.
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The principal purposes of section 206 are: 1) to extend the statutory
adverse action and appeal rights of preference eligibles to nonprefer-
ence eligible employees in the competitive service; 2) to authorize the
Office of Personnel Management to extend coverage to positions adminis-
tratively excepted from the competitive service; and 3) to redefine the
actions covered by adverse action procedures. Section 206 would amend
chapter 75 by adding new sections and reorganizing existing provisions
in a more logical arrangement. Modifications in warding to obtain con-
sistency of style and format are identified as technical changes.
Section 206 amends subchapters I and II of chapter 75 of this title by
striking out existing subchapters and substituting two new subchapters.
Subchapter I, Suspension of 30 days or Less
Section 7501. Definitions; application
Section 7501 defines the employee coverage of this subchapter and the
term "suspension". This subchapter would add several procedural
protections for suspensions of thirty days or less of competitive
service employees who are serving under career, career-conditional, and
other non-temporary appointments, and who have completed a probationary
or trial period. This definition of employee would include all competi-
tive service employees who are currently covered by these procedural
protections, but would not include an individual in the Senior Executive
Service, an individual occupying a position excluded from coverage of
this subchapter by regulation of the Office of Personnel Management, and
an individual appointed by the President.
The definition of "suspension", which has been established in Office of
Personnel Management policy issuances, is added for clarity.
Section 7502. Actions covered
Section 7502 specifies that this subchapter covers suspensions of thirty
days or less.
The provisions of this subchapter do not apply to the suspension of an
employee under present section 7532 of this title, which outlines the
procedures to be followed when such an action is taken in the interest
of national security nor do they apply to a suspension taken by the
Merit System Protection Board under provisions of Reorganization Plan
No. - of 1978.
Section 7503. Cause and procedure
Subsection (a) provides that an action to suspend an employee must be
taken in accordance with regulations prescribed by the Office of
Personnel Management and must meet the criterion of being "for such
cause as will promote the efficiency of the service".
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Definitions (2), (3), (4), (5), and (6) are defined elsewhere in title 5
or in civil service regulations or policy issuances and are added for uni-
formity and clarity.
Subsection (b) identifies the three groups of positions to which this
subchapter does not apply. The first exception is for positions the
appointment to which Congress requires confirmation by the Senate Jr
which are filled with the advice and consent of the Senate. The ex-
ception is continued from current law.
The second, a new exception for positions of a confidential or policy
determining character, is an extension of the first. The concept of
tenure and protection against dismissal is inimicable to the purpose of
such positions and to the confidential relationship between incumbent
and suypervising official, or the commitment of the incumbent to Admini-
stration policy objectives. The determination that a position which is
administratively excepted from the competitive service meets one of these
criteria shall be made by the Office of Personnel Management. Positions
meeting the criteria are placed in Schedule C (positions at G5-15 and
below), or filled by Non-career Executive Assignment (GS-16,-17, and -18).
This exception applies to positions of a confidential or policy-deter-
mining character which do not meet the criteria for inclusion in the
proposed Senior Executive Service or which are in the statutorily
excepted service.
A determination that a position in the statutorily excepted service
is of comparable confidential or policy-making character shall be made
by the head of the agency since this is compatible with the concept:
that positions excepted by statute from the competitive service are
under the control of the head of the agency. Any determination that a
position is of a "policy-determining or confidential" character shall
be made under criteria established by OPM regulation. A preference
eligible against whom an adverse action is taken who alleges that his
position did not meet these criteria may appeal to the Merit Systems
Protection Board under the provisions of section 7701.
The third exception is for positions in the Senior Executive Service.
Subsection (c) provides that the Office of Personnel Management may by
regulation extend the provisions of this subchapter to any position or
group of positions which it has administratively excepted from the
competitive service. These positions are now excepted under Schedules A
and B because competitive examinations cannot be administered. Although
many positions in the administratively excepted service are career
positions in the sense that employees spend their careers in the positions,
only preference eligibles are currently entitled to adverse action
coverage. This subsection permits the Office of Personnel Management to
extend adverse action and appeal coverage to positions or groups of
positions which meet criteria it establishes for granting these rights.
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Subsection (b) defines the rights of an employee against whom a
suspension of thirty days or less is proposed. These are the rights
currently provided by statute. In addition, the right to furnish
affidavits in support of the answer is expanded to include other
documentary evidence which the employee may wish to submit. The em-
ployee is also accorded the right to reply orally. The right to review
any material on which the agency has relied in proposing an action
shall be provided by the Office of Personnel Management by regulation.
An employee who is suspended for 30 days or less is entitled to have
the action reviewed by his/her agency, but has no right of appeal to
the Merit Systems Protection Board.
Section 7504. Regulation
Section 7504 authorizes the Office of Personnel Management to issue
regulations to carry out the purposes of this subchapter.
Subchapter II. Removal, Suspension For More Than 30 Days, Reduction
In Grade or Pay, Furlough
Section 7511. Definitions; application
Subsection (a) provides a statutory basis for the procedural protections
and appeal rights now granted employees, other than Senior Executive
Service employees, in the competitive service who are serving under
career, career-conditional, or certain other non-temporary appointments,
and who have completed a probationary or trial period. It also continues
the present coverage of employees serving under certain other appoint-
ments, for which there is no probationary or trial period, after they
complete one year of current continuous emloyment. The wording of this
subsection differs from that currently in title 5 to clearly provide
coverage to employees serving under several types of appointments not
in existence at the time the existing legislation was enacted. Pro-
tections against arbitrary or capricious actions have become, established
by practice and Executive order as a basic right of competitive service
employees. It is appropriate that the rights extended to nonpreference
eligibles by Executive Orders 11491, as amended, 11787, and the orders
these replaced, 10987 and 10988, be made statutory rights.
Subparagraph (B) of subsection (a) reaffirms procedural protections and
appeal rights of preference eligibles in the excepted service. This
subsection does not, however, repeal specific exceptions to the pro-
visions of this chapter which are contained in the organic legislation
of certain agencies whose employees are excepted from the competitive
service by statute.
The phrase "one year of current continuous service in the same line of
work", which defines the extent of coverage of employees in the excepted
service, is currently used in civil service regulations instead of "pro-
bationary or trial period".
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Section 7512. Actions covered
This section identifies the actions covered by this section; removals,
suspensions for more than thirty days, reductions in grade or pay; and
furloughs for thirty days or less. Present language has been changed
from "reduction in rank or pay" to "reduction-in-grade or pay". Fur-
loughs for more than a total of thirty days shall continue to be re?-
duction-in-force actions taken under section 3502 of this title. The
provisions of this subchapter do not apply to the suspension or removal
of an employee under present section 7532 of this title, which outlines
the procedures to be followed when such an action is proposed in the
interest of national security. The exclusion of demotions of supervisors
who have not completed the probationary period established by section
3321 (a) (2) in an initial supervisory position to the grade previously
held is a conforming change to section 4303 of this title. It applies
only to actions based on less than satisfactory performance of super-
visory duties. The exclusion of demotions or removals under section
4303, is a conforming change to the procedure for taking actions based
on unacceptable performance. Finally, this subchapter does not apply to
an action initiated under Reorganization Act No.- of 1978 which provides
procedures governing a disciplinary action ordered by the Merit Systems
Protection Board against a Federal, state or local employee.
Section 7513. Cause and procedure
Subsection (a) provides that an agency may take an adverse action against
an employee only for such cause as will promote the efficiency of the
service. Any action taken must comply with regulations prescribed by
the Office of Personnel Management. These are identical to current statu-
tory provisions relating to adverse actions.
Subsection (b) specifies the minimum rights of an employee against whom
an adverse action is proposed. These are:
1. At least thirty days' advance written notice of the pro-
posed action. The thirty day period may be reduced only
when there is reasonable cause to believe the employee
guilty of a crime for which a sentence of imprisonment can
be imposed. The notice must state, specifically and in
detail, all reasons for the proposed action. This is
identical to the current statutory provision.
2. A reasonable time to answer orally and in writing and to
furnish affidavits to support the answer. This right is
expanded to permit the employee to submit other documentary
evidence in addition to affidavits. The term "answer orally"
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is substituted for "answer personally" as a more accurate
distinction between the two types of answers which an employee
may make. The intent, however, is still that the employee
have the opportunity to reply in person to an individual au-
thorized to make or recommend a decision on the proposed action.
A "reasonable time" is not defined because what is reasonable
depends on the complexity of each individual case. The right
to review material on which an agency has relied in proposing
an action is provided by OPM regulation.
3. To be accompanied by a representative. The right to be ac-
companied by a representative at the predecision stage is
currently authorized by a number of agencies, but the statu-
tory right to representation is restricted to the appellate
stage of an action. It is appropriate that the right be
extended by statute to the predecision stage. The employee
may nor, however, be represented by an individual whose
activities as representative would cause a conflict of interest
or position. The provision does not authorize an employing
agency to pay the cost of an employee's representative.
4. A written decision, including a statement of those reasons
in the notice of proposed adverse action which have been
found sustained, and those which have not been sustained,
shall be furnished the employee at the earliest practicable
date. This provision would give the employee a right to a
decision and the reasons for it, whether or not it is adverse
to him.
Subsection (c) retains to the agency head the discretionary authority
to provide the opportunity for a hearing, at the reply stage, which
would include the right to examine witnesses, prior to the final agency
decision in proposed actions. A hearing may also be provided in lieu of
the oral reply. The wording of this subsection represents a technical
change to reflect the longstanding interpretation and application
of this provision.
Subsection (d) establishes an employee'.s right to appeal an adverse action
effected under this subchapter to the Merit Systems Protection Board.
Subsection (e) requires that certain documents, all of which are provided
by or furnished to the employee, relating to adverse actions be made a
part of the agency's records, and furnished, on request, to the Merit
Systems Protection Board to insure that arecord of the action is retained
and available if the action is appealed.
Section 7514. Regulations
This section authorizes the Office of Personnel Management to issue regu-
lations to carry out the purposes of this subchapter.
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Section 7701. Appellate procedures
Section 7701 provides for the processing of adverse action and other
appeals within the jurisdiction of the Merit Systems Protection Board.
Appeals officers and administrative law judges may adjudicate the
appeals and have authority to decide the cases based on the written
representations of the parties or after conducting a hearing. The
decision on the appeal shall be final unless a party or the Office of
Personnel Management petitioned the Board, not later than 30 days after
receiving notice of the decision, except for good cause shown, for a
review after its issuance, or unless the Board reopened the case on its
own motion. Cases may be reopened by a single member except in those
cases decided by administrative law judges in which applicable law
requires action by the full Board.
i
This section also provides that, so long as the Board is responsible for
administering the complaint procedures of title VII of the Civil Rights Act
of 1964, as amended, an appeals officer handling these complaints shall have
the authority to dispose of the case with or without a hearing, pursuant to
regulations issued by the Board. Under the provisions of this section,
a Federal employee or applicant for Federal employment shall submit: the
discrimination complaint to the agency, which shall have 60 days to re-
solve the matter; the complainant may appeal to the Board either upon
expiration of that period if no decision has been issued by the agency,
or within 30 days after notice of the agency's decision. Class dis-
crimination complaints may be processed by appeals officers pursuant: to
regulations issued by the Board.
The Board and its appeals officers have the authority to consolidate ap-
peals filed by two or more appellants or join two or more appeals f:Lled by
the same appellant for combined processing when it would be expedient
to do so and when the procedure does not prejudice the parties.
In appeals from actions subject to the Board's appellate jurisdiction,
wherein allegations of discrimination are raised as a basis for the action,
the discrimination complaint shall be resolved as part of,the Board"s
appellate adjudication.
This section authorizes the Board's members, its Administrative Law
Judges, its appeals officers, and arbitrators assigned by the Board to
require payment, by agencies which are losing parties to proceedings
before the board, of reasonable attorney fees incurred by an employee.
This section also provides for the election of an alternative arbitra-
tion procedure for the resolution of appeals otherwise subject to the
Board's appellate jurisdiction. Qualification standards for arbitrators
the Board's preparation of lists of qualified private arbitrators, and
the parties' selections from these lists are subject to regulations and
procedures administered by the Board. An individual who elected arbi-
tration shall be considered to have waived his right of appeal to the
Board.
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In addition, this section requires the Executive agencies under the
jurisdiction of the Board to comply with the Board's final decisions and
orders, and it authorizes the Special Counsel to initiate disciplinary
action against individuals, other than Presidential appointees, who
deliberately fail to comply; the Special Counsel shall report cases
involving Presidential appointees to the President. Such disciplinary
actions initiated by the Special Counsel shall be subject to the proce-
dures for final decision by the Board applicable to other disciplinary
actions initiated by the Special Counsel as set forth in section 204.
Section 7702. Judicial review of decisions of the Merit Systems
Protection Board
Section 7702 provides for review by the Court of Claims or U.S. Court
of Appeals of all orders and final decisions of the Board except those
issued in connection with complaints-of discrimination based on race, color,
religion, sex, national origin, age, or life or health insurance claims,
which are reviewable by U.S. District courts. In order to obtain judicial
review, an individual shall be required to file a petition for review within
30 days after receipt of notice of the Board's final decision.
In addition, this section provides that the Court of Claims and the U.S.
Courts of Appeal shall review cases filed with them to determine whether
the decision was arbitrary or capricious and not in accordance with the
law, and whether the procedures required by law or regulations were
followed. If the court determines that further evidence is necessary, it
shall remand the case to the Board for such further processing as appro-
priate. The Board shall file with the court a record of its proceedings
following the remand. The Board decision shall be conclusive when support-
ed by substantial evidence in the administrative record.
This section further provides that the Director of the Office of Personnel
Management may request a review of any final decision or order of the Board
by filing a petition for judicial review with the U.S. Courts of Appeals for
the District of Columbia. The Board and the parties to the proceeding which
gave rise to the dispute are entitled to appear before the court. The
granting of the petition for review shall be discretionary with the court.
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Title III - Staffing:
Section 301. Organization
Section 301 amends chapter 11, as follows:
(a). Section 1104 - Functions of the Director
In subsection (a) the words "Director of the Office of Personnel
Management" are substituted in lieu of "Chairman, United States Civil
Service Commission" on authority of Reorganization Plan No. , sec.
102. In subsection (a)(1) the words "acting with the Civil Service
Commission boards of examiners, so far as practicable" are omitted,
and the word "activities" is substituted in lieu of "proceedings."
This amendment conforms with section 1105 of the proposed legislation
which eliminates boards of examiners.
(b). Section 1105 - Delegation of Authority
In paragraph (1) the President is given the authority to delegate, in
whole or in part, all personnel management functions, including
examining authority, to the Director of the Office of Personnel
Management.
In paragraph (2) the Director is given authority to delegate personnel
management functions, including examining authority, to the heads of
agencies employing persons in the competitive service.
The proposed legislation completely revises section 1105. Under
present law, examining authority is vested in boards of examiners
appointed by the Civil Service Commission. This amendement will allow
the Director of the Office of Personnel Management to delegate
examining authority directly to the heads of agencies, thereby
allowing greater flexibility in the examining process.
(c). Chapter 11 - Analysis
The analysis of chapter 11 is amended to conform with the proposed
changes in sections 1104 and 1105 of title 5, U.S.C., and the addition
of a new section 1106.
Section 302. Definitions
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Section 2108 - Veteran; disabled veteran; preference eligible
In paragraph (4), "a retired member of the armed forces" is defined as
a member or former member of the armed forces who is entitled, under
statute, to retired, retirement, or retainer pay on account of such
service as a member. This definition is taken from section 3501(a)(2)
of this title which defines retired member of the uniformed service.
In paragraph (5) the limitation of preference for retired members of
the armed forces is explained. To be a preference eligible, a
military retiree must satisfy one of the two criteria. According to
subparagraph (A), the individual must be a disabled veteran within the
meaning of paragraph (2) of this section. Thus, a military retiree is
a preference eligible if he or she has served on active duty in the
armed forces, been discharged under honorable conditions, and has
established the present existence of a service connected disability or
is receiving compensation, disability retirement benefits, or pension
because of a public statute administered by the Veterans'
Administration or a military department. According to subparagraph
(B) the military retiree is considered a preference eligible if he or
she did not retire at a field grade, general officer rank or the
equivalent, except if the individual is disabled.
The effect of this amendment is to eliminate preference for
non-disabled military retirees who have retired at a field grade,
general officer rank or the equivalent. Crediting of military
experience in determining the qualifications of these individuals,
where such experience is job related, is not affected. Preference for
non-disabled military retirees who have not retired at a field grade,
general officer rank or the equivalent continues with the time ,
limitations imposed by section 3303a(2) of this title (relating to
preference in consideration for appointment) and section 3501(a)(4) of
this title (relating to preference in retention).
Paragraphs (1), (2), and (3) provide the basic definitions of
"veteran," "disabled veteran," and "preference eligible" which are
used throughout this title. These definitions are not amended. The
proposed legislation imposes a limitation on the time period within
which preference may be exercised by non-disabled preference eligibles
and by non-disabled preference eligibles who are military retirees for
purposes of appointment and retention. These limitations are,
however, set forth in the appropriate sections of title 5, so as not
to affect an individual's entitlement to preference for other
purposes.
Section 303. Authority for Employment
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(a). Section 3111 - Acceptance of volunteer services
In subsection (a) "student" is defined as an individual who is
enrolled, not. less than half-time, in an institution of higher
education or a secondary school. The terms "institution of higher
education" and "secondary school" have the same meaning prescribed for
such terms in section 1201 of the Higher Education Act of 1965, 20
U.S.C. 1141.
In subsection (b) the conditions under which the head of an agency may
accept voluntary services are explained. The service must be
performed by a student, as defined in subsection (a), with the
permission of his or her school, as part of an agency program to
provide meaningful experience for the student volunteer. Voluntary
services cannot be accepted if they will displace Federal employees.
Finally, the agency must provide meaniningful experience in an
organized and systematic manner.
Subsection (c) explains that a volunteer is not considered a Federal
employee for the purposes of any Federal law except for injury
compensation and tort claims. The exclusionary language of subsection
(c), when read with subsection (b), precludes payment for voluntary
services under the Fair Labor Standards Act of 1938, as amended, or
any other statute providing for the compensation of Federal employees.
Reference is made to the Office of Personnel Management in lieu of
"Civil Service Commission" throughout the amendments made by this
title, on authority of Reorganization Plan No. sec. 102, 1978.
(b). Chapter 31 - Analysis
The analysis of chapter 31 is amended to conform with the addition of
a new section 3111.
Section 304. Examination, Certification, and Appointment
Section 304 amends chapter 33, as follows:
(a). Section 3303a - Preference eligibles; appointment; time limit
This section is new. Subsection (a) explains the limitation placed on
preference as applied in consideration for appointment.
