Transition to a New Presidential Administration

• Career Appointments
• Reassignments and Details of Career Appointees
• Career Appointees Who Accept Appointment Outside the SES
• Noncareer and Limited Appointments
• Pay and Other Compensation
• Leave
• Performance Appraisals and Recertification
• Awards
• Removals and Other Separations
• Experts and Consultants
• Miscellaneous

We will provide further information as additional questions and issues arise. If you identify other areas that need to be addressed or if you have questions about this guidance, please contact Daliza Salas, Director, SES Staffing Center (202-606-1610), or your SES Agency Officer in OPM's Office of Executive Resources Management. You may also email inquiries to SESstaff@opm.gov
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CAREER APPOINTMENTS

1. Are there any special procedures that agencies must follow in making career appointments during the transition?

As with staffing actions at any time, appointments must meet all civil service laws, rules, and regulations and be free of any impropriety. Agencies should also refer to OPM Director Lachance's memorandum of February 18, 2000, to agency heads concerning limitations on appointments and awards during the election period, at APPENDIX A. (See also Questions 28 and 29.)

All initial career appointments to the SES must be made under merit staffing procedures, and the executive qualifications of the selected candidate must be approved by a Qualifications Review Board (QRB) administered by OPM. Since the SES is separate from the competitive and excepted services, there is no provision for noncompetitive movement from the other services to a career SES appointment.

[Reference: 5 U.S.C. 3393; 5 CFR 317, Subpart E]
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2. Does a transition affect the processing of actions by a Qualifications Review Board (QRB)?

If an agency head leaves or announces the intention to leave or a new agency head is nominated by the President, OPM suspends the processing of QRB cases until a successor is appointed to afford the new agency head the greatest flexibility in making executive decisions. OPM may grant waivers in appropriate circumstances on a case-by-case basis. Requests for exceptions should address such factors as: the organizational level of the vacant position; the relative priority of the position with respect to other executive vacancies and agencywide staffing needs; the degree to which the proposed incumbent would be involved in policy matters; the likelihood that the new agency head would want to be personally involved in the selection process; and how long it will be until a new agency head is appointed.

[Reference: 5 CFR 317.502(d)]
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3. Do individuals who formerly held career SES appointments need to compete and be approved by a Qualifications Review Board to get a new career SES appointment?

If the individual successfully completed the SES probationary period or did not have to serve one (e.g., converted to the SES as a career appointee when the SES was established in 1979), the individual may be noncompetitively reinstated in the SES. However, separation from the SES must not have been for performance or disciplinary reasons. There is no time limit after leaving the SES on reinstatement eligibility.

[Reference: 5 U.S.C. 3593; 5 CFR 317, Subpart G]
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REASSIGNMENTS AND DETAILS OF CAREER APPOINTEES

4. What authority does an agency head have to reassign career SES appointees?

Career SES appointees may be reassigned to any SES position in the agency for which they are qualified without OPM approval. One of the basic premises of the SES was to enable an agency head to reassign senior executives to best accomplish the agency's mission. However, there are a number of restrictions in the law to protect career executives from arbitrary or capricious actions, as indicated in the following questions (5 - 14).

[Reference: 5 U.S.C. 3395; 5 CFR 317.901]
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5. What advance notice requirements apply to the reassignment of career SES appointees?

The appointee must be given a 15-day advance written notice if the reassignment is within the same commuting area and a 60-day advance written notice if the reassignment is between commuting areas. The agency must consult with the appointee before a geographic reassignment, and the advance notice for a geographic reassignment must include the reasons for the action.

[Reference: 5 U.S.C. 3395(a)(2); 5 CFR 317.901(b)]
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6. If a career SES appointee is reassigned to an SES position where the individual will have a policy-making role, is it necessary for the appointee to give up his/her career status?

No. A career SES appointee may be reassigned to any SES position and retain career status. However, any change in status to a noncareer or limited SES appointment must be voluntarily agreed to in writing before the appointment, and the agreement must be maintained as a permanent record in the individual's Official Personnel Folder.

