This section provides a discussion of Presidential appointments, Senior Executive Service appointments, and appointments in the excepted service.
[OPM Contact: Kathie Whipple, 202-606-1700]
Officers and employees who serve at the pleasure of the President or other appointing official may be asked to resign or may be dismissed at any time. They are not covered by standard civil service removal procedures and generally have no right to appeal terminations, unless they are alleging that such action was taken for prohibited discriminatory reasons. Agencies should consult their General Counsel for assistance in this area.
In certain cases, the statute creating a position provides that an individual appointed by the President may be removed only for cause or at the end of a statutory term of appointment. These provisions are found most commonly in statutes establishing quasi-judicial entities or independent regulatory agencies. Individuals in positions with statutory terms can continue in those positions until the end of the term, unless they resign for personal reasons or are removed for cause. The issue is discussed in such cases as Myers v. U.S., 272 U.S. 52 (1926); Humphrey's Executor v. U.S., 295 U.S. 602 (1935); Wiener v. U.S., 357 U.S. 349 (1958); and Buckley v. Valeo, 424 U.S. 1 (1976). Because these matters implicate complex legal issues, agencies should consult their own General Counsel for assistance in this area.
The Vacancies Act was substantially amended in 1998 by the Federal Vacancies Reform Act of 1998 [Public Law 105-277, section 151] (the “FVRA” or “Act”). The FVRA, [codified at 5 U.S.C. 3345-3349d] prescribes requirements for filling, both permanently and temporarily, vacancies that are required to be filled by Presidential appointment with Senate confirmation (PAS appointments).
The FVRA, as amended, provides rules for temporarily filling vacant PAS positions. In most cases, the Act is the exclusive means for filling vacant PAS positions with a person designated as the “Acting” officer. The Act, however, also recognizes other limited means to fill PAS positions, such as recess appointments and provisions in other specific statutory authorities applicable to particular agencies. The FVRA specifically provides that an agency head’s general authority to delegate or reassign duties within the agency does not remain a viable, separate authority for filling a vacant PAS position on a temporary basis.
An office becomes “vacant” when the incumbent “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” The FVRA does not specify the full range of circumstances that would constitute such inability, but legislative history indicates it would include the incumbent being fired, imprisoned, or suffering a serious illness. The Act also specifies that the expiration of a term of office constitutes an inability to perform the functions and duties of the office.
Under the FVRA, there are generally three categories of persons who can serve in an acting capacity for vacant PAS positions:
Specific timeframes and other statutory considerations limit service for all three categories. There is a general limit of 210 days for serving in an acting PAS capacity. [5 U.S.C. 3346] With respect to any vacancy that exists during the 60-day period beginning with a Presidential inauguration, the 210 days begin on the later of 90 days after the inauguration or 90 days after the date of the vacancy. Different rules apply if the President nominates a person to fill the PAS position on a permanent basis during the period that the position is held on an acting basis.
The Office of Legal Counsel at the Department of Justice has issued extensive guidance on the FVRA [see https://www.usaee.org/usaee2016/submissions/presentations/USAEE%20Transition%20Slides_AEH.PPTX]. Specific questions should be addressed to that office (202-514-2051).
The Assistant to the President for Presidential Personnel coordinates all activities relating to Presidential appointments.
[NOTE: This section reflects the current interpretation of the FVRA by the Office of Legal Counsel. Litigation is pending before the Supreme Court that could affect this interpretation.]
Effective Date of PAS Appointments
Presidential appointments subject to Senate confirmation (PAS) are effective on the date the President signs the commission document. However, the individual’s pay does not begin until the appointee is sworn in and signs the oath of office.
For individuals serving under a term PAS, the term begins on the effective date of the appointment, i.e., the day the President signs the commission document.
Pay and Leave
Individuals appointed by the President, with Senate confirmation, occupy positions that are placed by law in the Executive Schedule, or are established at pay rates equivalent to the Executive Schedule.
