Personnel Practices: Conversions of Employees from Noncareer to  
Career Positions May 2001 - April 2005 (01-MAY-06, GAO-06-381).  
                                                                 
A federal employee conversion occurs whenever an individual	 
changes from one personnel status or service to another without a
break in federal government service of more than 3 days. This	 
report focuses on conversions of individuals from noncareer to	 
career positions. Federal agencies must use appropriate 	 
authorities and follow proper procedures in making these	 
conversions. GAO was asked to determine for departments and	 
selected agencies (1) the number and characteristics of all	 
noncareer to career conversions occurring during the period from 
May 1, 2001, through April 30, 2005, and (2) whether appropriate 
authorities were used and proper procedures were followed in	 
making these conversions at the GS-12 level and above.		 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-06-381 					        
    ACCNO:   A52999						        
  TITLE:     Personnel Practices: Conversions of Employees from       
Noncareer to Career Positions May 2001 - April 2005		 
     DATE:   05/01/2006 
  SUBJECT:   Data collection					 
	     Federal agencies					 
	     Federal employees					 
	     GS grade classification				 
	     Personnel management				 
	     Personnel qualifications				 

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GAO-06-381

     

     * Report to Congressional Requesters
          * May 2006
     * PERSONNEL PRACTICES
          * Conversions of Employees from Noncareer to Career Positions May
            2001 - April 2005
     * Contents
          * Results in Brief
          * Background
               * Agencies Made 144 Noncareer to Career Conversions from May
                 2001 through April 2005
          * Agencies Appeared to Have Used Appropriate Authorities and Proper
            Procedures in Making the Majority of These Conversions
               * In 93 Conversions, Agencies Appeared to Have Used
                 Appropriate Authorities and Followed Proper Procedures
               * In 18 Conversions, Appropriate Authorities and Proper
                 Procedures May Not Have Been Followed
               * In 19 Conversions, There Was Insufficient Information to
                 Make a Determination as to Whether Appropriate Authorities
                 and Proper Procedures Were Followed
          * Conclusions
          * Recommendations for Executive Action
          * Agency Comments and Our Evaluation
     * Executive Branch Departments and Selected Agencies Covered in This
       Review and Their Number of Conversions
     * Scope and Methodology
     * Noncareer Appointees Converted to Career Positions by Departments and
       Selected Agencies from May 1, 2001 - April 30, 2005
     * Conversions Where Appropriate Authorities and Proper Procedures May
       Not Have Been Followed
          * Case 1:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 2:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 3:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 4:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 5:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 6:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 7:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 8:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 9:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 10:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 11:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 12:
          * Positions:
          * Issues:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 13:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 14:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 15:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 16:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 17:
          * Positions:
          * Issues:
          * Details:
          * Conclusions:
          * OPM's Role:
          * Case 18:
          * Positions:
          * Issue:
          * Details:
          * Conclusions:
          * OPM's Role:
     * Conversions Where It Could Not Be Determined Whether Appropriate
       Authorities and Proper Procedures Were Followed
     * Comments from Office of Personnel Management
     * GAO Contact and Staff Acknowledgments

Report to Congressional Requesters

May 2006

PERSONNEL PRACTICES

Conversions of Employees from Noncareer to Career Positions May 2001 -
April 2005

Contents

Figure

May 1, 2006Letter

The Honorable Henry A. Waxman Ranking Minority Member Committee on
Government Reform House of Representatives

The Honorable Danny K. Davis Ranking Minority Member, Subcommittee on  
Federal Workforce and Agency Organization Committee on Government Reform
House of Representatives

According to the Office of Personnel Management (OPM), a federal employee
conversion occurs whenever an individual changes from one personnel status
or service to another without a break in federal government service of
more than 3 days. There are many types of conversions. This report focuses
on one type of conversion; i.e., converting individuals from noncareer to
career positions. These conversions represented less than 1 percent of the
total number of career conversions across the government from May 1, 2001,
through April 30, 2005.1 The types of positions this report covers and a
definition of each is listed in the background section.

Federal agencies must use appropriate authorities and follow proper
procedures in making the conversions. Most of these authorities and
procedures are found in Title 5 of the U.S. Code. Title 5 of the U.S. Code
includes the merit system principles,2 which are broad principles
governing federal personnel management, such as that all applicants for
federal employment should receive fair and equitable treatment. Other
examples of statutory requirements include granting of veteran's
preference3 and the

prohibition on certain personnel practices4 such as discriminating for or
against an applicant for employment on the basis of political affiliation.
In addition to these statutory requirements, agencies must follow OPM
regulations, which set out required procedures for making appointments to
career positions, such as providing public notice of all vacancies in the
career Senior Executive Service (SES).5 Agencies are not required to
follow OPM's competitive service hiring guidance for career excepted
service (non-Schedule C) positions; however, agencies must follow merit
system principles and apply veteran's preference when making most of these
appointments.

OPM also has oversight authority to ensure that federal agencies are
following the merit system principles when hiring. As one aspect of
carrying out these duties, OPM has traditionally required agencies to seek
its pre-appointment approval for the conversion of certain noncareer
appointees (Schedule C and Noncareer SES)  into certain career positions
(competitive service and career SES) during a presidential election review
period. Schedule C appointments are generally noncompetitive and are
usually for positions graded GS-15 and below that involve determining
policy or that require a close confidential relationship with the agency
head or other key officials of the agency. Noncareer SES appointees are
responsible for formulating, advocating, and directing administration
policies. The specific duration of each presidential election review
period is defined every 4 years by OPM. For the most recent presidential
election, OPM defined the pre-appointment review period from March 18,
2004, through January 20, 2005. OPM does not include conversions to career
excepted service (non-Schedule C) positions in this pre-appointment review
process. In addition, pursuant to the statutory requirement to maintain an
oversight program over delegated activities, OPM conducts periodic audits
of agencies' examining and hiring activities to ensure they are consistent
with the merit systems principles and other laws and regulations.6

This report responds to your request that we determine for departments and
selected agencies  (1) the number of all conversions from noncareer to
career positions occurring during the period from May 1, 2001, through
April 30, 2005; and for each of these conversions, the characteristics of
the noncareer positions previously held by these individuals and the
career positions to which they were converted, and (2) whether appropriate
authorities were used and proper procedures followed  in making these
conversions at the GS-12 level and above.

We have regularly reported on conversions from noncareer to career
positions in the past.7 In our most recent review, we reported on
conversions during the period from October 1998 through April 2001. In
addition, in June 2005, we provided you with information on the number of
individuals who were converted from noncareer to career positions during
the period from May 1, 2001, through December 31, 2003, as reported to us
by departments and selected agencies.8 We reported that 77 individuals
holding noncareer positions were converted to career positions during that
time frame at 18 of the 41 selected departments and agencies covered in
our review. The remaining 23 departments and selected agencies reported no
conversions during that period. This report expands on that information to
show the total number of conversions reported by the 41 selected
departments and agencies for the entire period of May 1, 2001, through
April 30, 2005, and the results of our review of those conversions at the
GS-12 level and above.

To address our objectives, we asked 41 departments and selected agencies
to complete a data collection instrument (DCI) and provide official
records (Standard Form 50B) for each conversion to determine the number of
individuals converted from noncareer to career positions. Appendix I lists
the 41 departments and agencies we reviewed and the number of conversions
reported by each. The criteria we used to select the 41 departments and
agencies were (1) all 15 departments and (2) 26  agencies that had
oversight or other regular responsibilities for federal workforce issues,
and that were agencies of particular interest to the congressional
requesters. For each conversion at the GS-12 level and above, we reviewed
the merit staffing files, which document promotion and hiring decisions,
and official personnel folders (OPF), which include salary and other
information from individuals' current and previous appointments, to ensure
that appropriate authorities and proper procedures were followed. Agencies
are not required to follow OPM's competitive hiring procedures for career
excepted service positions. Instead, they devise their own hiring
procedures for career excepted service (non-Schedule C) positions. We
requested written copies of such procedures from each agency that used
this authority to determine (1) if agency procedures were consistent with
law and regulations, and (2) whether agencies followed their own
procedures. Since most of the conversions to career excepted service
positions were made by the Department of Justice (DOJ), we also met with
DOJ's Director of Attorney Recruitment and Management to discuss the
process DOJ uses to convert individuals to career excepted service
(non-Schedule C) positions.

We conducted our work in Washington, D.C. from March 2004 through March
2006 in accordance with generally accepted government auditing standards.
Appendix II contains more detailed information on our scope and
methodology.

Results in Brief

Twenty-three of the 41 departments and agencies selected for review
reported converting 144 individuals from noncareer to career positions
from May 1, 2001, through April 30, 2005. The other 18 departments and
agencies reported making no conversions during this period. Four agencies
accounted for 95, or 66 percent, of the 144 reported conversions: the
Departments of Health and Human Services (36), Justice (23), Defense (21),
and Treasury (15). Of the 144 reported conversions, almost two-thirds were
from Limited Term Senior Executive Service (SES) positions (47) and
Schedule C positions (46). Limited Term SES appointments may be made for
up to 36 months and can include federal employees who previously held
career positions. Of these 144 individuals 64 were converted to career SES
positions, 47 to career competitive service positions, which are at the
GS-15 grade level and below, and 33 to career excepted service
(non-Schedule C) positions.

Agencies used appropriate authorities and followed proper procedures in
making the majority (93) of the 130 conversions reported at the GS-12
level or higher. However, for 37 of these conversions it appears that
agencies did not follow proper procedures or agencies did not provide
enough information for us to make an assessment. For 18 of the 37
conversions, it appears that agencies did not follow proper procedures.
Some of the apparent improper procedures included: selecting former
noncareer appointees who appeared to have limited qualifications and
experience for career positions, creating career positions specifically
for particular individuals, and failing to apply veteran's preference in
the selection process. Seven of the 18 conversions were subject to OPM
review and approval; 2 because they fell within the presidential election
pre-appointment review period as prescribed by OPM and 5 because they were
to SES level positions.

For the remaining 19 conversions, agencies did not provide enough
information for us to fully assess the process used by the agency in
making the conversion. This was largely attributable to the types of
appointments involved. Sixteen of these 19 conversions were to career
excepted service (non-Schedule C) positions at the Department of Justice.
For appointments to excepted service positions, OPM does not require
agencies to follow OPM's competitive hiring provisions or to maintain
records of the rating, ranking, and selection process, as it requires for
competitive service appointments. These unique hiring procedures and
limited documentation requirements for excepted service positions resulted
in us having insufficient information to reconstruct the Department of
Justice's decision-making process to convert these individuals. For the 3
remaining cases, the Department of Health and Human Services and the
Department of Defense (DOD) could not locate certain files.