[Reference: 5 CFR 317.904]
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7. What protections do career SES appointees have against involuntary reassignment?

A career SES appointee cannot be involuntarily reassigned within 120 days after the appointment of a new agency head or the appointment of a new noncareer supervisor who has authority to make the initial performance appraisal of the career appointee. The 120-day moratorium is a protection built into the law to prevent peremptory reassignments before the capabilities of the career appointee are known.

This restriction does not apply to a reassignment taken as a result of an unsatisfactory performance rating, if the rating was given before the appointment of the new agency head or noncareer supervisor. However, if an unsatisfactory rating is given during a moratorium, the resulting reassignment can't be effected until the moratorium ends.

[Reference: 5 U.S.C. 3395(e); 5 CFR 317.901]
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8. How is the advance notice requirement affected by the moratorium?

The 15- or 60-day advance notice requirement for a reassignment (see Question 5) may run concurrently with the 120-day moratorium, but the reassignment may not be effected until the moratorium has ended.

If an advance notice is issued before the 120-day moratorium starts, but the notice has not yet expired, the involuntary reassignment may be effected at the end of the notice period even if the moratorium has not ended. However, it would be inappropriate for a proposed agency head or noncareer supervisor to have some other official issue a reassignment notice before the appointment to avoid application of a moratorium. The action must be initiated independent of the incoming agency head or noncareer supervisor

[Reference: 5 U.S.C. 3395(e); 5 CFR 317.901]
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9. Who is covered by a moratorium initiated by the appointment of a noncareer supervisor?

A moratorium on involuntary reassignments initiated by the appointment of a noncareer supervisor applies only to those career appointees for whom the noncareer supervisor gives the initial performance appraisal. It does not apply to those career appointees for whom the new noncareer appointee serves as the higher level supervisor and functions as a reviewing official or final rater or has the authority to reassign the appointees.

[Reference: 5 U.S.C. 3395(e)(1)(B); 5 CFR 317.901(c)]
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10. Who is considered a "noncareer appointee" for purposes of initiating the moratorium on involuntary reassignments?

A noncareer appointee includes an SES noncareer or limited appointee, an appointee in a position filled by Schedule C, or an appointee in an Executive Schedule or equivalent position that is not required to be filled competitively.

[Reference: 5 CFR 317.901(c)]
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11. Can an agency head take an involuntary reassignment action in place of a noncareer supervisor?

If a moratorium is initiated by the appointment of a noncareer supervisor, the agency head may not take an involuntary reassignment action against that supervisor's career SES subordinates (as defined in Question 9), even if the agency head has been in office more than 120 days.

[Reference: 5 U.S.C. 3395(e)(1)(B); 5 CFR 317.901(c)]
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12. Is a moratorium on involuntary reassignments initiated when an "acting" agency head or noncareer supervisor is named?

No. The designation of an "acting" agency head or noncareer supervisor (e.g., by a detail or when a deputy acts in the position) is not considered an appointment. Therefore, the statutory moratorium technically does not apply. However, the agency at its discretion may apply the moratorium in such situations. In this case, if the "acting" individual is later permanently appointed to the position without a break in service, time spent under the agency-imposed moratorium counts toward the 120-day moratorium initiated by the permanent appointment.

[Reference: 5 CFR 317.901(c)(5)]
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13. May career SES appointees be reassigned voluntarily before the 15- or 60-day advance notice period and/or the 120-day moratorium on involuntary reassignments has ended?

Yes. However, the career appointee must agree in writing to the reassignment. The agreement is retained as a temporary record in the appointee's Official Personnel Folder.

[Reference: 5 CFR 317.901(c)(3)]
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14. May career SES appointees be detailed during the 120-day moratorium on involuntary reassignments?

Yes. If a career appointee is detailed during the moratorium, the first 60 days of the detail (or any combination of details) do not count against the 120 days. For example, if the employee is placed on a 90-day detail, the first 60 days would be added to the 120 days; and the moratorium would last 180 days. Although there is no limit on the total length of a detail during the moratorium, any detail during the period must meet the detail requirements in the regulations and should be made judiciously and only when there is a clear, bona-fide need.

