Washington, DC
U.S. Office of Personnel Management
Classification Appeal Decision
Under section 5112 of title 5, United States Code
Enforcement Bureau
Telecommunications Consumers Division
Ana A. Mazzi
Principal Deputy Associate Director
Merit System Accountability and Compliance
12/13/2024
Date
As provided in section 511.612 of title 5, Code of Federal Regulations (CFR), this decision constitutes a certificate that is mandatory and binding on all administrative, certifying, payroll, disbursing, and accounting officials of the Government. The agency is responsible for reviewing its classification decisions for identical, similar, or related positions to ensure consistency with this decision. There is no right of further appeal. This decision is subject to discretionary review only under conditions and time limits specified in the Introduction to the Position Classification Standards (Introduction), appendix 4, section G (address provided in appendix 4, section H).
Since this decision changes the series of the appealed position, it is to be effective no later than the beginning of the fourth pay period after the date of this decision (5 CFR 511.702). Our findings also show the appellant’s official position description (PD) does not meet the standard of adequacy described in section III.E of the Introduction. Since PDs must meet the standard of adequacy, the agency must revise the appellant’s PD to reflect our findings. The servicing human resources office must submit a compliance report containing the corrected PD and a Standard Form 50 showing the personnel action taken. The report must be submitted within 30 days from the effective date of the personnel action to the Office of Personnel Management (OPM), Merit System Accountability and Compliance, Agency Compliance and Evaluation, Washington, DC, office.
The appellant’s position is currently classified as Telecommunications Accessibility Specialist, GS-301-13, but she believes it should be graded at the GS-14 level, with series and position title at “Human Resources discretion.” The appellant is assigned to the Telecommunications Consumers Division (TCD), Enforcement Bureau, Federal Communication Commission (FCC), in Washington, DC. We have accepted and decided this appeal under section 5112 of title 5, United States Code (U.S.C.).
The agency performed a desk audit with the appellant in response to a request to noncompetitively promote her to a Legal Analyst, GS-0301-14, position beginning June 2021. The desk audit determined the position should be classified as a Management Analyst, GS-0343-13, with the findings (i.e., draft evaluation and draft position description) provided to the appellant’s supervisor on July 14, 2021. Subsequently, the findings were reviewed by the FCC’s Managing Director (OMD) and in a July 14, 2022, letter to the appellant he confirmed the desk audit findings including stating “the work performed does not warrant an accretion of duties to the GS-14 grade level.” However, the agency never implemented the desk audit findings. Therefore, the appellant filed a classification appeal with OPM.
The appellant makes various statements about the agency’s evaluation of her position and compares her position to a former similar position within her organization that was classified at the GS-14 level. By law, we must classify positions solely by comparing their current duties and responsibilities to OPM position classification standards (PCS) and guidelines (5 U.S.C. 5106, 5107, and 5112). Since comparison to the PCSs and guidelines is the exclusive method for classifying positions, we cannot compare the appellant’s current duties to other positions, which may or may not be classified properly, as the basis for deciding her appeal. Because our decision sets aside any previous agency decisions, the appellant’s statements regarding the classification practices used by her agency to classify her position are not germane to the classification appeals process.
Like OPM, the FCC must classify positions based on comparison to OPM’s PCSs and guidelines. The agency also has primary responsibility for ensuring that its positions are classified consistently with OPM appeal decisions. If the appellant considers her position so similar to another position in her agency that they both warrant the same classification, she may pursue the matter by writing to her agency’s headquarters human resources office. In doing so, she should specify the precise organizational location, series, title, grade, and responsibilities of the position in question. If the position is found to be basically the same as hers, the agency must correct its classification to be consistent with this appeal decision. Otherwise, the agency should explain to her the difference between her position and the other.
Both the appellant and her supervisor believe that the appellant’s position description (PD) of record (PD#17-0053) is not accurate[1]. Specifically, the appellant believes the official PD places emphasis on tasks performed under the purview of Section 255 of the Telecommunications Act. FCC rules under Section 255 of the Communications Act require telecommunications equipment manufacturers and service providers to make their products and services accessible to people with disabilities if such access is readily achievable. Where access is not readily achievable, manufacturers and service providers must make their devices and services compatible with peripheral devices and specialized customer premises equipment that are commonly used by people with disabilities, if such compatibility is readily achievable. The appellant states that while this section is under the purview of her office, the majority of her work focuses on Section 225, telecommunications services for hearing impaired and speech-impaired individuals. In total, Sections 225, 255, 613, and 618 of the Communications Act govern enforcement actions to ensure equal access to services for persons with disabilities.
There are four key areas covered by the TCD’s accessibility investigations: (1) Closed Captioning ensuring that programming is made accessible to persons who have hearing disabilities; (2) Access to Emergency Information ensuring that persons with hearing and visual disabilities have access to emergency information; (3) Telecommunications Relay Services (TRS) ensuring that providers of Telecommunications Relay Services, e.g., Video Relay Service (VRS), Internet Protocol Captioned Telephone Service (IP CTS), comply with the Commission’s rules and orders and are not engaging in practices that would result in waste, fraud, or abuse of the TRS Fund, the mechanism used to reimburse entities for the cost of providing such services; and (4) 21st Century Communications and Video Accessibility Act (CVAA) ensuring that advanced communications services and products are accessible to and usable by persons with disabilities, including web browsers on mobile devices, and that captions are included on programming streamed over the Internet when such programming was previously shown with closed captions on tv. (FCC, 2023) The appellant’s supervisor has indicated that the PD of record does not capture the appellant’s data development during investigations. The supervisor indicated that the type of development the appellant provides is akin to an experienced Lead Attorney. Investigations are developed based on the appellant’s own independent direction, using her expertise in analyzing facts, developing strategies, adjusting strategies as facts are uncovered, and ensuring the legal discernment applied is reliable. Once a case is developed, the incumbent has the sole responsibility for briefing materials for continuity purposes, ensuring evidentiary support is sufficient to prove wrongdoing, and providing writings for signature documents (subpoenas, letters of inquiry, consent decrees, notices of apparent liability for forfeiture, orders, or forfeiture orders). The supervisor does not interfere with the investigation development or actions taken because of the investigation.