Paragraph (1) limits preference in consideration for appointment for
non-disabled veterans to the 10 year period immediately following
separation from the armed forces. Paragraph (2) limits preference for
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retired members of the armed forces who did not retire at a field
grade, general officer rank or the equivalent to the 3 year period
immediately following separation from the armed forces. Paragraph (3)
continues the lifetime preference for preference eligibles under
section 2108(3)(C)-(G).
Under present law, all preference eligibles are entitled to lifetime
preference. The effect of this amendment is to limit a non-disabled
veteran's entitlement to preference in consideration for appointmen::.
Non-disabled military retirees who did not retire at field grade,
general officer rank or the equivalent retain their preference for 3
years following separation from the armed forces. All other
non-disabled veterans retain their preference for 10 years following
separation from the armed forces. Disabled preference eligibles,
including retired members of the armed forces who are disabled, retain
lifetime preference for purposes of consideration for appointment.
The limitation imposed by this amendment is not intended to affect a
non-disabled preference eligible's entitlement to preference for other
purposes. The time limitation does, however, apply throughout
subchapter I of chapter 33 of this title, unless specific reference is
made to section 2108(3) of this title.
(b). Section 3305 Competitive service; preference eligibles;
applications from
This section allows a preference eligible to reopen a closed
examination for a position for which there is an appropriate list of
eligibles resulting from competitive examination.
Under present law, the Commission is required to hold an examination
for a position to which an appointment has been made within the
preceding three years on the application of a preference eligible
under section 2108(3)(C)-(G) of this title. The proposed amendment
changes the criteria for reopening a closed examination from
appointment within the last 3 years to existence of an appropriate
List of. eligibles and extends the right to reopen a closed examination
to all preference eligibles. For the purposes of this section,
preference eligible is defined by section 3303a of this title, rather
than section 2108(3) of this title. Thus, a non-disabled veteran may
reopen a closed examination only for a period of time specified in
section 3303a(1) or (2) of this title. A preference eligible under
section 2108(3)(C)-(G) retains the right to reopen a closed
examination without regard to any time limitation.
(c). Section 3309 - Preference eligibles; examinations; additional
credit for
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This section is amended to conform with changes in the new section
3303a of this title, which explains the applicability of preference in
consideration for appointment under the proposed legislation.
Section 3309 now explains the application of preference in selection.
Non-disabled veterans under section 2108(3)(A) or (B) of this title
receive a 5 point preference above their earned ratings. Preference
eligibles under section 2108(3)(C)-(G) receive a 10 point preference
above their earned ratings. Under section 3.313 of this title,
disabled veterans having a compensable service connected disability
will, additionally, "float" to the top of a register, except for
certain scientific and professional positions, in which case they
receive a 10 point increment to their earned ratings.
Subsection (a) of the proposed amendment retains the 5 and 10 point
preference for non-disabled and disabled preference eligibles,
respectively. In subsection (a)(1) reference is made to "a preference
eligible under section 3303a(1) or (2) of this title" to clarify that
preference for non-disabled eligibles will be subject to a time
limitation. Subsection (a)(3) incorporates the provision of section
3313 of this title which allows a compensably disabled veteran to
"float" to the top of a register. No change is made to this
provision.
Subsection (b) conforms to the changes in section 3318(c), in which
the Office of Personnel Management is authorized to prescribe
regulations for the referral and selection of qualified applicants.
Pursuant to this authority, the Office of Personnel Management may,
for example, alter the minimum number of candidates from which the
appointing authority may select, rank candidates by broad categories
without using individual numerical ratings, adopt methods such as
those used in State and local public personnel systems, and implement
other methods for referral and selection. When these other rating
systems are used, preference eligibles will be entitled to equivalent
preference.
(d). Section 3314 - Registers; preference eligibles who resigned
The words "in the order named by section 3313 of this title" are
omitted as a conforming amendment since the proposed legislation
repeals section 3313. The words "Office of Personnel Management" are
susbstituted for "Civil Service Commission."
(e). Section 3315 - Registers; preference eligibles furloughed or
separated
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In subsection (a) the words "in the order named by section 3313 of
this title" are omitted as a conforming amendment since the proposed
legislation repeals section 3313.
In subsection (a) and (b) the words "Office of Personnel Management"
are substituted for "Civil Service Commission" and "Commission."
(f). Section 3317 - Competitive service; referral of candidates
Subsection (a) of this section now specifies the minimum number of
candidates to be referred for appointment consideration. To conform
to the proposed revision of section 3318 of this title, this amendment
eliminates that number and allows the Office of Personnel Management
to prescribe regulations governing referral.
The words "Office of Personnel Management" are substituted in lieu of
"Civil Service Commission."
(g). Section 3318 - Competitive service; selection
In subsection (a), the word "seven" is substituted for "three,"
after the phrase "available for appointment," and the words "unless
the Office of Personnel Management determines that another referral
procedure is appropriate" are added after "highest seven eligibles
available for appointment".
The effect of this amendment is to eliminate the "Rule of Three" which
requires Federal agencies to-fill vacancies in the competitive service
from among the top three names on a civil service register. Under the
proposed amendment, Federal agencies will be required to fill
vacancies in the competitive service from among the top seven
eligibles available for appointment unless the Office of Personnel
Management determines that another referral or selection procedure is
appropriate. A nominating or appointing authority will, therefore, be
assured of a larger minimum choice of applicants to select from. By
regulation, the Office of Personnel Management may expand this minimum
number, or adopt other referral and selection methods.
(h.) Section 3318 - Competitive service; selection
Subsection (c) is amended to allow the Office of Personnel Management
to prescribe regulations for the selection of qualified applicants.
Ranking methods, other than ranking on registers, may thereby be
implemented to govern selection.
(i). Section 3321 - Competitive service; probation; period of
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Subsection (a)(1) continues the present law concerning an initial
probationary period before an appointment in the competitive service
becomes final. Subsection (a)(2) authorizes the President to issue
orders and directives which provide for a period of probation before
an initial appointment to a supervisory or managerial position becomes
final. Subsection (b) explains the action to be taken if an individual
in a supervisory or managerial position does not satisfactorily
complete this probationary period.
Under present law, persons initially appointed to supervisory or
managerial positions may be removed only through the application of
formal adversary proceedings. The effect of this amendment is to
allow the removal of an individual, appointed to a supervisory or
managerial position for the first time, if he or she does not
satisfactorily complete the period of probation. The individual will
be returned to a position of no lower pay or grade than the position
occupied by the individual prior to the supervisory or managerial
assignment. Although an individual may be serving subject to a
probationary period under subsection (a)(2), an agency may still
institute adverse action proceedings for cause unrelated to
supervisory or managerial performance.
Subsection (a)(2) applies only to persons who are appointed to
supervisory or managerial positions after completing the probationary
period now required.by law. Thus, an individual who enters federal
employment in a supervisory or managerial position will be subject to
the probationary period specified in subsection (a)(1).
(j). Section 3326 - Appointments of retired members of the armed
forces to positions in the Department of Defense
In subsection (b)(1), the words "and, if the position is in the
competitive service, after approval by the Civil Service Commission"
are omitted.
In subsection (c), the words "or the authorization and approval as the
case may be" are omitted.
This section sets forth conditions under which a retired member of the
uniformed service may be appointed to a civil service position in the
Department of Defense. For positions in the competitive service
present law requires prior approval by the Commission in each case.
The effect of this amendment is to permit such appointment without
such prior approval.
W. Sections 3306, 3313, and 3319 of Title 5, U.S.C. are repealed
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(1). Section 3306 - Competitive service; departmental service;
apportionment
This section provides that appointments to positions in the
departmental service in the District of Columbia be apportioned among
the states, territories, and possessions of the United States.
Apportionment is based on population as determined by the last census.
The proposed legislation would delete this section, thereby
eliminating the apportionment requirement.
(2). Section 3313 - Competitive service; registers of eligibles
This section explains the proper order of ranking eligibles on
registers. The proposed legislation will repeal this section as
unnecessary.
The provisions of this section governing the ranking of disabled
veterans who have a compensable service connected disability are
carried into the proposed section 3309(a)(3) of this title. Since
section 3317(a) of the proposed amendments will authorize the Office
of Personnel Management to prescribe regulations for the referral of
candidates, the remaining provisions of this section are unneccesary.
(3). Section 3319 - Competitive service; selection; members of
family restriction
This section now disqualifies an individual for appointment in the
competitive service when two-or more of his or her family members are
so employed. An exception is provided for preference eligibles.
Under the proposed legislation this section will be deleted.
(1). Chapter 33 - Analysis
The analysis of chapter 33 is amended to conform with the proposed
changes in sections 3305, 3309, 3317, and 3318 of title 5, U.S.C., the
addition of a new section 3303a, and the repeal of sections 3306,
3313, and 3319 of title 5, U.S.C.
Section 305. Retention Preference
Section 305 amends chapter 35', as follows:
(a). Section 3501 - Definitions, application
Subsection (a)(3), which explains preference for retired members of
the uniformed service for retention purposes is retained without
change.
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In subsection (a)(4), entitlement to preference in retention for all
eligibles is explained. Non-disabled veterans under section
2108(3)(A) and (B) are entitled to preference in retention only when
the effective date of the reduction-in-force is within three years of
the date of initial appointment or within three years of the date of
initial return from a leave of absence after performing active
military duty. The non-disabled preference eligible is entitled to
preference in retention within this three year period irrespective of
whether he or she was entitled to preference in consideration for
appointment. This three year Limitation applies as well to
non-disabled military retirees under subsection (a)(3)(B) and (C) of
this section.
Lifetime preference in retention is retained for those categories of
preference eligibles under section 2108(3)(C)-(G) of this title: a
disabled veteran, the unmarried surviving spouse of a veteran, the
spouse of a service connected disabled veteran who is unable to
qualify for appointment, the mother of an individual who lost his or
her life under honorable conditions while serving in the armed forces,
and the mother of a service connected permanently and totally disabled
veteran. Lifetime preference also continues for the disabled retired
member of the uniformed service under subsection (a)(3)(A) of this
section. For retired members of the uniformed service "disability" is
defined differently for purpose of retention than for appointment.
This distinction is carried over from present law.
(b). Section 3502 - Order of retention
In subsection (a)(2), "3501(a)(4)" is substituted in lieu of
"3501(a)(3)." This is a conforming amendment since, under the
proposed legislation, section 3501(a)(4) of this title explains an
individual's entitlement to preference in retention.
(c). Section 3502 - Order of retention
In subsection (a), a new paragraph (A) is added which explains
computation of length of service for non-disabled preference
eligibles. A non-disabled preference eligible will be entitled to an
additional 5 years added to his or her length of service if he or she
is no longer entitled to preference in retention under section
3501(a)(4) of this title. Thus, once a non-disabled eligible has been
employed for 3 years, either upon initial appointment or upon initial
return from a leave of absence taken to perform active military duty,
he or she will have an additional 5 years added to length of service.
(d). Section 3502 - Order of Retention
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Subsection (b) is amended to provide that a preference eligible
employee whose performance appraisal meets a standard of adequacy
under a performance appraisal' system implemented pursuant to Chapter
43 of title 5, U.S. Code, is entitled to be retained in preference to
other competing non-preference eligible employees. This amendment
conforms to the changes proposed in Chapter 43 of title 5. No
substantive change is intended.
(e). Section 3503 - Transfer of functions
In subsections (a) and (b) the words "each competing employee" are
substituted in lieu of "each preference eligible employed." Existing
regulations (5 C.F.R. 351.301) provide that, in a transfer of
function, each competing employee identified with the function shall
be transferred with it. The effect of this amendment is, thus, to
conform with existing practice.
Section 306. Training
Section 4103 - Establishment of training programs
This amendment expands on current law by allowing an agency to train
its employees for placement in another agency if the employees are
slated for separation under conditions which would entitle them to
severance pay under section 5595 of title 5. Before authorizing such
training, the agency would be required to obtain verification from :he
Office of Personnel Management that there is a reasonable expectation
of placement in another agency. The agency would be required to
consider, when selecting an employee for such training, the present
skills, knowledge, and abilities of the employee, the employee's
capability to learn new skills and acquire new knowledge and
abilities, and the benefits to the Government resulting from the
retention of competent employees.
Section 307. Travel, Transportation, and Subsistence
Section 307 amends chapter 57, as follows:
Section 5723- Travel and transportation expenses of new appointees and
student trainees; manpower shortage positions
In subsection (d) the words "Office of Personnel Management" are
substituted for "Commission", and the word "not" is omitted. The
effect of this amendment is to change existing law by allowing the
Office of Personnel Management to delegate its authority to determine
positions for which there is a manpower shortage for the purpose of
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this section.
Section 308. Retirement
Section 308 amends chapter 83, as follows:
Section 8336 - Immediate Retirement
In subsection (d)(2) the words "major reorganization" are added after
"is undergoing" and the phrase "a major transfer of function" is also
added.
Under present law an employee may voluntarily apply for an annuity
under this section if: (1) his or her agency is involved in a major
reduction in force as determined by the Civil Service Commission; (2)
the employee is working in a geographic area within which the
Commission has designated the major reduction in force retirement
provisions to be applicable; and (3) the employee meets the minimum
age and service requirements required for a regular discontinued
service annuity (i.e., 20 years of creditable Federal service and
minimum age 50, or 25 years of creditable Federal service with no
minimum age requirement). This bill would expand the coverage of the
major reduction in force retirement provisions to cover all situations
included in the definition of "reorganization", as determined by the
Office of Personnel Management. In effect, this proposed amendment
would permit an employee to retire if his or her agency was engaged in
a major reduction in force, a reorganization or a major transfer of
function, provided that the"Office of Personnel Management approved
the use of this special retirement authority, A "major transfer of
function is added as a concept meaning the movement of a continuing
function, for example, the work of an office from one place to
another, even though the function might remain within the same agency.
Section 309. Extension of Veterans Readjustment Appointment Authority
Section 309 amends title 38, U.S.C., as follows:
Section 2104 - Employment within the Federal Government
Subsection (b) now provides for readjustment appointments in the Federal
Government for Vietnam era veterans. Under present law, eligibility for
these appointments is restricted to individuals who have been separated
from military service within the past year. Authority for readjustment
appointments expires on June 30, 1978.
Th proposed legislation will authorize readjustment appointments for
persons who were eligible for such appointments as of April 9, 1970 and
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to those Vietnam era veterans who were separated from military service
on or after that date. Additionally, the authority for readjustmen!'-
appointments will be extended to September 30, 1980.
Section 310. Effective date
This section sets forth the effective date for specified amendments to
title 5. The following sections are to take effect on October 1, 1980:
2108(4) and (5), 3303a, 3305, and 3309.
The effect of this amendment is to delay the effective date of those
provisions of the proposed legislation which will modify veterans
preference as it applies to initial entry. Until the effective date of
October 1, 1980, the present law controlling veterans preference for
initial entry will be applied.
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This title is divided into 15 sections. Sections 401 through 411
amend title 5, United States Code, to establish and govern the Senior
Executive Service. Sections 412 through 415 are not amendments of
title 5, but contain provisions necessary for the transition to the
Senior Executive Service. The separate sections, subsections,
paragraphs and subparagraphs of the bill are discussed below.
Section 401. Coverage
This section, in subsection (a), adds Sec. 2101a. The Senior
Executive Service, which defines the Senior Executive Service as
consisting of positions properly classified General Schedule 15 and
below Executive Schedule III which meet the definition in Sec. 3132
(b)(2) and are not excluded as provided for in section 3132 (c) of
title 5.
Subsection (b) excludes the Senior Executive Service from the
definition of "excepted service" in section 2103, defining the
"excepted service" as consisting of those civil service positions
which are not in the competitive service or the Senior Executive
Service.
Subsection (c) excludes members of and applicants for the Senior
Executive Service from the definition of preference eligible found in
5 U.S.C. 2108 (3) pertaining to veteran preference.
Section 402. Authority for Employment
This is the "heart" of the title. It makes several amendments to
chapter 31 of title 5, United States Code, which establish and govern
the Senior Executive Service. It is divided into four subsections,
which are explained separately as follows:
Subsection (a) amends the chapter analysis of chapter 31 (the "table
of contents" so that it will properly reflect the content of the
chapter after the bill is enacted.
Subsection (b) adds a new subchapter II to chapter 31 of title 5,
United States Code, which establishes and provides for the
administration of the Senior Executive Service. The new subchapter
II contains six sections which are discussed separately below.
Sec. 3131.. Establishment of the Senior Executive Service. This
section formally establishes the Senior Executive Service and sets
forth the objectives of administering the Senior Executive Service,
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including: provide excellent Government managers; link managerial
success with compensation and retention; provide flexibility in the
assignment of executives to best accomplish the agency mission;
provide severance pay, retirement benefits and placement assistance to
those terminated for nondisciplinary reasons; protect employees from
arbitrary or capricious action; provide program continuity and policy
advocacy in public programs; maintain a merit system free of improper
political interference; ensure accountability for honest, economical
and efficient Government; ensure faithful adherence to laws regarding
equal employment opportunity, political activity and conflicts of
interest; and provide for managerial capability in the executive ranks
by systematic development.
Sec. 3132. Definitions and exclusions. Subsection (a) of section
3132 states that provisions of this title apply to those agencies set
forth in Section 201 of title 5, United States Code, except as noted
below. Subsection (b)(1) excludes from coverage any agency or
component thereof excluded from being required to place positions in
the Senior Executive Service by the President under Sec. 3132 (c).
Subsection (b)(2) of Sec. 3132 defines a "Senior Executive Service
position" as a position which exceeds the GS-15 or equivalent level in
which the incumbent directs the work of an organization, is
accountable for the success of specific programs, monitors organiza-
tional progress and adjusts its goals, or supervises the work of
employees other than personal assistants. Subsection (b)(3) of Sec.
3132 adds a definition of the term "executive" for convenient usage
and for the purpose of limiting the term in subchapter II of chapter
31 of title 5, United States Code, to executives who are members of
the Senior Executive Service. Subsection (b)(4) defines a "career
reserved position" as a position filled only by a career appointee or
under a limited emergency or term appointment. The subsection refers
to the need for impartiality or the puolic's. confidence in the
impartiality of the Government and notes that the Office of Personnel
Management shall prescribe regulations in this area. Agencies shall
designate positions as career reserved; non-designation is subject to
post-audit by the Office of Personnel Management. Subsection (b)(5)
states that a "general position" is one other than a career reserved
position and that a general position may be filled either by a career
or noncareer appointee or under a limited emergency or term
appointment. Subsection (b)(6) defines a "career appointee" as one
appointed to a Senior Executive Service position based on competitive
selection through a merit staffing process consistent with Office of
Personnel Management regulations and approval of managerial
qualification in the case of initial appointment. Subsection (b)(7)
indicates that a "noncareer appointee" is an individual appointed to a
Senior Executive Service position without competition. Subsection
(b)(8) defines a "limited emergency appointment" as a nonrenewable
appointment, not exceeding eighteen months, to a position established
to meet a bona fide, unanticipated urgent need. Subsection (b)(9)
defines a "limited term appointment" as a nonrenewable appointment for
a maximum of three years to a managerial position the duties of which
will expire during that time period.
