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Lawmakers sharply criticized the Office of Personnel Management and agencies for failing to advance diversity in the Senior Executive Service at a joint hearing of the House and Senate's federal workforce subcommittees on Thursday.

"Despite the outreach and federal requirements, agencies just haven't been up to the task of promoting diversity in the senior ranks in a way that is convincing," said Rep. Charles Gonzalez, D-Texas. "Members of our communities can no longer wait for agencies to wake up and discover that they need to include diversity in their succession planning. Agencies by themselves cannot and will not do it."

The lawmakers expressed dismay at a Government Accountability Office report that found the number of African-American men in SES positions fell from 5.5 percent in October 2000 to 5 percent in September 2007. The same report found that the representation of women and minorities in the SES, and in General Schedule levels 14 and 15 -- employees most likely to become senior executives -- had increased since 2000.

Thursday's hearing focused on legislation in the House and Senate that would change the way appointments to the Senior Executive Service are made and tracked.

The bill would require agencies to appoint three-person panels comprised of a woman, a racial or ethnic minority, and another SES member to review executive appointments, and then require agency heads to sign off on individual appointments. It also would create an office within OPM to oversee the Senior Executive Service, including tracking demographics and creating mentoring and training programs to help minorities move into the executive ranks. OPM eliminated a similar office during the agency's 2003 reorganization.

Nancy Kichak, OPM's associate director for strategic human resources policy, rankled some lawmakers when she said that her agency did not have a position on the legislation, and suggested the bill could face constitutional hurdles.

"We have serious concerns about the potential impact on the merit system principles of injecting race and gender into the examination process in this manner," she said. "The Justice Department has advised that these race- and gender-based requirements for the composition of the SES panels are very likely unconstitutional under governing equal protection precedents."

"Does OPM have a position on why it is so difficult to reach some semblance of parity within the ranks of the SES?" Davis asked Kichak.

Rep. William Lacy Clay, D-Mo., also was critical of OPM.

"My suggestion to OPM is that you figure out how to work this out, that you work with both these chairmen to come up with a product to achieve the results," Clay told Kichak. "Don't come here being adversarial, because you are."

Kichak responded that she took a different view, arguing that the SES was better served by the attention of a range of part-time panelists rather than a small, full-time office. She also noted that OPM has issued more rigorous guidelines for SES appointments that include attention to diversity as a qualification.

But Kichak acknowledged that change was a slow process, and OPM does not have a set solution in place. The agency's candidate development program, designed to help minority candidates prepare to apply for SES appointments, is on hold while OPM retools it.

"We only had about 300 new hires -- new people moving into the SES in 2007," Kichak said. "Out of a 7,000 person service, when you only bring in 5 percent a year, it does take time for the numbers to change."

Del. Eleanor Holmes Norton, D-D.C., told Kichak that she expected OPM to submit within 30 days the Justice Department's legal basis for its suggestion that the legislation is unconstitutional.

Panelists and lawmakers also debated whether the bill would create more bureaucracy.

Rep. Kenny Marchant, R-Texas, the ranking member on the House subcommittee, said he wanted to ensure that tools to advance diversity don't unnecessarily burden the federal employment and advancement process.

"Implementing policy changes without full consideration of the consequences could end up adding additional bureaucracy to a system already burdened by low application numbers and relatively uncompetitive compensation packages," he cautioned.

The main objection, which was raised by the Senior Executives Association, is to the section of the bill mandating the three-person review panels. SEA wants to allow agencies to choose between using the three-person panels or creating diversity subcommittees of the Executive Resources Boards, which include more SES members. The SEA supports giving those subcommittees veto power over SES appointments that they believe did not consider qualified female and minority candidates.

William Bransford, SEA's general counsel, said that involving more people in the selection process would create more diverse leaders.