Our review disclosed that portions of the appellant’s PD are inaccurate. While the official PD describes the position as assisting with preliminary drafts and in the development of documents, the appellant exceeds that requirement in that she produces work products which represent the FCC’s final actions, and has authored decisions centered on all four key areas of the TCD’s accessibility investigations. Cases developed by the appellant are utilized to defend the FCC’s legal decisions made against parties regulated by the FCC. The supervisor credits the appellant as being the individual solely responsible for building the presentation of evidence, ensuring that it is persuasive enough from a legal perspective to move forward with an impenetrable defense of fact, including determining what action is appropriate given the facts of the case, and ultimately moving forward with official FCC orders. In addition, although the agency assigned Level 1-8 for Factor 1 (Knowledge required by the position) and we concur, the narrative in the PD for that factor does not fully capture the level of the appellant’s program knowledge and expertise, including her extensive knowledge of laws, policies, regulations and precedents covering sections 225 and 255 of the Communications Act. She is also involved in evaluating the impact of new or modified legislation on her program, particularly as they affect compliance and impact the TCD’s overall program goals and activities.
While a PD is the official record of the duties and responsibilities assigned to a position, a position is the duties and responsibilities that make up the work performed by the employee. Classification appeal regulations permit OPM to investigate or audit a position and decide an appeal based on a review of the actual duties and responsibilities currently assigned by management and performed by an employee. An OPM appeal decision classifies a real operating position, and not simply a PD. Because this decision is based on the actual work currently assigned to and performed by the appellant, given the PD inaccuracies described above it does not meet the standard of adequacy described on pages 11-12 of the Introduction and the agency must revise the PD to reflect our findings.
The TCD of the FCC’s Enforcement Bureau (EB) is responsible for protecting consumers from fraudulent, misleading, and other harmful practices by companies engaged in various telecommunications-related activities, manufacturers of telecommunications equipment, telemarketers, and companies distributing unsolicited advertisements. TCD’s enforcement actions help to ensure that all consumers have access to telecommunications services and equipment and can make informed choices about such services.
TCD is also responsible for investigating the practices of companies engaged in various telecommunications-related activities which lead to waste, fraud, and abuse of the TRS Fund. The TRS Fund compensates TRS providers for reasonable costs of providing interstate transmission services with enabled accessibility features (such as captioned telephone service, video relay service, speech-to-speech relay, etc.). Various legislation, such as the Twenty-First Century Communications and Video Accessibility Act (CVAA) and the Communications Act of 1934, are focused on protecting individuals with disabilities. Violations of these acts (including, but not limited to sections 225 and 255 of the Act) regarding the accessibility of communications services and equipment to persons with disabilities fall within the TCD’s span of control. It is responsible for producing legal documents including Citations, Notices of Apparent Liability, Forfeiture Orders, and Consent Decrees which address violations of the Commission’s policies, orders, and rules by providers. The appellant is supervised by TCD’s Deputy Division Chief, a Supervisory Attorney Advisor, GS-905-15, tasked with the oversight of the initiation of investigations of common carriers and other entities regulated by the FCC.
The appellant reviews complaints of alleged violations of sections 225 and 255 of the Act and is considered and expert in interpreting and applying the laws, regulations, FCC policies, and precedents governing her program area, and receives only administrative and policy review of her work. She is also consulted on the impact of any legislative changes impacting her program activities. She investigates actions taken by the relevant entities, determines which FCC rules were affected, and if the FCC should pursue a formal investigation into the action(s). This may require a Letter of Inquiry to determine the circumstances surrounding the actions to determine the extent of all legal impacts. Responses to Letters of Inquiry must then be examined by TCD staff including the appellant to determine the extent to which the answers correspond and are relevant to the questions presented. The appellant examines the impact of the actions and builds evidentiary case files to fully support any legal actions taken by the FCC to hold those entities accountable for their lack of compliance, expanding investigations where needed to fully substantiate any action taken by the FCC. When the TRS Fund is impacted, the appellant must also ensure the analysis to determine monies associated with entities non-compliance is sound and accurately accounted. The appellant also authors subpoenas, including those sent to entities outside the FCC regulated entities where those are warranted to fully understand circumstances surrounding non-compliance issues. Examples of this are third parties partnered with the FCC regulated entity, whose actions may have contributed to the FCC regulatee’s non-compliance, or otherwise provide context surrounding the issue. The appellant also drafts Consent Decrees, Notices of Apparent Liability, Orders, and Forfeiture Orders where warranted based on the results of an investigation and the legal action moving forward. Cases are generally closed in one of three manners: (a) Not pursued by the FCC, (b) a negotiated agreement/Consent Decree, or (c) Notice of Apparent Liability. In all eventualities, the appellant’s work must be impermeable to legal scrutiny. As described above, all such legal documents are subject to the review of her supervisor. Cases which result in court appearances are moved to the FCC’s Office of General Counsel, who consults with the appellant as an expert in particular sections of the Act including its legal implications impacting formal investigations.
In reaching our classification decision, we have carefully reviewed all information provided by the appellant and her agency including the official PD, which, although not completely accurate, we have incorporated by reference into this decision. In addition, to gain more information about the appellant’s work and help decide the appeal, we conducted separate telephone interviews with the appellant and her supervisor.
Series, title, and standard determination
The agency classified the appellant’s position in the Miscellaneous Administration and Program Series, 0301, which includes positions the duties of which are to perform, supervise, or manage nonprofessional, two-grade interval work for which no other series is appropriate. The work requires analytical ability, judgment, discretion, and knowledge of a substantial body of administrative or program principles, concepts, policies, and objectives. Page 2 of the Position Classification Flysheet for the 0301 series instructs:
The purpose of this series is, to cover two-grade interval work which is not elsewhere classifiable. The essential criteria for classifying positions in this series are:
- that the primary work of the position is of an administrative, two-grade interval nature; and
- that the primary work of the position is not classifiable in any other series.