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Subsection (c) of Sec. 3132 provides that agencies may apply to the
Office of Personnel Management for exclusion of the entire agency or a
part of it from being required to place positions in the Senior
Executive Service. The reasons justifying the exclusion must be
included in the application, but the range of possible justifications
is not limited in the Act. After review and investigation, as
appropriate, the Office of Personnel Management will recommend to the
President inclusion or exclusion of the agency or component. If the
President makes a written determination of exclusion, the agency or
component will be excluded from being required to place positions in
the Senior Executive Service.
Subsection (d) of Sec. 3132 indicates that any agency or component
excluded from coverage under subsection (c) must make a sustained
effort to bring-its personnel system into conformity with the Senior
Executive Service and that such exclusion may be revoked upon written
determination by the President. Under subsection (e) the Office of
Personnel Management may recommend revocation of such exclusion to the
President at any time.
Subsection (f) of Sec. 3132 requires that the Office of Personnel
Management promptly notify Congress of any exclusion of an agency or
of an agency component from being required to place positions in the
Senior Executive Service.
Subsection (g) of Sec. 3132 requires the Office of Personnel
Management likewise to notify Congress of any revocation of
exclusions.
Sec. 3133. Authorization for number of Senior Executive Service
positions. Subsection (a) of Sec. 3133 requires that each agency
examine, in odd numbered years, its total needs for Senior Executive
Service positions for the next following two fiscal years and submit a
written request to the Office of Personnel Management, in accordance
with regulations prescribed by that Office, for authority to establish
the specific number of Senior Executive Service positions.
Subsection (b) of Sec. 3133 requires that the agency request submitted
under subsection (a) shall be at such time and in such form as the
Office of Personnel Management prescribes and shall be based on the
following factors: (A) the anticipated program activity and budget
requests of the agency for the next two fiscal years; (B) the
anticipated level of work to be performed by the agency in the next
two fiscal years; and (C) such other factors as may be prescribed from
time to time by the Office of Personnel Management.
Subsection (c) of Sec. 3133 requires that the Office of Personnel
Management, after its receipt of each agency's request for a specific
number of Senior Executive Service positions, and upon consultation
with the Office of Management and Budget, authorize for each agency a
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specific number of Senior Executive Service positions and the number
of positions in the entire Senior Executive Service. The requirement
for consultation with the Office of Management and Budget recognizes
the fact that executive personnel needs flow from approved programs
and budgets. The authorizations are subject to Congressional review
as provided in Section 3135 of title 5 as added by this Act. This
subsection also authorizes an unallocated pool of 5% of the number of
allocated positions.
Subsection
(d)
of Sec. 3133 states that the authorizations made under
subsection
(c)
shall remain in effect until changed under subsections
(e), (g) or
(h)
of Sec. 3133.
Subsection (e) of Sec. 3133 permits agencies to submit a written
request for adjustments to its authorized number of Senior Executive
Service positions. The Office of Personnel Management may also make
reductions in the number of positions assigned to a particular agency.
Subsection (f) of Sec. 3133 requires the adjustment request to be
submitted in such form as the Office of Personnel Management
prescribes and to be based on the current budget and program
activity in the agency.
Subsection (g) of Sec. 3133 provides that the Office of Personnel
Management may make changes in the allocations made under subsection
(c), subject to subsections (e) and (f) of Sec. 3133. Subsection (g)
of Sec. 3133 further provides that total adjustments during a fiscal
year may not enlarge the Senior Executive Service beyond the number
identified under provisions of subsection (c).
Subsection (h) of Sec. 3133 provides that the office of Personnel
Management allocation of the number of Senior Executive Service
positions will be effective on the next succeeding October 1 following
the submission to the Congress of the stewardship report required by
Sec. 3135,_ unless an alternative number is approved by both Houses of
Congress prior to the October 1 date.
Sec. 3134. Limitations on noncareer Senior Executive Service
appointments. Subsection (a) of Sec. 3134 requires each agency to
examine its needs for noncareer Senior Executive Service appointees
for the next following fiscal year and to submit a written report to
the Office of Personnel Management requesting authority to make a
specific number of noncareer Senior Executive Service appointments.
Subsection (b) charges the Office of Personnel Management with making
a biennial determination of the number of noncareer appointments to be
made available to each agency with the provision that the number of
noncareer appointees to the Senior Executive Service, Government-wide,
must not exceed 15 percent of the total number of Government-wide
Senior Executive Service positions.
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Subsection (c) authorizes the Office of Personnel Management to adjust
the number of noncareer positions authorized under subsection (a) and
(b) for emergency needs provided the number of noncareer executives,
Government-wide, does not exceed 15 percent of the total number of
Senior Executive Service positions.
Sec. 3135. Biennial Report. This section provides for a biennial
report to each new Congress on the Senior Executive Service. This
biennial report, which must be submitted at the time the budget is
submitted to the first session of each Congress, serves three
important purposes. First, it will fully inform Congress on the
operation of the Senior Executive Service for the previous fiscal
year. Second, it will fully inform Congress as to the proposed scope
and operation of the Senior Executive Service for the coming two
fiscal years. This will enable Congress to maintain an informed and
positive legislative oversight over the Senior Executive Service.
Third, the detailed and comprehensive nature of the report will serve
to inform the general public of the actions that its Government is
taking, and proposes to take, with respect to the management of its
executive resources. This section also provides for an interim report
to the second session of each Congress showing adjustments to the
biennial report.
Sec. 3136. Regulations. This section authorizes the Office of
Personnel Management to prescribe regulations necessary to carry out
the purpose of subchapter II of chapter 31 of title 5, United States
Code.
Subsection (c) amends present Sec. 3104(a) of title 5, United States
Code, by adding the word "nonmanagerial" after the word "establish" so
as to read, when amended, "(a) The head of an agency named below may
establish nonmanagerial scientific or professional positions . "
The word "nonmanagerial" has been added to make clear that the agency
head's authority under Sec. 3104(a) does not relate to the Senior
Executive Service.
Subsection (d), likewise, indicates that an agency head may not fill
Senior Executive Service positions under the authority of Sec. 3109(b)
pertaining to temporary or intermittent contracts with experts and
consultants.
Section 403. Examination, Certification and Appointment
This section amends chapter 33 of title 5, United States Code,
"Examination, Selection and Placement" by adding a new Subchapter VIII
entitled "Senior Executive Service Appointment, Placement, Transfer
and Development."
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Paragraph (1) will amend the chapter analysis of chapter 33 so that it
will accurately reflect the content of the chapter after the bill is
enac ted.
Paragraph (2) will add a new subchapter VIII to chapter 33 of title 5,
United States Code. The new subchapter VIII contains seven sections
which are discussed separately below.
Sec. 3391. General appointment provisions. Subsection (a) provides
that qualification standards for all Senior Executive Service
positions shall meet Office of Personnel Management standards and in
the case of most Presidential appointees the confirmation of the
Senate. Subsection (b) states that appointees must meet the
qualifications of the positions to which they are appointed, while
subsection (c) requires the appointing authority to be responsible for
determining that an appointee meets the qualification requirements
(other than managerial requirements) for a particular position.
Subsection (d) prohibits discrimination for nonmerit factors such as
age, race, national origin, handicapping conditions, sex and religion.
Subsection (e) allows the appointing authority to set the pay level
for each employee, subject to Office of Personnel Management
criteria.
Sec. 3392. Career appointments to the Senior Executive Service.
Subsection (a) provides that career recruitment may (1) include all
current Federal employees or (2) be open to Federal employees arid to
persons outside of Government.
Subsection (b) states that the recruitment process must attempt to
reach all groups of qualified applicants, including women and
minorities. Subsection (c) charges an agency executive resources
board with the conduct of merit staffing, subject to requirements
established by the Office of Personnel Management.
Subsection (d) permits the Office of Personnel Management to appoint
members of Qualifications Review Boards from within and outside the
Federal service to certify the managerial qualifications of candidates
for entry into the Senior Executive Service, based on Office of
Personnel Management criteria to include (1) demonstrated performance
in managerial work, (2) successful participation in an approved
executive development plan, or (3) unique or special individual
qualities predictive of success in managerial work. Subsection (e)
requires employees with career status from other Government personnel
systems to have their qualifications approved by the Office of
Personnel Management for a career appointment. Subsection (f)
requires a one year probationary period for employees entering the
Senior Executive Service under career appointments.
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Sec. 3393. Noncareer appointments to the Senior Executive Service.
Subsection (a) permits the appointing authority to recruit and appoint
noncareer Senior Executive Service employees without managerial
qualifications approved by the Office of Personnel Management.
Similarly, under subsection (b), such an employee may be removed by
the appointing authority. Employees given noncareer appointments
acquire no credit toward career status under subsection (c).
Subsection (d) prohibits noncareer appointments to "career reserved
positions," as defined in Sec. 3132(b)(4).
Sec. 3394. Limited appointments to the Senior Executive Service.
Subsection (a) provides that limited emergency appointments to the
Senior Executive Service may only be made when filling new positions
established in a bona fide emergency (as defined by Office of
Personnel Management regulations); may not exceed 18 months; are
nonrenewable; and may be recruited for by the agency without regard to
the competitive process. Under subsection (b), limited term
appointments may be made only for positions the duties of which will
expire in three years or less; are nonrenewable; and may be filled by
the agency without regard to the competitive process. Subsection (c)
makes clear that a Senior Executive Service employee appointed under
either type of limited appointment acquires no credit toward career
status. Subsection (d) requires Office of Personnel Management
approval of use of limited appointment authority before making such an
appointment.
Sec. 3395. Placement and transfer within the Senior Executive
Service. Subsection (a) permits career appointees to: (1) be
reassigned to a Senior Executive Service position. in the same agency;
(2) transfer to a Senior Executive Service position in another agency;
and (3) request assignment outside the Senior Executive Service.
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Subsection (b) permits an executive with a "limited appointment"
(limited emergency or limited term) to be reassigned to a position
meeting the criteria under which the employee was originally
appointed. However, continuous service in any one agency under a
limited emergency appointment may not exceed 18 months, and under a
limited term appointment such service may not exceed three years. An
executive with a limited appointment may not be given a career
appointment in the Senior Executive Service except under the
competitive merit staffing process and may not be given another
limited appointment in the same agency when the maximum period of
service authorized for the original appointment-has expired, until one
intervening year has passed.
Subsection (c) states that an executive with a noncareer appointment
may be reassigned or transferred to any general Senior Executive
Service position in the same agency or in another agency, and may be
appointed to a noncareer position outside the Senior Executive
Service, but may not be given a career appointment except under the
competitive merit staffing process. Subsection (d) prohibits the
involuntary reassignment of a career employee within 120 days after
the appointment of an agency head.
Sec. 3396. Development for and within the Senior Executive Service.
This section provides for the establishment of programs, by the Office
of Personnel Management or by agencies under criteria established by
the Office of Personnel Management, for the systematic development of
candidates for the Senior Executive Service and for the continuing
development of members of the Senior Executive Service. Further, the
Office of Personnel Management is required, under this section, to
encourage service in a variety of agencies, in State or local
governments, and in the private sector. The section also provides for
sabbaticals for career executives in the form of administrative leave
for up to eleven months plus travel and per diem costs when essential
to the development. The purpose of the sabbatical period is to engage
in study or unpaid work experience which will contribute to the
individual's development and effectiveness in performing his/her
official duties. An individual may not be granted more than one
sabbatical in a ten year period.
Sec. 3397. Regulations. Under this section the Office of Personnel
Management may prescribe regulations necessary to carry out the
purpose of subchapter VIII of chapter 33 of title 5, United States
Code.
Section 404. Retention Preference
This section amends chapter 35 of title 5, United States Code, which
deals with "Retention Preference, Restoration and Reemployment," by
adding a new subchapter V entitled "Removal, Reinstatement and
Guaranteed Placement Provisions in the Senior Executive Service."
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Paragraph (1) amends the chapter analysis of chapter 35 so that it
will properly reflect the content of the chapter after the bill is
enacted.
Paragraph (2) amends present 5 U.S.C. 3501(b), regarding retention
preference, so that the subchapter does not apply to employees in the
Senior Executive Service.
Paragraph (3) adds a new subchapter V to chapter 35 of title 5, United
States Code. The new subchapter contains provisions relating to
removal, reinstatement and guaranteed placement of Senior Executive
Service employees. The four sections of the new subchapter V are
discussed separately below.
Sec. 3591. Removal from the Senior Executive Service. Subsection (a)
provides that career employees can be removed from the Senior Executive
Service: (1) during the one year probationary period; (2) for
inadequate managerial performance (cf. chapter 43, subchapter II); or
(3) for misconduct, neglect of duty, or malfeasance. Subsection (b)
permits removal of limited emergency appointees by the appointing
authority prior to the mandatory 18 month separation point. Subsection
(c) permits limited term appointees to be removed by the appointing
authority prior to the mandatory 3 year separation point. Subsection
(d) states that noncareer employees can be removed by the appointing
authority. Employees covered by subsections (b) (c) and (d) can be
removed without a specific showing of cause.
Sec. 3592. Reinstatement into the Senior Executive Service. This
section permits reinstatement of a former Senior Executive Service
employee who has career status to any Senior Executive Service position
if the individual has successfully completed the Senior Executive
Service probationary period, and the separation from the Senior
Executive Service was not for misconduct, neglect of duty, malfeasance,
or less than fully successful performance as defined in chapter 43.
Sec. 3593. Guaranteed placement in other personnel systems.
Subsections (a) and (b) provide a right to placement in a Federal
position outside the Senior Executive Service to those career status
employees who were appointed to the Senior Executive Service from a
career or career-type position within the civil service and who are
removed from the Senior Executive Service for reasons other than
misconduct, neglect of duty, or malfeasance, during Senior Executive
Service probation. Subsection (b) provides the same placement right
for career appointees removed from the Senior Executive Service for
less than fully successful performance. Subsection (c) states that
career executives who accept Presidential appointments outside the
Senior Executive Service and then are removed (for reasons other than
misconduct, neglect of duty, or malfeasance) are entitled to placement
back into the Senior Executive Service, provided they apply for such
placement within 90 days after the separation from the Presidential
appointment. Subsection (d) states that under subsections (a) and (b)
the position in which the employee is placed must be a continuing
career position and be at either the salary held prior to appointment
to the Senior Executive Service, or at a salary which is equal to the
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last Senior Executive Service base pay, whichever is higher. It also
states that placement in a position outside the Senior Executive
Service shall not cause the separation or reduction in grade of any
other employee in the agency. Finally, subsection (e) states that a
former Senior Executive Service member receiving retained pay will
receive one half of each comparability increase under section 5305
until the employees pay equals the top rate payable to his/her current
position.
Sec. 3594. Regulations. This section authorizes the Office of
Personnel Management to prescribe necessary regulations to administer
subchapter V of chapter 35 of title 5, United States Code.
Section 405. Performance Rating
This section amends chapter 43 of title 5, United States Code,
"Performance Rating," by adding a new subchapter II entitled
"Performance Appraisal in the Senior Executive Service."
Paragraph (1) amends the chapter analysis of chapter 43 so that it
will accurately reflect the content of the chapter after the bill is
enacted.
Paragraph (2) adds a new subchapter II to chapter 43 of title 5,
United States Code. The new subchapter II contains four sections
which are discussed separately below.
Sec. 4311. Senior Executive Service performance appraisal systems.
Subsection (a) requires each agency to develop one or more performance
appraisal systems with respect to Senior Executive Service employees.
Such systems should: (1) provide for systematic appraisals cf job
performance; (2) encourage excellence in performance; and (3) link
performance with eligibility for retention and performance awards.
Subsection (b) states that each such performance appraisal system
shall provide: (1) that performance requirements be established at
the beginning of the rating period and communicated to the employee;
(2) for written appraisals based on accomplishment of these
requirements; and (3) that each employee be shown his/her performance
appraisal and rating, be given an opportunity to respond in writing,
and have the rating reviewed by a higher managerial level.
Subsection (c) states that the Office of Personnel Management shall
order corrective action if an agency performance appraisal system does
not meet the requirements of this subchapter and the regulations
prescribed thereunder.
Sec. 4312. Criteria for performance appraisals. This section states
that managerial success in the Senior Executive Service shall take into
account both individual performance and organizational accomplishment.
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Sec. 4313. Ratings for managerial performance appraisal. Subsection
(a) requires that each performance appraisal system must provide for
annual ratings reflecting a number of levels of performance including
one or more successful levels or ratings, an unsatisfactory level, and
a level which is minimally satisEactory but not acceptable as a
continuing level of performance.
Subsection (b) requires that the head of each agency shall establish a
system to appraise the performance of members of the Senior Executive
Service. The evaluation must take place at least annually on a fixed
schedule, except that no evaluation can be made of a career employee
within 120 days following the beginning of a new Administration. The
evaluations are not appealable. The result of such evaluation is
that, (A) employees receiving a rating at a fully successful level
may be given performance awards as described in section 5396 as added
by this Act; (B) an unsatisfactory rating requires corrective action
such as reassignment, transfer, or separation from the Senior
Executive Service. Employees who twice in five years receive an
annual rating of unsatisfactory must be separated from the Senior
Executive Service. Employees who, twice in three years, receive an
annual rating reflecting performance which is minimally satisfactory
but not acceptable as a continuing level of performance must be
separated from the Senior Executive Service.
Sec. 4314. Regulations. This section authorizes the Office of
Personnel Management to prescribe regulations necessary for the
administration of subchapter Li -of chapter 43 of title 5, United
States Code.
Section 406. Incentive Awards and Ranks
This section amends chapter 45 of title 5, United States Code, by
adding a new section 4507 entitled "Incentive Awards and Ranks in the
Senior Executive Service."
Subsection (a) requires each agency to forward annually to the Office
of Personnel Management information regarding career executives
recommended for special rank. The Office of Personnel Management
shall recommend to the President appointments to such rank. The
President shall commission those selected. The ranks are (1)
Meritorious Executive for sustained excellence and (2) Distinguished
Executive for sustained extraordinary accomplishment.