To help ensure that federal agencies follow appropriate authorities and
proper procedures in making conversions from noncareer to career
positions, we are making recommendations to the Director of OPM to

o review the 18 conversions we identified where it appears that certain
agencies did not use appropriate authorities and/or follow proper
procedures in making these conversions and determine whether additional
actions are needed, and

o determine whether conversions to career excepted service positions
should be subject to OPM review-such as through the pre-appointment review
OPM conducts of other conversions during presidential election periods,
and/or during OPM's periodic audits of agencies' examining and hiring
activities, and if so, determine what information agencies should provide
on such conversions.

We obtained comments on a draft of this report from the Director of OPM.
OPM agreed with our first recommendation to review the 18 cases we
identified where certain agencies did not use the appropriate authorities
or adhere to merit system principles and veteran's preference. With
respect to our second recommendation, OPM stated that it would incorporate
a review of agency practices in this area during its normal review of
agency delegated examining units. Because we view such action as
responsive to the intent of our recommendation to enhance the oversight
over conversions agencies make from noncareer to career excepted service
positions, we revised the recommendation to include OPM's intended action.
Appendix VI contains OPM's written comments.

Background

We identified seven categories of noncareer position appointments
(positions from which individuals were converted as discussed in this
report).

o Schedule C: Appointments are generally noncompetitive and are for
excepted service positions graded GS-15 and below that involve determining
policy or that require a close confidential relationship with the agency
head or other key officials of the agency.

o Noncareer SES: Appointments are to positions with responsibility for
formulating, advocating, and directing administration policies. Noncareer
SES appointees have no tenure and serve "at the pleasure of the department
or agency head."

o Limited Term SES: Appointments may be made for up to 36 months to a
position with duties that will end within 36 months or an earlier
specified time period.

o Limited Emergency SES: Appointments may be made for up to 18 months to
meet a bona-fide, unanticipated, urgent need.

o Presidential appointees, including executive level and noncareer
ambassadors: Appointees are made by the President generally to fill
high-level executive positions. Appointments support and advocate the
President's goals and policies.

o Noncareer legislative branch: Appointments are primarily to positions in
member and committee offices.

o Other statutory at-will individuals: Sometimes called administratively
determined positions. Appointments are made under specific authority
provided to certain agencies to appoint individuals to these positions
noncompetitively. Appointees serve at the pleasure of the agency head and
can be removed at will. The salary levels can be determined by the agency
head within certain limits.

Although noncareer appointments are generally noncompetitive, individuals
holding noncareer positions may have previously held career positions. For
example, Limited Term SES and Limited Emergency SES positions are often
filled by federal employees who have previously held career positions and
achieved career status.

We identified four categories of career position appointments (positions
to which individuals were converted as discussed in this report).

o Career (competitive service): Appointments are made through a
governmentwide or an "all sources" merit staffing (competitive) process,
including recruitment through a published announcement, rating and ranking
of eligible candidates, and establishment of OPM-created or approved
qualification standards.

o Career-conditional (competitive service): Appointments are for permanent
positions in the competitive service and are generally the initial
positions for new hires. Appointees must complete a 1-year probationary
period and a total of 3 years continuous creditable service to attain a
career appointment.

o Career (SES): Appointments are to top-level policy, supervisory, and
managerial positions above grade 15 of the General Schedule. Career SES
positions require a further review and approval of the merit staffing
process by OPM, and the proposed selectee's executive/managerial
qualifications by an OPM-administered SES Qualifications Review Board
(QRB) which are composed of members of the SES from across the government.

o Career Excepted Service (Non-Schedule C): Appointments involve agency
positions that are not subject to OPM's competitive hiring examination.
Agencies have authority to establish their own hiring procedures to fill
excepted service vacancies. Such procedures must comply with statutory
requirements such as merit systems principles and veteran's preference,
when applicable. Career excepted service individuals have adverse action
appeal rights to the Merit Systems Protection Board; which is responsible
for protecting the federal government's merit-based system of employment
by hearing and deciding cases involving certain personnel actions.

As mentioned previously, the majority of authorities and procedures
governing appointments to career positions are outlined in Title 5 of the
U.S. Code. Merit system principles are one of the fundamental statutory
rules that apply to civil service appointments. These principles require
that agencies provide a selection process that is fair, open, and based on
skills, knowledge, and ability.9 Another statutory requirement is the
prohibition on certain personnel practices, such as granting any
individual a preference or advantage in the application process, including
defining the manner of competition or requirements for a position to
improve the prospects of any particular applicant, or failing to fulfill
veteran's preference requirements.10 In addition to these statutory
requirements, agencies must follow OPM's regulations in Title 5 of the
Code of Federal Regulations, which also outline required procedures for
making appointments to career positions, such as providing public notice
of all vacancies in the career SES.11 For career excepted service
(non-Schedule C) positions, agencies are not required to follow OPM's
hiring regulations for the competitive service; however, they must apply
veteran's preference and follow merit system principles when making most
of these appointments.

OPM has oversight authority to ensure that agencies are following the
merit system principles when hiring.12 In accordance with this authority,
OPM has traditionally required agencies to seek its pre-appointment
approval for the conversion of certain noncareer appointees (Schedule C
and Noncareer SES) into certain career positions (competitive service and
career SES) during a presidential election period. OPM defines the
specific duration of this period every 4 years. In a memorandum to
department and agency heads dated March 18, 2004, OPM defined the most
recent pre-appointment review period as beginning on March 18, 2004, and
concluding on January 20, 2005, Inauguration Day. In that memorandum, OPM
also reminded agencies of the need to ensure that agency personnel actions
remain free of political influence and meet all relevant civil service
laws, rules, and regulations and that all official personnel records
should clearly document the continued adherence with merit principles and
the avoidance of prohibited personnel practices. OPM also required
agencies to seek its approval before appointing a current or former
(within the last 5 years) Schedule C or Noncareer SES employee to the
competitive service or career SES during this period. As stated
previously, OPM does not include conversions to career excepted service
(non-Schedule C) positions in this pre-appointment review process.
Thirty-six of the 144 reported conversions covered in this review occurred
during the most recent presidential election review period. In addition to
conducting pre-appointment reviews during election years, OPM also reviews
all career SES appointments. For these appointments, OPM first reviews the
selection process to ensure merit staffing procedures were followed, then
forwards the documents to an OPM-administered SES QRB that reviews and
approves the executive/managerial qualifications of agency proposed
selectees.

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

Twenty-three of the 41 agencies we reviewed reported 144 conversions of
individuals from noncareer to career positions from May 1, 2001, through
April 30, 2005. The other 18 agencies reported no conversions during this
period. Four agencies, the Department of Health and Human Services (HHS),
the Department of Justice (DOJ), the Department of Defense (DOD), and the
Department of the Treasury (Treasury) accounted for 95, or 66 percent, of
the total 144 conversions reported, as seen in figure 1.

Figure 1: Departments and Selected Agencies with the Most Conversions

Of the 144 reported conversions, individuals were converted from the
following categories of noncareer positions:

o 47 Limited Term SES positions

o 46 Schedule C positions

o 25 other statutory at-will positions

o 13 Noncareer SES positions

o 6 Limited Emergency SES positions

o 3 presidential appointee positions

o 4 legislative branch positions

The 144 reported conversions were made to the following categories of 
career positions:

o 64 career SES positions

o 47 competitive service positions

o 33 career excepted service (non-Schedule C) positions

Appendix III provides more detail on the characteristics of the noncareer
and career positions to which the individuals were converted, e.g., title
of positions, grades, salaries, and appointment dates.

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

Agencies appear to have used appropriate authorities and followed proper
procedures in making the majority (93) of the 130 conversions at GS-12
level or above. However, for 18 conversions, it appears that appropriate
authorities were not used or proper procedures followed. For 19
conversions, agencies did not provide us with enough information to make a
determination-many of these conversions were to excepted service positions
where agencies develop their own hiring procedures and have limited
documentation requirements.

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

For 93 of the 130 conversions at the GS-12 level and above, our review of
the merit staffing files and official personnel files at the respective
agencies indicated that the agencies generally followed the procedural
requirements associated with each appointing authority called for by
federal law and regulations, including merit system principles such as
fair and open competition and fair and equitable treatment of applicants.
For example, agencies generally complied with the competitive service
examination process which is intended to ensure that merit system
principles are followed. The process includes notifying the public that
the government will accept applications for a job, rating applications
against minimum qualification standards and assessing applicants'
competencies or knowledge, skills, and abilities against job-related
criteria to identify the most qualified applicants.

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

For 18 conversions, it appeared that in making the conversions, agencies
did not adhere to merit systems principles or may have engaged in
prohibited personnel practices. We found that most of these cases involved
one of several categories of improper procedures, and a few cases involved
more than one. Each of these conversions is discussed in more detail in
appendix IV.

In  7 of the 18 instances, it appears agencies created career positions
specifically for particular noncareer individuals, tailored career
positions' qualifications to closely match the noncareer appointees'
experience or pre-selected an applicant for a career position.

o In one case, it appears that Department of Homeland Security (DHS)
created a career excepted service (non-Schedule C) position and  appointed
a former noncareer appointee to it without providing an opportunity for
other potential candidates to apply.

o In two cases, correspondence between  HHS officials suggested that new
competitive service positions were created specifically for particular
individuals holding statutory at-will positions under Title 42 of the U.S.
Code.

o For two cases, it appears HHS tailored the mandatory qualifications in
the vacancy announcement to closely match the Limited Term SES
individuals' experience, giving them a distinct advantage in the
qualifications rating process for the career SES position.

o In one case, HHS may have tailored a career position to match a Schedule
C appointee's experience, giving  the political appointee an unfair
advantage in the competitive process.

o In one case, it appears DOD preselected a former Schedule C appointee
for a career position, giving the political appointee an unfair advantage
in the competitive process.