Positions classified in the Miscellaneous Administration and Program Series, GS-0301, involve specialized work for which no appropriate occupational series has been established. Typically, positions in this series are too few of a kind to have been recognized as separate lines of work.
During our review of the appeal, we found the appellant’s position requires legal administrative knowledge along with specialized analytical abilities to identify legal policy intent, sound administrative judgement to decipher the intention of FCC rules, and independent discretion. Although not at the level of full legal training required of professional legal positions (e.g., 0905 Attorney), the work nonetheless requires administrative analysis and research of legal matters which are not otherwise related to an established subject matter field (e.g., human resources management), but specific to and centered on FCC regulations and determining compliance of FCC rules. Knowledge of judicial proceedings, witness examination, etc., related to the Paralegal Specialist, 0950 series, are not relevant to this position. However, the two-grade interval General Legal and Kindred Administration Series, 0901, includes two-grade interval administrative positions that supervise, lead, or perform work involving two or more series in the Legal and Kindred group, or positions that require legal and kindred administrative knowledge but are not covered by an existing administrative series within the group.
In determining the appropriate series of the appellant’s position, we also considered the Management and Program Analysis Series, 0343. The primary purpose of that series is to provide line managers with objectively based information for making decisions on the administrative and programmatic aspects of agency operations and management. However, the appellant’s position primarily evaluates the legality of actions taken or omitted by FCC regulated entities. It is not charged with reviewing the effectiveness and efficiency of programmatic aspects of agency operations on behalf of management, but rather with evaluating the legal compliance with FCC rules by private entities outside the FCC.
While the appellant’s duties involve research and analysis into issues of legal compliance, the appellant’s work is not investigative; it is primarily focused on legal analysis in determining the extent of legal compliance. The position’s primary purpose is to measure the compliance with FCC regulations via legal analysis through sound administrative judgement, with independent discretion applied in deciphering the intention of FCC rules. Consequently, for series determination we also reviewed work described in the Job Family Standard (JFS) for 1800 Administrative Work in the Inspection, Investigation, Enforcement, and Compliance Group, because the position has similar enforcement and compliance responsibilities. However, because the position does not actually perform investigations but only examines the legal ramifications of the products of investigations, and the furthering of investigations after review from a legal standpoint, assignment to a specific series in the 1800 Group is not appropriate.
Based on the preceding analysis, we find the appellant’s position is properly classified in the General Legal and Kindred Administration Series, 0901. The authorized basic title for positions classified in that series is Legal Administrative Specialist. No indications were found to support use of any parenthetical titles for specialties identified in the 0901 Flysheet.
Positions classified in the 0901 series are evaluated using the grading criteria in the Administrative Analysis Grade Evaluation Guide (AAGEG) in conjunction with another appropriate subject-matter position classification standard for two grade interval work, until such time as OPM develops and issues a JFS for Administrative Work in the Legal and Kindred Group, 0900. Therefore, without a directly applicable subject-matter classification standard, the 1800 JFS for Administrative Work in the Inspection, Enforcement, and Compliance Group (AWIECG), which describes similar compliance work to the appellant’s primarily concerned with investigations of alleged or suspected offenses against the laws of the United States (or such work primarily concerned with determining compliance with laws and regulations), is utilized in conjunction with the AAGEG.
The AAGEG and AWIECG use the Factor Evaluation System (FES), which employs nine separate factors. Each factor contains several factor level descriptions which describe the minimum threshold needed to receive credit for the described level. Therefore, if a position fails to meet the criteria in a factor level description in any significant aspect, it must be credited at a lower level. A corresponding point value is assigned to each factor level, and the total points assigned are converted to a grade by using the Grade Conversion Table in the standard. Our evaluation with respect to the nine FES factors follows.
The appellant disagrees with the agency assignment of Factor Level 4-5 for Factor 4, Complexity, Factor Level 5-5 for Factor 5, Scope and Effect, Factor Level 6-3 for Factor 6, Personal Contacts, and Factor Level 7-d for Factor 7, Purpose of Contacts. The appellant’s rationale cites the Management and Program Analysis Series, GS-0343 (TS-98 August 1990) statement that “users should not seek a one-to-one correspondence between duties of a particular position and the factor level descriptions and work illustrations in the guide; instead users should strive to match the intent of the various factor levels and seek to locate concepts and examples which are comparable”. The appellant also states that HR has “penalized me for duties and responsibilities that my Bureau doesn’t even perform” and citing “the standards are broad and general and must be ‘tailored’ to each agency’s situation”, with examples provided for each disputed factor. We will discuss those examples and factors in the relevant section of this decision. However, while the FES does not seek a one-to-one comparison of the factor level descriptions provided, classification standards are designed to provide factor levels which reflect multiple levels of responsibility and work produced by employees throughout government. In applying factor levels to positions, classifiers determine the overall intent of a factor level description, using concepts and examples which are comparable between the position and classification standard applied. In determining whether the intent of a factor level description is fully met, the PD and actual duties performed must be evaluated as they exist within the organization. Factor levels described in a PD should not be ‘tailored’ to meet factor level descriptions of an applicable JFS. The existence of a factor level does not guarantee applicability to every position within a given agency and/or organization. The work described within a standard may not apply to an agency/organization or may apply only to the most senior positions responsible for the work of the entire agency. Work not assigned and performed cannot be considered in classifying a position.
The appellant does not dispute the agency’s assessment of Level 1-8 for Factor 1, Knowledge Required by the Position; Level 2-4 for Factor 2, Supervisory Controls; Level 3-4 for Factor 3, Guidelines; Level 8-1 for Factor 8, Physical Demands; and Level 9-1 for Factor 9, Work Environment. After careful review, we agree with the factor levels assigned by the agency for factors 1, 8, and 9 and thus have not addressed them separately in the discussion below. However, the agency’s official evaluation statement and draft desk audit evaluation statement differ in their assignment of factor levels for Factors 2 (Supervisory Controls) and 3 (Guidelines). Therefore, we have limited our analysis below to disputed Factors 4, 5, 6, and 7, as well as Factors 2 and 3 to address the agency’s inconsistencies.