Under subsection (b) no more than 5 percent of the members of the
Senior Executive Service may be appointed to the rank of Meritorious
Executive in a calendar year and no more than 15% of the active Senior.
Executive Service members may hold the rank at any time.
Subsection (c) permits no more than 1% of the active Senior Executive
Service members to hold the rank of Distinguished Executive.
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Subsections (d) and (e) provide for cash awards to Meritorious and
Distinguished Executives. Meritorious Executives receive $2,500
annually for a period of five years. Distinguished Executives receive
$5,000 annually for a period of five years. The annual payment of
these awards are conditioned upon the person continuing in Government
employment in an active status in the Senior Executive Service.
Subsection (f) specifically provides that an employee in the Senior
Executive Service, who receives a Presidential appointment outside the
Senior Executive Service after receiving such an award, shall continue
to receive the annual payments to. which he/she otherwise would be
entitled.
Subsection (g) states that the office of Personnel Management, as
opposed to the agencies, shall pay for these awards through special
appropriations for this purpose.
Section 407. Pay Rates and Systems
This section amends chapter 53 of title 5, United States Code.
Paragraph (1) amends section 5308 of title 5, United States Code, "Pay
Limitation," so that executives in the Senior Executive Service may be
paid up to a rate equal to 96 % of the rate provided for Executive
Schedule III.
Paragraph (2) adds a new subchapter to chapter 53 of title 5, United
States Code, subchapter X, entitled "Pay for the Senior Executive
Service." The sections of subchapter X are discussed below.
Sec. 5394. Purpose; definitions states that the purpose of the new
subchapter X is to provide a pay system for the Senior Executive
Service which would be established under amended subchapter II of
chapter 31 of title 5, United States Code. Section 5394 also provides
that the definitions for "agency," "Senior Executive Service position"
and "executive" be identical to the meanings given to them by secr_ion
3132 added by this Act.
Sec. 5395. Establishment and adjustment of rates of vay for the
Senior Executive Service, would establish five or more rates of basic
pay. Subsection (a) provides that there shall be five or more rates
of basic pay for the Senior Executive Service established and
thereafter adjusted by the President. Subsection (b) provides that
the lowest rate shall not be less than the sixth step of GS 15 and the
highest rate shall not exceed 96% of the rate for level III of the
Executive Schedule.
Under subsection (c) the President adjusts the rates of basic pay for
the Senior Executive Service at the same time he adjusts the rate of
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pay under 5 U.S.C. 5305 and such adjustments are to be included in the
President's report to Congress under 5 U.S.C. 5305 (a)(3) or 5 U.S.C.
5305 (c)(1). Subsection (d) states that the rates of basic pay
referred to in this section shall supersede any prior rates and shall
be printed in the Federal Register.
Subsection (e) limits the total monies (including pay, performance
awards, and incentive awards) that an executive can receive during
any calendar year to an amount not to exceed 95 percent of the rate
provided for Executive Level II.
Sec. 5396. Performance awards for the Senior Executive Service.
Section 5396 governs the granting of performance awards to Senior
Executives. Subsection (a) states that the purpose of such awards is
to encourage excellence, and that the cash awards shall be in addition
to basic pay and not subject to the ceiling limitations placed on
Government salaries. Subsection (b) provides no awards may be granted
to an executive whose last performance rating was less than fully
successful. The amount of the award may not exceed 20% of the
executive's basic pay. Performance awards may not be paid to more
than 70% of the executives in any agency employing 3 or more members
in the Senior Executive Service in any fiscal year. Subsection (c)
provides that the award shall be paid in a lump sum and will not be
subject to retirement or life insurance deductions. This subsection
also cites amended section 8339 which provides for a 2 1/2 I annuity
calculation in lieu of any lower calculation for years for which a
performance award is made.. This section contemplates that agencies
will routinely include in their-appropriations requests funds to make
performance awards and will use them for this purpose and no other.
Sec. 5397. Regulations. This section directs the Office of Personnel
Management to issue regulations necessary for the administration of
pay for the Senior Executive Service, subject to such policies and
procedures as the President may prescribe.
Paragraph (3) amends the chapter analysis of chapter 53 of title 5,
United States Code, to add a new subchapter X, "Pay for the Senior
Executive Service," so that it will properly reflect the content of
the chapter after the bill is enacted.
Section 408. Pay Administration
This section amends chapter 55 of title 5, United States Code. It
amends 5 U.S.C. 5504(a)(B) so as to include Senior Executive Service
employees under the standard Government bi-weekly pay period.
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Paragraph (2) amends section 5595(a)(2)(i) to permit severance pay for
members of Senior Executive Service.
Section 409. Travel Trans ortation and Subsistence
This section amends section 5723(a)(1) of title 5, United States Code
to permit an agency to pay the travel expenses of a new member of the
Senior Executive Service. The section also permits an agency to pay
the travel expenses for candidates for such positions when the
expenses were incurred incident to preemployment interviews requested
by the employing agency, by adding a new section 5752 in title 5,
United States Code.
Section 410. Leave
This section amends chapter 63 of title 5, United States Code. This
section amends 5 U.S.C. 6304, by adding a new subsection (f) to
exclude employees in the Senior Executive Service froQS a may n
a
the accumulation of annual leave. Currently, emply y generally
not carry over more than 30 days of annual leave from year to year.
This exclusion would allow executive managers to spend as much time on
the job as the job requires without forfeiting their entitlement to
annual leave for later use or to the cash value of that leave upon
separation from the Federal service.
Section 411. Adverse Actions
This section amends chapter 75 of title 5, United States Code, which
pertains to "Adverse Actions."
Paragraph (1) amends the chapter analysis of chapter 75 so that it
will properly reflect the content of the chapter after the bill is
enacted.
Paragraph (2) adds a new subchapter V to chapter 75 of title 5, United
States Code. The new subchapter V, entitled "Senior Executive
Service," sets forth adverse action procedures pertaining to
individuals in the Senior Executive Service. Subchapter V contains
three sections which are discussed separately below.
Sec. 7541. Definitions. This section sets forth definitions of
"employee" 'disciplinary action", "removal", and "suspension." An
"employee"?is defined as an individual in the Senior Executive Service
who has either completed one year of continuous service in such
Service or was covered by the provisions of subchapter II of this
chapter when appointed to a position in the Service. "Disciplinary
action" is an action based on the conduct of the employee including,
but not limited to, misconduct, neglect of duty, or malfeasance, and
not including less than fully successful performance. Disiplinary
action may result in involuntary removal, or suspension for more
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than 30 days., "Removal" is defined as separation from the Federal
service. "Suspension" means the placing of an employee in a temporary
nonduty nonpay status for disciplinary reasons.
Sec. 7542. Actions covered. This section states that this subchapter
applies to a disciplinary removal or suspension for more than 30 days
of an individual in the Senior Executive Service, but does not apply
to a suspension or removal under 5 U.S.C. 7532 (National Security).
Sec. 7543. Cause and procedure. Subsection (a) provides that agency
disciplinary action against an employee may be taken only for such
cause as will promote the efficiency of the service. This subsection
also provides for regulations by the office of Personnel Management,
and makes clear that removal for less than fully successful performance
is not a disciplinary action. Subsection (b) sets forth procedures
for disciplinary actions. The employee is entitled to: at least 30
days written notice stating any and all reasons, specifically and in
detail, for the proposed action, except where there is reasonable
cause to believe the employee is guilty of a crime for which a
sentence of imprisonment can be imposed; a reasonable time to answer,
orally and in writing, and to furnish affidavits and documents in
support of the answer; be accompanied, represented and advised by a
representative; and a written decision, with supporting reasons, at
the earliest practicable date. Subsection (c) permits the agency to
give a hearing but specifically does not require a hearing.
Subsection (d) requires that documents pertaining to a disciplinary
action be made a part of the agency's records and be furnished to the
Merit Systems Protection Board or to the Office of Personnel
Management upon request.
Section 412. Retirement
This section provides for an immediate annuity if an executive in the
Senior Executive Service is separated from the Service because of less
than fully successful performance and has completed 25 years of
Federal service or has become 50 years of age and completed 20 years
of Federal service.
The section also provides for a change in the way retirement annuities
are calculated for those members of the Senior Executive Service, or
former members, who have received performance awards during their
Senior Executive Service careers. For every year that an award was
received, the employee's annuity calculation will include 2 1/2
percent of his/her average top three salary in place of any lesser
percentage based on years of total service.
Section 413. Conversion to the Senior Executive Service
This section provides specific guidance for the conversion period
following enactment with respect to agency action in converting
certain positions to the Senior Executive Service and also with
respect to the various options of the employee-incumbents of such
positions.
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Subsection (a) charges each agency with the responsibility of
designating those positions which are to be incorporated into the
Senior Executive Service and those positions which are career
reserved. Such designations shall be accomplished under the guidance
and review of the Office of Personnel Management during the period
between enactment and the effective date of the Act. The subsection
also indicates that positions which are properly classified above the
GS-15 or PAS-4 level may be designated as Senior Executive Service
positions even if they have hitherto been classified at the GS-15 or
PAS-4 level.
Subsection (b) provides that each agency will submit a request for
total Senior Executive Service space allocations and for the number
of noncareer appointments needed. The Office of Personnel Management
will then establish interim authorizations for such appointments.
Subsection (c) provides two options to employee-incumbents of
positions designated as Senior Executive Service. First, the employee
may remain in the current appointment and pay system without loss of
the associated benefits and provisions. In the alternative, the
employee may convert to a Senior Executive Service appointment. The
conversion of this appointment would be governed by the provisions of
subsection (d), (e), (f), (g) or (h) of this section, as appropriate.
The employee must elect one of these options within 90 days from the
date he/she is notified in writing that his/her position has been
incorporated into the Senior Executive Service.
Subsection (d) states that-employees who elect automatic conversion
and who are currently serving under career or career-conditional or
similar appointments shall receive a career appointment in the Senior
Executive Service.
Subsection (e) states that employees who elect automatic conversion
and who are currently serving under an excepted service appointment:
(1) in a position in Schedule C of subpart c of part 213 of title 5,
Code of Federal Regulations; or (2) in a position filled by noncareer
executive assignment under subpart F of part 305 of title 5, Code of
Federal Regulations; or (3) in a position in the Executive Schedule
under subchapter II of chapter 53 of title 5, United States Code
except career Executive Schedule positions; and which is not
designated a career reserved position in the Senior Executive Service,
shall receive a noncareer appointment in the Senior Executive Service.
Subsection (f) provides for employees who are serving in career
reserved positions as designated in the Senior Executive Service but
are described in subsection (e) shall be reassigned to an appropriate
Senior Executive Service general position or terminated.
Subsection (g) allows those persons listed in (e) whose position is
designated as a Senior Executive Service position, but who have
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reinstatement eligibility to a position in the competitive service, to
request from the Office of Personnel Management reinstatement of
career status in order to be converted to a career appointment in the
Senior Executive Service. The names and grounds for status of all
such employees who are converted to career status must be published in
the Federal Register.
Subsection (h) relates to employees who are under a limited executive
assignment under subpart F of part 305 of title 5, Code of Federal
Regulations, who have elected an automatic appointment conversion,
shall be converted to: (1) a Senior Executive Service limited term
appointment if the position encumbered will terminate within three
years of the effective date; (2) a Senior Executive Service noncareer
appointment if the position encumbered is designed as a Senior
Executive Service general position; or (3) a Senior Executive Service
noncareer appointment and reassigned to a Senior Executive Service
general position if the encumbered position is designated as a Senior
Executive Service career reserved position.
Subsection (i) deals with pay. If the employees' base pay at the time
of conversion is more than the base pay of the level to which they are
converted, the employees retain their pay. If there are comparability
increases under 5 U.S.C. 5305, these employees receive half of each
such increase until their base pay equals the established rate of
their Senior Executive Service rank.
Subsection (j) authorizes the Office of Personnel Management to
prescribe regulations to carry out the purpose of this section and to
provide for an employee appeal to the Merit Systems Protection Board
from improper agency action under this section. It also commands the
agency to take the corrective action recommended by the Merit Systems
Protection Board in its decision on such an appeal under this
subsection.
Section 414. Repealer
This section repeals all preexisting authority for the establishment
or pay of positions subject to section 401 of this Act.
Section 415. Savings Provision
Section 415 indicates that enactment of this Act does not decrease the
pay, allowances, compensation or annuity of any person.
Section 416. Effective Date
This section sets an effective date for this Act of nine months after
enactment. The onlq exception is section 413 (conversion procedures),
which takes effect immediately upon enactment.
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TITLE V PAY FOR PERFORMANCE
Section 501. Pay for Performance Amendments
Section 501 of this bill amends chapter 53 of title 5, United States
Code, by adding a new subchapter to provide for the establishment of a
merit pay plan for certain Federal employees.
Section 5371 sets out the guiding policies of the merit pay plan.
The specifics of the merit pay plan will be developed by the Office of
Personnel Management in accordance with the principles. set forth in this
section.
Rather than granting automatic entitlement to progress through the pay
range, this plan would provide that such advancement, at least in part,
would be based on the quality of the work of those employees covered by
this plan.
Performance appraisals would become the tool through which a manager
would document another manager's, supervisor's or other covered employee's
accomplishments during the review period. Pay increase decisions,
including increases in base pay as well as some one-time cash awards,
would be based upon the degree to which an individual employee met or
exceeded performance objectives or other measures of contribution which
might be utilized.
A merit pay budget, consisting partly of monies saved by not making full
comparability adjustments under section 5305 of title 5, United States
Code, and considering the level of expenditures for within-grade increases
and quality step increases for General Schedule employees not covered by
this plan would be used as an outside limit on the aggregate amount
which could be added to the base pay of all employees covered by this
program during a fiscal year; however, there would be no requirement
that all of the budget be expended in this manner. It is anticipated
that some portion of the merit pay budget might be utilized for one-time
cash payments at the manager's discretion.
Proposed new section 5372 describes the major provisions of the merit
pay plan.
Subsection (a) establishes and defines the coverage of the merit pay
plan.
Subsection (b) provides that the minimum and maximum of each grade in
which there are employees who are covered by the merit pay plan shall be
the same as the minimum and maximum for those grades as they apply to
employees not covered by the merit pay plan. However, it eliminates all
specific, intervening steps in the schedule. Therefore, an employee
covered by the merit pay plan could have a pay rate at any dollar amount
from the minimum to the maximum of the assigned grade.
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Subsection (c) provides that when the size of the comparability adjustment
is determined each year, the Office of Personnel Management will make a
determination as to what portion of that adjustment will be given as a
general increase to employees covered by this merit pay plan and what
portion will be used to partly fund the merit increase pool. It further
provides that whatever portion is not granted as a general adjustment
shall be used to partly fund the pool with the remaining funding to be
determined considering what percent of payroll is generally expended for
within-grade increases and quality step increases for employees who are
not covered by this plan.
Subsection (d) provides language which corresponds to the language
contained in section 5305(p) of title 5, United States Code. This will
insure that any portion of the comparability adjustment which is granted
to employees under the merit pay plan will not require them to start a
new waiting period for a within-grade increase should they transfer into
a grade or a position which is not covered by the merit pay plan.
Subsection (e) insures that every employee will be paid at least the
minimum of the grade to which he or she is assigned.
Subsection (f) provides that the manner in which an employee's pay shall
advance within the pay range of the assigned grade will be prescribed in
regulations developed by the Office of Personnel Management.
Subsections (g) through (m) generally parallel the language currently
contained in chapter 45 of title 5, United States Code, which deals with
Incentive Awards. The purpose of these sections is to transfer the
authority to grant cash awards for employees covered by the merit pay
plan in order to promote a more cohesive and comprehensive approach to
the use and administration of direct cash compensation which may be
granted to an employee for any purpose. Accordingly, employees covered
by the merit pay plan are excluded from participation in any program
administered under chapter 45 of title 5, United States Code.
The only modification of these basic provisions is the increase from
$5,000 to $10,000 in the dollar amount which may be granted by the head
of any agency. The $5,000 figure has been in the law since 1954 and,
through the passage of time and the attendant inflation, the value of
this amount has been seriously eroded. Further, it is considered
desirable to delegate greater flexibility and responsibility to the
individual agencies to administer their own programs.
Under subsection (n), the Office of Personnel Management will develop
regulations which will provide employees covered by the merit pay plan,
whose continuous service is interrupted in the public interest by service
with the armed forces or by service in essential non-Government civilian
employment during a period of war or national emergency, with the
opportunity to be advanced within the pay range based upon the quality
of their past performance in order that they are not penalized as a
result of such service.
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Subsection (o) provides that increases in basic pay resulting from the
merit pay plan shall be considered fixed by statute. As such, they are
included in the amounts to which cost of living allowances and post
differentials under 5 U.S.C. 5941 are applied.
Proposed new section 5373 requires the Office of Personnel Management to
issue regulations implementing this subchapter.
Section 502. Conforming and Technical Amendments
Subsection (a) of section 502 amends section 4501 of title 5, United
States Code, by inserting after (2)(A) "but does not include an individual
paid under the merit pay plan established under section 5372 of this
title; and". This change recognizes the transfer of the operation of
incentive awards for employees covered by the merit pay plan to section
5372 in order that it might become an integral portion of their direct
compensation plan. This is intended to focus the attention of Federal
managers on this portion of the compensation program when developing
recommendations for pay increases to employees.
Subsection (b) of section 502 amends section 4502(a) of title 5, United
States Code, by increasing the maximum cash award from $5,000 to $10,000.
Subsection (c) of section 50Z amends section 4502(b) of title 5, United
States Code, by increasing the maximum cash award which may be granted
by the head of an agency without the approval of the Office of Personnel
Management from $5,000 to $10,000. The $5,000 figure has been in law
since 1954 and through the passage of time and the attendant inflation
the value of this amount has been seriously eroded.
Subsection (d) of section 502 is an amendment to section 4506 of title 5,
United States Code, striking out "Civil Service Commission may" and
inserting in lieu thereof "Office of Personnel Management shall" and
imposes a duty to prescribe regulations.
Subsection (e) of section 502 amends section 5332(a) of title 5, United
States Code, to exclude those employees who will be covered by the merit
pay plan. This is the section which currently provides that each employee
covered by subchapter III of chapter 53 of title 5, United States Code, is
entitled to basic pay in accordance with the General Schedule. However,
because employees covered by the merit pay plan will not automatically
receive the full comparablity adjustment which will be applied to the
General Schedule and since the pay ranges under the merit pay plan will
not contain any step rates, these employees must be excluded from this
provision.