[Reference: 5 U.S.C. 3395(e); 5 CFR 317.901(c)(4) and 317.903]
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15. Does the moratorium on involuntary reassignments apply to a realignment or position abolishment?

No. The 120-day restriction does not apply to a realignment, which is the movement of an employee and the employee's position when a transfer of function or an organization change occurs within the same agency and there is not a change in the employee's position.

The 120-day restriction does not preclude the abolishment of a position during the moratorium. For example, a position could be abolished, and the incumbent could elect immediate discontinued service retirement or agree to an immediate voluntary reassignment. However, the incumbent could not be involuntarily reassigned until the 120 days have elapsed.

[Reference for definition of reassignment: 5 CFR 317.901(a)]
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CAREER APPOINTEES WHO ACCEPT APPOINTMENTS OUTSIDE THE SES

16. What benefits may career SES appointees retain if they accept a Presidential appointment to a position paid equivalent to Executive Level V or higher?

The following provisions apply to a career SES appointee who is appointed by the President, subject to Senate confirmation, to a civilian position in the executive branch that is not in the SES and the rate of pay for which is equal to or greater than the rate payable for level V of the Executive Schedule. They also apply to a career appointee who receives a Presidential appointment (without confirmation) to a non-SES position that is covered by the Executive Schedule, or the rate of basic pay for which is fixed by statute at a rate equal to one of the levels of the Executive Schedule.

If the appointment is made without a break in service, the individual may elect to retain any or all of the following SES benefits: SES basic pay (including locality pay), eligibility for performance and rank awards, severance pay, annual and sick leave, and retirement. (The individual retains his/her current retirement coverage. However, if the position to which the individual is appointed is an Executive Level position listed in 5 U.S.C. 5312-17, the individual is subject to mandatory social security coverage. An individual under CSRS would then be covered under CSRS Offset.)

If the individual elects to retain severance pay coverage, the individual is entitled to severance pay if involuntarily separated from the Presidential appointment if otherwise eligible, even if the individual is entitled to reinstatement in the SES (see Question 17). A separation is considered involuntary for severance pay purposes if the President requests the resignation of the individual or requests all Presidential appointees to submit their resignation, or if the resignation is specifically requested by a recognized representative of the Administration who has authority to request resignations. A self-initiated resignation is not qualifying for severance pay.

See Question 29 for information about restrictions on granting awards to Presidential appointees who were SES career appointees and retained awards eligibility.

[Reference: 5 U.S.C. 3392(c); 5 CFR Part 317, Subpart H]
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17. What reinstatement rights to the SES does a former career appointee who took a Presidential appointment have?

The appointee is entitled to reinstatement if the Presidential appointment was without a break in service from the career SES appointment. (This entitlement exists whether or not the position the individual held as a Presidential appointee was paid above or below Executive Level V.) The individual must have left the Presidential appointment for reasons other than misconduct, neglect of duty, or malfeasance. OPM's Office of Executive Resources Management will provide placement assistance (and direct placement if necessary) if the individual applies to OPM within 90 days after separation. The individual also may negotiate his/her own reinstatement without OPM assistance.

[Reference: 5 U.S.C. 3593(b); 5 CFR Part 317, Subpart G]
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If the individual elected to continue SES pay while serving in the Presidential appointment (see Question 16), the appointee's pay rate does not change on reinstatement unless 12 months have elapsed since his/her last pay adjustment. If 12 months have elapsed, pay may be raised any number of ES rates. (Pay may not be reduced involuntarily, except for performance reasons -- see 5 CFR 534.402(f)). However, there is nothing in law or regulation to preclude an appointee from voluntarily accepting a pay rate at one or more lower pay levels.)

If the individual did not elect to continue SES pay, pay may be set at any SES rate on reinstatement; but it is expected that the agency and the individual will negotiate an agreed-upon rate.