Factor 2, Supervisory Controls
This factor covers the nature and extent of direct or indirect controls exercised by the supervisor, the employee’s responsibility, and the degree to which the work is reviewed by the supervisor. There is a discrepancy between the factor level assigned by the agency in its official evaluation statement (Level 2-4), and the agency’s desk audit draft evaluation statement (Level 2-5). To resolve the matter, we have compared the appellant’s work to both levels and assigned the appropriate one below.
At Level 2-4, within a framework of priorities, funding and overall project objectives, the employee and supervisor develop a mutually acceptable project plan which typically includes identification of the work to be done, the scope of the project, and deadlines for its completion. Within the parameters of the approved project plan, the employee is responsible for planning and organizing the study, estimating costs, coordinating with staff and line management personnel, and conducting all phases of the project. This frequently involves the definitive interpretation of regulations and study procedures, and the initial application of new methods. The employee informs the supervisor of potentially controversial findings, issues, or problems with widespread impact. Completed projects, evaluations, reports, or recommendations are reviewed by the supervisor for compatibility with organizational goals, guidelines, and effectiveness in achieving intended objectives. Completed work is also reviewed critically outside the employee's immediate office by staff and line management officials whose programs and employees would be affected by implementation of the recommendations.
At level 2-5, the employee is recognized as an authority in the analysis and evaluation of programs and issues, and therefore, the employee is subject only to administrative and policy direction concerning overall project priorities and objectives. At this level, the employee is typically delegated complete responsibility and authority to plan, schedule, and carry out major projects concerned with the analysis and evaluation of programs or organizational effectiveness. The employee typically exercises discretion and judgment in determining whether to broaden or narrow the scope of projects or studies. Analyses, evaluations, and recommendations developed by the employee are normally reviewed by management officials only for potential influence on broad agency policy objectives and program goals. Findings and recommendations are normally accepted without significant change.
The appellant’s position exceeds Level 2-4 but does not fully meet Level 2-5. Like Level 2-4, the employee is responsible for planning and organizing the investigations into allegations, including ensuring the estimates of fund impacts, coordinating with personnel, and conducting all phases of the investigation and resulting actions. This frequently involves the definitive interpretation of legal requirements, and the application of new methods of investigation. However, similar to Level 2-5, the appellant receives only general administrative direction from her supervisor, allowing her to independently develop cases and recommend final disposition, and her completed work is reviewed only for its impact on the FCC’s objectives and goals. However, the final authority for the results of an investigation requires an attorney to critically review and consent for legal purposes. As opposed to Level 2-5, this legal review is closer than simply for potential influence on broad agency policy objectives and program goals. Regardless of her expertise, the appellant is not authorized by law to authorize final products (e.g., court decrees), and as such her work must have legal review and does not meet the higher level.
This factor is evaluated at Level 2-4 and 450 points are assigned.
This factor covers the nature of guidelines and the judgment needed to apply them. There is a discrepancy between the factor level assigned by the agency in its official evaluation statement (Level 3-4), and the agency’s desk audit draft evaluation statement (Level 3-5). To resolve the matter, we have compared the appellant’s work to both levels and assigned the appropriate one below.
At Level 3-4, guidelines consist of general administrative policies and management and organizational theories which require considerable adaptation and/or interpretation for application to issues and problems studied. At this level, administrative policies and precedent studies provide a basic outline of the results desired, but do not go into detail as to the methods used to accomplish the project. Administrative guidelines usually cover program goals and objectives of the employing organization, such as agency controls on size of work force, productivity targets, and similar objectives. Within the context of broad regulatory guidelines, the employee may refine or develop more specific guidelines such as implementing regulations or methods for the measurement and improvement of effectiveness and productivity in the administration of operating programs.
At Level 3-5, guidelines consist of basic administrative policy statements concerning the issue or problem being studied, and may include reference to pertinent legislative history, related court decisions, state and local laws, or policy initiatives of agency management. The employee uses judgment and discretion in determining intent, and in interpreting and revising existing policy and regulatory guidance for use by others within or outside the employing organization (e.g., other analysts, line managers, or contractors). At this level, the employees are recognized as experts in the development and/or interpretation of guidance on program planning and evaluation in their area of specialization (e.g., work force management, contingency/emergency planning, position management, work measurement, or productivity improvement).
Level 3-4 is met. Like this level, the appellant uses administrative policies and precedents which are stated in general terms requiring considerable interpretation to determine the intent of guidelines, particularly sections 225 and 255 and previous related interpretations of the Communications Act. Similar to Level 3-4, within the context of general guidelines, the appellant may develop more specific interpretations which is shared with her supervisor and agency investigative staff. While the appellant applies and interprets general guidelines and basic agency policies, the position does not meet Level 3-5. Although she is sometimes faced with determining the intent of a particular guideline, in contrast to Level 3-5 she is not involved in revising existing policy and regulatory guidance for use by others as addressed under Level 3-5. That responsibility is solely assigned to the FCC policy office and is not shared with the appellant.
This factor is evaluated at Level 3-4 and 450 points are assigned.
This factor covers the nature, number, variety, and intricacy of tasks, steps, processes, or methods in the work performed; the difficulty in identifying what needs to be done; and the difficulty and originality involved in performing the work. Both the agency’s official evaluation and draft desk audit evaluation assigned Level 4-5, but the appellant believes her position meets Level 4-6.
At Level 4-5, the work consists of projects and studies which require analysis of interrelated issues of effectiveness, efficiency, and productivity of substantive mission-oriented programs. Typical assignments require developing detailed plans, goals, and objectives for the long-range implementation and administration of the program, and/or developing criteria for evaluating the effectiveness of the program. Decisions about how to proceed in planning, organizing and conducting studies are complicated by conflicting program goals and objectives which may derive from changes in legislative or regulatory guidelines, productivity, and/or variations in the demand for program services. Assignments are further complicated by: the need to deal with subjective concepts such as value judgments; the quality and quantity of actions are measurable primarily in predictive terms; and findings and conclusions are highly subjective and not readily susceptible to verification through replication of study methods or reevaluation of results.