In 4 of the 18 instances, it appears agencies did not apply veteran's
preference properly when converting noncareer appointees to competitive
service and career excepted service (non-Schedule C) positions.

o In one case, it appears HHS selected a Schedule C appointee over an
applicant with veteran's preference, who had scored higher than the
noncareer appointee in the competitive examination process. Although
agencies may make such selections they are required to justify such
decisions in writing. It appears the agency did not document its
justification.

o In one case, documents suggest the Environmental Protection Agency (EPA)
did not apply veteran's preference points13 to applicants' scores, despite
the presence of seven veteran's preference eligibles on the applicant
roster for a competitive service position. Had the points been assigned,
five of the applicants would have scored higher than the Schedule C
appointee (who was eventually selected) in the competitive examination
process. Additionally, it appears that the agency may have created the
career position specifically for this individual.

o In one case, it appears HHS did not apply veteran's preference points
for two applicants. Had the points been assigned, the applicants would
have scored higher than the Title 42 statutory-at-will employee (who was
eventually selected) in the competitive examination process.

o In one case, it appears that DOJ converted a former Schedule C employee
to a career excepted service (non-Schedule C) position without providing
the opportunity for veteran's preference eligibles to apply.

In 3 of the 18 instances, agencies converted individuals who appeared to
have limited qualifications and/or experience relevant to the career
excepted service (non-Schedule C) positions.

o In one case, DOJ converted a former Schedule C appointee even though it
appears he did not meet the position's minimal qualifications as outlined
in the vacancy announcements.

o In two cases, the Department of Housing and Urban Development (HUD) and
DHS selected former Schedule C appointees who appeared to have limited
experience relevant to the career positions.

For the four remaining conversions, agencies did not follow several
different proper procedures during the appointment process:

o For two cases, HHS posted vacancy announcements for SES positions for
less than the designated minimum time requirement for SES Merit Staffing
Procedures.

o In one case, OPM raised concerns to the Small Business Administration
(SBA) that the appointment did not adhere to merit system principles
during the competition. Based on our review, it appears that SBA proceeded
with the conversion without fully addressing OPM's concerns.

o In one case, OPM cited weaknesses to the Consumer Product Safety
Commission (CPSC) concerning the selected candidate's qualifications for
the SES position. In our view, it appears that CPSC proceeded with the
conversion without fully addressing OPM's concerns.

Concerning OPM's role in these 18 conversions, 7 of the 18 conversions
were subject to OPM review and approval; 2 because they fell within the
presidential election pre-appointment review period as prescribed by OPM
and 5 because they were to SES level positions. Of the 2 conversions
subject to OPM's presidential election pre-appointment review process, in
one instance, it appeared the agency did not submit the conversion to OPM
for its review. In the other instance, OPM reviewed the file but did not
take action before the January 20, 2005, deadline for the pre-appointment
review period. Of the 5 conversions to SES level positions, an
OPM-administered QRB reviewed and approved the selectee's qualifications
for each of these appointments, although in one case OPM initially
rejected the selectee's qualifications, then approved the selection after
the agency revised and resubmitted its application.

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

For 19 conversions, we did not have sufficient information to make a
determination as to whether appropriate authorities and proper procedures
were followed. More details on these conversions can be found in appendix
V. Sixteen of these conversions were to career excepted service
(non-Schedule C) positions at DOJ. For the remaining 3 conversions,
agencies could not locate the required files or documents.

As mentioned previously, agencies are not required to follow OPM's
competitive examination process when making appointments to career
excepted service (non-Schedule C) positions. Rather, individual agencies
and components within these agencies may develop their own procedures and
guidelines for hiring, including documentation requirements for hiring
decisions. Although OPM requires agencies to maintain records of the
rating, ranking, and selection process for competitive service
appointments, these documentation requirements do not apply to the
excepted service. Agencies are, however, required to follow merit system
principles and apply veteran's preference when making most appointments,
including those to excepted service positions. Given the limited
documentation requirements for these positions, we could not obtain
adequate records from DOJ to reconstruct its hiring process. More
specifically, DOJ could not provide us with documentation of their
decision-making process for these appointments, such as, in some cases, a
copy of the selectee's application. For the 3 remaining conversions, HHS
could not locate certain files. In two cases, HHS could not locate the
Official Personnel File or the merit staffing file for 2 conversions of
Limited Term SES individuals to the career SES. In the other case, HHS
could not locate the merit staffing files for a former Schedule C
appointee that converted to a competitive service position.

Conclusions

As we have stated in previous reports, the ability to convert noncareer
employees to career positions is an appropriate and valuable process
available to agencies. However, the noncompetitive nature of the
appointment process for the noncareer positions can create concerns about
whether these individuals have benefited from favoritism or improper
advantage when being converted to career positions, even the appearance of
which could compromise the integrity of the merit system. OPM has
established a process to help ensure that conversions occurring during
presidential election periods and to SES level positions, meet merit
system principles. While this process has in fact helped ensure that some
improper conversions are prevented, questionable conversions can sometimes
still occur. Also, conversions to excepted service positions are excluded
from the presidential election period pre-appointment review process.
While these conversions to excepted service positions are exempt from the
OPM competitive examination process, they are subject to other statutory
requirements, and therefore could involve some of the same concerns, as
demonstrated by our review. As we discussed previously, as a part of its
oversight authorities, OPM also conducts periodic reviews of agencies'
examining and hiring activities to ensure they are consistent with the
merit systems principles and other laws and regulations.

OPM should review the 18 conversions we identified where certain agencies
appeared not to have used proper authorities or to have followed proper
procedures, and take any appropriate corrective actions. Also, OPM should
determine whether conversions to excepted service positions should be
subject to its pre-appointment review during presidential election periods
or its periodic reviews of agencies' examining and hiring activities, and
if so, what information the agencies should provide to OPM in that regard.

Recommendations for Executive Action

To help ensure that federal agencies are following appropriate authorities
and proper procedures in making conversions of  noncareer to career
positions, we recommend that the Director, OPM:

o review the 18 conversions we identified where it appears that certain
agencies did not use appropriate authorities and/or follow proper
procedures in making these conversions and determine whether additional
actions are needed, and

o determine whether conversions to career excepted service positions
should be subject to OPM review-such as through the pre-appointment review
OPM conducts of other conversions during presidential election periods,
and/or during OPM's periodic audits of agencies' examining and hiring
activities, and  if so, determine what information agencies should provide
on such conversions.

Agency Comments and Our Evaluation

We obtained comments on a draft of this report from the Director of OPM.
OPM agreed with our recommendation to review the 18 cases we identified
where agencies did not use the appropriate authorities or adhere to merit
system principles and veteran's preference. OPM also noted that 9 of the
18 cases we identified came from HHS where OPM recently withdrew a
delegated examining authority from one of its components following an
oversight review.

With respect to our recommendation that OPM determine whether conversions
to career excepted service positions should be subject to the
pre-appointment review OPM conducts during the presidential election
periods, OPM stated it would incorporate a review of agency practices in
this area during its normal review of agency delegated examining units.
Because we view such action as responsive to the intent of our
recommendation to enhance the oversight over conversions agencies make
from noncareer to career excepted service positions, we revised the
recommendation to include OPM's intended action. OPM's written comments
are in appendix VI.

We also verified the number of conversions reported by each agency for the
period from May 1, 2001, through April 30, 2005, including those that
reported no conversions during this period with cognizant agency
officials. In addition, we provided draft summaries of the 18 conversions
on which we had questions and the 19 conversions where we could not make a
determination, to the agencies that had reported them. The Department of
Justice, Environmental Protection Agency, Department of Housing and Urban
Development, Department of Defense, Small Business Administration, and
Consumer Product Safety Commission provided technical clarifications to
the discussion of their respective conversions, which we incorporated as
appropriate.

As agreed with your offices, unless you announce the contents of this
report earlier, we plan no further distribution until 30 days after the
date of this report. At that time, we will send copies to the Director of
the Office of Personnel Management and other interested parties. In
addition, this report will be available at no charge on the GAO Web site
at http://www.gao.gov .

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

George H. Stalcup Director, Strategic Issues

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

1.Department of Agriculture-3

2.Department of Commerce-1

3.Department of Defense (Office of the Secretary, Air Force, Army, and
Navy)-21

4.Department of Education-3

5.Department of Energy-1

6.Department of Health and Human Services-36

7.Department of Homeland Security-3

8.Department of Housing and Urban Development-3

9.Department of the Interior-4

10.Department of Justice-23

11.Department of Labor-3

12.Department of State-2

13.Department of Transportation-0

14.Department of the Treasury-15

15.Department of Veteran Affairs-4

16.Commission on Civil Rights-0

17.Consumer Product Safety Commission-5

18.Corporation for National Service-0

19.Environmental Protection Agency-1

20.Equal Employment Opportunity Commission-1

21.Export-Import Bank of the U.S.-0

22.Federal Deposit Insurance Corporation-0

23.Federal Labor Relations Authority-0

24.Federal Maritime Commission-0

25.Federal Trade Commission-1

26.General Services Administration-3

27.U.S. International Trade Commission-0

28.Merit Systems Protection Board-0

29.National Aeronautics and Space Administration-3

30.National Labor Relations Board-0

31.Office of Government Ethics-0

32.Office of Management and Budget-0

33.Office of Personnel Management-5

34.Office of Special Counsel-0

35.Office of the U.S. Trade Representative-0

36.Overseas Private Investment Corporation-0

37.Peace Corps-0

38.Pension Benefit Guaranty Corporation-0

39.Security Exchange Commission-0

40.Small Business Administration-2

41.Social Security Administration-1

Total Number of Conversions: 144

Appendix II  Scope and Methodology

For the purpose of this review, we identified seven categories of
noncareer position appointments. These noncareer appointments were:
Schedule C, Noncareer SES, Limited Term SES, Limited Emergency SES,
Presidential appointees, Noncareer legislative branch, and Other statutory
at-will positions. Individuals holding noncareer positions may have
previously held career positions. For example, Limited Term Senior
Executive Service (SES) and Limited Emergency SES positions are often
filled by federal employees who have previously held career positions
(prior to being appointed to the noncareer positions from which they were
being converted). We identified four categories of career position
appointments: Career (competitive service), Career-conditional
(competitive service), Career (SES), Career Excepted Service (Non-Schedule
C).  Definitions of these noncareer and career positions can be found in
the background section of this report. We also reviewed our prior work on
conversions for information on these position categories.