This schedule has five levels; Level I is the highest, and Level V is the lowest. In 2016, annual pay rates for the Executive Schedule are: Level I ($205,700), Level II ($185,100), Level III ($170,400), Level IV ($160,300), and Level V ($150,200). Locality pay 12 does not apply to the Executive Schedule. [Note: There is a pay freeze for certain senior political officials in 2016. See page 19 for more information about this pay freeze.]
Individuals in the executive branch who are appointed by the President to positions in the Executive Schedule are not covered by the leave system. They do not earn annual or sick leave and, therefore, are not charged leave for absences from work.
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SENIOR EXECUTIVE SERVICE (SES) APPOINTMENTS
[OPM Contact: Barbara Colchao, 202-606-2720]
This subsection provides an overview of career and noncareer SES positions and key transition issues, such as suspending the processing of SES selections during a change of agency head and a 120-day moratorium on SES reassignments during that period.
The SES is a unique executive personnel system that includes most of the top managerial, supervisory, and policy positions in the executive branch that are not required to be filled by Presidential appointment with Senate confirmation.
Every 2 years, OPM allocates to each agency a specific number of SES “spaces” based on agency needs. Within that numerical allocation, each agency may establish SES positions and designate them as either “General” or “Career Reserved.” OPM also assigns each agency a “Career Reserved floor,” which is the minimum number of Career Reserved positions that must be established within the agency at all times. Once an SES position has been designated as General or Career Reserved, an agency must obtain OPM approval to change that designation. [See 5 CFR part 214.] General positions may be filled by career, noncareer, or limited appointees. Career Reserved positions must be filled by career appointees to sustain public confidence in the impartiality of the Government. OPM may make temporary SES allocations available to individual agencies to help with transitions.
SES Noncareer Appointments
Agencies may make SES noncareer appointments to any SES General position without regard to competitive requirements and may also set the pay level of the appointees. However, an agency must receive a noncareer appointment authority from OPM before making the appointment. The White House Office of Presidential Personnel also must grant clearance for the appointment before the appointment takes effect, except that an appointment to any SES position within an independent regulatory commission is not subject to review or approval by any officer or entity within the Executive Office of the President. [See 5 U.S.C. 3392(d).] This applies to initial appointments, reassignments, and transfers to another Department or agency. The law limits the total number of SES positions that can be filled by noncareer appointment to 10 percent of the Governmentwide SES space allocation and 25 percent of an individual agency’s allocation (unless the allocation is three or less). Additional limitations have been imposed, administratively or by other statutes, on an agency-by-agency basis.
Agencies can terminate noncareer appointments at any time with a 1-day notice. Noncareer appointees removed from the Federal service have no right of appeal to the Merit Systems Protection Board (MSPB). A sample separation notice is provided at Appendix C. [See 5 U.S.C. 3592; 5 CFR part 359, subpart I.]
SES Limited Appointments
There are two types of SES limited appointments: limited term and limited emergency. Limited term appointments may be made for up to 36 months to positions with duties that will expire within 36 months or an earlier specified time period. Limited term appointments are not used to temporarily promote individuals to continuing SES positions. Limited emergency appointments may be made for up to 18 months to meet a bona-fide, unanticipated, urgent need. Limited appointments may be made only to SES General positions. An individual may not serve more than 36 months in a 48-month period on any combination of limited appointments. Limited appointees must meet the qualification requirements established by the agency.
Agencies must obtain limited appointment authorities from OPM on a case-by-case basis. However, OPM has provided each agency a pool of limited authorities equal to 3 percent of its total SES position allocation, or one authority, whichever is greater. An agency may use this pool to appoint a career or career-type non-SES employee to a position that is appropriate for SES limited term or SES limited emergency appointment without obtaining OPM approval. In addition, to help with transitions, OPM may authorize a limited term appointment authority for an individual who has been nominated by the President, but whose appointment is pending Senate confirmation. These limited appointments may not be made to the position for which the individual has been nominated.