Subsection (f) of section 502 amends section 5334 of title 5, United
States Code, by providing that (1) where a reference is made to a 'step'
it shall mean any dollar amount within the range for an employee moving
to a position covered by the merit pay plan and (2) where reference is
made to 'two steps' or 'two step increases' it shall mean six percent
for employees covered by the merit pay plan since there will be no
steps. Six percent is approximately the size of two within-grade step
increases.
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Subsection (g) of section 502 amends section 5335(e) of title 5, United
States Code, to exclude those employees who will be covered by the
merit pay plan. Because these employees will receive individually-
determined increases to base pay and advance within a range which does
not contain steps, they are excluded from this section which provides
for the system of periodic step increases under the General Schedule.
Subsection (h) of section 502 amends section 5336(c) of title 5, United
States Code, to exclude employees covered under the merit pay plan from
the provisions for receiving additional step increases.
Subsection (i) of section 502 amends the analysis of chapter 53 of
title 5, United States Code, to conform to the amendments made by
section 501 of this bill.
Section 503. Pay Savings
Section 503 specifies that any changes in pay resulting from the initial
implementation of the provisions of this title will not be construed as
adverse actions as defined in chapter 75 of title 5, United States Code.
Section 504. Effective Date
Section 504 of the title provides that the provisions of this title will
be placed into effect on the first day of the first applicable pay
period which begins on or after the ninetieth day following the date of
enactment.
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4,01
This title provides the Office of Personnel Management with authority
to conduct public management research, to carry out demonstration projects
which test new approaches to the conduct of personnel management in the
Federal service, and to waive specific portions of personnel laws in order
to engage in controlled experiments.
This section contains the technical amendment which designates the
existing chapter 13 of title 5, United States Code as "Subchapter I--
General" and adds a new "Subchapter II--Research and Demonstration
Projects."
Section 1321. Definitions
Section 1321 defines various terms for purposes of this subchapter.
Paragraph (1) defines the term "agency" to mean an Executive agency as
that term is defined in section 105 of title 5, United States Code.
Paragraph (2) defines "employee" as any individual employed in or under
an agency.
Paragraph (3) defines "eligible" as any individual who has qualified
for appointment in an agency and whose name has been entered on an
appropriate employment register of eligibles.
Paragraph (4) defines a "demonstration project" as a controlled action
project which will test proposed policy or procedural personnel changes
to see if they will result in system improvements. The definition
stipulates that such projects will only be conducted by the Office of -
Personnel Management, or under its supervision.
Paragraph (5) defines a "research program" as a planned study of the
manner in which public management policies and systems are operating,
the effects of those policies and systems, the possibilities for change,
and, comparisons among policies and systems.
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6, 0Z
Section 1322. Research Support Functions
Section 1322 provides specific statutory authority to initiate, support,
coordinate, cooperate in, and evaluate public management research and
demonstration projects being conducted by Federal agencies, State and
local governments, educational institutions, public interest organizations,
and the private sector. The section also authorizes the Office of
Personnel Management to conduct or sponsor research, to set up a central
clearinghouse for the collection, interchange, and dissemination of research
information, and to arrange for the application of research to the solution
of public management problems. It specifically gives the Office of
Personnel Management the option of entering into agreements or contracts
with other public or private agencies to carry out these research support
functions.
Section 1323. Demonstration Projects
Subsection (a) provides specific statutory authority for the Office of
Personnel Management, either itself or through agreements or contracts with
one or more Federal agencies and other public and private organizations, to
conduct and-evaluate demonstration projects. The Office of Personnel Manage=
ment is also specifically authorized to test new and alternative policies
and procedures, to waive those provisions of law and regulation which relate
to qualification determination; recruitment; appointment; classification;
compensation, except for base pay, leave benefits, insurance, and annuities;
assignment; promotion; discipline; incentives, including incentive bonuses
or pay; hours of work; methods of involving employees, unions, and employee
organizations in personnel decisions; and methods of reducing overall agency
staff and grade levels.
Subsection (b) contains requirements which must be met prior to the approval
of a demonstration project.
Paragraph (1) requires that demonstration projects be conducted in
accordance with a project plan and prescribes the content of that
project plan.
- Paragraph (2) requires publication of the proposed project plan
in the Federal Register, the holding of a public hearing, and approval
by the participating agency or agencies before demonstration projects
can commence.
Subsection (c) limits the size (not more than 5,000 employees and eligibles)
and duration (up to 5 years) of demonstration projects.
Subsection (d) permits the termination of demonstration projects ::f warranted
by subsequent Office of Personnel Management or agency review.
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Subsection (e) requires observance of existing negotiated agreements and
consultation with the employee organization accorded exclusive recognition
and subsection (f) requires agency consultation with employees where no
exclusive representative exists, prior to conducting demonstration projects.
Subsection (g) requires evaluation of project results.
Subsection (h) requires the cooperation and assistance of agencies in
matters relating to the conduct of research and demonstration projects.
Section 1324. Appropriation Authorized
This section authorizes the appropriation of funds for carrying out this
subchapter.
Section 1325. Reports
This section requires that the Office of Personnel Management include a
summary of research and demonstration project activity along with recom-
mendations for program improvement in its annual report.
Section 1326. Regulations
This section authorizes the Office of Personnel Management to prescribe
regulations for the administration of this subchapter.
Section 602
Section 602 consists of technical amendments to the analysis of chapter 13.
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STATEMENT OF PURPOSE AND JUSTIFICATION
TO ACCOMPANY THE INDIVIDUAL
TITLES OF A BILL ENTITLED
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The purpose of Title I is to set forth clearly and in one place
the basic merit principles which shall govern the Federal personnel
system. These principles are made applicable to Executive agencies
and all other Federal entities employing persons in the competitive
service. In addition, prohibited personnel practices are expressly
set forth, which, when engaged in, constitute a basis for disciplinary
action against the responsible official(s). The responsibility and
authority of the President and agency heads for assuring that
personnel management in the Executive branch is based on and embodies
the merit principles is stated. Finally, the ability of Congress to
oversee the Federal personnel system is improved by specifically
authorizing the General Accounting Office to act as its agent to audit
and review the system.
The way Federal managers select, motivate, develop, utilize, advance,
and treat employees; the means by which equal employment opportunity
is provided for all citizens; and the methods utilized to obtain
compliance with standards of integrity and conduct and responsiveness
to the public all have a major impact on the quality of Government
services. Federal managers endeavor to provide equitable compensation
to attract and retain highly qualified personnel and effective
training to improve individual and organizational performance further
contribute to the goal. To this end, personnel management under the
Federal merit system is based on the concept that the Government and
the Nation are best served by a corps of career employees safeguarded
against improper political influences and personal favoritism and
recruited, hired, advanced, and retained on the basis of individual
ability and performance without regard to political affiliation, race,
color, national origin, sex, marital status, age or handicapping
condition. This further contemplates that employees who do not
adequately perform, and who cannot or will not improve, be separated.
These concepts are embodied in what are commonly referred to as the
"merit- principles."
While application of the merit principles in personnel management is
implicit in the laws, Executive orders, rules and regulations for
administration of the Federal personnel system, the only expression by
Congress of the basic merit principles are those enumerated in section
2 of the Intergovernmental Personnel Act (IPA) of 1970 (84 Stat.
1909), relating to State and local governments. These principles
equally apply to Federal personnel maangement. Accordingly, it is
proposed that the merit principles enumerated in section 202 of Title
I, which are an adaptation of the current IPA merit principle with
more specific requirements for Federal personnel management, be
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established by the statute as the basic merit principles for the
Federal merit system.
Section 203 expressly recognizes that the President as the head of the
Executive branch has the ultimate responsibility for effective Federal
personnel management system and sets forth the means available to him
to achieve this purpose.
The prohibited personnel practices enumerated in section 204 are not
new; but they are in some instances the first expression of
Congressional policy. They may all be traced to existing laws,
Executive orders, rules, or regulations of the Civil Service
Commission. As currently articulated, however, the prohibitions do
not make clear that disciplinary action may be taken against culpable
officials and employees; nor is the authority for investigating
allegations of prohibited personnel practices and initiating
disciplinary action as clear as it should be in all cases. These
weaknesses and obscurities have hindered efforts to protect the merit
system from abuse and account, at least in part, for the fact that
despite significant efforts, results have been--generally less than
adequate in achieving either correction of abuses or disciplinary
action against culpable officials and employees.
The Special Counsel located as an independent official within the
Merit Systems Protection Board, is provided appropriate authority in
other sections of this legislation to investigate allegations of
prohibited personnel practices described in this section and to
initiate, when necessary, disciplinary action against responsible
officials and employees. Final decision in such cases will be made by
the Merit Systems Protection Board.
Finally, section 205 has been set out specifically to recognize and to
provide for Congressional oversight of the Federal personnel system
and the role of the General Accounting Office shall exercise as the
agent of Congress.
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TITLE II PROTECTION OF EMPLOYEE RIGHTS
The purpose of Sections 201 through.204, 207, and 208 of this title is
to provide for improvements in the system for appointing and removing
members of the Merit Systems Protection Board and certain other Board
officials; to strengthen the Board's authorities; and to provide for
the judicial review of the Board's decisions..
Among the effects which this proposed legislation would have are those
related to the appointment, terms and removal of the three members who
would head the Board. The three Commissioners who now head the Civil
Service Commission are appointed for renewable six-year terms, but may
be removed from this office by the President at any time and for vir-
tually any reason. Under the system which we propose, the Board members
would be appointed for nonrenewable seven year terms, and would be
removableonly for inefficiency, neglect of duty, misconduct, or malfea-
sance in office, with entitlement to a hearing under procedures deter-
mined at the discretion of the President. We believe the latter system
is superior in that the Board members would gain increased independence;
the responsibilities which, the Board would have for adjudication of appeals
and protecting merit systems makes the members' independence essential.
Another important effect this legislation would have is to grant subpoena
power to Board members and certain members of their staff., The Civil
Service Commission's inability to issue subpoenas has been a handicap in
its adjudication of appeals and in conducting its investigations. The
granting of subpoena power to the Board would enable the Board to obtain
the testimony and evidence which is essential in adjudicating appeals
and conducting investigations.
The legislation provides a statutory basis for the functicns and authori-
ties of the Office of Special Counsel. Under this legislation, the Special
Counsel would be appointed by the President (subject to confirmation by
the Senate) for a term of seven years, and would be authorized to investi-
gate complaints concerning personnel practices prohibited by Executive
order, rules, or section 204 of Title I of this bill.
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The Special Counsel is provided the authority to initiate appropriate dis-
ciplinary action against Federal employees for knowingly and willfully
engaging in prohibited personnel practices; this disciplinary action
could include removal, demotion, debarment from Federal employment for
up to five years, suspension, a fine of up to $1,000, or reprimand
as the circumstances of the case warrant. The final decision
in such a case shall be made by the Board and the Board's decision
be subject to judicial review. We believe the Special Counsel
needs to have clear authority to take these actions if the Special
Counsel is to function effectively in protecting merit systems and en-
forcing decisions and orders of the Board.
The proposed legislation also would provide for removal of the Board's
Special Counsel only for inefficiency, neglect of duty, misconduct, or
malfeasance in office, and only after notice and hearing. We believe
these provisions are important in ensuring that the Special Counsel be
given the opportunity to act with independence in protecting the merit
system.
In addition, the draft legislation provides a statutory basis for
the Special Counsel's handling of Federal employees' and citizens' com-
plaints that personnel actions have been taken against Federal employees
in reprisal for their lawful disclosure of information concerning specific
violations of statutes. The Special Counsel is authorized to investi-
gate these matters (using his subpoena power when appropriate); to
refer violations of laws and regulations to agency heads and law
enforcement officials; to initiate disciplinary action against persons
responsible for retaliation of this nature; to stay geographic reassign-
ments and other reprisal- or retaliatory actions when appropriate; and
to prescribe regulations needed to carry out these functions. We
believe the need for protecting employees from this kind of reprisal
is sufficiently important to warrant establishing by law the Special
Counsel's functions and authorities in this area.
Another important change which would result from this legislation is
the elimination of evidentiary hearings in certain appellate cases at
the discretion of the appeals officer or administrative law judge.
While there are many cases in which an evidentiary hearing can have an
effect on the outcome of?the appeal, we believe there also are many in
which it has no effect (including some in which the essential facts are
not disputed). For this reason, we believe appeals officers should be
given the authority, in accordance with criteria set out in regulations,
to determine whether an appeal may be adjudicated without a hearing.
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Under the present system, Commission appellate offices process as sepa-
rate cases similar appeals or complaints which are filed by different
individuals, except when those individuals consent to combining the
appeals and complaints for processing. Appellate offices also process
separately more than one appeal or complaint received from the same
individual. It is apparent, however, that cases involving the same or
very similar facts or circumstances or issues can be processed more
expeditiously and efficiently if they were combined for process. The
legislation we have proposed provides the Board and its appeals
officers with clear authority to take this action when it would not
prejudice the parties.
The legislation eliminates the confusion which now exists concerning
the appeal rights of an individual who is affected by an action appeal-
able to the Commission and who alleges that discrimination was a factor
in that action. Currently, the individual is asked to elect whether to
have the entire matter decided in an appeal to the Commission or in a
complaint of discrimination filed with the agency. The election process
delays the adjudication of appeals and creates confusion for appellants
and for agencies. Under the legislation, any allegation of discrimi-
nation raised in connection with a matter appealable to the Board shall
be decided by the Board under appellate procedures applicable to the
appealable matter.
The Commission currently does not have the authority to require agen-
cies to pay the attorney fees of employees who prevail in their appeals.
This system has the following two disadvantages:
(1) Employees whose agencies have taken arbitrary and
capricious actions against them may spend a consider-
able amount of money defending themselves against
these actions and cannot be reimbursed for attorney
fees upon prevailing in their appeals to the Commission;
and
(2) Individuals who have prevailed in their appeals or
complaints and seek reimbursement for these fees
must file civil actions against the Government in
order to obtain a review of their requests for
reimbursement.
The legislation remedies this problem by authorizing the Board members
and hearing officials to require payment, by agencies which are losing
parties to proceedings before the Board, of attorney fees to the
employees who prevailed; provided that payment shall only be required
when the Board or the hearing official determines that the circum-
stances warrant.
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Under the legislation, individuals having entitlement to an appeal -
under the Board's jurisdiction have the alternative of electing referral
of the matter for decision through arbitration procedures. individuals
electing the arbitration procedure waive their entitlement to an appeal
before an appeals officer of the Board. Decisions of arbitrators under
this alternative procedure are subject to reopening by the Board or at
the request of the Office of Personnel Management for resolution of sub-
stantial questions of conflict with governing law, regulations, or policies.
A portion of this proposed legislation contains authority for enforce-
ment of the Board's decisions. It provides that the Special Counsel
may initiate disciplinary action against any officer or employee,
except a Presidential appointee, who refuses or fails to comply with
an order of the Board. (Such refusals or failures by Presidential
appointees would be reported to the President.) We believe this en-
forcement authority will reinforce the integrity of the Board's de-
cisions in the minds of the public.
Another portion of the proposed legislation concerns judicial review
of decisions and orders of the Board. Employees who wish to challenge
Commission decisions generally file their claims with U. S. District
Courts. The large number of these courts has caused wide variations
in the kinds of decisions which have been issued on the same or highly
similar matters. We propose that this problem be remedied by providing
that Board decisions and orders (other than those involving discrimi-
nation complaints and determinations concerning life and health insur-
ance) be reviewable by the Court of Claims and U. S. Courts of Appeals,
rather than by U. S. District Courts. (We would exclude discrimination
complaint cases from this provision because complaints arising outside
the Federal Government also are reviewable by U. S. District Courts,
and we favor uniformity in the types of review given to these kinds of
cases. Life and health insurance cases are reviewable in district
courts by virtue of existing statute.)
The legislation also provides that the Court of Claims or U. S. Court
of Appeals which receives a request for review of a Board decision or
order would review the record to determine whether the decision was
arbitrary, capricious, or not in accordance with law, and whether the
procedures required by law and regulations were followed. The Board's
decision would be considered conclusive when supported by substantial
evidence. If the Court determined that additional evidence was ne-
cessary, it would remand the case to the Board for further processing.
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We favor these provisions because they would eliminate unnecessarily
detailed judicial reviews of cases handled by the Board; because they
would result in the establishment of uniform guidelines for reviews of
these cases; because they would assign maximum responsibility for supple-
menting inadequate case records on the Board rather than on the courts;
and because the review by Courts of Appeals which is proposed would pro-
vide for the increased finality of the Board's administrative decisions
which is characteristic of decisions of other independent agencies.
The third important part of the proposed section on judicial review of
Board decisions is the provision that, when the Director of the Office
of Personnel Management disagrees with the Board's interpretation of a
statute or regulation involving personnel matters within his or her
jurisdiction, that official may request a review of the interpreta-
tion by the U.S. Court of Appeals for the District of Columbia. The
granting of this petition would be discretionary with the court. We
believe this provision sets up an orderly and workable method for re-
solving major disputes between the Office of Personnel Management and
the Board.
The purpose of Section 205 is to provide for new systems of appraising
employee work performance. The principal changes in subchapter I of
chapter 43 of title 5, United States Code are the:
abolishment of present requirements for summary adjective
ratings and appeals of performance ratings;
establishment of the requirement that performance appraisals
are to be used as a basis for developing, rewarding, reassign-
ing, demoting, promoting, and retaining or separating employees.
establishment of a special procedure for taking actions based
on unacceptable performance.
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Present performance appraisal procedures and their results are the
source of frequent complaints by both manager and employees. Some
reasons for complaint involve provisions of the Performance Rating Act
of 1950 as codified in chapter 43 of title 5, U.S. code. The first of
these provisions relates to the requirement for assignment of summary
adjective ratings, a second is the procedure for appeal of ratings, and
a third is that the ratings have little meaning since they are not used
as the basis for administrative action.
The principal motivating force leading to the Act of 1950 was dissatis-
faction with the complexities of the then existing system resulting
from the number of rating levels (5) and the inability to make meaning-
ful distinctions among levels of performance. Thus, it was the intent
of Congress that by combining the three middle rating levels most
employees would fall into the "Satisfactory" category. This intent is
further evidenced by the deliberate selection of an extremely high
criterion for an "Outstanding" rating. At the time the Act of 1950 was
passed, an employee's performance rating automatically determined
entitlement to a within-grade increase, to retention on the job and in
the Federal service, and extra credit for RIF purposes.