The criteria used to select the executive branch departments and agencies
for this review were (1) all 15 departments and (2) 26 agencies that had
oversight or other regular responsibilities for federal workforce issues,
and agencies that were of particular interest to the congressional
requesters of the review. Under these criteria, we identified 41
departments and agencies, which are listed in appendix I.

To determine the number of individuals who converted from noncareer to
career positions, we asked the 41 agencies to complete a data collection
instrument (DCI) for the conversions made from May 1, 2001, through
December 31, 2003, and provide the information to us by April 15, 2004. To
follow up on conversions made on or after January 1, 2004, we asked the
agencies to provide the number of conversions to us  on a monthly basis
even if the agency had no conversions, beginning on May 15, 2004, through
April 30, 2005.

In the DCI, we asked the agencies to provide specific information about
the conversions: the  career positions to which the individuals were
appointed, including the position title, pay grade, annual salary, and the
date of appointment. We also asked for information on the convertee's
former noncareer position. In addition, we asked the agencies to provide
the Standard Form-50B (SF-50B) for all appointments. The SF-50B is the
official record of the personnel action. We used the SF-50B to verify the
information that agency officials provided in the DCI. We also verified
the number of conversions reported by the agencies with agency officials
for the period from May 1, 2001, through April 30, 2005, including those
that reported no conversions during this period.

During our review, we also cross-referenced conversions the agencies
reported to us that were made during the presidential election review
period from March 18, 2004, to January 20, 2005, with the information
agencies reported to OPM during the same period. According to OPM, it
received and reviewed 24 proposed conversions during the period.

We reviewed the authorities used and procedures followed for conversions 
reported to us at the GS-12 level and above. We first identified the
authority that the agency cited for the appointment on the SF-50B and
verified that it  was the appointment authority for that conversion. We
also examined the contents of the individual's official personnel file
(OPF), and when appropriate, the merit staffing case files to determine if
there was evidence that the criteria for using the authority was met.

To determine if proper procedures were followed, we reviewed merit
staffing files and OPFs to determine what steps were taken in the
application and conversion process. Merit staffing files document
promotion and hiring decisions for specific career appointments. The OPF
contains SF-50Bs, position descriptions, and records from individuals'
previous appointments, including former noncareer positions. If we had
questions concerning a conversion, we interviewed officials at the
appointing agency and requested documentation to support their statements.
We compared the procedures used in the conversion process to the federal
personnel laws and regulations contained in Title 5 of the U.S. Code and
Title 5 of the Code of Federal Regulations. We also referred to agencies'
merit staffing plans. We based our analysis on our review of documents
within the case file and additional supporting documents provided by the
agency in response to our questions.

Agencies are not required to follow OPM's competitive hiring provisions
for career excepted service positions and can establish their own hiring
procedures for these positions, but they are not required to have written
copies of these procedures. We requested, and when available,  obtained
and reviewed copies of the hiring procedures from each agency reporting
using this authority to determine if proper procedures were followed.
Specifically, we requested additional information from the Departments of
Homeland Security, Housing and Urban Development, Treasury, and Justice
(DOJ), and the Consumer Product Safety Commission (CPSC). Because each
individual component in DOJ has its own appointing authority, we contacted
the following eight individual components that reported conversions:
Office of the Solicitor General, Executive Office of U.S. Attorneys,
Executive Office of Immigration Review, Office of Legal Counsel, Civil
Rights Division, Tax Division, Criminal Division, and the Federal Bureau
of Investigation (FBI). We also met with Department of Justice's Director
of Attorney Recruitment and Management to discuss the process DOJ uses to
convert individuals to Excepted Service (Non-Schedule C) positions. The
CPSC, the Department of Treasury, and four components (Civil Rights
Division, Criminal Division, FBI, and Executive Office of U. S. Attorneys)
within DOJ provided GAO with written procedures. HUD and three components
(Executive Office of Immigration Review, Tax Division, and Office of Legal
Counsel) within DOJ reported they did not have written procedures. DHS and
one component within DOJ (the Office of the Solicitor General) did not
respond to our request for written procedures.

We verified the number of conversions reported by the agencies with agency
officials for the period from May 1, 2001, through April 30, 2005,
including those that reported no conversions during this period. In
addition, we provided draft summaries of the 18 conversions where it
appeared agencies did not follow proper procedures and the 19 conversions
where we could not make a determination to the respective agencies. The
Department of Justice, Environmental Protection Agency, Department of
Housing and Urban Development, Department of Defense, Small Business
Administration, and Consumer Product Safety Commission provided technical
clarifications to the discussion of these conversions, which we
incorporated as appropriate.

We conducted our work in Washington, D.C. from March 2004 through March
2006 in accordance with generally accepted government auditing standards.

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

Source: GAO.

aSalary includes locality pay

bSalary at time of conversion

cNewly established position

Legend:

AD: Administratively determined; rate set by agency.

EJ: The Department of Energy Organization Act Excepted Service. Code is
for use by the Department of Energy only.

ES: Senior Executive Service

GG: Grade similar to General Schedule

GS: General Schedule

IJ: Immigration Judge Schedule. The code is for use by the Department of
Justice only.

IR: Internal Revenue Service Broadband Classification and Pay System
Positions only. Code is for use by the Internal Revenue Service
(Department of Treasury) only.

NH: Business Management and Technical Professional. DOD Acquisition
Workforce Demonstration Project. Code is for use by the Department of the
Air Force, Department of the Army, Department of Defense, and Department
of the Navy only.

SK: Securities Exchange Commission individuals formerly under the GS, GM,
and EZ pay plans. Code is for use by the Securities and Exchange
Commission only.

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

For 18 of these conversions, it appears that agencies did not follow
proper procedures or may have violated other statutory or regulatory
requirements.  OPM has oversight authority to ensure that agencies are
following the merit system principles when hiring. In accordance with this
authority, OPM has traditionally required agencies to seek its
pre-appointment approval for the conversion of certain noncareer
appointees (Schedule C and Noncareer SES) into certain career positions
(competitive service and career SES) during a presidential election review
period. OPM defined the most recent pre-appointment review period as
beginning on March 18, 2004, and concluding on January 20, 2005,
Inauguration Day. Additionally, career SES positions require a further
review and approval of the merit staffing process by OPM, and the proposed
selectee's executive/managerial qualifications by an OPM-administered SES
Qualifications Review Board (QRB) which are composed of members of the SES
from across the government.

Seven of the 18 conversions were subject to OPM review and approval; 2
because they fell within the presidential election pre-appointment review
period as prescribed by OPM and 5 because they were to SES level
positions. Of the 2 conversions subject to OPM's presidential election
pre-appointment review process, in one instance, it appeared the agency
did not submit the conversion to OPM for its review. In the other
instance, OPM reviewed the file but did not take timely action before the
January 20, 2005, deadline for the pre-appointment review period. Of the 5
conversions to SES level positions, an OPM-administered QRB reviewed and
approved the selectee's qualifications for each of these appointments,
although in one case a QRB initially rejected the selectee's
qualifications, then a different QRB approved the selection after the
agency revised and resubmitted its application.

Case 1:

Department of Defense (DOD)

Positions:

From Schedule C Appointment, GS-0301-13/01, Special Assistant to the
Director, Program Analysis and Evaluation

To GS-0343-13/01, Assistant for Plans and Integration, Office of Assistant
Secretary for Defense, Homeland Defense

Issue:

Preselecting an applicant for a career position

Details:

The eventual selectee served as a Schedule C Special Assistant to the
Principal Deputy Under Secretary of Defense for Policy from December 2001
through August 2002. In September 2002, she was reassigned to another
Schedule C position as a Special Assistant to the Director, Program
Analysis and Evaluation. Official records indicate the eventual selectee
occupied this position until her conversion to the career position of
Assistant for Plans and Integration on January 25, 2004. However,
according to her resume, the eventual selectee assumed the duties of the
career position beginning in March of 2003. Based on her description, as
the Assistant for Plans and Integration, the eventual selectee: (1)
developed and integrated force employment and planning policy guidance
related to homeland defense; (2) developed, organized, and coordinated
policy guidance working groups with other DOD components related to
homeland defense activities; (3) ensured policy oversight for force
employment issues; and (4) provided recommendations to the Deputy
Assistant Secretary for Force Planning and Employment and the Assistant
Secretary of Defense for Homeland Defense.

The agency contracted with OPM's Philadelphia field office to advertise
and rate applications for the career position of Assistant for Plans and
Integration in the Office of the Assistant Secretary of Defense for
Homeland Defense. On November 20, 2003, OPM sent DOD a selection package
containing a certificate listing eight eligible candidates in the order of
their rating and their applications. Based on documents OPM provided to
us, a 10-point compensable veteran1 had the highest rating, and the
eventual selectee was listed fourth.  In a December 2, 2003, memorandum to
the selecting official, the Principal Director, Organizational Management
and Support referred to the eventual selectee by name as the agency's
"primary candidate." On December 30, 2003, the selecting official
interviewed the veteran's preference eligible, who voluntarily declined
consideration for the position at that time. On the same day, the agency
selected the former Schedule C appointee to the career position.

Conclusions:

We did not receive a complete merit staffing file from DOD for this
conversion. Based on the available documents, there is some evidence that
DOD may have pre-selected the former Schedule C employee for the position.
Pre-selecting an applicant for a career position would violate the
statutory prohibition against granting unauthorized advantages to
individuals in the hiring process. Since we were unable to review the
resumes of all the applicants, we could not make a determination as to the
comparative qualifications of the candidates, including the veteran's
preference eligible that declined the position.

OPM's Role:

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

Case 2:

Department of Health and Human Services (HHS)

Positions:

From Statutory At-Will, Title 42 U.S.C. S: 209(g), AD-0602-00/00, Research
Fellow, National Institutes of Health

To GS-0601-13/01, Health Scientist Administrator, National Institutes of
Health

Issue:

Creating career positions specifically for particular individuals

Details:

The eventual selectee worked as a statutory-at-will Title 42 Research
Fellow at the National Institutes of Health for almost 5 years prior to
applying for the career position of Health Scientist Administrator.
According to her resume, as a research fellow, she was assigned to a
variety of work details involving both scientific and administrative
duties within the Basic Neurosciences Program at the National Institute
for Neurological Disorders and Stroke.