Agencies may terminate limited appointments at any time with a 1-day notice. Limited SES appointees who are removed have no right of appeal to MSPB on termination of the appointment. [See 5 U.S.C. 3592 and 5 CFR part 359, subpart I.] However, some limited appointees have placement rights to positions outside the SES. A career or career-type non-SES employee who is given a limited appointment in the same agency has placement rights to his or her former position or to one with like status, tenure, and grade or pay. [5 CFR part 317, subpart F.] If such an individual was covered by 5 U.S.C. 7511 immediately before the SES limited appointment, he or she is also entitled to adverse action procedures applicable to career SES appointees in the event a removal based on conduct is proposed. [5 CFR part 752, subpart F.] A career or career-type employee who accepts a limited appointment in another agency has neither of these benefits.
SES Career Appointments
Career appointments may be made to either SES General or Career Reserved positions. Career appointments have no time limitation and provide certain job protections and benefits not conferred by noncareer and limited appointments. Initial career appointments must meet competitive SES merit staffing provisions at the time of selection for the SES. Following selection by the agency, the individual’s executive qualifications must be approved by an OPM-administered Qualifications Review Board (QRB) before the career appointment can be made.
TRANSITION ISSUES: SES
Suspension of Processing of SES Candidates In accordance with 5 CFR 317.502(d), OPM will suspend processing of an agency’s SES Qualifications Review Board (QRB) cases when the agency’s head departs or announces his or her departure. This is done to provide the incoming head of that agency with a full opportunity to exercise his or her prerogative to make or approve executive resource decisions that will affect the agency’s performance during his or her tenure. To that end, OPM will impose a moratorium on the processing of a particular agency’s SES QRB cases when the head of that agency departs for any reason, effective immediately upon the effective date of his or her departure. A QRB moratorium will also be imposed when the head of an agency announces his or her intention to leave that office, effective immediately upon that announcement.
While a QRB moratorium is intended to preserve the prerogatives of an incoming agency head, this must be balanced against the need for continuity of agency operations during such transitions. Accordingly, OPM will consider requests for exceptions to an agency’s QRB moratorium on a case-by-case basis. Requests for exceptions should be signed by the agency head or the official who is designated to act in the agency head’s absence and must specifically address the potential for adverse impact on national security, homeland security, or critical agency mission, program, or function if a particular SES candidate is not immediately considered for certification.
Moratorium on SES Career Reassignments
Agencies may reassign SES career appointees to any SES position in the agency for which they are qualified, following a 15-day advance written notice for a reassignment that does not require a geographical move. Consultation with the executive, followed by 60 days’ advance written notice, is required for a reassignment that includes a geographical move.
However, when there are changes in agency political leadership, the law provides for a 120-day moratorium on involuntary reassignments of career SES appointees. Career executives are always prepared to serve new leadership. Balancing continuity and change is the fundamental responsibility of the senior executive. The moratorium was established to prevent peremptory reassignments by new appointees without adequate knowledge of the career executives. An SES career appointee may not be involuntarily reassigned within 120 days of the appointment of a new agency head (including recess appointment) or within 120 days after the appointment of a career appointee’s new noncareer supervisor who has the authority to make that career appointee’s initial performance appraisal. A voluntary reassignment during the 120-day period is permitted, but the appointee must agree in writing before the reassignment.
The appointment of a new agency head always starts a 120-day moratorium. Another official may not take a reassignment action, even if that official has been in office more than 120 days. If a moratorium results from appointment of a new noncareer supervisor, the agency head may not take an involuntary reassignment action, even if the agency head has been in office more than 120 days.
Designating an “acting” agency head or noncareer supervisor (e.g., by a detail or when a deputy acts in the position) is not the same as making an appointment. Therefore, the statutory moratorium does not come into play. However, the agency, at its discretion, may choose to apply the moratorium in such situations. In this case, if the “acting” individual later receives a permanent appointment to the position without a break in service, time spent under the agency-imposed moratorium counts toward the 120-day moratorium initiated by the permanent appointment.