Since 1950 a number of changes have occurred which have diminished the
importance of the summary adjective performance rating. Entitlement to
within-grade increases. for General Schedule employees is now based on a
separate acceptable level op competence decision. As a result of court
decisions, an agency must follow adverse action procedures if an employee
with an Unsatisfactory rating is to be reduced in grade, rank, or pay
or removed from the service. These two changes greatly diminished the
importance of the summary adjective rating. In addition, few Outstand-
ing ratings are assigned because the statutory criterion requires
outstanding performance in all aspects of the job, a criterion that
extremely few individuals can meet. Thus, the rating serves little
practical purpose. Another major weakness is that the Satisfactory
rating encompasses not only full satisfactory and-superior performance,
but also marginal performance.
The Unsatisfactory rating is little-used because it is duplicative,
expensive and time-consuming to go through the process of assigning an
Unsatisfactory rating, taking an adverse action, and possibly having
two separate appeals and even conflicting decisions. The need for the
performance rating appeal procedure has largely been obviated by the
determination that an adverse action based on performance must be taken
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under adverse action procedures and by the extension of adverse action
protections to non-preference eligibles in the competitive service.
The new special procedures for taking adverse action and for appealing
demotions or separations taken because of unacceptable performance are
designed to simplify and streamline the present time-consuming multiple
procedures while preserving the requirements of due process for the
employees. The new procedures are easier and quicker for both supervisors
and employees to understand and use.
For these reasons, it is proposed that the requirement for assigning
summary adjective ratings and the provision for appeals of ratings be
repealed.
A second major problem with performance appraisals today concerns the
number of separate statutory and regulatory requirements that employees'
performance be considered in making decisions for a variety of purposes
(promotion, training, incentive awards, within-grade increases, reten-
tion on the job). These requirements have not been interrelated. In
addition, these requirements may involve conflicting assessments in-
cluding:
past performance in the present job (performance rating,
acceptable level of competence, QSI, retention on job,
credit for RIF, awards, training, and sometimes promotion);
projected performance in the same job (QSI, training); and,
preparation or anticipated performance in a different job
(promotion, reassignment, training, and sometimes adverse
action decisions).
Therefore, it is proposed that appraisals of performance for all
purposes be made within a single cohesive framework. This proposal
would require agencies to establish one or more performance appraisal
systems according to their needs, but permits them to continue to deter-
mine how appraisals will be made, i.e., for several purposes in a
single appraisal or for difference purposes at different times, and
what type of system or systems will be established.
Although the proposal retains a larger degree of authority for agencies
to determine the purposes for which appraisals are to be used, it would
require that performance appraisals be a basis for decisions to reward,
promote, and retain employees. Under the present system, employees and
managers often perceive that there is little difference in rewards
between employees who are barely doing enough to retain their jobs and
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employees whose performance is fully satisfactory or exceeds require-
ments. A key element in rewarding employees in the proposed Profes-
sional and Administrative Service according to the level of their per-
formance is the proposed authority to grant merit pay increases and
bonuses. Thus, pay would provide motivation in two ways: increases
are given to employees who performance exceeds established require-
ments and increases are withheld from employees whose performance fails
to meet or only minimally meets established standards.
Installing and monitoring improved procedures for appraising performance
and taking action based on appraisal will cost much more than many agen-
cies are spending now on performance rating programs. Funding estimates
submitted separately indicate that this is so. Improved efficiency in
personnel management, increased productivity, and improved service to
the public are expected benefits which should more than balance the
additional investment, thus resulting in a more cost-effective personnel
system.
The purpose of Section 206 is to change adverse action coverage to
provide for statutory adverse action rights fornon-preference eligibles
in the competitive service, to authorize the Office of Personnel Manage-
ment to extend coverage to positions administratively excepted from the
competitive service, and to redefine the actions covered by the adverse
action procedures.
During recent years the entire adverse action and appeals process for
Federal employees has been the subject of a great deal of interest and
concern on the part of employees and agencies, the Congress, labor and
veterans organizations, bar associations, the courts and the public.
Through the Personnel Management Project the Civil Service Commission
undertook an extensive review of the adverse action and appeals systems.
This review resulted in the identification of a number of problems and
dissatisfactions with the systems, proposed actions to revise and
improve them by administrative action through Commission regulation,
and the preparation of this legislative proposal.
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One significant change proposed is to extend to nonpreference eligibles
in the competitive service the same adverse action procedures and
appeal rights as those of preference eligible employees. These rights
have been established as a basic right of nonveterans but they flow
from Executive order rather than from statute. It is appropriate that
these rights be given a statutory basis.
A second proposed change relating to employee coverage is to authorize
the Office of Personnel Management to extend adverse action coverage to
positions or groups of positions excepted from the competitive service
by regulation ofthe Office of Personnel Management. Most positions are
now administratively excepted because competitive examinations cannot
be administered to applicants. Only preference eligibles are currently
entitled to adverse action coverage. However, many positions in the
current Schedules A and B are career positions in the sense that the
employees spend their careers in these jobs. It is therefore appropriate
that the Office of Personnel Management be authorized to extend adverse
action and appeal rights in removals, suspensions for more than 30
days, reductions in grade or pay, and furloughs to positions which meet
criteria it establishes for granting these rights.
Several important changes are proposed in the definition of "adverse
action". First is that the term "reduction in rank" now contained
in the statute should be changed to "reduction in grade". In 1944,
when the Veterans' Preference Act became law, thousands of positions
were not covered by any position classification system. Consequently,
when there was no reduction in compensation, it was necessary to look
to something else, for example, the individual's relative standing in
the agency's organizational structure, to determine whether an adverse
action had been taken. However, this situation no longer exists. We
believe it would now be more appropriate to equate "rank" with "grade".
As an important byproduct, this change would result in a closer
parallel between the protections to which the employee is entitled and
the severity of the action taken. Thus, the full range of rights
would only be extended to an employee when a reduction in grade has
occurred. This would assure that agencies have the flexibility to
assign employees to positions and duties where they are needed without
the prospect of having to take an adverse action against an employee
when the job title or duties have changed but the grade has not.
Other less significant changes include the reorganization of existing
provisions of chapter 75 to replace the present archaic structure with
a more logical progression of provisions, a redefinition of "preference
eligible" to exclude from coverage of adverse action protections and
appeal rights those employees who are in positions of a confidential or
policy-determining character; and a proposed new statutory right to
representation after a removal, suspension for more than 30 days, or
reduction in grade or pay has been proposed.
We do not anticipate that these proposed changes will result in addi-
tional costs.
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The purpose of this title is to improve the system for examining, selecting,
and retaining Federal employees. The Federal Personnel Management Project,
part of the President's overall reorganization effort, made a top-to-bottom
study of personnel policies, procedures, and organizations. Working together,
the Office of Management and Budget and the Civil Service Commission sought
the recommendations of Federal agencies, interest groups, businesses, unions,
and the general public. As one indicator of the scope of the study, nearly
7,000 persons spoke their views at public hearings and other meetings across
the country. As a result, the Project proposed numerous improvements to
speed examining and placement, provide fairer treatment for all applicants
and employees, update the merit system, strengthen management, raise produc-
tivity, and improve the public service. To bring these improvements about
requires consideration of and proposals to change many provisions of law.
In order to improve Federal staffing operations, it is necessary to change
certain sections of title 5 of the United States Code which, in their present
form, are no longer appropriate or desirable.
The specific purposes of this title are to:
give selecting officials greater flexibility by expanding the Rule of Three,
repealing apportionment and members-of-family restrictions, and requiring
a probationary period for new supervisors.
adjust the rights of all job candidates to current needs by limiting the
period preference may be used in appointment and reduction in force for
nondisabled veterans.
upgrade employment systems by delegating examining authority to agencies,
authorizing voluntary retirements in reorganizations, providing reemploy-
ment training to employees about to be separated by reduction in force,
and permitting acceptance of unpaid student services.
extend until September 30, 1980, the authority of agencies to give
certain Vietnam era veterans Veterans' Readjustment Appointments
which lead to career employment without competitive examination.
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Veteran Preference (5 U.S.C. 2108, 3303a, 3305, 3309, 3313, 3317, and 3318)
Since many staffing procedures were established through veteran preference
legislation, some of the proposed changes affect the manner in which veteran
preference would be applied in civil service examining, placement, and reten-
tion programs. The legislation will not eliminate veteran preference, but it
will place particular emphasis on assistance for those veterans who most need
it, such as the disabled Vietnam era veterans, and other recently discharged
veterans. It will restrict preference for those who are no longer in need
of assistance, such as for most nondisabled military retirees and others who
are able to compete successfully for Federal jobs and benefits.
The law now gives unlimited preference to veterans in many areas of Federal
employment. In civil service examinations, nondisabled veterans have 5 points
added to their passing scores. Disabled veterans and spouses, widows,
widowers, and mothers of certain disabled and deceased veterans receive
10 points. Compensably disabled veterans also go to the top of registers
ahead of other competitors, except for professional and scientific positions
at grade GS-9 and higher. In appointments, selecting officials are given the
top three eligibles from whom to choose and may not pass over a preference
eligible to appoint a nonpreference eligible lower on the list un:_ess the
Civil Service Commission agrees that the agency's reasons for passing over
the veteran are sufficient and approves the action. In retention:, veterans
have the right to be retained over competing nonveterans in a reduction in
force. Various other employment rights and privileges have been given to
veterans by law. These include exemption from apportionment and members-
-of-family restrictions, credit for military experience in the way wh:'ch is most
beneficial to them, and protections in removal and other adverse actions.
Veteran preference has a long history which is rooted in the concept that our
young people who are called upon to serve their country in times of crisis
deserve an extra measure of assistance in helping them readjust to civilian
life. In particular, this includes giving them preference for Federal civilian
employment.
The character of military service, the profile of veterans themselves, and the
conditions which led to the enactment of the Veterans' Preference Act have--
changed dramatically since World War IT. Additionally, the Act has been
amended so many tines that even the nature of preference has changed. In
1966, for example, preference was extended for the first time to those who
served exclusively during peacetime. It was not until October 1976,
following introduction of the all volunteer army, that the law was changed
to eliminate preference for peacetime service.
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A particular problem with the preference laws is that they have continued to
expand in coverage to such an extent that their original intent has been all
but lost. Instead of serving as a positive force to assist those to whom the
Nation owes the greatest debt of gratitude, such as disabled veterans and those
returning from areas of conflict, preference has been weakened by awarding it
to large numbers of military retirees, most of whom have the necessary skills
to enable them to'compete successfully without additional help, and to persons
who spent as little as 6 months on active duty during peacetime. In addition
to this diminution of the advantages of preference for veterans who do need
help, veteran preference laws have presented an even greater barrier to employ-
ment opportunities for nonveterans.
The proposed legislation is designed to strengthen the effect of veteran pref-
erence for those veterans who need and deserve special assistance. It would
change those aspects of the law which (1) are inconsistent with the original
purpose of veteran preference, (2) are not the best method to help those vet-
erans who need help the most, or (3) have an adverse impact on equal employment
opportunity for nonveterans. None of the proposed changes in preference
would. be effective until October 1, 1980.
The objective of employment preference within a merit system is to place
persons identified as being at a disadvantage in the competitive process on
an equal footing with others. Granting unlimited lifetime preference regard-
less of the need for special employment assistance works to the disadvantage
of those truly in need of such assistance, as well as those outside the group.
Under present law, for example, in competitive examinations the same number of
preference points (5) are added to the earned rating of a retired member of
the Armed Forces whose military experience provided knowledges and skills
which. are related and fully creditable toward Federal civilian employment as
are added to the rating of a recently discharged veteran whose civilian
education and regular lifestyle had been interrupted by military service.
Under the proposed legislation, preference in examinations would be eliminated
for nondisabled retired veterans who attained the rank of major or above
because they typically gained valuable civilian-related job experience in
the service and do not need additional assistance.
The proposed legislation, by limiting preference in civil service examina-
tions for other nondisabled veterans to the 10-year period following separa-
tion from military service, would focus the special hiring assistance on
the critical period when the veteran is adjusting to civilian life. Non-
disabled retired veterans below major would be entitled to-preference
during the 3-year period after leaving the service; The period is briefer
since they are less likely to need special help in securing employment.
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Congress recently reexamined the basis of granting preference when it
passed Public.Law 94-502. This law ended peacetime preference for veterans
entering military service after October 14, 1976. It received widespread
support as a positive step toward providing equal opportunity to persons
not entitled to veteran preference.
In recent years the Federal Government has continued to exceed established
goals for hiring and training Vietnam era veterans, particularly those who
are disabled. It is vital that additional efforts be devoted to the
employment needs of these veterans. The Administration fully supports
special assistance for disabled veterans and those with significant read-
justment problems, such as young minimally skilled veterans. To meet
their needs, we propose an amendment to extend until September 30., 1980,
the time period when Vietnam era veterans may receive Veterans' Readjust-
ment Appointments (VRA's). Under this special appointing authority,
Federal agencies may hire, without competitive examination, returning
veterans with no more than 14 years of education for jobs up to grade
GS-5 or the equivalent until June 30, 1978. Since 1972 over 100,000
veterans entered the Federal service through that authority alone. The
appointment provides for conversion to career status after 2 years of suc-
cessful job performance. Present law limits eligibility for VRA appoint-
ments to those who apply within a year of the date of separation from
military service. Our proposal would not only extend the time period for
agencies to make VRA appointments, but would also authorize such appoint-
ments for all Vietnam era veterans, including those whose 1 year of
eligibility had expired, provided they meet the basic requirements and
were either qualified for a VRA appointment as of April 9, 1970, or have
been separated from military service on or after that date. The amendment
would make a major contribution to our national effort to reduce the high
rate of unemployment among Vietnam era veterans and would provide addi-
tional opportunities to veterans unable to obtain VRA appointments because
of labor market conditions.
The composition of the labor force in our Nation has changed since the
Veterans' Preference Act was approved in 1944. While the merit system has
always been open to all groups and substantial progress has been made in equal
employment opportunity for all of our citizens, further efforts are needed.
The Federal Government as an employer needs to take into account the rights
and rising expectations of other groups of citizens seeking employment such as
minorities, women, the handicapped and the economically and educationally
disadvantaged. Because most of the procedures and concepts by which the civil
service examining system operates have been set forth in statute, any sub-
stantive review of that system must necessarily include an examination of the
impact of those laws on all of our citizens.
Placing the administrative procedures of 1944, such as individual numerical
ratings and the Rule of Three, into law has had the effect of preventing the
Federal competitive service from developing the newer and more flexible pro-
cedures for measuring and selecting candidates in use today among Federal
agencies with independent merit systems and some State and local governments.
We have been unable to use any of the modern hiring methods of pr:Lvate
business or other public organizations.
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105.
Preference still-plays a very important part in getting a Federal job. For
example, veterans are currently at the top of approximately 75 percent of Civil
Service Commission registers. They comprise about 50 percent of the Federal
work force. Commission statistics on veteran selections from registers indicate
that overall, veterans accounted for more than 30 percent of new hires in recent
years. There are differences according to the type of job being filled in the
proportion of positions filled by veterans compared to nonveterans. For example,
approximately 65 percent of the persons selected from Accountant/Auditor and
Computer Specialist registers during Fiscal Year 1976 were preference eligibles,
while only about half of that proportion were appointed from Life Sciences
registers. Veteran selections from the Professional and Administrative Career
Examination (PACE) have averaged roughly 30 percent in recent years.
Currently, a Federal agency desiring to fill a job competitively is expressly
bound by law to consider only the top three candidates on a civil service list
of eligibles. This requirement is commonly known as the Rule of Three, and the
top three candidates are represented as the "best qualified" for the job. While
in a popular examination there may be a hundred candidates on the register with
the same numerical rating, the appointing officer is prohibited from considering
more than three eligibles at a time for a specific vacancy. Although it can be
demonstrated that there are significant differences in potential for successful
job performance based on substantial variations in examination scores attained
by competitors, one would be hard pressed to show that differences of 1 or 2
points are significant. Examining offices are now required by law to make
overly fine-distinctions among applicants with virtually identical backgrounds
when in fact no measurable differences exist. This is clearly a disservice
to all candidates, veterans and nonveterans alike. Under these conditions
alternate rating procedures, such as category rating (grouping together of
all.eligibles.with relatively "equal" qualifications into broad classes,
e.g., "outstanding," "well-qualified," and "qualified"), which permit selec-
tion from a larger number of eligibles, rather than strictly on the basis of
individual scores, might be more appropriate. Federal agencies have expressed
almost unanimous concern about inflexibilities imposed on their managers by
veteran preference laws, and many have suggested using alternate ranking pro-
cedures for Federal job applicants.
Many State and local governments, recognizing the need to update employment
practices, including the Rule of Three and veteran preference, have changed
their public employment systems to permit appointing officials a wider range
of choice among candidates and to limit assignment of examination "points" and
other employment privileges to only veterans in need. Less than half the
States continue to use the Rule of Three, and, of these, several permit
alternatives.
The proposed legislation replaces the absolute Rule of Three requirement with
a rule of seven and permits the Office of Personnel Management to prescribe
other referral procedures--for example, category rating--when they are determined
to be effective in examining applicants for Federal jobs. When individual numer-
ical ratings are not used, the equivalent of 5 or 10 point preference would be
granted under the ranking system used. For example, if a category rating
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3.06.
system were used, 5-point preference eligibles could be placed at the top of
their qualifications category for consideration before nonveterans in the
category.
The present statutory prohibition against passing over a veteran to select a
nonveteran would be retained. The Office of Personnel Management would acquire
the statutory authority of the Commission to permit passing over a veteran
when justified by the agency.
Under our proposal, nondisabled veterans would also be able to reopen closed
examinations, a privilege which they do not presently have. Since 1944, dis-
abled veterans and certain spouses, widows, and mothers of veterans have had
a statutory right to apply for examinations, after the closing date for receipt
of applications has passed, for any position to which a career appointment has
been made within the preceding 3 years. To permit the nondisabled veteran
maximum use of veteran preference during the proposed 10-year period after
discharge, this revision would extend the right to reopen examinations to
all preference eligibles. To improve the veteran's chances for appointment and
to simplify administration, we propose changing the criterion from appointment
within the last 3 years to existence of an appropriate list of eligibles.
The General Accounting Office (GAO) recently completed a study of the impact
of veteran preference (and apportionment) on equal employment opportunity.
In a September 29, 1977, report to the Congress entitled, Conflicting,
Congressional Policies: Veterans' Preference and Apportionment vs. Equal
Employment Opportunity, the Comptroller General concluded that while veteran
preference has been effective in rewarding veterans for their military service,
it "severely limits" Federal job opportunities for nonveterans, and. "particu-
larly diminishes the employment chances of women since they seldom have veteran
status." The GAO examined 44 Civil Service Commission registers of eligibles
around the country to assess the impact of veteran preference on employment
opportunities for nonveterans. Particular attention was devoted to the poten-
tial impact of preference on minority and women applicants. Since minority
group status was not indicated on the registers which were reviewed, GAO's
analysis centered primarily on disadvantages suffered by women.