On December 18, 2004, the selecting official expressed interest in hiring
the eventual selectee (identifying the individual by name) as a program
officer and requested the creation of a full-time equivalent position for
that purpose. This request to hire the eventual selectee was approved by
agency officials in an electronic mail correspondence dated December 22,
2004. On January 12, 2005, the health scientist administrator position was
created in the Division of Basic Neuroscience and Behavioral Research.
According to the position description, as health scientist administrator,
the individual would be responsible for organizing an extramural research
program to support the study of neurobiology as it relates to chemical
addiction and neuroimmunology in AIDS research. The agency advertised the
position, 19 individuals applied, and four candidates were certified as
eligible for consideration. The eventual selectee had the lowest rating of
the four candidates (one candidate subsequently declined prior to the
selection being made), but was selected for the position on February 1,
2005.

Conclusions:

The documents provided to us suggest the position may have been created
specifically to hire the eventual selectee. This would represent a
pre-selection of an applicant, which would violate the statutory
prohibition against granting unauthorized advantages to individuals in the
hiring process.

OPM's Role:

Since this conversion did not occur in the presidential election review
period and did not involve a Schedule C or Noncareer SES appointee, it was
not subject to OPM's pre-appointment review.

Case 3:

Department of Health and Human Services

Positions:

From Statutory At-Will, Title 42 U.S.C. S: 209(f) AD-0403-00/00,
Scientific Review Administrator, National Institutes of Health

To GS-0601-15/05, Health Scientist Administrator, National Institutes of
Health

Issue:

Creating career positions specifically for particular individuals

Details:

The eventual selectee served in a statutory-at-will Title 42 position as
Scientific Review Administrator from March 2001 to March 2005. Prior to
this, the eventual selectee had served within the Division of Extramural
Activities at the National Institute for Allergy and Infectious Diseases
(NIAID) for several years in a competitive position. She listed the
following responsibilities for the statutory at-will position on her
resume: (1) performed special scientific reviews and lead the initiation,
planning, management, and oversight of division activities related to
international research funding and resource management, (2) represented
the division director at meetings that discuss extramural international
grants, contracts, and capacity sustainability in developed and developing
countries, (3) helped develop policies that affect foreign research
funding and methods to improve financial management of international
awards, and (4) managed the NIAID Select Agent process to assist with the
biodefense program.

On April 9, 2004, agency officials, including the selecting official,
circulated a position description for the recruitment of a director for
the Office of International Extramural Activities. The routing slip stated
that this position description was to recruit the eventual selectee by
name. On June 24, 2004, a new interdisciplinary competitive service
position was created in the Division of Extramural Activities. On January
12, 2005, the agency advertised the new position as Director, Office of
International Extramural Activities. The position description stated that
the director, among other duties, would: (1) lead the initiation,
planning, management, and oversight of division activities related to
international research funding and resource management, (2) be the senior
advisor and management official concerning the management of international
research awards, (3) help develop policies and systems that affect foreign
research funding, and assist international parties to design contract
management systems, and (4) be the expert advisor to the NIAID on
biodefense issues. The agency advertised the position; three applicants
applied; and only the eventual selectee was certified as eligible for
consideration. The agency selected her for the position on February 4,
2005.

Conclusions:

Two factors taken together create the appearance that the individual may
have been preselected for this position, including: (1) the routing slip
circulated within the agency specifically identifying the eventual
selectee by name, and (2) clear and extensive overlap/similarities between
responsibilities previously cited by the eventual selectee and the duties
listed in the description of the newly created position. Pre-selecting an
individual or applicant for a competitive position grants an unauthorized
preference to an individual in the employment process, and is a violation
of federal law.

OPM's Role:

Since this conversion did not occur in the presidential election review
period and did not involve a Schedule C or Noncareer SES appointee, it was
not subject to OPM's pre-appointment review.

Case 4:

Department of Health and Human Services

Positions:

From Schedule C, GS-0301-14/03, Special Assistant to the Deputy Director
for Office of Child Support Enforcement, Administration for Children and
Families

To GS-0301-14/03, Information Management and Dissemination Coordinator,
Office of the Assistant Secretary for Planning and Evaluation

Issue:

Failure to apply veteran's preference

Details:

Prior to appointment to the career position, the eventual selectee served
for over 2 years as a Schedule C Special Assistant to the Deputy Director
in the Office of Child Support Enforcement. According to the special
assistant position description, the eventual selectee served as a
principal source of advice and counsel to the Deputy Director/Commissioner
on various assignments, projects and work groups involving program
policies, reviews, evaluations, plans, and approaches that affected the
Office of Child Support Enforcement.

On April 4, 2004, HHS created, and 2 weeks later, advertised the
Information Management and Dissemination Coordinator position in the
Immediate Office of the Assistant Secretary for Planning and Evaluation.
The position description provided that the coordinator would be the senior
advisor for the office's information dissemination and communication
program, leading content and technical aspects of the development and use
of technology-based solutions.

Eleven applicants were certified as eligible for consideration, including
three veteran's preference eligibles. After preference points were
allocated, both the eventual selectee and a veteran's preference eligible
candidate received the highest scores of 100 points on the rating tool. In
accordance with law,2 the veteran's preference eligible candidate was
listed first on the certificate of eligibles, but the agency passed over
this candidate to choose the selectee for the position on September 19,
2004. Agencies may pass over veteran's preference eligible candidates
based on

suitability grounds,3 or may ask OPM to disqualify an eligible candidate
due to medical reasons.4 However, in exercising their authority, agencies
must file written reasons5 for passing over a veteran's preference
eligible, either with OPM or with a delegated examining authority.6 The
selection certificate contained a handwritten notation referring to a
veteran's preference objection letter. However, no such letter or approval
from the examining office7 was contained in the file provided to us.

Conclusions:

Based on the available documents, it appears the agency did not follow, or
did not properly document that it followed, statutorily-required veteran's
preference hiring procedures for competitive service appointments.

OPM's Role:

Since this conversion involved a former Schedule C appointee and took
place during the presidential election review period, this conversion was
subject to OPM's pre-appointment review. The agency should have referred
the case to OPM prior to appointing the selectee to the position. Based on
available documents from both HHS and OPM, there is no indication whether
this referral or review occurred.

Case 5:

Department of Health and Human Services

Positions:

From Statutory At-Will, Title 42 U.S.C. S: 209(f) AD-0401-00/00,
Biologist, National Institutes of Health

To GS-0601-14/01, Health Scientist Administrator National Institutes of
Health

Issue:

Failure to apply veteran's preference

Details:

The eventual selectee served as a Title 42 Biologist in the Office of
Policy Analysis for over 2 years prior to applying for the career
position. Based on her resume, in the Biologist position the eventual
selectee carried out a range of responsibilities related to scientific
program reporting, strategic planning, and program evaluation.

On February 8, 2005, HHS advertised a career position of Health Scientist
Administrator in the Office of Policy Analysis. The position description
listed responsibility for scientific planning, program reporting, and the
development of materials on biodefense research efforts.

Eleven applicants applied for the position, including a 5-point
compensable veteran and a 10-point compensable veteran.8 Applicants were
assigned scores based on their online responses and a computer-based
scoring system. Agencies are required to assign additional points to
qualifying veteran's scores during the rating and ranking process.9 Based
on the applicant listing HHS provided, applicant scores were not adjusted
for veteran's preference. Had the adjustment for veteran's preference been
made, both the 5-point and 10-point compensable veterans would have rated
higher and been listed ahead of the eventual selectee on the certificate
of eligibles. In the absence of veteran's preference points, three
individuals (the eventual selectee, another nonveteran, and the 10-point
compensable veteran) were referred to the selecting official, and because
veteran's preference points were not assigned, the eventual selectee had
the highest score on the certificate of eligibles. Selection was made on
March 1, 2005.

Conclusions:

Based on the documents provided to us, it appeared that HHS did not  apply
veteran's preference points for two applicants. Had HHS assigned veteran's
preference points, both of the veterans would have ranked higher than the
eventual selectee on the final rating sheet, and the agency would have had
to file written reasons for passing them over.

OPM's Role:

Since this conversion did not occur in the presidential election review
period and did not involve a Schedule C or Noncareer SES appointee, it was
not subject to OPM's pre-appointment review.

Case 6:

Department of Health and Human Services

Positions:

From SES Limited Term Appointment, ES-301-00/01, Director, Competitive
Sourcing Unit, Program Support Center

To ES-0342-01/00, Director, Office of Administrative Operations, Program
Support Center

Issue:

Tailoring of career position qualifications to match an individual's
experience

Details:

Prior to the conversion, the eventual selectee served for 6 months in the
SES Limited Term Position. According to the position description, as
Director he was responsible for designing HHS's implementation of the
Competitive Sourcing Initiative and serving as the Acting Director of the
Administrative Operations Service (AOS). In his resume, the eventual
selectee emphasized his role as Acting Director of AOS, stating that he
was responsible for providing HHS and other federal customers nationwide
administrative and technical services in areas such as (1) building
operations, surplus real property, leasing, security, property management,
warehousing, logistics and management services; (2) printing, duplicating
and typesetting; (3) operation of reference libraries; (4) mail
distribution and handling; (5) claims service for Public Health Service
components nationwide under specific statutory authorities; (6)
acquisition service; (7) pharmaceutical, medical, dental supplies to
federal agencies and other related nonfederal customers; (8) technical
graphics and photography services; and (9) a wide range of technology and
telecommunications services.

On May 24, 2002, HHS advertised the SES Director of AOS position, open to
qualified federal employees. In both the position description and the
vacancy announcement, one of the mandatory professional/managerial
qualifications specified for the position was "experience in delivering
and managing a wide range of administrative support services to a diverse,
complex, and large customer base requiring such services such as (1)
building operations, surplus real property, leasing, security, property
management, warehousing, logistics and management services; (2) printing,
duplicating and typesetting; (3) operation of reference libraries; (4)
mail distribution and handling; (5) claims service for PHS components
nationwide under specific statutory authorities; (6) acquisition service;
(7) pharmaceutical, medical, dental supplies to federal agencies and other
related nonfederal customers; (8) technical graphics and photography
services; and (9) a wide range of technology and telecommunications
services." An agency panel rated the eventual selectee and two other
candidates as highly qualified for the position, then referred all three
to the selecting official. Four other candidates were also referred to the
selecting official as qualified applicants based on their SES status. The
selecting official, who was also the eventual selectee's supervisor at
that time, selected him for the position on July 8, 2002. Although an
internal agency memo directs the selecting official to provide a brief
statement of the rationale for hiring individuals, no such documentation
was in the file we were provided on this selection.

