New Executive Order Provides Certain USG Program Alumni a Pathway to Competitive Service

Posted: 2:07 pm ET
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On November 29, President Obama signed an executive order that allows the appointment of alumni of the Fulbright, Gilman, and CLS programs into the Federal civil service.  Republished below in full, the original text is available here.

EXECUTIVE ORDER

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PROVIDING FOR THE APPOINTMENT OF ALUMNI OF THE FULBRIGHT U.S. STUDENT PROGRAM, THE BENJAMIN A. GILMAN INTERNATIONAL SCHOLARSHIP PROGRAM, AND THE CRITICAL LANGUAGE SCHOLARSHIP PROGRAM TO THE COMPETITIVE SERVICE

BARACK OBAMA
THE WHITE HOUSE
November 29, 2016

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Policy. The Federal Government benefits from a workforce that can be recruited from the broadest and deepest pools of qualified candidates for our highly competitive, merit-based positions. The issuance of an order granting Non-Competitive Eligibility (NCE) to certain alumni of the Fulbright U.S. Student Program, the Benjamin A. Gilman International Scholarship Program, and the Critical Language Scholarship (CLS) Program, all of which are academic exchange programs carried out under the authorities of the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-256, as amended, also known as the Fulbright-Hays Act, and the International Academic Opportunity Act of 2000, title III of Public Law 106-309, would be in the best interest of the Federal Government. Participants in these programs develop advanced- to superior-level skills in languages and cultural competence in regions that are strategically, diplomatically, and economically important to the United States. It is in the interest of the Federal Government to retain the services of these highly skilled individuals, particularly given that the Federal Government aided them in the acquisition of their skills. Participants in the Fulbright, Gilman, and CLS programs are drawn from highly competitive, merit-based national selection processes to which a veterans’ preference applies to ensure that the most qualified individuals are selected.

Accordingly, pursuant to my authority under 5 U.S.C. 3302(1), and in order to achieve a workforce that is drawn from all segments of society as provided in 5 U.S.C. 2301(b)(1), I find that conditions of good administration make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.

Sec. 2. Establishment. The head of any agency in the executive branch may appoint in the competitive service any person who is certified by the Secretary of State or designee as having participated successfully in the Fulbright, Gilman, or CLS international exchange programs, and who passes such examination as the Office of Personnel Management (OPM) may prescribe.

Sec. 3. The Secretary of State or designee shall issue certificates, upon request, to persons whom the Department of State determines have completed the requirements of a program described in section 1 of this order.

Sec. 4. Any appointment under this order shall be effected within a period of 1 year after completion of the appointee’s participation in the programs described in section 1. Such period may be extended to not more than 3 years for persons who, following participation in the programs described in section 1, are engaged in military service, in the pursuit of studies at an institution of higher learning, or in other activities which, in the view of the appointing authority, warrant an extension of such period. Such period may also be extended to permit the adjudication of a background investigation.

Sec. 5. A person appointed under section 2 of this order becomes a career conditional employee.

Sec. 6. Any law, Executive Order, or regulation that would disqualify an applicant for appointment in the competitive service shall also disqualify an applicant for appointment under this order. Examples of disqualifying criteria include restrictions on employing persons who are not U.S. citizens or nationals, who have violated the anti-nepotism provisions of the Civil Service Reform Act, 5 U.S.C. 2302(b)(7), 3110, who have knowingly and willfully failed to register for Selective  Service when required to do so, 5 U.S.C. 3328(a)(2), who do not meet occupational qualifying standards prescribed by OPM, or who do not meet suitability factors prescribed by OPM.

Sec. 7. The Office of Personnel Management is authorized to issue such additional regulations as may be necessary to implement this order. Any individual who meets the terms of this order, however, is eligible for noncompetitive hiring with or without additional regulations.

Sec. 8. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i)  the authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

 

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About Time For That Washington Ritual: Watch Out For Political Appointees “Burrowing In”

Posted: 12:53 am EDT
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Late last year, WaPo wrote about the watchdogs being in the lookout for Obama appointees ‘burrowing in’:

As each administration winds down, some political appointees traditionally seek to continue their government service as career employees beyond the administration they served. Also known as “conversions,” the practice has attracted skepticism from government watchdogs and experts but has become known as something of a Washington ritual.
[…]
In 2010, GAO reviewed 26 federal departments and agencies that converted 139 people from political to career positions from May 2005 through May 2009. While the majority of the conversions followed proper procedures, GAO said at least seven might have violated the merit-based system, including a Department of Veterans Affairs appointee who lacked the required experience and a Justice Department employee who received a career position despite unfavorable recommendations from government interviewers.