Options, recommendations, and conclusions developed by the employee at Level 4-5 take into account and give appropriate weight to uncertainties about the data and other variables which affect long-range program performance. For example, the employee may need to consider and assess the relative advantages and disadvantages of centralizing or decentralizing work operations in organizations with several echelons of geographically separated components. In some instances, work is complicated by the need to develop data about workload and program accomplishments which is currently unavailable. Current measurements of program effectiveness may be ambiguous and susceptible to widely varying interpretations. Under these circumstances the employee develops new information about the subject studied and establishes criteria to identify and measure program accomplishments, develops methods to improve the effectiveness with which programs are administered, or develops new approaches to program evaluation which serve as precedents for others.
At Level 4-6, the employee plans, organizes, and carries through to completion analytical studies involving the substance of key agency programs. There is extreme difficulty in identifying the nature of the issues or problems to be studied, and in planning, organizing, and determining the scope and depth of the study. The nature and scope of the issues are largely undefined. Difficulty is encountered in separating the substantive nature of the programs or issues studied into their administrative, technical, political, economic, fiscal, and other components, and determining the nature and magnitude of the interactions. Difficulty is also encountered in discerning the intent of legislation and policy statements and determining how to translate the intent into program actions.
At Level 4-6, the work typically involves efforts to develop and implement programs based upon new or revised legislation requiring consideration of the immediate sequential, and long-range effects, both direct and indirect, or proposed actions on the public, other government programs, and/or private industry. The employee doing program evaluation studies is normally faced with the need to develop new ways to measure program accomplishments, results, and effectiveness. An illustration at Level 4-6 describes a position performing analytical assignments involving efforts to develop and implement broad programs based on new or revised legislation. The work typically requires efforts to develop new program objectives or legislative and regulatory initiatives to facilitate achievement of program goals and objectives (e.g., reducing pollution, improving safety, providing health care, or improving productivity). Assignments described in this illustration are usually without precedent, of long duration and of such scope that they frequently require directing a team effort. Such work requires consideration of the immediate as well as long-range effect of proposed actions on the public or other Government programs (e.g., changes in levels of benefits or services). It also considers a wide range of issues which affect the program, such as changing information technology and comparable conditions of a highly variable nature.
Level 4-5 is met. Like this level, the appellant’s work involves application of broad FCC rules and determines applicability for high profile cases complicated by uncertainty in interpretation. The work requires analysis of interrelated issues of FCC programs and developing detailed objectives in the administration of the program, considering changes in regulatory guidelines, variations in the approach program services, and the application of judgement by the appellant. The appellant must determine for the FCC the degree to which the regulated actions reviewed exhibit violation(s) of FCC rules (wherein circumstances may be secured by the FCC regulatee or other entity), assessment of the violation’s impact (both quantitative and qualitative); and reaching an ultimate conclusive finding which is highly subjective and not readily susceptible to verification through replication of study methods or reevaluation of results. Options, recommendations, and conclusions developed by the employee consider and give appropriate weight to uncertainties about the data and other variables which affect the FCC’s enforcement of rules. The appellant establishes the criteria to identify and measure the extent to which the FCC rules have been violated and develops the criteria to which the violation should be addressed – if that action warrants liability, and what form of liability is most appropriate. These determinations serve as precedents for others.
Level 4-6 is not met. Unlike this level, the appellant does not plan, organize, and carry through to completion analytical studies involving the substance of key FCC programs. While the position must consider new FCC rules and must factor new rules into the work being performed, the appellant’s work does not include efforts to develop and implement programs to the extent required at Level 4-6. Although new regulatory initiatives may impact the TCD, this position is not required to develop and implement programs requiring consideration of conditions akin to the immediate sequential, and long-range effects, both direct and indirect, or proposed actions on the public, other government programs, and/or private industry. Unlike Level 4-6, the appellant does not do program evaluation studies and is not faced with the need to develop new ways to measure program accomplishments, results, and effectiveness. The work of this position is more closely aligned to Level 4-5, wherein the employee applies the program requirements rather than creating or establishing them for the program.
Factor 4 is evaluated at Level 4-5 and 325 points are assigned.
This factor covers the relationship between the nature of the work (i.e., the purpose, breadth, and depth of the assignment), and the effect of the work products or services both within and outside the organization. The appellant believes her position meets Level 5-5 for this factor. However, because there is a discrepancy between the factor level assigned by the agency in its official evaluation statement (i.e., Level 5-5), and the agency’s desk audit draft evaluation statement (i.e., Level 5-4), to resolve the matter we have compared the appellant’s work below to both levels and assigned the appropriate one.
At Level 5-4, the purpose of the work is to assess the productivity, effectiveness, and efficiency of program operations or to analyze and resolve problems in the staffing, effectiveness and efficiency of administrative support and staff activities. Work involves establishing criteria to measure and/or predict the attainment of program or organizational goals and objectives. Work at this level may also include developing related administrative regulations, such as those governing the allocation and distribution of personnel, supplies, equipment, and other resources, or promulgating program guidance for application across organizational lines or in varied geographic locations. Work that involves the evaluation of program effectiveness usually focuses on the delivery of program benefits or services at the operating level. Work contributes to the improvement of productivity, effectiveness, and efficiency in program operations and/or administrative support activities at different echelons and/or geographical locations within the organization.
At Level 5-4, the scope of work affects the plans, goals, and effectiveness of missions and programs at various echelons or locations. Work may affect the nature of administrative work done in components of other agencies (e.g., in preparation and submission of reports, in gathering and evaluating workload statistics, or in routing and storing official correspondence or files).