The report indicated that while wide variations were noted according to the
particular examination involved, opportunities for women to be certified to
Federal jobs would have increased on 36 of the 44 registers examined if veteran
preference had not been in effect. GAO based its determination of the poten-
tially increased "certifiability" of women on scores which were generally re-
quired at that time for referral on a Commission certificate. In light of Rule
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of Three restrictions, which GAO did not apply, the numbers of women who could
actually have been considered for employment, i.e., who would have been "within
reach" for selection, would have been even smaller. Several examples involving
nonveteran women with perfect (100) or near perfect earned examination ratings
were cited. In some cases, such individuals had virtually no chance of referral
because of large numbers of preference eligibles with equal or lower earned
ratings but substantially higher register standing because of veteran prefer-
ence. In submitting the report, GAO requested that Congress seriously consider
modifications to existing veteran preference laws if reduction of adverse
impact is desired.
Veteran preference legislation covers the gamut of Federal employment practices
from initial filing privileges in a competitive examination to establishment
of levels of employees competing for job retention in a reduction in force. The
intent of the proposed legislation is to free the Federal personnel system from
the very specific constraints written into law over 30 years ago and from the
subsequent extension of preference beyond its original purposes. These changes
would pinpoint assistance efforts for those who most need and deserve it while
at the same time providing more equitable employment opportunities to other
Americans.
Acceptance of Volunteer Service (5 U.S.C. 3111)
This is a new provision necessary to authorize an exception for unpaid student
volunteers to the general statutory prohibition on Federal agencies using ser-
vices of volunteers.
From time to time, various groups advocate providing unpaid Federal work
opportunities to high school, college, graduate, or professional school
students. Because of the general prohibition, agencies may only accept such
services when expressly authorized by statute. While Congress has approved
some programs--e.g., Interior's "Volunteers in the Parks"--the process is
time-consuming for Congress and agencies. A general approval, providing
certain conditions are met, would seem a better solution.
The authority we propose would permit Federal agencies, subject to regulations
of the Office of Personnel Management, to accept the services of students
enrolled at least half-time in a high school, college, graduate, or profes-
sional school. The section includes certain provisions to assure effective
arrangements--tasks assigned must be part of an organized program to provide
worthwhile work exposure for volunteers and displacement of Federal employees
is prohibited.
Volunteers would not be treated as Federal employees, except for injury com-
pensation and tort claims coverage.
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3,a 8.
Repeal of Apportionment (5 U.S.C. 3306)
The purpose of this proposal is to eliminate the apportionment requirement for
appointment to positions in the departmental service in the District of Columbia.
The apportionment law goes back to the very beginning of the civil service system.
The idea behind it seemed laudable. Government jobs in the Nation's Capital
should not be the special preserve of people from nearby areas. Rather these
jobs should be made available to persons from all sections of the country.
However, what started out as a well-intentioned idea has not worked in actual
practice. Moreover, the dramatic changes in the Federal service in the number
and nature of jobs and their location require rethinking the rationale on which
apportionment is based.
When the apportionment law was passed as part of the original Civil Service Act
of 1883, 40 percent of competitive service jobs were concentrated in Washington,
D.C. Initially there were only about 14,000 jobs in the competitive service
nationwide. Today less than 15 percent of the approximately 1.8 million jobs
in the competitive service are in the Washington metropolitan area. And of
these, apportionment only applies to about 15 percent. It does not apply to
veterans, excepted service jobs, and shortage categories.
Even for the jobs where it does apply, apportionment has not resulted in the
kind of distribution intended. Fourteen States and the District of Columbia
are considered in excess of their quotas while the rest are in arrears. The
States in excess range from nearby Maryland, Virginia, and North Carolina,
to Nebraska, South Dakota, and Vermont. Those in arrears range from nearby
New Jersey to Hawaii_ The relative balance among the States, territories,
and the District of Columbia has been basically maintained for the past 25
years--an indication that the requirement has not worked as intended.
This does not mean, however, that residents of States in arrears do not
participate fully in Federal employment. For example, California, although
in arrears for apportionment purposes, nevertheless has some 300,000 Federal
jobs within the State. There are many responsible positions among the 85
percent of Federal jobs outside of Washington, with opportunities for
meaningful participation in the making and administration of public policy.
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Agency emphasis on rotational assignments and field experience far Washington
jobs is only one factor contributing to the geographical mix of Federal em-
ployees in the metropolitan Washington area. Other factors are wide-ranging
recruiting which attracts people from all over the country and nationwide
competitive examining which provides opportunities to applicants from all
areas.
Instead of a positive impact, apportionment has had a negative one from just
about every standpoint. Because it requires preference to be given to persons
from States in arrears, its main, effect has been to deny employment to better
qualified candidates simply because they happen to come from the wrong place.
Because veterans are exempt from the requirement, it has a disproportionate
impact on women. Aside from working an injustice against these individuals,
apportionment is contrary to the basic principles of merit which underlie the
Federal personnel system.
In 1973, the General Accounting Office conducted a review of the apportionment
requirement to assess its effect on Federal hiring. In its report, dated
November 30, 1973, it concluded that "the apportionment requirement should be
eliminated so that agencies and departments will no longer be required to comply
with a requirement that has outlived its usefulness." All 15 departments
and agencies GAO contacted favored eliminating the requirement.
A provision which results in a minimally qualified eligible with a rating of
70 being placed ahead of an individual with a rating of 100, solely on the
basis of their respective residences is completely out of harmony with fair-
ness and equality to our citizens and is costly to the Government in lowered
quality and productivity.
Repeal of Members of Family Provision. (5 U.S.C. 3319)
The "members of family" requirement is a restriction on the appointment to
Government positions of more than two members of the same family. It applies
only to career or career-conditional appointments. It has been interpreted
by the Attorney General to cover only those who live under the same roof with
the head of the family as part of his immediate family unit. Persons entitled
to veteran preference are exempted from its provisions.
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The original aim of the "members of family" provision, which was part of the
Civil Service Act of 1883, was to strike against the nepotism practices common
in the Federal service under the spoils system. Congress apparently wanted to
make sure that persons on the Federal payroll would not use influence to get
other members of their families on the rolls.
In light of conditions today, the Commission considers the "members of family"
provision an antimerit factor that is an injustice to the relatives of Federal
employees and an unnecessary impediment to effective recruiting and staffing.
It is, in our view, an arbitrary, discriminatory restriction which no longer
serves any useful purpose. The main effect of this restriction in the Federal
Government is to bar the entrance into the competitive service of a number of
young people, many of whom are qualified for employment in lines of work for
which the Government has a serious need.
Enacted principally as a measure to prohibit nepotism in 1883, the members of
family restriction has become obsolete. Now, in addition to the safeguard
provided by the merit system itself, a strong antinepotism law specifically
prohibits what the members of family legislation attempted to do indirectly.
In keeping with these principles, the Commission believes that the families
of Federal employees should have as much right to compete for Federal jobs
as anyone else. It is contrary to the concept of equal opportunity to dis-
qualify for Federal employment a highly qualified and potentially valuable
employee on the arbitrary and irrational grounds that he or she happens to
reside in the parents' home.
Probationary Period for Supervisors (5 U.S.C. 3321)
Present law protects employees who have completed a probationary or trial
period from removal, suspension, or similar action without formal adversary
proceedings including advance written notification of reasons and opportunity
to respond. The protection applies regardless of the nature or level of work
assigned following completion of probation after initial appointment.
The key role of the manager or supervisor in an organization does riot require
elaboration. Under our civil service reform recommendations that role would
be enlarged. Under current law, any effort to remove an unsuccessful super-
visor is both time-consuming and difficult, and can stigmatize an employee who
may have been an excellent individual performer, but who lacked supervisory
skills. Because of the difficulties in attempting to predict supervisory
potential, we propose to add a requirement for a probationary period for the
first managerial or supervisory assignment in order to permit evaluation
through on-the-job performance. Related changes in employee appeals statutes
are proposed elsewhere to eliminate formal appeal protections from the removal
of an employee during a probationary supervisory assignment. We provide for
the return of those employees to the same or to an equivalent position to
that last held.
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Retention Preference in Reduction in Force (5 U.S.C. 3501, 3502, and 3503)
The present Administration has publicly pledged to make the Federal Govern-
ment both more effective and more efficient by reorganizing some of the
agencies which perform the work of the Government. In the past year, the
system which determines the retention rights of civil service employees has
been the subject of considerable interest and concern on the part of the
President, agency managers, the Congress, and the public.
The law requires the Commission's reduction in force (RIF) regulations to give
consideration to four retention factors: (1) tenure of employment; (2)
military preference; (3) length of service: and (4) efficiency or performance
ratings. Under the present RIF system, an employee competing for a position
is first placed into one of three groups on the basis of his/her tenure of
employment. Within these groups, each competing employee is next placed
into one of two subgroups, solely dependent upon his/her entitlement to
veteran preference. Finally, each competing employee is ranked within the
subgroup on the basis of a service date derived from his/her length of service
and performance rating. Since almost all employees are rated satisfactory,
performance rating has little effect on the procedure. Within each of the
three tenure groups, a preference eligible employee has absolute retention
superiority over a nonpreference employee.
Under this proposal only a disabled veteran (or certain survivors of a veteran)
would retain permanent retention superiority over a non-preference eligible
employee within a RIF tenure group. Other veterans would retain absolute
retention superiority over a non-preference eligible employee within a RIF
tenure group only for a 3-year period. This period parallels the 3-year
"conditional" employment period leading to career appointment.
Veterans now comprise about 50 percent of the Federal civil service, and of
that number, approximately 98 percent are male. Furthermore, minority veterans
comprise only 9 percent of the total Federal employment. Because all veterans
enjoy permanent retention superiority within RIF tenure groups under the present
retention system, a situation requiring the use of the Commission's RIF regu-
lations tends to result in a disproportionate number of white male veterans
being retained over women and minority members of the work force. The proposed
legislation would reduce this problem by limiting absolute preference to
those veterans who are entitled to some assistance during a 3-year adjustment
period, and to the 4.7 percent of the veterans who are considered disabled and
should continue to benefit from some form of permanent preference.
The present RIF system for Federal civil service employees was originally
approved as part of the Veterans' Preference Act of 1944. The adverse impact
of RIF actions upon Federal employees has gradually been softened by the
approval of several key pieces of legislation, such as those providing that
retained pay and severance pay may be authorized to certain employees adversely
affected by RIF actions. The present Administration is similarly concerned
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that Federal employees may be adversely affected by the forthcoming reorgani-
zation plans and has initiated its own legislative and administrative pro-
posals to eliminate (or at least to minimize) any hardships that its reorgani-
zation proposals may cause Federal employees. For example, the Administration
has submitted a legislative proposal which, in part, would permit civil service
employees faced with demotion because of reorganization to retain their pay
and grade. In turn, the Administration is working toward improving Federal
productivity and efficiency by developing a new reduction-in-force system
for greater emphasis on individual job performance in determining employee
retention rights. The Administration believes this proposal to modify
veteran preference in RIF would assist it in developing an improved system
of employee retention rights for use in carrying out its reorganization plans.
The following changes are also proposed:
addition of 5 years of service credit in computing the length of service
for nondisabled veterans, regardless of actual length of military ser-
vice, once they have completed the 3-year period protected by retention
preference. In this way, a recognition for military service would con-
tinue even after a veteran advances from career-conditional to career
tenure.
update of present law to provide that a preference eligible whose per-
formance appraisal meets a standard of adequacy is entitled to reten-
tion ahead of other nonpreference competing employees. This would
eliminate obsolete references to efficiency rating categories and
conform to changes proposed in chapter 43 of title 5.
expansion, in the interest of equity, of the protection for preference
employees to all competing employees to accompany their function if it
is transferred.
Voluntary Retirement in Major Reorganizations (5 U.S.C. 8336)
This section would permit agencies to ask the Office of Personnel Management
for authority to permit eligible employees to retire as a first step in
partially avoiding the massive reduction-in-force actions which could
result from any extensive reorganization of the Federal Government. This
section would permit eligible employees to voluntarily retire before they
are affected by a reorganization and thus reduce the disruptive effects
of RIF actions upon both their individual agency as well as their local
community.
Extension of the early retirement authority to reorganization situations
should not result in any significant increase in the unfunded liability
of the Civil Service Retirement System. The Commission is likely to
receive about the same number of early retirements in an agency reorgani-
zation or retrenchment situation whether they are processed under the
involuntary separation provisions or the early optional retirement
authority. The Civil Service Retirement System has long assumed an
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expected percentage of early retirements following involuntary separations
each year in determining the normal cost of retirement benefits and it has
not yet been necessary to change this assumption as a result of amending
the law to permit early retirements following voluntary separations in
major reductions in force. Nor will. the assumption necessarily be changed
if the retirement law is amended to permit early retirements following
voluntary separations in agency reorganizations.
Since 1922, various provisions in the retirement law for early retirement,
whether based on involuntary or voluntary separations, have served the
Government and the country well as a.major instrument of personnel policy
to alleviate the harsh effects of reduction in force in agency reorganiza-
tion and retrenchment situations. In particular, the authority for such
early retirements was widely and effectively used (1) during the depression
of the 1930's to encourage retirements for general economic reasons; (2) in
the mid-forties to ease the post-World War II cutback in Federal employment;
and (3) in the early 1970's to ease the post-Vietnam War cutback in Federal
employment. While the number of such early retirements peaked during those
periods, the numbers of such retirements returned to normal levels following
such peaks. Therefore, in the long run, the cost of early retirements under
the Civil Service Retirement System is fully accounted for in determining
the normal cost of the system. Normal cost is the average percentage of
pay required to be set aside, invested and earning interest, throughout the
total careers of a group of new entrants in order to pay benefits to them
and their survivors. The normal cost of the system is about 14 percent of
payroll. Employees and the Government as employer each contribute 7 percent
of payroll to cover this normal cost.
Further, the additional cost of an early retirement vis-a-vis the cost of
normal optional retirement is not particularly great. The annuity does
have to be paid earlier than would otherwise be the case in a normal
optional retirement; however, it is reduced by 2 percent a year for each
year the retiree is under age 55, and is therefore paid at a lesser rate.
Training For Employees About To Be Separated (5 U.S.C. 4103)
This amendment would authorize an agency to train its employees, who would
otherwise be separated because of reduction-in-force actions, for placement
in another agency (in the same or a different occupation). There are three
principal benefits to the Government from this provision. First it will
encourage and promote a dedicated and competent career service. Second, the
Government will be able to retain employees who have proven their ability.
Third, the Government will avoid the cost of severance pay (approximately
$7,000 per employee). The proposal is consistent with the President's
commitment (Presidential Memorandum of August 12, 1977) to minimize the
hardship to employees caused by reorganization.
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Repeal or Amendment of Certain Central Personnel Management Controls
(5 U.S.C. 1104, 1105, 3326, and 5723)
Over the years, various statutes have placed sole authority in the Commission
for conducting certain personnel operations or for approving specific agency
personnel actions. Such requirements often become the basis for delays in
hiring, complex administrative procedures, excessive cost, and unnecessary
paperwork. In view of other powers vested in agency heads and authority
exercised by their private business counterparts, such controls seen
incongruous. In order to permit agency managers to evaluate job candidates
and to take various personnel actions, we propose to amend or repeal various
statutory limitations to allow delegation of authority and responsibility to
them. To protect against possible misuse of authority, agency performance
would be monitored and corrective action taken under periodic audits, per-
formance agreements, and Office of Personnel Management oversight. Any
prohibited personnel practices violations could be investigated and prose-
cuted by the Special Counsel for the Merit Systems Protection Board.
As envisioned, the Office of Personnel Mangement would delegate examining
and other personnel management authorities to agencies on an individual
basis, in accordance with their abilities and resources. Delegations would
be carried out through a written performance agreement between an agency and
the Office of Personnel Management which would specify required levels of
agency performance; conditions for internal redelegation and for employee
organization negotiability; reporting, review, and other oversight controls;
and grounds for revocation, suspension, or modification of the authority.
The specific authorities to be changed are:
- examining through boards of examiners located at agencies. Since boards
are agents of the Commission, the use of boards to conduct examinations
for agencies would not be a full delegation of examining responsibility
to agencies. To replace the board-of-examiner mechanism, we propose a
provision to permit the Office of Personnel Management, subject to
delegation from the President, to delegate the function directly to
agencies. The provision also permits delegation of other personnel
management functions of the President or of the Office of Personnel
Management to agencies. Erroneous actions taken by an agency under
such a delegation would be subject to an order by the Office of Per-
sonnel Management to cancel actions, including appointments, or to
take other corrective measures.
- that appointment of a military retiree to a DoD civilian job wig:hin
180 days after retirement requires authorization by the Secretary
concerned and Commission approval. Need for Commission approval would
be eliminated.
- that an agency may pay travel and transportation expenses of a new
appointee to a position for which the Commission finds there is a
manpower shortage. The proposal would remove the present statutory
restriction on delegating authority to agencies to make a manpower
shortage determination. Agency use of such authority as might be
delegated could be controlled through regulations.
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Y,01
The purpose of this title is to amend title 5 of the U.S. Code to
establish a Senior Executive Service; to provide for the conversion of
positions to this new Service; and to provide for the voluntary
conversion of the incumbents of these positions or the retention of
their current employment status and conditions if they so choose.
The greatest asset and strength of our Government is its top
Leadership. Federal agencies spend over $400,000,000,000 per year and
employ over 2,400,000 full-time employees. The United States
Government is the largest employer in the nation. Its programs are
far-reaching, complex, and extremely varied. They must be conducted
with extremely great sensitivity to conflicting interests and under
constant public and media attention, for they literally touch every
citizen. To meet this great responsibility requires strong leadership
which can respond to important events, achieve Presidential and
Congressional goals, and simultaneously ensure the soundest management
of Government programs and services.
Over the 30 year period during which the existing system for managing
executive personnel has evolved, a number of very serious problems
have developed. Solving these problems is, in essence, the
justification for a systems change. The following discussion explains
the impact of the proposed Senior Executive Service on the current
system.
Since 1947 when the first "supergrade" positions were authorized,
executive strength has grown from 45 to over 7,000 (excluding Foreign
Service, Tennessee Valley Authority, and some other groups wholly
excluded from the competitive service). At the same time that the
Congress rigidly controls approximately 3,000 so-called "quota"
spaces, it exercises no control over the "non-quota" spaces
(essentially scientific managers), which have increased almost
ten-fold since 1963 (from 195 to over 1,700). Further, special agency
hiring authorities have grown from 11 in 1951 to over 1,400. While
these special hiring authorities are passed by Congress, they
typically have been included in legislation by action of individual
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committees, so there is no unified consideration of the relative needs
of the various Federal agencies. Thus, Congress as a body has no
focus of oversight over the total number.