Conclusions:

Based on the documents, it appears the agency may have tailored the
qualifications for the career position for the purpose of improving an
individual's prospects for employment. Further, one of the mandatory
technical qualifications specified for the new position appeared to be
tailored to the selectee's previous experience. Such a situation could
both unnecessarily limit the applicant pool, but also provide an
individual an unfair advantage. Including such a specific qualification
without prior consultation with OPM would also violate qualifications
standards regulations for General SES positions.10 There was no evidence
within the file to suggest the agency consulted with OPM prior to setting
the qualifications standards.

OPM's Role:

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

Case 7:

Department of Health and Human Services

Positions:

From SES Limited Term Appointment, ES-0301-00/00, Program Manager,
E-Grants Initiative, Office of Assistant Secretary for Administration and
Management

To ES-1101-00/00, Director, Office of Grants Management and Policy, Office
of Assistant Secretary for Administration and Management

Issue:

Tailoring of career position qualifications to match an individual's
experience

Details:

The eventual selectee was appointed Program Manager of the E-Grants
Initiative, a SES Limited Term position, on March 24, 2002, and held the
position for approximately 2 years. Prior to this appointment, the
eventual selectee had been a career civil servant at the National
Institutes of Health in various positions from 1981 through 1999, prior to
leaving to work in the private sector, then being rehired as an excepted
service consultant to HHS in 2001. On February 10, 2002, the eventual
selectee was reinstated to a career position at HHS. According to his
application, as Program Manager of the E-Grant Initiative, the eventual
selectee led the management and development of Grants.gov and built
consensus through outreach to grantors and grantees as well as making
presentations to OMB, HHS leadership and the Federal Chief Financial
Officers (CFO) Council. Beginning  in June 2003, the role of acting
director for the newly created Office of Grants Management and Policy was
added to the eventual selectee's responsibilities in the SES Limited Term
position.

On October 10, 2003, HHS created, and then 3 weeks later advertised, the
director position open to all sources. According to the vacancy
announcement, the duties and responsibilities within the Immediate Office
of the Director were to support government electronics grants, including
outreach to grantors and grantees, and interfacing with OMB, the Federal
Council and HHS leadership. Additionally, the director would also be
responsible for the Division of Grants Policy and the Division of Grants
Oversight and Review. As a mandatory professional/technical qualification
for this position, applicants were required to possess progressively
responsible management experience in the E-Grants Initiative that
demonstrated in-depth knowledge of outreach efforts and interfaces with
OMB, Federal CFO Council, and HHS leadership on Grants.gov, and included
at least one year of specialized experience in the E-Grants Initiative at
the GS-15 or equivalent level.

There were two printed rosters listing the seven applicants included in
the merit staffing file we were provided. The first roster listed five
candidates as qualified, with hand-written annotations towards the not
qualified category for 4 of these 5. The second roster listed only the
eventual selectee as qualified and only he was referred to the rating
panel. Since there were no documents included for the other applicants
within the file, a review of the referral process to the rating panel was
not possible. The selecting official, who was the selectee's supervisor at
the time, chose him for the position on January 30, 2004.

Conclusions:

Based on the documents, it appears the agency may have tailored the
qualifications for the career position for the purpose of improving an
individual's prospects for employment. First, the duties defined closely
correlated with those performed by the eventual selectee in the Limited
Term SES Program Manager position. Further, one of the mandatory
professional technical qualifications appeared to be tailored to the
selectee's experience. In addition, the requirement of in-depth knowledge
of the E-grants program likely excluded any nonfederal applicants.
Including such a specific qualification without prior consultation with
OPM would violate qualifications standards regulations for General SES
positions. There was no evidence within the file to suggest the agency
consulted with OPM prior to setting the qualifications standards. Defining
the scope or manner of competition or the requirements for any position
for the purpose of improving or injuring the prospects of any particular
person for employment would violate federal law.11

OPM's Role:

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

Case 8:

Department of Health and Human Services

Positions:

From Schedule C Appointment, GS-0301-12/02, Confidential Assistant to the
Executive Secretary, The Executive Secretariat

To GS-0301-12/02, Policy Coordinator, Office of the Secretary of Health
and Human Services

Issue:

Tailoring of career position qualifications to match an individual's
experience

Details:

The eventual selectee served as a Schedule C Confidential Assistant to the
Executive Secretary for a year and a half prior to applying for the career
position. Before this, the eventual selectee worked for the Secretary for
almost 4 years as a policy analyst when the Secretary was Governor of
Wisconsin. According to his resume, as the Confidential Assistant to the
Executive Secretary, the eventual selectee (1) directly supported the
Secretary of HHS by coordinating briefing materials, (2) provided relevant
information regarding meetings, briefings, and speaking engagements, (3)
reviewed and produced documents requiring the Secretary's approval, (4)
developed the Secretary's daily calendar, (5) facilitated meetings with
the administrative staff of the office, and (6) analyzed policy decisions
for their potential impact on the Department.

On June 4, 2002, HHS posted a vacancy announcement for the re-established
career position12 of Policy Coordinator in the Office of the Secretary.
According to the position description and vacancy announcement, the
individual selected for this position would (1) review documents requiring
the Secretary's approval, (2) be a technical source of information, (3)
represent the Executive Secretary to other government officials, (4)
develop background papers to brief the Secretary and other department
officials, and (5) coordinate and facilitate meetings.

Of the 53 applicants, 5 were referred to the selecting official after
being assigned numerical scores and 4 were referred as eligible based on
their career status. The eventual selectee received the highest numerical
score; however, the file contained no documentation to show how points
were assigned or who rated the applicants. The selecting official, who was
also the selectee's supervisor at the time, made the selection on August
1, 2002.

Conclusions:

The duties and responsibilities of the Schedule C and career positions
overlap substantially and are located in the same office with a similar
supervisory structure, giving the appearance that the agency may have
tailored qualifications for the position for the purpose of improving an
individual's prospects for employment. Although the selectee received the
highest score, there is no documentation explaining how the score was
assigned, or who assigned it.

OPM's Role:

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

Case 9:

Department of Health and Human Services

Positions:

From SES Limited Term Appointment, ES-0201-00/00, Director, Human
Resources (Site Director) Atlanta, Program Support Center

To ES-0201-00/00, Director, Human Resources Center, Atlanta, Program
Support Center

Issue:

Posting SES vacancy announcements for less than the minimum time
requirement

Details:

Prior to appointment to the SES career position as Director, Human
Resources Center in Atlanta, the eventual selectee served in a similar
position for a year under a Limited Term appointment. Before this, she had
held career positions for 23 years. At the time of the SES Limited Term
appointment on May 18, 2003, the eventual selectee had achieved a position
within HHS at the GS-15 level.

HHS posted a vacancy announcement on USA Jobs for a SES position as
Director, Human Resources Center in Atlanta, who would be responsible for
providing a variety of human resources services to the Center for Disease
Control and Prevention in Atlanta. The announcement was open from March
22, 2004, to April 2, 2004, a period of 12 days. Eleven applicants
applied, and of these, three were certified as eligible for consideration.
Selection was made on April 14, 2004.

Conclusions:

HHS posted the position on USA Jobs for only 12 days. This appears to be a
violation of OPM's regulations which require SES job listings to be posted
for a minimum of 14 days.13

OPM's Role:

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

Case 10:

Department of Health and Human Services

Positions:

From SES Limited Term Appointment, ES-0510-00/02 Project Manager,
Financial Management, Acting Director, Division of Financial Operations,
Program Support Center

To ES-0510-00/02, Director, Division of Financial Operations, Program
Support Center

Issue:

Posting SES vacancy announcements for less than the minimum time
requirement

Details:

Prior to appointment to the SES career position as Director, Division of
Financial Operations, the eventual selectee served as a Project Manager
(with Acting Director duties for the Division of Financial Operations) for
over a year under a Limited Term SES appointment. At the time of the
conversion, the eventual selectee had been employed with HHS for almost 32
years, 30 of which were in career positions.

HHS posted a vacancy announcement on USA Jobs for the director position to
lead the operation of HHS' Debt Collection Center and other core financial
accounting systems managed by the division. The announcement opening date
was August 13, 2002, and it closed on August 19, 2002, a period of 7 days.
Four applicants applied, and of these, three were certified as eligible
for consideration. Selection was made on October 3, 2002.

Conclusions:

HHS posted the career SES position on USA Jobs for only 7 days. This
appears to be a violation of OPM's regulations which require SES job
listings to be posted for 14 days.14

OPM's Role:

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

Case 11:

Department of Homeland Security

Positions:

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

To GS-0301-13/02, Program Specialist, Federal Emergency Management Agency

Issue:

Selection of former noncareer appointee who appears to have limited
qualifications and experience to a career position

Details:

The eventual selectee served as a Schedule C Staff Assistant at FEMA,
initially in the Office of General Counsel (OGC), then in the Regional
Operations Directorate for 14 months prior to applying for the career
position. Although the staff assistant position description provided by
the agency outlined a primarily advisory and administrative support role,
the eventual selectee's resume listed the following responsibilities as
part of the position (1) conceive and implement new initiatives and
projects to facilitate and integrate emergency management programs, and
(2) formulate, present, and execute budgets. Before joining the federal
government, the eventual selectee had worked for 4 years in the private
sector for the former FEMA Director prior to his appointment.

Beginning on January 28, 2003, the agency advertised the Program
Specialist position for 2 weeks. The duties listed for this position in
the vacancy announcement included among others (1) conceive and implement
new initiatives and projects to strengthen emergency management programs,
(2) be the authoritative resource for coordinating and developing
long-term planning for regional offices, (3) allocate resources in
accordance with short and long range plans, (4) maintain an intimate
knowledge of agency policies, programs and directives, and (5) formulate,
present, and execute the budget. Of 39 applicants, only the eventual
selectee and a career FEMA employee, with over 10 years experience at FEMA
as an Emergency Management Specialist, were certified as eligible for
consideration. Both candidates were rated as best qualified for the
position. The agency referred both the career employee and the eventual
selectee to the selecting official on separate certificates. On March 3,
2003, the selecting official, who was also the eventual selectee's
supervisor at the time, chose her for the position. The selecting official
did not provide further justification for the hiring decision.