At Level 5-5, the purpose of the work is to analyze and evaluate major administrative aspects of substantive, mission-oriented programs. It involves identifying and developing ways to resolve problems or cope with issues which directly affect the accomplishment of principal program goals and objectives (e.g., the delivery of program benefits or services). Some employees develop new ways to resolve major administrative problems or plan the most significant administrative management aspects of professional or scientific programs. Other employees at this level develop administrative regulations or guidelines for the conduct of program operations, while others develop new criteria for measuring program accomplishments (e.g., the level, costs, or intrinsic value of benefits and services provided) and the extent to which program goals and objectives are attained. Typical of work products prepared by employees at this level are complete decision packages, staff studies, and recommendations which upon implementation would significantly change major administrative aspects of missions and programs, or substantially affect the quality and quantity of benefits and services provided to the agency's clients.
Level 5-4 is met. Like this level, the purpose of the appellant’s work is to analyze and evaluate FCCs regulations and develop mechanisms to address violations, which directly affects the accomplishment of principal FCC goals and objectives. In addition, the appellant’s work analyzes, assesses, and determines appropriate resolutions to FCC violations at the operating level, and prepares formal documentation of violations. The work contributes to the improvement and effectiveness of program operations within the organization.
Level 5-5 is not met. Unlike this level, the purpose of the appellant’s work is not to analyze and evaluate major administrative aspects of substantive, mission-oriented programs. In addition, her work does not affect the programs conducted throughout the EB. Instead, the appellant’s work is primarily focused on providing administrative legal analysis for one component of the FCC’s EB. The regulations utilized are administered by the FCC, and while the appellant may be able to raise issues concerning policy with the policy team, the appellant is not responsible for resolving major administrative problems or developing the administrative regulations as expected at Level 5-5. FCC leadership or other positions within the agency and Bureau hold that authority.
The appellant states that the “ultimate decision on pursuing, closing out, or negotiating for any and all investigations is made by the Office of the Chair of the FCC”, and to “penalize” her for that does not consider the hierarchy of the FCC, nor the classification principle of not seeking a one-to-one comparison between the duties of a position and the factor level descriptions. While it is true that individuals should not seek a one-to-one comparison when applying classification levels, the overall intent of a level must be met to be credited. Classification standards are broadly written and cannot address every type of work performed in the government on a one-to-one level, but they do address all levels of work performed within the government. While some levels may apply to Bureau-level positions, the highest factor levels may only apply to those higher-level positions at the agency level. Sound classification and position management principles must be applied to every position being reviewed for proper classification.
Factor 5 is evaluated at Level 5-4 and 225 points are assigned.
Factor 6, Personal contacts/Factor 7, Purpose of contacts
These two factors are interdependent. The relationship between Factors 6 and 7 requires that the same contacts be evaluated under both factors. These factors cover the type and level of contacts made in performing the work, and the reasons for those contacts. Under the AAGEG they are evaluated separately, but a combined point credit is established by determining where the selected levels assigned intersect in the chart in the guide. In the official evaluation for personal contacts the agency assigned Level 6-3, and for purpose of contacts Level 7-d. However, in the agency’s draft desk audit evaluation of personal contacts it assigned Level 6-2, and for purpose of contacts Level 7-b. The appellant disputes the levels assigned in the draft desk audit evaluation, i.e., Levels 6-2/7-b. Our evaluation of the two factors follows.
Persons contacted
At Level 6-2, contacts consist of employees, supervisors, and managers of the same agency, but outside of the immediate office, or employees and representatives of private concerns in a moderately structured setting.
At Level 6-3, contacts are with persons outside the agency which may include consultants, contractors, or business executives in a moderately unstructured setting. This level may also include contacts with the head of the employing agency or program officials several managerial levels removed from the employee when such contacts occur on an ad-hoc basis.
Level 6-3 is met. The appellant has regular and recurring contacts with persons outside the agency who are employed by (or otherwise involved in business relationships with) FCC regulatees. Most often, those contacts are within the context of an unstructured setting, wherein the circumstances of the FCC-regulated conduct determine the direction of the meetings which are setup on a non-routine basis.
Factor 6 is evaluated at Level 6-3.
At Level 7-b, the purpose of contacts is to provide advice to managers on noncontroversial organization or program related issues and concerns. Contacts typically involve such matters as: identification of decision-making alternatives; appraisals of success in meeting goals; or recommendations for resolving administrative problems.
At Level 7-c, the purpose of contacts is to influence managers or other officials to accept and implement findings and recommendations on organizational improvement or program effectiveness. May encounter resistance due to such issues as organizational conflict, competing objectives, or resource problems.
At Level 7-d, the purpose of contacts is to justify or settle matters involving significant or controversial issues, e.g., recommendations affecting major programs, dealing with substantial expenditures, or significantly changing the nature and scope of organizations.
Level 7-c is met. Similar to this level, the appellant’s regular and recurring contacts are made with individuals who are resistant to admittance of FCC violations, and the circumstances surrounding those violations – or may not provide responses congruent with the line of questioning. There are clear conflicts of interest between the regulatee and the FCC, and the findings of FCC investigations can impose significant resource problems for the contacts and their organization.
Level 7-d is not met. Though the appellant’s position deals with matters of significance to the American public, the intent of Factor 7-d requires action to be taken that is akin to significantly changing the nature and scope of organizations and those affecting major programs – work that is well outside the appellant’s area of responsibility.
Factor 7 is evaluated at Level 7-c.
Factors 6 and 7 are evaluated at Levels 6-3 and 7-c, and by application of the chart in the AAGEG a total of 180 points is assigned.
Evaluation using the AWIECG, 1800, JFS
The AWIECG, 1800, JFS is applied below to support our evaluation of Factors 2, 3, 4, 5, 6, and 7 of the AAGEG by cross-reference to an appropriate subject-matter position classification standard.