[Reference: 5 CFR 534.401(e)(2)]
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If eligible, the individual may apply for discontinued service retirement (DSR) when the Presidential appointment is terminated, instead of reinstatement in the SES, whether or not the individual has received a job offer in the SES. OPM considers the resignation of a Presidential appointee to be an involuntary separation for DSR purposes whenever it is submitted and accepted.

[Reference: CSRS and FERS Handbook for Personnel and Payroll Offices, Chapter 44 -- see www.opm.gov/asd/hod/pdf/C044.pdf]
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18. Can SES appointees be reinstated to the competitive service?

Yes, if they held a competitive service appointment before their SES appointment and meet certain other conditions. Career SES appointees who are eligible for reinstatement in the competitive service may be appointed to any competitive service position for which they qualify, at any grade level. We advise appointees interested in reinstatement to the competitive service to consult with their agency's Human Resources Office to verify their reinstatement eligibility.

[Reference: 5 CFR 315.401 and 335.103(c)(2)(vii)]
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NONCAREER AND LIMITED APPOINTMENTS

19. Are there any restrictions on making noncareer or limited SES appointments?

Yes. The agency must receive a noncareer appointment authority from OPM before making the appointment. When the individual leaves the position, the appointment authority reverts to OPM. The agency must get a new authority from OPM before making another noncareer appointment to the position. (Note that an agency must obtain OPM approval for an appointment authority before reassigning a noncareer appointee to another SES position or transferring a noncareer appointee to another agency.) The agency approves the qualifications of the appointee, and the appointment is made noncompetitively.

The agency must also obtain limited appointment authorities from OPM on a case-by-case basis. However, for temporary SES appointments of career or career-type employees, the agency may use its "pool" authority (3 percent of the agency's SES allocation).

[Reference: 5 CFR 317, Subpart F]
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20. What assistance is available from OPM to help agencies during transition?

OPM may make SES limited term appointment authorities available to agencies for positions related to a transition. These appointments normally are for no longer than 6 months. (If an SES authority would not be appropriate, under conditions prescribed in regulation, agencies may establish temporary transitional Schedule C positions during the 1-year period immediately following a change in Presidential Administration, the appointment of a new department or agency head, or the creation of a new department or agency to facilitate transition.)

[Reference for Schedule C: 5 CFR 213.3302]
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21. Can SES noncareer or limited appointments be used for individuals who are awaiting Senate confirmation?

Yes. OPM may authorize a noncareer or limited appointment authority for an individual who has been nominated by the President, but whose appointment is pending Senate confirmation. Such appointments may not be made to the position for which the individual has been nominated. Rather, the individual normally serves in an advisory capacity in another position until confirmed. (Instead of an SES appointment, agencies may use a consultant appointment under 5 U.S.C. 3109 provided the appointment is not to an SES position, the individual meets the definition of a consultant, and the work assigned requires consultant services. See also Questions 35 and 36, and 5 CFR Part 304.)
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22. Are individuals who receive SES limited emergency and limited term appointments eligible for health benefits, life insurance, and retirement coverage?

Yes, if the agency designates the appointment as provisional or the appointment is for more than 1 year. For example, an agency may designate an appointment of 1 year or less as provisional when it is expected that the individual will be converted to a nontemporary SES appointment (career or noncareer) or to a nontemporary Presidential appointment upon OPM approval, White House clearance, and/or confirmation by the Senate. The limited emergency or limited term appointment must be designated as a "provisional appointment" on the SF-50, Notification of Personnel Action. The appointee will then be eligible for health benefits, life insurance, and retirement coverage.

[Reference for provisional appointments: 5 CFR 316.403; 5 CFR 317.602]
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PAY AND OTHER COMPENSATION

23. Are there any restrictions on what a new SES appointee can be paid?

The agency determines rate of pay -- a new appointee may be paid at any of the six SES basic pay rates, except as provided in 5 CFR 534.401(b)(2). In addition to basic pay, SES members in the continental U.S. are currently entitled to locality pay, which varies in amount by area. In determining a basic pay rate, agencies may consider a variety of factors, such as the individual's current pay, pay for comparable private sector personnel, the duties and responsibilities of the position to which appointed, and the qualifications of the individual. Agencies should especially note that the initial establishment of a pay rate for a new SES appointee is considered a pay adjustment -- the initial pay rate may not be changed for 12 months. For example, if an agency appoints an individual as a special assistant at ES-1 and subsequently obtains an appointment authority for that individual as a Deputy Assistant Secretary, the agency cannot adjust that individual's pay until 12 months after the initial SES appointment.