Conclusions:

Although agencies have discretion when hiring among a limited pool of
eligible candidates, the agency selected a Schedule C appointee with
limited experience over a career employee with over 10 years of relevant
emergency management experience. It is unclear why the two candidates
received the same rating in the consideration process.

OPM's Role:

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

Case 12:

Department of Homeland Security

Positions:

From SES Noncareer Appointment ES-0301-00/00, Deputy Assistant Secretary
for Legislative Affairs, Immediate Office of the Secretary

To Excepted Service Schedule A GS-0301-15/10, International Programs
Coordinator, Immigration and Customs Enforcement, Office of Investigations

Issues:

Creating career positions specifically for particular individuals

Details:

Prior to the appointment to the career excepted service position, the
eventual selectee served for less than 1 year in a variety of work details
as a Noncareer SES appointment at DHS. According to the eventual
selectee's resume, in these positions she advised high-ranking agency 
officials on relevant policy issues, guided department-wide efforts to
develop and implement policy initiatives, coordinated public outreach, and
handled managerial and administrative duties.

On March 26, 2004, the agency submitted an official personnel action
request to convert the selectee by name to the position of International
Programs Coordinator. Four days later, on March 30, a position description
was authorized for an International Programs Coordinator, with duties to
include advising and assisting the Office of International Affairs in the
administration of international policy and planning in Greater Europe. The
conversion was made the same day. The agency did not advertise the
opening, and there is no evidence suggesting any other candidates were
considered for the position.

Conclusions:

Based on the documents provided to us, two factors create the appearance
that the individual may have been pre-selected for this position. These
factors include: (1) the agency's request to convert the selectee by name
prior to authorizing the position description and (2) not providing an
opportunity for other candidates to apply. By law, agencies may not grant
unauthorized preference to any particular individual or applicant to
improve her prospects in the employment process.

OPM's Role:

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

Case 13:

Department of Housing and Urban Development (HUD)

Positions:

From Schedule C GS-0301-13/04, Special Assistant, Office of General
Counsel

To Excepted Service Schedule A GS-0905-13/04, Attorney-Advisor, Office of
General Counsel

Issue:

Selection of former noncareer appointees who appear to have limited
qualifications and experience to career positions

Details:

Prior to appointment to the career excepted service (non-Schedule C)
position, the eventual selectee served for almost 4 years as a Schedule C
Special Assistant in the Office of Insured Housing-Multifamily Mortgage
Division in the Office of General Counsel. Based on the eventual
selectee's resume, duties in that Special Assistant position included
providing legal counsel, interpreting existing and proposed multi-family
insurance program statutes, regulations, and other legal documents.

Beginning on September 9, 2004, the agency advertised the career position
at the GS-12, 13, and 14 levels  for 2 weeks. The eventual selectee and
one field office attorney applied for the position. The field office
attorney had over 26 years of experience in the agency, including several
years as a Freedom of Information Act (FOIA) officer in a field office.
The eventual selectee identified handling of FOIA requests as one element
of his experience on his application; however, his accompanying resume had
no mention of FOIA experience. Based on agency excepted service hiring
protocols, both candidates were considered qualified for the position  and
were referred to the selecting official. No interviews were conducted
prior to the selection. The Deputy Assistant Secretary for Human Resource
Management stated that the eventual selectee qualified at the GS-13 level
and the field office attorney qualified at the GS-14 level. They were
referred to the selecting official separately on a GS-13 selection roster
and GS-14 selection roster respectively.

Conclusions:

Although this conversion was compliant with the agency's excepted service
hiring procedures, our work raised questions concerning the selection.
With the written applications as the primary source of information
considered, the agency selected a Schedule C appointee with minimal
experience in FOIA issues, a key requirement of the position, over an
attorney with 26 years of legal experience at the agency, including
several years as a FOIA officer.

OPM's Role:

This conversion was not subject to pre-appointment review because OPM does
not review appointments to the excepted service during its presidential
election review period.

Case 14:

Department of Justice (DOJ)

Positions:

From Schedule C GS-0905-15/04, Senior Advisor to the Assistant Attorney
General, Tax Division

To Excepted Service Schedule A IJ-0905-00/02, Immigration Judge, Executive
Office For Immigration Review

Issue:

Selection of former noncareer appointees who appear to have limited
qualifications and experience to career positions

Details:

Prior to his appointment to the career excepted service (non-Schedule C)
position, the eventual selectee served for almost 2 years as a Schedule C
Senior Advisor to the Assistant Attorney General in the Tax Division.
According to his resume, the eventual selectee's experience included (1)
providing written and oral legal counsel concerning ongoing tax litigation
as a Senior Advisor to the Assistant Attorney General; (2) serving for
approximately 6 months in a temporary detail as an appellate attorney in
the Office of Immigration Litigation, and (3) over 25 years of experience
as a civil trial attorney in a private firm. His resume does not list any
experience in immigration litigation other than the approximately 6-month
detail in the Office of Immigration Litigation.

According to the Immigration Judge's position description, the eventual
selectee would preside at quasi-judicial hearings to determine the issues
arising in exclusion, deportation, and related proceedings. The special
knowledge and abilities required for this position include, among others:
"a thorough knowledge of the numerous immigration and nationality laws,
both past and present, and the regulations and rules of the Immigration
Naturalization Service issued thereunder," "expert knowledge of judicial
practice," and "a proven ability to assure a fair hearing." On April 4,
2004, the agency appointed the selectee to the Immigration Judge position.
In an internal memo requesting a higher pay rate for the appointment, a
DOJ Chief Immigration Judge  stated that the selectee was eminently
well-qualified for the position, but did not cite any immigration
litigation experience beyond the selectee's temporary detail as
justification for this assessment.

Conclusions:

Converting a Schedule C appointee with less than 6 months of immigration
law experience to an Immigration Judge position raises questions about the
fairness of the conversion.

OPM's Role:

This conversion was not subject to pre-appointment review because OPM does
not include excepted service positions in its review of appointments made
during the presidential election review period.

Case 15:

Department of Justice

Positions:

From Schedule C Appointment GS-1035-15/01, Deputy Director, Office of
Public Affairs, Office of Public Affairs

To Excepted Service Appointment, Title 28 U.S.C. 536, GS-1035-15/02,
Public Affairs Specialist, Federal Bureau of Investigation (FBI)

Issue:

Failure to apply veteran's preference

Details:

Prior to appointment to the career excepted service (non-Schedule C)
position, from February 2001 until December 2002, the eventual selectee
served as a Schedule C Deputy Director in the Office of Public Affairs.
According to her application for the FBI position, her duties as Deputy
Director included, among others, serving as a spokesperson for the
department and Attorney General and preparing the Attorney General and
other senior officials for press conferences.

According to the position description, the Public Affairs Specialist for
the FBI would serve as a liaison between the media and senior agency
officials, as well as a public relations advisor to the agency. DOJ
created the position on December 6, 2002. The selectee was appointed 3
days later. DOJ did not advertise the opening, and there is no evidence
suggesting any other candidates were considered for the position. As part
of the excepted service, the FBI is required to apply veteran's preference
to its  appointments.

Conclusions:

While this selection was consistent with the FBI's current Merit Promotion
and Placement Plan,15 since there was no opportunity for other candidates
to apply, the agency apparently did not apply the statutory requirements
of veteran's preference to this hiring decision.

OPM's Role:

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

Case 16:

Consumer Product Safety Commission (CPSC)

Positions:

From Schedule C Appointment, GS-0301-15/10, Special Assistant, Office of
the Chairman, Consumer Product Safety Commission

To ES-0340-00/00, Director, Office of International Programs and
Intergovernmental Affairs, Office of the Executive Director, Consumer
Product Safety Commission

Issue:

Agency did not appear to address OPM qualification concerns about the
conversions in a substantive manner

Details:

Prior to applying for the career position, the eventual selectee had
served for over a year as a Schedule C Special Assistant in the office of
the Chairman. According to his resume, as a Special Assistant, the
eventual selectee directly supported the Chairman by (1) providing senior
level policy advice on current and developing issues, (2) preparing
written materials for presentation at external speaking engagements, (3)
acting as a liaison with internal and external parties, and (4) drafting
documents as needed.

On November 14, 2003, CPSC posted a vacancy announcement for the SES
career position of Director, Office of International Programs and
Intergovernmental Affairs. Based on the vacancy announcement, the director
would oversee and coordinate the Commission's international and
intergovernmental efforts related to product safety standards. The desired
qualifications listed in the announcement closely matched the eventual
selectee's previous experience in the private sector, and as an elected
official to the New Mexico State Legislature, as listed on his resume.

Twenty-four applicants applied, and of these, nine were considered
qualified for the position and assigned numerical scores. The eventual
selectee received the highest numerical score and the selecting official
selected him for the career position on December 19, 2003.

Because this is an appointment to the career SES, CPSC submitted the
selectee's case to OPM for approval on February 13, 2004. An OPM-

administered QRB16 denied the agency's request citing weakness in three of
the five Executive Core Qualifications (ECQ). The QRB also noted that the
selectee's lack of managerial experience would be a handicap to successful
performance in the SES. Based on comments from CPSC's Executive Director,
the selectee revised his ECQ statement by citing different examples from
his experiences. Although the selectee refers to his "career as a senior
manager and leader" the only concrete examples he provided of his
experiences in the ECQs relate to his 15-month position at the CPSC or his
2-terms as an elected official in the New Mexico State Legislature.
However, in describing his specific role and duties for each of these
positions on his resume, he does not mention managerial or supervisory
duties for either. Using the revised ECQs, CPSC resubmitted its request.
OPM pointed out that the resubmission was provided to a different QRB,
which was not involved or familiar with the initial QRB's concerns or
decision. This QRB approved the appointment on April 2, 2004.

Conclusions:

Although the selectee modified his second submission to OPM, the primary
basis for the selectee's qualifications remained his experience from the
15-month appointment at the CPSC and 2-terms as a State Representative. It
is unclear whether or how this revised submission addressed the concerns
raised by the initial QRB regarding the candidate not meeting the
"demonstrated executive experience" required for SES positions by 5 U.S.C
3393, or the "well-honed executive skills and broad perspective of
government" recommended by OPM guidance on the SES.

OPM's Role:

Because this is an appointment to the career SES, CPSC submitted the
selectee's case to OPM for approval. On February 13, 2004, an
OPM-administered QRB denied the agency's request due to weakness in three
of the five ECQs. After CPSC resubmitted its request, a different QRB
approved the appointment on April 2, 2004.