In calculating the 120-day moratorium, any days (not to exceed a total of 60) during which the career appointee is serving on a detail or other temporary assignment apart from the appointee’s regular position are not counted. However, the moratorium provision does not restrict the total length of a detail; i.e., it may exceed 60 days. [See 5 U.S.C. 3395; 5 CFR part 317, subpart I.]
Career Appointees Who Accept Presidential Appointments Presidential appointees are among the executives subject to change in a new administration. However, a former SES career appointee who was appointed by the President to a civil service position outside the SES without a break in service, and who leaves the Presidential appointment for reasons other than misconduct, neglect of duty, or malfeasance, is entitled by law to be reinstated to the SES. If not voluntarily reinstated through direct negotiations with an agency, the former career appointee may apply to OPM up to 90 days after separation for a directed reinstatement. [See 5 U.S.C. 3593(b) and 5 CFR 317.703.]
Briefings for New SES Members
OPM sponsors 2-day briefings for new career SES members a few times each year. These programs provide executives with an understanding of the administration’s goals and priorities and an opportunity to gain a broader perspective of executive branch domestic, economic, and foreign policy issues and initiatives. SES members also gain information about the SES, advice about working with Congress, knowledge of effective leadership strategies, and opportunities for networking.
Appendix E contains additional technical guidance on the Senior Executive Service.
EXCEPTED SERVICE APPOINTMENTS
The “excepted service” includes all positions in the executive branch that have been excepted from the competitive service or the Senior Executive Service (SES) by statute, the President, or OPM. [5 U.S.C. 2103]
Overview: Schedule C Positions and Appointments
Schedule C positions are excepted from the competitive service because they have policy-determining responsibilities or require the incumbent to serve in a close and confidential working relationship with the head of an agency or other key appointed official. [5 CFR 213.3301] Appointments to Schedule C positions require advance approval from the White House Office of Presidential Personnel and OPM. OPM does not review the qualifications of a Schedule C appointee; final authority on this matter rests with the appointing official.
Agencies may separate Schedule C appointees whenever the confidential or policy-determining relationship between the incumbent and his or her superior ends. Schedule C appointees are not covered by statutory removal procedures and generally have no rights to appeal removal actions to the Merit Systems Protection Board. This is true regardless of veterans’ preference or length of service in the position. Agencies should consult their General Counsel or OPM’s General Counsel on Schedule C separations. Appendix C contains a sample separation notice.
Transition Issues: Schedule C
Establishing Regular Schedule C Positions. OPM authorizes the establishment of each Schedule C position and revokes the exception from the competitive service when the position is vacated. [5 CFR 213.3301] The agency head must certify that the position was not created solely or primarily for the purpose of detailing the incumbent to the White House. A list of Schedule C positions is published annually in the Federal Register, under part 213 of OPM’s regulations. The President can also authorize individual exemptions by Executive order, such as those listed at 5 CFR 6.8.
Temporary Transitional Schedule C Positions. To help with transitions, OPM has delegated authority to agencies to establish a limited number of temporary transitional Schedule C positions [5 CFR 213.3302]. Agencies can use this delegated authority during the 1-year period immediately following a change in presidential administration, when a new department or agency head has entered on duty, or when a new agency is created.
Agencies can make appointments under this authority for up to 120 days and may extend the appointment once for up to 120 more days. The agency must notify OPM within 5 working days that it has made an appointment to a temporary transitional Schedule C position. Agencies must also notify OPM within 3 working days when the position has been vacated. In addition, the agency head or his or her designee must certify that the position was not created solely or primarily for the purpose of detailing the incumbent to the White House and must identify the position and incumbent.
When an agency plans to convert an employee in a temporary transitional Schedule C position to a non-temporary (“regular”) Schedule C appointment, the temporary appointment may be designated as a “provisional appointment” [5 CFR 316.403]. This permits the agency to treat the employee as a nontemporary appointee for benefits purposes. Provisional appointments must be made under an authority established by law, Executive Order, or regulation, or granted by OPM [5 CFR 316.403(b)]. Documentation instructions are in OPM’s Guide to Processing Personnel Actions, Chapter 11, Excepted Service Appointments, available at www.opm.gov/feddata/gppa/gppa.asp.