Factor 2, Supervisory Controls
At Level 2-4, the supervisor outlines overall objectives and available resources; discusses with the employee the projects and timeframes; and determines the parameters of the employee’s responsibilities. The employee determines the most appropriate avenues to pursue; decides the practices and methods to apply in all phases of assignments including the approach to take, and the depth and intensity needed; interprets policy and regulations and resolves most conflicts as they arise; coordinates projects or cases with others as necessary; and keeps the supervisor informed of progress and potentially controversial matters. The supervisor does not normally review the methods used, but reviews completed work for soundness of overall approach; effectiveness in producing results; feasibility of recommendations; and adherence to requirements.
At Level 2-5, the supervisor provides general administrative direction for assignments in terms of broad program objectives and resources of the agency. The employee is responsible for a significant program, project, or investigation; independently plans, organizes, and carries out the work to be done; and analyzes objectives or interprets policy promulgated by senior authorities and determines their effect on the agency’s program. The supervisor reviews the work for potential impact on broad agency policy objectives and program goals; usually evaluates the employee’s recommendations for new systems, methods, projects, or program emphasis in light of the availability of funds and personnel, equipment capabilities, and agency priorities; and normally accepts work as technically authoritative and rarely makes changes to the employee’s work.
The appellant’s position exceeds Level 2-4 to some degree but does not fully meet Level 2-5. Like Level 2-4, in carrying out her assignments the appellant independently plans and organizes investigations, determines the most appropriate avenue to pursue for each case including the approach to take, interprets agency policies and regulations, coordinates with other offices as needed to resolve conflicts during the pre-investigation phase, and keeps the supervisor informed of progress and potentially controversial matters, particularly problems with widespread impact.
Similar to Level 2-5, the supervisor provides only general administrative direction for assignments, and reviews completed work for its impact on FCC policies and program goals. However, the appellant’s work is centered on the accountability of those entities regulated by the FCC which requires legal review and signing off on findings. This does not meet the inherent intent of Level 2-5. The final legal review and approval authority rests with attorneys at higher levels of the FCC, such as the appellant’s supervisor.
Factor 2 is evaluated at Level 2-4 and 450 points are assigned.
At Level 3-4, the employee uses administrative policies and precedents which are applicable but stated in general terms. Guidelines for performing the work are scarce or of limited use. The employee uses initiative and resourcefulness in deviating from established methods to address specific issues or problems, identify and research trends and patterns, develop new methods and criteria, or propose new policies and practices.
At Level 3-5, the employee uses as guidance basic legislation, judicial rulings, and broad policy statements which are often ambiguous and require extensive interpretation. There are frequently no comparable precedents to use as a guide. The employee uses considerable judgment and ingenuity to interpret the intent of new or revised guidance and develops policy, guidelines, and practices for specific areas of work.
Level 3-4 is met. Like this level, the appellant applies administrative policies and precedents which are applicable but stated in general terms, with some guidelines being scarce or of limited use. Consequently, the appellant uses initiative and career knowledge of prior case history to research and address specific issues or problems encountered to determine compliance with FCC regulations and policies. While the appellant uses generally stated applicable agency policies, unlike Level 3-5 she does not develop policies, guidelines, and practices for areas of work. The current FCC policy office is assigned with developing policy and guidance, and the appellant’s role is limited to referring suggested updates based upon the results of investigations.
Factor 3 is evaluated at Level 3-4 and 450 points are assigned.
At Level 4-5, the work consists of the most significant and complex issues in areas of changing and/or conflicting policy or program requirements. The employee makes decisions and recommendations in situations complicated by uncertainty of approach, methodology, and/or interpretations due to circumstances such as extreme sensitivity (e.g., subjects of an investigation may be well-recognized, high profile individuals or organizations); significant unresolved legal or regulatory issues; intense and widespread public, media, or congressional interest, etc. The employee must develop innovative strategies, approaches, or methods to serve as precedents or models for similar situations in the future.
Level 4-6 is not described in the AWIECG.
The appellant’s position meets but does not exceed Level 4-5. Like this level, the appellant must thoroughly review significant and complex cases posing significant risk to the American public’s access to information and services. The cases sometimes include changing and/or conflicting policy or program requirements. For example, the appellant reviews cases covering investigations of major breaches of FCC regulations impacting the American people (e.g., emergency access), or those requiring an appropriate resolution of a breach of legal requirements or regulations. The appellant directs the enforcement of FCC regulatory requirements through coordinating investigations and preparing FCC attorneys for appropriate action by drafting subpoenas, letters of inquiry, consent decrees, notices of apparent liability, and forfeiture orders. She also coordinates and ensures TRS Fund accountability to quantify violations. All drafted documents, evidentiary support, and calculations serve as key narratives to support the FCC legal approach and must be developed thoroughly and appropriately by the appellant. Many cases are unique in origin thus complicated by uncertainty in approach. They cover a broad magnitude of violations, with significant impact to the FCC regulatee, many of whom are high profile large corporations with extensive resources and political influence garnering intense public and media interest. The appellant must discern which violations have occurred considering context and intent of FCC regulations, and like Level 4-5 cases may contain significant unresolved legal or regulatory issues. The FCC regulations applied may have been written prior to the advancement and changing of technologies, which can make them difficult to defend where sophisticated electronic networks are involved. In responding to these challenges, the appellant develops innovative methods and approaches to ensure that evidence supporting the violation fully defends the FCC case against strong opposing legal defenses.
Factor 4 is evaluated at Level 4-5 and 325 points are assigned.
Level 5-4 describes work involving planning and conducting multi-agency, multi-state, or international studies, reviews, or investigations; developing operational criteria, plans, and bulletins; or investigating or analyzing a variety of unusual situations. Work efforts result in the disruption of large-scale organized illegal activity and/or result in changes to business practices or procedures that promote the health, safety or fair treatment of a large group or whole class of people. Work may also result in improved planning and operational aspects of agency programs.
Level 5-5 describes work involving planning, organizing, and performing assignments to address the most complex problems or initiatives crossing a range of program areas. Work efforts result in the detection and resolution of threats or challenges to the well-being of substantial numbers of people; cause changes in business practices of large important institutions; or serve as the basis for changes in the direction of major agency initiatives or in long-standing agency practices.