Case 17:

Environmental Protection Agency (EPA)

Positions:

From Schedule C, GS-0301-14/04, Information Management Specialist, Office
of Administrative Services

To GS-0301-14/04, Management Specialist, Office of Administrative Services

Issues:

Failure to apply veteran's preference/creating a career position for a
particular individual

Details:

Prior to applying for the career position, the eventual selectee served
for over 2 years in a variety of work details initially as a Schedule C
appointee, then as an administratively determined position in the
Immediate Office of the EPA Administrator. Before this, the eventual
selectee had worked for 3 years as a Special Assistant for the
Administrator when she was Governor of New Jersey, and had also worked
state level political campaigns. In addition to providing administrative
support and policy advice to the EPA Administrator, she listed the
following experiences on her resume from an 11-month detail to the
Facilities Management and Services Division: (1) managed the daily
operation of Personnel Security Staff, (2) maintained working knowledge of
Executive Orders and OPM guidelines pertaining to national security
positions, (3) established and implemented new internal processes and
policies regarding personnel security, and (4) worked with other
governmental agencies to facilitate personnel security clearances.

On April 25, 2003, EPA advertised the new career position of Management
Specialist in the Office of Administration and Resources Management, 2
weeks prior to the position's creation. According to the vacancy
announcement, the individual in this position would (1) serve as an
advisor to the Director, (2) perform special projects such as planning for
the review, development and execution of personnel and physical security
plans and programs, (3) maintain awareness of the major policy and program
initiatives relevant to Security Staff, and (4) work with other federal
agencies and the private sector regarding the personnel and physical
security plans and programs.

Thirty-five individuals applied for the position, including at least seven
with veteran's preference. Individuals were assigned scores based on their
online responses and a computer-based scoring system. By law, agencies are
required to assign additional points to qualifying veteran's scores during
the rating and ranking process.17 Based on the applicant listing EPA
provided to us, the scores were not adjusted for veteran's preference. Had
the veteran`s preference points been applied, five of the seven
individuals that had veteran's preference would have ranked higher than
the selectee. Even without the points applied, the eventual selectee
shared the highest score with a 5-point compensable veteran. Despite this
tied score, the agency referred only the eventual selectee to the
selecting official. On May 18, 2003, the agency converted the selectee to
the career position. According to EPA, the selectee had eleven months of
relevant experience for the career position at the time of her selection.

Conclusions:

Based on the documents, EPA did not apply veteran's preference points for
seven applicants. Other factors also suggest there may have been
preselection. Although, even in the absence of the added veteran's
preference points, two applicants, (a veteran and the eventual selectee),
shared the same examination score, the agency only referred the selectee
to the selecting official. Also, the close correlation between the duties
listed by the selectee for her most recent detail and those of the newly
created career position may have given the selectee an advantage in the
rating process. Finally, the position was created and filled immediately
prior to the former Administrator's resignation.

OPM's Role:

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

Case 18:

Small Business Administration (SBA)

Positions:

From Schedule C Appointment, GS-0301-13/04, Special Assistant to the
Administrator, Office of the Administrator

To GS-0301-12/10, Administrative Resources Coordinator, Region IX

Issue:

Agency did not appear to address OPM concerns about the conversion in a
substantive manner

Details:

The eventual selectee served as a Schedule C Special Assistant in the
Office of the Administrator for over 3 years prior to applying for the
career position. Before this, the eventual selectee had worked in Los
Angeles for almost 5 years at the private business owned by the
Administrator prior to his appointment as SBA Administrator. According to
her application, as the Special Assistant to the Administrator, the
eventual selectee managed the Administrator's calendar, coordinated
meetings with other officials, answered correspondence, and performed
special projects of a sensitive nature, among other duties.

On August 11, 2004, SBA posted a vacancy announcement for the newly
created career position of Administrative Resources Coordinator in the Los
Angeles Regional Office. According to the vacancy announcement, the
coordinator would (1) interact with senior level officials within the SBA,
(2) perform special projects for the Regional Administrator, (3) manage
budget allocations, (4) maintain the Regional Office Executive Scorecard,
and (5) interact with diverse groups in a variety of settings.

There were six applicants for the position, and of these, three were
considered eligible. The eventual selectee received the highest rating of
all the candidates, and the selecting official chose her for the position
on September 10, 2004.

Because conversions of Schedule C appointees to career positions during
OPM's presidential election review period are subject to OPM
pre-appointment review, the agency submitted this conversion to OPM for
approval on October 26, 2004. On February 22, 2005, OPM returned the
agency request without formal action, citing the fact that the period of
pre-appointment review had passed. However, OPM raised concerns to SBA
that the appointment did not adhere to merit system principles because the
quality ranking factors in the vacancy announcement and crediting plan did
not appear to be supported by the position description. In OPM's view,
this discrepancy may have limited the applicant pool and interfered with
open and fair competition. OPM encouraged SBA to review the hiring process
and ensure it met merit system principles before appointing the selectee
to the position. On February 25, 2005, the Director of SBA's Denver Office
of Human Capital Management advised the Chief Human Capital Officer that
he had reviewed the recruitment file and the appointment of the selectee
met merit system principles because it was made from a legally constituted
certificate of eligibles. Based on this review, the agency appointed the
selectee to the Administrative Resources Coordinator position on March 6,
2005. The Chief Human Capital Officer at SBA told us that SBA was in the
process of moving one of its regional offices from San Francisco to Los
Angeles, and that this position was created as part of the standard
configuration for a regional office.

Conclusions:

As OPM suggested, several factors raise questions about the fairness of
this conversion. At the time of selection, the selectee had been working
for the SBA Administrator, both in the private sector and at SBA, for
about 8 years. Additionally, the position, which was established less than
6 months before the 2004 election was located in the eventual selectee's
hometown. SBA did respond to OPM's observation, but it is not clear from
the documents whether SBA adequately addressed OPM's concerns, and there
was no documentation in the file indicating OPM contacted the SBA further
concerning this appointment or the agency's response.

OPM's Role:

Because the agency selected a Schedule C appointee for a career position
during the presidential election review period, it submitted the
conversion to OPM for approval in October 26, 2004. On February 22, 2005,
OPM returned the agency request without action citing the fact that the
period of pre-appointment review had passed but expressed concern with the
merit staffing process.

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

Source: GAO.

Appendix VI  Comments from Office of Personnel Management

Appendix VII  GAO Contact and Staff Acknowledgments

George H. Stalcup (202)-512-6806 or [email protected]

In addition to the contact named above, Sarah Veale, Assistant Director;
Carolyn L. Samuels, Lisa Van Arsdale, and Jeffrey McDermott made key
contributions to this report.

(450424)

www.gao.gov/cgi-bin/getrpt? GAO-06-381 .

To view the full product, including the scope

and methodology, click on the link above.

For more information, contact George H. Stalcup at (202) 512-6806 or
[email protected].

Highlights of GAO-06-381 , a report to congressional requesters

May 2006

PERSONNEL PRACTICES

Conversions of Employees from Noncareer to Career Positions, May 2001 -
April 2005

A federal employee conversion occurs whenever an individual changes from
one personnel status or service to another without a break in federal
government service of more than 3 days. This report focuses on conversions
of individuals from noncareer to career positions. Federal agencies must
use appropriate authorities and follow proper procedures in making these
conversions. GAO  was asked to determine for departments and selected
agencies (1) the number and characteristics of all noncareer to career
conversions occurring during the period from May 1, 2001, through April
30, 2005, and (2) whether appropriate authorities were used and proper
procedures were followed in making these conversions at the GS-12 level
and above.

What GAO Recommends

GAO recommends that (1) OPM review the 18 conversions GAO identified where
it appears that certain agencies did not use appropriate authorities
and/or follow proper procedures and determine whether additional actions
are needed, and (2) determine whether conversions to career excepted
service positions should be subject to OPM's review. OPM generally agreed
with these recommendations.

Twenty-three of the 41 departments and agencies selected for review
reported converting 144 individuals from noncareer to career positions
from May 1, 2001, through April 30, 2005. The other 18 departments and
agencies reported making no conversions during this period. Four agencies
accounted for 95, or 66 percent, of the 144 reported conversions: the
Departments of Health and Human Services (36), Justice (23), Defense (21),
and Treasury (15). Of the 144 reported conversions, almost two-thirds were
from Limited Term Senior Executive Service (SES) positions (47) and
Schedule C positions (46). Limited Term SES appointments may be made for
up to 36 months and can include federal employees who previously held
career positions. Schedule C appointments are generally noncompetitive and
are for positions graded GS-15 and below that involve determining policy
or that require a close confidential relationship with key agency
officials. Of these 144 individuals, 64 were converted to career SES
positions, 47 to career competitive service positions, and 33 to career
excepted service (non-Schedule C) positions.

Agencies used appropriate authorities and followed proper procedures in
making the majority (93) of the 130 conversions reported at the GS-12
level or higher. However, for 37 of these conversions it appears that
agencies did not follow proper procedures or agencies did not provide
enough information  for us to make an assessment. For 18 of the 37 of
these conversions, it appears that agencies did not follow proper
procedures. Some of the apparent improper procedures included: selecting
former noncareer appointees who appeared to have limited qualifications
and experience for career positions, creating career positions
specifically for particular individuals, and failing to apply veteran's
preference in the selection process. Seven of the 18 conversions were
subject to OPM review and approval; 2 because they fell within the
presidential election pre-appointment review period as prescribed by OPM
and 5 because they were to SES level positions. For the remaining 19
conversions, agencies did not provide enough information for GAO to fully
assess the process used by the agency in making the conversion. This was
largely attributable to the types of appointments involved. Sixteen of
these 19 conversions were to career excepted service (non-Schedule C)
positions at the Department of Justice. For appointments to excepted
service positions, OPM does not require agencies to follow OPM's
competitive hiring provisions or to maintain records of the rating,
ranking, and selection process, as it requires for competitive service
appointments (although most of these conversions are subject to the merit
system principles). These unique hiring procedures and limited
documentation requirements for excepted service positions resulted in GAO
having insufficient information to reconstruct the Department of Justice's
decision-making process to convert these individuals. For the remaining
three cases, the Department of Health and Human Services could not locate
certain files.
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