However, if an appointee transfers to another agency, the new appointing authority may set his/her pay at any rate -- the 12 month restriction does not apply. If a former SES appointee is being reappointed in the SES, pay may be set at any rate if there has been a break in SES service of more than 30 days.

[Reference: 5 U.S.C. 5383; 5 CFR 534.401]
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24. What pay and other flexibilities are available to help recruit SES personnel?

There are several discretionary pay flexibilities that agencies may use to deal with well-documented staffing difficulties. There are specific statutory and regulatory conditions that govern the use of each of these flexibilities. Full documentation required by laws and regulations must be maintained, and pertinent information will be subject to public scrutiny and third party review. We caution agencies to exercise these flexibilities judiciously, especially when hiring other than career employees, and use them only when absolutely necessary to address staffing problems.

• Payment of travel and transportation expenses to any individual for pre-employment interviews and to a new appointee for moving expenses from his/her place of residence to the duty station.
  
  
  [Reference: 5 U.S.C. 5706b and 5723; 5 CFR Part 572]
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• Advance payment of basic pay covering not more than 2 pay periods for a new appointee, except for appointment as agency head.
  [Reference: 5 U.S.C. 5524a; 5 CFR Part 550, Subpart B]
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• Lump-sum bonuses of up to 25 percent of basic pay, when it would otherwise be difficult to fill a position and the action involves recruitment of a new appointee or relocation of a current appointee to a different commuting area. To receive these bonuses, an employee must sign an agreement to serve for a specified period of time -- at least 6 months in the case of a recruitment bonus. These bonuses may not be paid to an agency head or to an individual appointed to a position in the expectation of receiving an appointment as an agency head (e.g., an individual who has received a noncareer or limited SES appointment pending Senate confirmation).
  [Reference: 5 U.S.C. 5753; 5 CFR Part 575, Subparts A and B]
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• Waiver of dual compensation restrictions for civilian retirees in certain situations. Approval must be obtained from OPM on a case-by-case basis, and the position must involve exceptional difficulty in recruiting a qualified employee. Agencies are cautioned that these waivers are intended to be rare exceptions, used only in the most unusual circumstances -- a detailed justification that covers the criteria specified in the regulations must accompany the waiver request. (Agencies should send waiver requests for positions above GS-15 to the Director, Office of Executive Resources Management.)
  [Reference: 5 U.S.C. 8344 and 8468; 5 CFR Part 553]
  

LEAVE

25. What leave flexibilities are available to SES employees?

SES employees are covered by the Federal leave system.

• Annual and Sick Leave. Employees earn 13, 20, or 26 days of annual leave a year, depending on years of service. This leave accrues incrementally, i.e., 4, 6, or 8 hours every 2 weeks. SES employees may carry over up to 90 days of annual leave to the next leave year. Employees receive a lump-sum payment for unused annual leave when they separate from Federal service.

  In addition, employees earn 13 days of sick leave a year. Sick leave also accrues incrementally, i.e., 4 hours every 2 weeks. Sick leave accumulates without limit in succeeding years. In certain situations, employees may use sick leave for family care, including using a total of up to 12 weeks of sick leave each year to care for a family member with a serious health condition, and for adoption or bereavement purposes.