A separate WaPo report notes that in May 2006, investigators found that 23 agencies hired 144 political appointees from the G.W.Bush administration into career positions from May 2001 to April 2005. “In at least 18 cases the agencies did not follow proper procedures, the GAO found, citing problems such as hiring appointees with limited qualifications, creating positions for specific individuals and disregarding veterans’ preference laws.”

It also cites a report from 2002 where apparently between October 1998 and April 2001, 111 political appointees and congressional aides from the Clinton administration landed career jobs in 45 executive-branch agencies.

On January 11, 2015, OPM also issued guidelines for processing certain appointments during the 2016 presidential election period.

I.  Appointment of Current or Former Political Appointees to Career Civil Service Positions

Agencies must seek prior approval from OPM before appointing a current or recent political appointee to a competitive or non-political excepted service position at any level under the provisions of title 5, United States Code.  A former or recent political appointee is someone who held a political appointment covered by OPM’s policy within the previous five-year period.  OPM reviews these proposed appointments to ensure they comply with merit system principles and applicable civil service laws.  OPM’s memo and instructions regarding political appointees and career civil service positions is available at https://www.chcoc.gov/content/political-appointees-and-career-civil-service-positions.  The memo includes pre-appointment review checklists to assist agencies in preparing their submissions for review.

Note:  Schedule C employees may not be detailed to competitive service positions without prior OPM approval [see 5 CFR 300.301(c)], and no competitive service vacancy should be created for the sole purpose of selecting a Schedule C or Noncareer SES employee. 

OPM prepared a series of questions and answers (Q&As) to respond to agency inquiries about its policy for pre-appointment reviews and to provide additional details that will help agencies meet the policy’s requirements.  These Q&As, which follow, are also available at http://www.opm.gov/FAQs/topic/ppa/index.aspx?page=1

II.  Appointing Employees to the Senior Executive Service

OPM will continue to conduct merit staffing reviews of proposed career SES selections that involve a current or former political, Schedule C, or Noncareer SES appointee before such cases are formally presented to a Qualifications Review Board (QRB).  Agencies should carefully review all actions that would result in the career SES appointment of a political, Schedule C, or Noncareer SES before forwarding such cases to OPM.

Note:  All SES vacancies to be filled by initial career appointment must be publicly announced (5 CFR 317.501).  Only a career SES or career-type non‑SES appointee may be detailed to a Career-Reserved position (5 CFR 317.903(c)).  

In addition, OPM will suspend the processing of QRB cases when an agency head leaves office or announces his or her intention to leave office, or if the President has nominated a new agency head.  OPM imposes a moratorium on QRB cases as a courtesy to a new agency head when it learns of an agency head’s planned departure.  However, OPM will consider requests for exceptions to such a moratorium on a case-by-case basis.  When a presidential transition occurs, OPM will determine the disposition of QRB cases based upon the policy of the new administration.

In the same announcement, OPM released its Do’s and Don’t’s with burrowing employees:

Effective January 1, 2010, OPM conducts on-going pre-appointment reviews of current or former political appointee, Schedule C employee, and Noncareer SES member appointments to the competitive or exceptive service.  OPM seeks to ensure that the merit system principle of fair and open competition is protected.  With this in mind, these are the two most common reasons for OPM not to approve an appointment or a conversion:

  1. the new position appears to have been designed solely for the individual who is being converted, and/or
  2. competition has been limited inappropriately.

Below are “Do’s” that will help agencies with the conversion approval process:

  • Do make a public announcement through OPM’s USAJOBS when filling competitive or excepted service vacancies from candidates outside your own agency’s workforce.
  • Do carefully consider the Interagency Career Transition Assistance Plan for Displaced Employees regulations (5 CFR 330, Subpart G) before making selections.
  • Do ensure the Chief Human Capital Officer and Human Resources Director closely review all such proposed actions to determine if they meet the test of merit.
  • Do ensure the Chief Human Capital Officer and Human Resources Director gather all necessary internal agency approvals before presenting a case to OPM for review.

And “Don’ts”:

  • Don’t create or announce a competitive or excepted service vacancy for the sole purpose of selecting a current or former political appointee, Schedule C employee, or Noncareer SES member.
  • Don’t remove the Schedule C or Noncareer SES elements of a position solely to appoint the incumbent into the competitive or excepted service.

Read more here.

 

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