Level 5-4 is met. Like this level, the scope of the appellant’s work is to conduct reviews and perform pre-investigative tasks concerning potential violations by FCC regulated providers functioning in muti-states. Their violations and the appellant’s investigative work involves a variety of practices meant to elude government regulations. The appellant must analyze and evaluate FCCs regulations against corporate and other FCC regulatees’ actions at the operating level, develop mechanisms to address violations, and prepare formal documentation to support her findings. Similar to Level 5-4, this effort involves ensuring investigations contain a full analysis of unusual situations and circumstances surrounding violations of FCC regulations. Her work results in the disruption of illegal practices through compliance with FCC regulations meant to promote the health, safety, and fair treatment of the American public. It also contributes to the improvement and effectiveness of program operations within her organization.
Level 5-5 is not met. Unlike this level, the appellant’s work does not address the most complex problems or initiatives crossing a range of the FCC’s overall program areas. In contrast, while the appellant’s work can lead to changes in business practices for large private telecommunications companies, her work focuses on enforcement and compliance of specific sections of the Telecommunications Act rather than addressing multiple program areas covered by the TCD, EB, or FCC.
Factor 5 is evaluated at Level 5-4 and 225 points are assigned.
Factors 6, Personal contacts/ Factor 7, Purpose of contacts
As previously discussed, these two factors are interdependent. The relationship between Factors 6 and 7 requires that the same contacts be evaluated under both factors. These factors cover the type and level of contacts made in performing the work, and the reasons for those contacts. Under the AWIECG, 1800, JFS, they are evaluated separately, but a combined point credit is established by determining where the selected levels assigned intersect in the chart in the JFS. While the appellant does not question the agency’s assignment of Level 6-3/7-d in its official evaluation, she disputes the levels assigned in the agency’s draft desk audit evaluation, i.e., Level 6-2/7-b. Our evaluation of the two factors follows.
Personal contacts
Level 6-2 describes contacts with agency employees at various levels within the agency and members of the general public, such as individuals or groups, in a moderately structured setting. Contacts are usually made at the employee’s workplace. The employee must explain the reason for the contact and the role and legal authority to the participants.
Level 6-3 describes contacts with individuals or groups from outside the agency in moderately unstructured settings, on a non-routine basis. The extent of each contact is different. Typical contacts at this level are with investigators from other agencies, district attorneys, witnesses, informants, complainants, public interest groups, and the news media.
Level 6-3 is met. The appellant has regular and recurring contacts with persons outside the agency who are employed by or otherwise involved in business relationships with FCC regulatees and serve as witnesses to violation(s) and have teams of legal defense personnel. The extent of each contact is different depending on the alleged violation or complaint. They are made within the context of a moderately unstructured setting, wherein the circumstances of the FCC-regulated conduct determine the direction of the meeting, and those meetings are setup on a non-routine basis.
Factor 6 is evaluated at Level 6-3.
At level 7-b, the purpose of contacts is to plan, coordinate, or advise on work efforts or to resolve operating problems by influencing or persuading individuals or groups who are working toward mutual goals and have basically cooperative attitudes.
At level 7-c, the purpose of contacts is to influence, persuade, interrogate, or control people or groups. The people contacted may be fearful, skeptical, uncooperative, or dangerous. Therefore, the employee must be skillful in approaching the individual or group to obtain the desired effect, such as gaining compliance with established policies and regulations by persuasion or negotiation or gaining information by establishing rapport with a suspicious informant.
At level 7-d, the purpose of contacts is to justify, defend, negotiate, or settle matters involving significant or controversial issues and/or programs. Work at this level usually involves active participation in conferences, meetings, hearings, or presentations about problems or issues of considerable consequence or importance. Persons contacted typically have diverse viewpoints, goals, or objectives requiring the employee to achieve a common understanding of the problem and a satisfactory solution by convincing them, arriving at a compromise, or developing suitable alternatives.
Level 7-c is met. The purpose of the appellant’s regular and recurring contacts is to persuade individuals who are uncooperative in admitting FCC violations, and the circumstances surrounding those violations – or may not provide responses congruent with the line of questioning. The appellant must be skilled in crafting and refocusing questions to obtain information that can serve as evidentiary support. There are clear conflicts of interest between the regulatee and the FCC, and the findings of FCC investigations can impose significant resource problems (e.g., fines) for the contacts and their organization.
Level 7-d is not met. Unlike this level, the appellant is not faced with justifying, defending, or negotiating matters involving significant or controversial issues or agency programs.
Factor 7 is evaluated at Level 7-c.
Factors 6 and 7 are evaluated at Level 6-3 and 7-c, and by application of the point assignment chart in the AWIECG, a total of 180 points is assigned.
The preceding analysis cross-referencing the AWIECG as applied to the disputed factor levels supports our primary grade level evaluation using the AAGEG as summarized below.
Table 1: Grade Determination
|
Factor |
Level |
Points |
|
Knowledge required by the position |
1-8 |
1550 |
|
Supervisory Controls |
2-4 |
450 |
|
Guidelines |
3-4 |
450 |
|
Complexity |
4-5 |
325 |
|
Scope and Effect |
5-4 |
225 |
|
Personal Contacts |
6-3/7c |
180 |
|
Purpose of Contacts |
||
|
Physical Demands |
8-1 |
5 |
|
Work Environment |
9-1 |
5 |
|
Total Points |
3190 |
|
A total of 3190 points falls within the GS-13 range (3155 – 3600) on the Grade Conversion Table in the AAGEG.
The appellant’s position is properly classified as Legal Administrative Specialist, GS-0901-13.
[1] As noted above, the record shows that the HR office with delegated classification authority recently reviewed this position and tentatively reclassified it as Management Analyst, GS-0343-13. Although this change is documented in the appeal file (including a draft PD and evaluation), no official change was made to the appellant’s position or official PD and evaluation of record. However, because the agency’s desk audit evaluated the same duties described in the appellant’s official PD, we have considered their comments (which the appellant challenges) in our evaluation of certain factor levels in the “Grade determination” section of this appeal decision.