Briefings for New Schedule C Appointees
Historically, OPM, in conjunction with White House Presidential Personnel Office, has sponsored 1-day briefings for new Schedule C and Non-Career SES appointees. These briefings provide appointees with an understanding of the President’s expectations, a broader perspective on executive branch initiatives and priorities, and information on Government ethics, the Hatch Act, and current domestic, economic, and foreign policy issues and initiatives.
Overview: Schedules A, B, and D
[OPM Contact: Katika Floyd, 202-606-0960]
In addition to the policy-determining or confidential positions described in the preceding section, Congress, the President, or OPM can except other positions from the competitive service and the Senior Executive Service. OPM excepts positions under Schedules A, B, and D for a variety of reasons. Employees in these positions are not subject to change during transitions.
Positions Excepted by Statute. Positions that have been excepted by statute include those in the Foreign Service (Department of State); the Federal Bureau of Investigation in the Department of Justice; all positions in the Tennessee Valley Authority, the Government Accountability Office, and the U.S. Postal Service; and medical employees of the Veterans Health Administration in the Department of Veterans Affairs. Most of these positions are under separate merit systems and are not subject to change during transitions. Positions Excepted by the President or the Office of Personnel Management. In certain circumstances, the President or OPM may except positions from the competitive service. These exceptions are Schedule A, B, and D positions.
Schedule A Positions. Positions other than those of a confidential or policy-determining character for which it is not practicable to examine. Examples include attorneys, individuals with certain disabilities, and short-term positions filled during an emergency. [5 CFR 213.3101-213.3102]
Schedule B Positions. Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination. These appointments shall be subject to noncompetitive examination as may be prescribed by OPM and are subject to the basic qualification standards established by OPM for the occupation and grade level. For example, developmental positions associated with the SES candidate development program are included under Schedule B. [5 CFR 213.3201]
Schedule D Positions
Positions other than those of a confidential or policy-determining character for which the competitive service requirements make impracticable the adequate recruitment of sufficient numbers of students attending qualifying educational institutions or individuals who have recently completed qualifying educational programs. Schedule D (Pathways Programs) consists of three programs: the Internship Program, the Recent Graduates Program, and the Presidential Management Fellows Program. [Executive Order 13562; 5 CFR 213.3401]
Schedule A, B, and D appointees who are eligible for veterans’ preference and who have 1 year of qualifying service are entitled to statutory procedural and appellate rights if they are removed from the Federal service for conduct or performance reasons. In addition, excepted service employees other than preference eligibles receive statutory procedural and appellate rights, provided they have completed a probationary or trial period under an initial appointment pending conversion to the competitive service or have completed 2 years of qualifying service. [5 U.S.C. 7511]
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EXPERT AND CONSULTANT APPOINTMENTS
Agencies may appoint experts and consultants to positions that primarily require performance of advisory services, rather than performance of operating functions, without regard to competitive civil service requirements [5 U.S.C. 3109]. Agencies may use expert and consultant appointments for individuals who have been nominated by the President, but not yet confirmed. In addition, agencies may use this authority to appoint individuals whose permanent excepted appointment is pending [5 CFR 304.103(b)(6)]. The individual and the work assigned must comply with the expert or consultant requirements in 5 CFR part 304.
Agencies may not use expert and consultant appointments to avoid employment procedures or solely in anticipation of a competitive appointment. An expert and consultant appointment authority may not be used to fill a position in the Senior Executive Service [5 U.S.C. 3109]. However, if a position meets the criteria for placement in the SES, OPM may authorize a limited appointment authority to appoint an individual during the transition period.
Experts and consultants appointed under 5 U.S.C. 3109 may not be paid more than the daily or biweekly rate for GS-15, step 10, excluding locality pay, unless a higher rate is specifically authorized by statute. [See also 5 CFR 304.105.] They may also be reimbursed for travel (if they are intermittent employees), but not for moving expenses. They may participate in orientation and training programs at Government expense.
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