  [Reference: 5 U.S.C. 6301-6312; 5 CFR Part 630 (Subparts B, C, and D)
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• Family and Medical Leave. Under the Family and Medical Leave Act of 1993 (FMLA), an employee is entitled to a total of 12 workweeks of unpaid leave during any 12-month period for: (1) the birth of a child and care of the newborn; (2) the placement of a child with the employee for adoption or foster care; (3) the care of an employee's spouse, son or daughter, or parent with a serious health condition; and (4) an employee's own serious health condition that makes him/her unable to perform the duties of his/her position. An employee may substitute annual leave or sick leave, as appropriate, for unpaid leave under the Family and Medical Leave Act.
  [Reference: 5 U.S.C. 6381-6387; 5 CFR Part 630 (Subpart L)]
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• Leave Transfer and Leave Bank Programs. An employee who has a personal or family medical emergency and who has exhausted his/her own leave may receive donated annual leave from other Federal employees through the voluntary leave transfer or leave bank programs. All agencies must have a leave transfer program. In addition, an agency may also choose to establish a leave bank for its employees.

  [Reference: 5 U.S.C. 6331-6373; 5 CFR Part 630 (Subparts I and J)]

In addition, employees are entitled to court leave, military leave, leave for bone marrow or organ donation, and other types of leave. You can obtain additional information on the Federal Government's leave programs at OPM's website at www.opm.gov/oca/leave/index.htm.

[Reference: 5 U.S.C. 6321-6327; 5 CFR Part 630 (Subparts F, G, and H)]
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PERFORMANCE APPRAISALS AND RECERTIFICATION

26. What effect does a change in Presidential Administrations have on performance appraisals?

Agencies cannot appraise or rate career SES appointees' performance for 120 days following the inauguration of the new President (i.e., from January 20 through May 19, 2001). This includes the supervisor's initial appraisal, higher level official's review, a Performance Review Board's recommendations, and an appointing authority's final rating. The length of the performance appraisal period is not extended by this moratorium -- it just delays the appraisal and rating actions. However, this moratorium does not preclude an interim appraisal when an appointee changes positions or a supervisor leaves, nor does it preclude a progress review during the appraisal period.

[Reference: 5 U.S.C. 4314(b)(1)(C); 5 CFR 430.305(a)(3)]
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27. Does the transition have any affect on recertification determinations made in 2000?

The transition would not affect an agency's recertification determinations, but it could affect a removal action that results from a decision not to recertify a career appointee. The 120-day moratorium on appraisal actions following a new Presidential Administration applies only to the annual performance appraisal and not to recertification determinations. However, there is a 120-day moratorium on involuntary removals of career appointees from the SES after the appointment (including a recess appointment) of a new agency head or a new noncareer supervisor who has the authority to remove the appointee. Therefore, an agency could decide not to recertify a career appointee during a moratorium on removals, but the agency could not effect the removal action until after the moratorium ended. (See Question 30 on the moratorium on removals).

[Reference: 5 U.S.C. 3592; 5 CFR 359.303]
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AWARDS

28. Are there restrictions on awards during the transition period.

Yes. There are legal restrictions, and there are administratively-imposed restrictions. There is a statutory prohibition on granting awards under 5 U.S.C. Chapter 45 to senior politically-appointed officers during the Presidential election period, defined as from June 1, 2000, through January 20, 2001. This prohibition applies to Schedule C appointees and SES members who are not career appointees. There is also a statutory prohibition on granting cash awards under 5 U.S.C. Chapter 45 to Executive Schedule officers at any time.

In addition, the Clinton Administration placed further restrictions on cash awards for political appointees, as outlined in the August 1994 Memorandum to Cabinet and Agency Heads from Leon Panetta, Chief of Staff to the President, which remains in effect until January 20, 2001. Agencies are asked to refrain from giving cash awards to political employees (i.e., noncareer SES and Schedule C employees) paid a salary level that exceeds that of a GS-12 and to grant monetary awards to others only for performance that is clearly exceptional. Agencies should continue to recognize other political appointees through the prudent use of nonmonetary awards.

[Reference: 5 U.S.C. 4508 and 4509; 5 CFR 451.105]
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29. Do the statutory and administrative restrictions described in the previous question apply to Presidential appointees who were career SES members and elected to retain SES benefits on receiving the Presidential appointment?