Some agencies have been given (and still use) hiring authorities they
no longer really require, while others are chronically starved for
executive leadership slots. The positions available for scientific
managers are virtually unlimited, while other types of managers fall
under the rigid restraints of the Government-wide quota. It is
extremely difficult to staff new agencies or programs since special
legislation is necessary to provide for any substantial number of
executive positions.
Under the Senior Executive Service, total strength will be set by
zero-based determination of need. Congress will have a biennial
opportunity to revise Administration proposals for executive manpower
levels.
Agency executive personnel requirements would also be determined by
biennial zero-based review. Between reviews there is provision for
interim adjustments to take care of new or expanded programs and
discontinuance of programs.
Career executives have sharply decreased opportunities to advance
above the GS-17 level. Four percent of GS-16 positions, 16 percent of
GS-17 positions, and 39 percent of GS-18 positions, and 96 percent of
Executive Level V and IV positions are noncareer. Despite this, over
a number of administrations it has been found that from a quarter to a
half of all noncareer supergrade positions are filled by former career
employees. These former careerists fall mainly into two groups:
employees who have retirement eligibility, and exceptionally able
employees who have reached the career "ceiling" at a very early age.
Recent studies have shown that career executives who do give up their
status are lost to the Government service at the same rate as
noncareer executives who had never had status. Since the ex-career
group contains some of the most experienced and highly talented of all
Federal executives, this can only be regarded as a loss to the
taxpayer. The proposed legislation provides a method whereby career
senior executives may serve in the higher level positions without
having to terminate their Federal careers.
Under the Senior Executive Service, positions would be classified as
Career Reserved and General. The former could be filled only by
career executives. General positions could be filled by career or
noncareer executives. (The total noncareer appointees Government-wide
could not exceed 15 percent of the total Senior Executive Service; a
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43
figure approximating the existing level of noncareer positions at the
higher grade levels. The highest levels of positions in the Service
will most often be classified as General. Career executives would
retain their career status regardless of assignment. Thus, under this
proposal career executives in high-level jobs would not be adversely
"labeled" during changes in Administration unless they had carried out
their responsibilities in a conspicuously partisan manner.
When a Presidential appointee finds a? key position encumbered by a
career appointee who does not work well with the new team, he would
like to replace the career appointee with someone in whom he has
confidence.
However, reassigning incumbent career executives is very difficult, in
large part because of protections against loss of rank.
There are three contributors to the problem: the classification of
most positions as "career", the tenure which the incumbent has in the
position and the extremely complicated processes of qualification
review and position classification which must take place between the
agency and the Civil Service Commission. Managerial positions at the
supergrade level are now classified as "career" or "noncareer" based
on whether or not the incumbent will be deeply involved in the
advocacy of controversial Administration programs, or will participate
significantly in the determination of major Administration policies.
The fact is, however, that executive positions do not array themselves
neatly in these respects. They fall into a continuum with a large
"gray area" where the nature of the policy involvement in a particular
position varies from time to time depending on the manner in which the
incumbent operates and on whether the program is in an innovative or a
maintenance stage.
At present, an incumbent of a position classified as "career" has
tenure rights. Agencies must go through full adverse action
proceedings if they propose to reduce such an incumbent in "rank."
"Rank" has not been interpreted as "grade" or "salary," but is a
subjective concept which at its most concrete refers to the echelon to
which the incumbent reports. This has represented a very substantial
impediment to reassigning incumbents at the executive level.
The variety of external controls by the Civil Service Commission over
executive personnel actions further contributes to the problems. Top
agency officials feel, with some justification, that they are being
held responsible for enormous programs, but lack the authority to pick
qualified people in whom they have full confidence. The frustrations
engendered by the rigidities of the present system often cause
Administration appointees to reject career people who in a freer
environment they might well accept.
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:yo V
The new General category of positions would permit agency heads to
fill a specified number of critical jobs with either a career or a
noncareer appointee. Secondly, by eliminating "rank" as a factor in
selection and by exempting reassignment from adverse action
procedures, it would be possible for agency heads to move an incumbent
from a particular position (but not from the Senior Executive Service
or Federal service) without the implication of "fault." Finally, by
eliminating many review stages, movement within the Service will be
facilitated.
Together, these features would give agency heads greater latitude to
determine which positions are especially crucial to program
accomplishment at a particular time and to fill these positions with
qualified executives of their own selection, while the limitation on
noncareer appointees would effectively prevent future increase in the
noncareer complement. By having a Congressionally mandated ceiling of
15 percent on non-career appointments there is in fact greater
protection against politicization of the higher levels than presently
exists.
While many present executives are highly capable, there are also some
who are not performing at an optimum level. One chronic problem is
the appointment to managerial positions of highly capable
professionals who are ill-prepared to take on their new
responsibilities.
The Senior Executive Service provides for the managerial
qualifications of all career appointees to be approved by
public-private qualifications panels within the Office of Personnel
Management. Once candidates have had their managerial qualifications
approved by the Office of Personnel Management, the agency head would
determine the relative qualification of individuals for a particular
position within the agency. Agencies will be required to have
systematic executive development programs to insure that employees
receive necessary preparation for managerial duties.
At present, executive performance is rarely evaluated rigorously in
terms of program accomplishment or meeting goals in such areas as
equal employment opportunity and affirmative action, productivity,
organizational accomplishment, and cost control. Cost-cutting is
discouraged. Managers who do not use their entire budget in one year
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not only receive no recognition but indeed are apt to find themselves
with a smaller budget allocation the following year. Executives who
are clearly ineffective can be removed, although a considerable effort
is normally required to do so. It is virtually impossible, however,
to remove an executive whose performance is merely marginally adequate.
Under the Senior Executive Service, managers would be evaluated
periodically with special emphasis on the achievement of agreed-upon
organizational goals. Executives who are found to be severely
deficient could be removed from the Senior Executive Service, as could
executives who consistently perform in a mediocre fashion. To balance
these negative incentives, the Service would provide that highly
successful executives could receive substantial performance incentive
pay-
The requirement of systematic evaluation of managerial performance
alone should pay dividends in improved management. When coupled with
the ability to reward effective managers and to remove the incapable,
the improvement could be highly significant.
Multiplicity of Authorities and Laws
There are now a variety of authorities under which executives may be
appointed, and they have differing requirements and conditions of
employment. For example, under a Public Law 313-type authority, a
science manager can be hired into a competitive (career) position
without having to undergo the normal competitive staffing process. He
can be paid any salary which does not exceed the statutory limit and
which the Civil Service Commission finds appropriate in view of his
qualifications. Conversely, other science managers appointed under
non-quota hiring authorities are subject to much more rigorous entry
procedures. They must compete in open competitive staffing processes.
Their positions are classified for pay purposes by the Civil Service
Commission on the basis of duties performed rather than
qualifications. The Commission must also approve their qualifications
for assuming their positions. The differences between systems
encourage agencies to use Public Law 313-type positions as a kind of
revolving door. Employees brought into the Government
noncompetitively via this mechanism are shifted to non-quota spaces
without ever undergoing the competitive entry process. The vacant
PL-313 authority is then used again to bring in other employees
noncompetitively.
The Senior Executive Service provides for coverage of all agencies and
personnel systems. Presidential exceptions could be made for services
with long-standing comprehensive personnel systems. Any excepted
system could be later included by Presidential action without
additional legislation.
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Under the existing system an agency wishing to establish and fill, for
example, a new noncareer, nonscientific supergrade position must go
through nine or more steps.
It is not necessary that each step be done sequentially, but even when
several steps take place simultaneously, the necessary justifications
and analyses are time-consuming for both the Commission and the
requesting agency. Similarly lengthy procedures apply for other types
of positions.
Under the Senior Executive Service, the agency would have its quota of
executive positions established in advance for a 2-year period.
Needed adjustments within limits could be readily made. The Office
of Personnel Management would no longer classify positions by grade or
determine if they are career or noncareer. It would determine if
career candidates for initial entry into the Senior Executive Service
meet managerial qualifications; the agency head would be responsible
for approving qualifications for a particular position and for
noncareer appointees. (This applies only to initial Senior Executive
Service entry.) For movement within the Service--now 55 percent of
all staffing actions--the agency head would have complete approval
authority. Moreover, in filling positions from within the Governmen_
prior certification of eligibility for the Service by the Office of
Personnel Management would be the rule. (Thus, there would be very
little case-by-case qualification approval activity.) The
establishment and staffing process for a position, which now has up to
nine steps, would.. in most cases be reduced to two.
Assuring Compliance With Merit Principles
The Office of Personnel Management will have fundamental
responsibility for assuring that the operations of the Senior
Executive Service are in compliance with the merit principles
established under title I of this Act. In addition, the Merit Systems
Protection Board will be responsible for conducting studies to assure
that Government-wide and agency personnel management practices and
systems, including the functioning of the Senior Executive Service,
are consistent with the basic merit principles. Furthermore, the
Special Counsel within the Merit Systems Protection Board will be
authorized to investigate and prosecute violations--in the Senior
Executive Service as well as the rest of the civil service--of
prohibited political activities, other prohibited personnel practices,
and reprisals against employees for lawful disclosure of illegalities
and improprieties.
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The limits on maximum salary for General Schedule employees cause the
pay of those in upper grade levels to remain constant while the pay of
their subordinates continues to increase annually to maintain
comparability with private sector rates. Prior to the adjustments
recommended by the 1976 Commission on Executive, Legislative, and
Judicial Salaries, Level V executives were receiving the same pay as
their subordinates in grades GS-16, 17, and 18 and the higher pay
steps of GS-l5. (For a time they received less pay than their
subordinates.) Unless changes are made in the system for setting pay,
a new salary freeze will soon set in. Such freezes result in
increases in turnover and serious loss of morale. Some individuals
leave to take better-paying positions outside government; many retire.
Existing retirement laws make it more advantageous in many cases for
an executive with a frozen salary to retire rather than to remain on
the job since retirees are eligible to receive cost-of-living
increases. Studies suggest that under these conditions the more
capable executives (who can readily find other employment) leave at a
greater rate than marginal managers. This represents a great loss of
expertise to the Government.
Under the Senior Executive Service, the President would establish at
least five executive salary rates. The lowest would be at the
midpoint of GS-15; the highest at 96 percent of Executive Level III.
Longevity pay increases would be abolished and annual performance pay
substituted instead. Under the proposal highly able executives could
substantially increase (u15 to 20 percent) their compensation for a
particular year through performance awards.
For the most effective career executives the President and the Office
of Personnel Management could confer a personal rank and stipend. Up
to 15 percent of active executives could be given the personal rank of
"Meritorious Executive", which would carry a stipend of $2,500 for
each of five years. No more than 1 percent of active executives could
have the rank of "Distinguished Executive" which would carry a stipend
of $5,000' for each of five years.
In 1969, 1.9 percent of supergrade positions were held by minorities
and only 1.6 percent by women. Affirmative action efforts have
increased these percentages to 4.4 percent for minorities and 2.8
percent for women (as of May 1977). It is unfortunately the case,
however, that much of this still small increase has occurr.ed among
noncareer positions. The regular career promotion process is still
not functioning to bring women and minorities into key management
positions.
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5!0 ~'
.It is clear that for some time it will be necessary to continue and
even step up aggressive recruiting for minorities and women to fill
executive positions. The bulk of executive vacancies, however, are
now, and will continue to be, filled from within the Government.
Therefore, in order to make a permanent improvement in the woefully
unrepresentative numbers of women and minorities in key positions, :it
is essential to bring these excluded groups into the promotion
pipeline and prepare them to assume managerial responsibilities. The
Senior Executive Service mandates an open, systematic executive
development program with special emphasis on identifying minorities
and women for development. It is only in this way that an enduring
solution to this problem can be achieved.
Elimination of various pre-audit functions (principally,
classification and qualifications reviews) by the CSC will result in
an annual saving of $600,000 by the Office of Personnel Management (24
staff years). Additional functions for the Office of Personnel
Management, however, will cancel out this saving:
Executive Development
$ 75,000
(3
staff
years)
Certification for Entry into Service
200,000
(8
staff
years,)
Brokering Mobility
75,000
(3
staff
years)
Executive Personnel Budgeting
200,000
(8
staff
years.)
Evaluation
50,000
(2
staff
years)
$600,000
Agencies, which will be freed of much of the extensive justification
process now required for supergrade actions, should also realize
savings, estimated at $1,625,000 annually. They, too, will have
offsetting additional costs:
Executive
(incl.
costs)
Development
staff, tuition & travel
$2,000,000
Executive
Personnel Budgeting
225,000 (9 staff years)
This, .then, would amount to a net increase in annual operating cost of
$600,000.
The salary structure could be designed to cost about the same as the
existing system--longevity payments being replaced by performance
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incentive payments. New benefits could account for about $7.5 million
annual cost.
Many intangible savings can be expected. One of the most significant
is in elapsed time for processing executive personnel actions. Many
external controls have been dropped and most of those retained could
be applied in advance of a given staffing action. The elapsed
staffing time under the existing system is highly variable; it can be
as little as 6 weeks or as much as 6 to 9 months if the case is
complicated. The new system will permit the typical staffing action to
be completed within 6 weeks. The savings in program accomplishment
resulting from filling critical positions promptly cannot be
estimated, but would be considerable.
More tangible savings can be expected from the increased flexibility
afforded to agency heads in the use of their executive resources. It
is estimated that permitting agencies to assign executives where they
can make a maximum contribution can result in a 2 to 3 percent
reduction in the total number of executive positions (assuming
constant program). The annual saving in salary and benefits could
be on the order of $15.5 million (in 1977 dollars).
There will be a one-time Government-wide conversion cost of about $1
million, mostly for preparation and dissemination of regulations and
instructions, and processing of conversion actions and payroll
changes.
Disregarding one-time costs, the net annual tangible savings could be
about $7.5 million.
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The purpose of this title is to provide that certain pay increases
shall be based upon the quality of individual job performance and
contribution to the organization rather than upon length of service.
Merit Pay Plan for Senior Managers and Supervisors
Recent studies and reports by the Civil Service Commission staff, the
General Accounting Office, the President's Panel on Federal Compensation,
and the Federal Personnel Management Project concluded that pay plans
for management level personnel should be based upon merit rather than
length of service. While title 5 now requires that "pay distinctions
be maintained in keeping with work and performance distinctions," the
current method of within grade pay advancement within the rate range
for senior managers and supervisors and the extensive appeals mechanism
are not truly supportive of this requirement. Further, the only
additional tool for accelerating basic pay within a rate range is
through the quality step increase (QSI). However, the amount which
may be granted is small (one step -'equivalent to approximately
3 percent of pay) and restricted (no more than one QSI each 52 weeks)
relative to similar increases granted to outstanding senior managers
in. the private sector. Therefore, the manner in which within grade
increase funds are currently expended provides virtually no flexibility
to make significant pay distinctions among senior managers and super-
visors. Barely acceptable performers will generally experience the
same progression through the pay range as do many exceptional performers.
The new merit pay system would remove the barriers to increased manage-
ment discretion and reward quality job performance rather than time in
grade.
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TITLE VI RESEARCH AND DEMONSTRATION AUTHORITY
PURPOSE
The purpose of this title is to provide the Office of Personnel Management
with the authority to conduct public management research, to carry out
demonstration projects which test new approaches to the conduct of
personnel management in the Federal service, and to waive specific portions
of personnel laws in order to engage in controlled experiments.
JUSTIFICATION
Encouraging and Expanding Public Management Research
The objective of Federal personnel management is to create and maintain a
competent, productive, and efficient public service dedicated to meeting
national goals and being responsive to the needs of all citizens.
However, experience has taught us that Federal personnel systems sometimes
fail to cope with today's public management issues.
The. government simply does not have an organized program of research which
will give it a factual basis for changes in personnel policies. Similarly
it lacks authority to conduct small scale experiments on promising ideas.
As a result, it is often necessary to make systemwide changes before ideas
have been tested in practice.
Although Federal personnel management problems are growing in complexity,
the Government invests little in civilian personnel research. In defense
agencies, the Government has applied a rational approach to the
developing and buying of major defense systems. Similar testing of new
ideas occurs regularly in the physical and biological sciences. Comparable
investment in research and experimentation in the management sciences has
not been`made. As a matter of fact, the Federal Government lacks a
specific commitment to management research and a specific authority to
support and conduct management research.
The proposed amendment would authorize the Office of Personnel Management
(OPM) to support a public management research program which would be
directly related to the management improvement needs of agencies. The
OPM could begin by making use of research completed or underway in State
and local governments, the military services, the private sector, and
universities. Beyond this, the proposed amendment would provide the OPM
with the flexibility needed either to conduct research or contract out
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research projects to Federal agencies, State and local governments, educa-
tional institutions, public interest organizations, and the private sector.
Finally, the OPM would assume a leadership role of identifying public
management research needs, reviewing proposed research projects, coordinating
research activities, assessing the value of completed research, and applying
research results to the solution of agency problems.
A modest investment of resources toward basic and applied public management
research should produce enormous benefits in the form; of new approaches,
theories, frames of references, and processes which would make more efficient
use of existing individual and organizational resources. Additionally, the
research effort would encourage innovation in the design, development, and
execution of systems of personnel administration which would improve management
of the Government's human resources and thereby improve delivery of service
to the public.
Demonstration Projects
The maintenance of a dynamic personnel system requires the continual develop-
ment and implementation of modern and progressive concepts, procedures,
and work practices to facilitate improved employee performance and efficiency.
Improvements in the management of the Federal workforce carry the potential
of enormous impact, not only on the Government's internal efficiency and on
keeping costs down, but on the effectiveness of specific Government programs
and services. In spite of the far-reaching potential that system improvements
could have, managers are often reluctant to invest time and resources in
making those improvements because of uncertainty as to whether proposed changes
would work. The uncertainty-of the consequences of system changes is a big
gamble which managers often are not willing to risk. Who: is needed is
a mechanism to reduce the amount of risk involved by getting as many hard facts
about. the effect of the proposed changes as possible. That mechanism is what
this proposed demonstration project authority would provide.
Moreover, ideas are proposed from time to time to improve Federal personnel
management and for solving some of the problems personnel directors face
every day. These ideas are rarely tested for their feasibilit^ or effect
before being proposed or put into effect. Authority to conduct. experimental
demonstration projects would enable policymakers to explore new concepts
and approaches to particular aspects of personnel management at less cost
and with less risk than whole-system changes would require and enable the
determination of the likely effects and ramifications of proposed policy
changes before making commitments to put them into effect systemwide.
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