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Friday, November 9, 2012

Federal Personnel: Conversion of Employees from Appointed (Noncareer) Positions to Career Positions in the Executive Branch

Barbara L. Schwemle
Analyst in American National Government

The term “burrowing in” is sometimes used to describe an employment status conversion whereby an individual transfers from a federal appointed (noncareer) position to a career position in the executive branch. Critics of such conversions note that they often occur during the transitional period in which the outgoing Administration prepares to leave office and the incoming Administration prepares to assume office. Conversions are permissible when laws and regulations governing career appointments are followed, but they can invite scrutiny because of the differences in the appointment and tenure of noncareer and career employees.

Appointments to career positions in the executive branch are governed by law and regulations that are codified in Title 5 of the United States Code and Title 5 of the Code of Federal Regulations, and are defined as personnel actions. In taking a personnel action, each department and agency head is responsible for preventing prohibited personnel practices; for complying with, and enforcing, applicable civil service laws, rules, and regulations and other aspects of personnel management; and for ensuring that agency employees are informed of the rights and remedies available to them. Such actions are required to adhere to the merit principles and prohibited personnel practices that are codified at 5 U.S.C. §2301(b) and §2302(b), respectively. These principles and practices are designed to ensure that the process for selecting career employees is fair and open (competitive), and without political influence. The Office of Personnel Management (OPM), on an ongoing basis, and the Government Accountability Office (GAO), periodically, each conduct oversight related to conversions of employees from noncareer to career positions to ensure that proper procedures have been followed. Certain senior politically appointed officers are prohibited from receiving financial awards during the Presidential Election Period, defined in statute and currently covering June 1, 2012, through January 20, 2013.

As part of its oversight of government operations, Congress also monitors conversions. In the 110th Congress, staffing at the Departments of Homeland Security (DHS) and Justice (DOJ) was of particular interest, especially in the wake of the leadership and management deficiencies at DHS during and after Hurricane Katrina, and improper procedures used by DOJ staff in selecting and removing United States attorneys. Both departments received letters from Members of Congress reminding them to examine conversions: the Chairman of the House Committee on Homeland Security, Representative Bennie Thompson, wrote to the DHS Secretary in February 2008, and Senators Dianne Feinstein and Charles Schumer, members of the Senate Committee on the Judiciary, wrote to the Attorney General in July 2008 about this issue. In a December 19, 2008, letter to OPM, Senator Joseph Lieberman requested information on conversions that occurred during the period April 1, 2008, through December 19, 2008. In February 2009 (111th Congress), Senator Feinstein sent a letter to the Secretary of Defense related to conversions within the Office of Detainee Affairs.

In assessing the current situation, Congress may decide that the existing oversight is sufficient. If Congress determines that additional measures are needed, OPM could be directed to report to Congress on the operation of its current policy governing pre-appointment reviews, including recommendations on whether Section 1104 of Title 5, United States Code should be amended to codify the policy. The GAO and OPM could be asked to explore options that might result in their recommending and taking timely remedial actions that are seen as necessary to address conversions that occurred under improper procedures. Congress could amend Title 5, United States Code to increase the penalties for violating Civil Service laws. This report will be updated as events dictate.

Date of Report: November 2, 2012
Number of Pages: 17
Order Number: RL34706
Price: $29.95

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