No. Presidential appointees who are former career SES members and who elected to retain eligibility for performance and Presidential Rank Awards may be considered for such awards. Other awards covered under 5 U.S.C. Chapter 45 are not among the benefits that a former career SES member may elect to retain under 5 U.S.C. 3392(c). (Note that SES performance awards are governed by 5 U.S.C. Chapter 53 and are therefore not covered by the statutory restrictions.)

However, an agency has the discretion to decide whether or not to grant individual awards. An agency may take a broad range of factors into account in exercising its discretion, including budgetary limitations, statutory restrictions on the size of the award pool, Congressional concerns, and Administration policy. Moreover, agencies are cautioned to use award authorities judiciously. Each award or nomination must be extremely well-justified, as they will be subject to public scrutiny and third party review. Documentation required by laws and regulations must be maintained.

[Reference: 5 U.S.C. 3392(c); 5 CFR Part 317, Subpart H, for retention of SES provisions.]
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REMOVALS AND OTHER SEPARATIONS

30. What restrictions are there on the removal of career appointees from the SES?

A career SES appointee cannot be involuntarily removed for performance or failure to be recertified, or during the probationary period, within 120 days after the appointment (including a recess appointment) of a new agency head or the appointment of a new noncareer supervisor who has authority to remove the career appointee. This restriction does not apply to adverse action removals (e.g., for misconduct) or to a removal being taken as the result of an unsatisfactory performance rating issued before the moratorium.

[Reference: 5 U.S.C. 3592(b); 5 CFR 359.406 and 359.503]
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31. What effect does the 120-day moratorium on removals from the SES have on completion of the 1-year SES probationary period by career appointees?

The moratorium applies to all career appointees, including those serving a probationary period. Therefore, a probationary removal cannot be effected until the moratorium ends, if the individual is still in the probationary period at that time. However, if an individual completes the probationary period while the moratorium is in effect, removal when the moratorium ends must be effected under procedures that apply to post-probationers. The moratorium does not extend the probationary period. This restriction does not apply to a disciplinary action that was initiated before the moratorium began.

[Reference: 5 U.S.C. 3592(b); 5 CFR 359.406]
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32. Can the resignation of SES appointees during the change in Presidential Administrations or a change in agency leadership be considered involuntary for the purpose of eligibility for discontinued service retirement (DSR)?

Yes, in certain circumstances. A resignation qualifies for DSR if the SES appointee (i.e., any noncareer appointee, or a career appointee who reports to a Presidential appointee) resigns in response to a written request from an Administration representative having the authority to request such resignation or from the new agency head. A copy of the request must accompany the retirement application. (Note that a career appointee is not obligated to comply with a request to resign, nor may the career appointee be removed for not submitting a resignation.)

The resignation of a Presidentially-appointed policy-making officer qualifies for DSR whenever the President accepts the individual's resignation. When it is known that a Presidential appointee is leaving, OPM considers the resignation of a noncareer SES or Schedule C appointee who works for that person to be an involuntary separation for purposes of DSR.

In all cases, to be eligible for DSR, the appointee must meet all the other DSR requirements, e.g., must have 25 years of service (at any age), or be age 50 and have 20 years of service.

[Reference: CSRS and FERS Handbook for Personnel and Payroll Offices, Chapter 44 -- see www.opm.gov/asd/hod/pdf/C044.pdf]
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33. Under what conditions are career SES appointees who are involuntarily separated entitled to severance pay?

The appointee must have been employed for at least the previous 12 months without a break in service of more than 3 calendar days, must not be eligible for an immediate retirement annuity, must not have declined to accept reassignment in the SES in the same commuting area, and must be separated involuntarily (not for personal cause, i.e., misconduct or unacceptable performance).

A resignation may be considered an involuntary separation for severance pay purposes only if it is submitted following receipt of a written notice of separation. If an appointee resigns after receiving notice of separation for failure to accept reassignment outside the commuting area, the resignation is considered an involuntary separation and provides entitlement to severance pay if the appointee is otherwise eligible, unless the appointee was serving under a mobility agreement.

See also Question 16 concerning former career SES appointees who are entitled to elect to continue severance pay benefits.

[Reference: 5 U.S.C. 5595; 5 CFR Part 550, Subpart G]
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34. Are noncareer or limited SES appointees entitled to severance pay?

No, since they accept their appointments with a presumed understanding that their tenure is less than career and that they are subject to removal at any time. (Exception: if a full-time limited SES appointment begins within 3 days after separation from a qualifying appointment without a time limit, the limited appointment may convey severance pay eligibility -- see your agency's Human Resources Office.) Presidential appointees are similarly not eligible for severance pay.

[Reference: 5 CFR 550.703 definition of "nonqualifying appointment"]
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EXPERTS AND CONSULTANTS

35. How do you define "experts and consultants"?

An "expert" has unique or superior education, skills, and accomplishments in a particular field and is regarded as an authority by others in the field. The expert performs unusually difficult work beyond the usual range of competent employees in the field.

A "consultant" provides advice, options, or recommendations on issues or problems and usually has a high degree of administrative, professional, or technical experience. The consultant may also be a person affected by a program who can provide public input based on personal experience.

[Reference: 5 U.S.C. 3109; 5 CFR Part 304]
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36. What are the limitations on expert and consultant appointments?

There are limitations on the length and type of appointment as well as on the nature of the work they can do. Experts and consultants serve under temporary appointments that are either temporary not to exceed 1 year or they are intermittent. Expert and consultant appointments are temporary not to exceed 1 year if the appointee has a regular work schedule and/or works more than 130 days a year. The appointments are intermittent if the appointee does not have a regular work schedule and works no more than 130 days a year.

Experts and consultants may not serve in Senior Executive Service positions or positions that require Presidential appointment and/or Senate confirmation (but they may serve in an advisory capacity pending confirmation). It is not appropriate to assign consultants to the policy-making or managerial work that characterizes the SES.

Experts and consultants may not do work performed by the agency's regular employees or function in the agency's chain of command. For example, they may not supervise agency employees, direct the preparation of a report or special study, or make decisions regarding agency policies or programs. Their work must be strictly advisory in nature (reviewing/recommending) or limited to a special project requiring an exceptional level of expertise.

[Reference: 5 U.S.C. 3109; 5 CFR Part 304]
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37. How are experts and consultants paid?

The agency determines the pay for experts and consultants, based on qualifications and the work to be performed. Pay may not exceed the daily rate for GS-15, step 10, excluding locality pay, unless the agency's authorization sets another limit. They may also be appointed without compensation. Experts and consultants are not subject to the Classification Act. See 5 CFR Part 304 for additional information on pay limitations.

[Reference: 5 U.S.C. 3109; 5 CFR Part 304]
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MISCELLANEOUS

38. Can agencies have an overlap in an SES position for continuity during a change in Presidential Administrations or a change in agency leadership?

No. Agencies cannot employ two individuals in the same position at the same time ("dual incumbency"). Nevertheless, there are options available to agencies to provide continuity in key positions and meet other transition needs. When an incumbent's intention to leave has been documented, an agency may establish a different position to employ a designated successor for a brief period pending the incumbent's departure. For example, when an office director is leaving, a temporary special assistant position could be established for a short period to facilitate orientation of the incoming director to the office's operations. OPM may authorize the use of SES limited appointment authorities for short periods of time for temporary executive positions established under such circumstances. Agencies may also establish temporary transitional Schedule C positions for similar non-executive positions to assist with transitions, under circumstances described in Question 20.

[Reference: 5 U.S.C. 3132, 3134, and 3394; 5 CFR Part 317, Subpart F, for limited appointments. 5 CFR 213.3302 for transitional Schedule C appointments]
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39. What special requirements are there for SES actions in independent regulatory commissions?

The appointment or removal of an SES appointee in an independent regulatory commission may not be subject, directly or indirectly, to review or approval by any officer or entity within the Executive Office of the President.

[Reference: 5 U.S.C. 3392(d)]
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