GAO reports that several agencies have made efforts to ensure that they comply with rules designed to prevent capricious reassignment of senior executives by political appointees, but gaps remain and OPM is unwilling to conduct oversight.
The Government Accountability Office on Wednesday reported that several agencies with the highest rate of reassignments of senior executives have made progress in recent years to ensure the moves comply with laws aimed at preventing political interference in the civil service, but the federal government’s HR agency is unwilling to conduct needed oversight of the Senior Executive Service moves.
The watchdog examined reassignments of SES members both across the federal government and at the Commerce, Housing and Urban Development, Energy and Interior departments after the Interior Office of the Inspector General blasted that department for failing to document the reasoning behind reassigning nearly three dozen career executives in 2017 and creating a perception that those decisions were politically motivated.
Federal regulations, promulgated by the Office of Personnel Management, state that agencies must observe a 120-day moratorium on reassignments when a new agency head or a career senior executive’s politically appointed direct supervisor joins a department. During the 120-day moratorium, executives can only be reassigned if they sign a written voluntary waiver, or if they demonstrate poor performance or are the subject of a disciplinary action initiated prior to the agency head or supervisor’s appointment.
GAO said that each of the four departments it examined had made at least some progress in ensuring officials comply with the rules surrounding reassignments and maintain the required documentation. The Energy Department requires officials provide a rationale for each reassignment, an explanation of why the executive is qualified for the new position, justification for any pay increase and other documentation, and officials took action in May 2020 to fill a hole in the department's requirement to inform staff of reassignment moratoriums.
The Commerce Department has a similar process in place to justify reassignments of senior executives, but GAO said its reporting still needs work.
“We found that Commerce did not maintain required documentation related to reassignments made within moratorium periods,” GAO wrote. “As a result, Commerce could not demonstrate that it met requirements to (1) notify all career SES members of their reassignment, either 15 or 60 days in advance depending on whether the reassignment was local or involved a relocation, (2) obtain written waivers from SES members being reassigned before the notification period had ended, and (3) obtain written waivers from SES members who were being reassigned during moratorium periods before making the reassignment.”
Although HUD was perhaps the most cautious on reassignments within 120 days of Secretary Ben Carson’s appointment—they didn’t reassign any executives—officials at the department reported being unaware of the moratorium as it pertains to executives’ politically appointed supervisors. Still, GAO said the department has moved to comply with the rule.
The report stated that at Interior, officials have made “significant changes” in the aftermath of the inspector general’s report to ensure it complies with reassignment regulations, although gaps still exist.
“We found that Interior obtained signed moratorium waivers for the reassignments made during the new agency head moratorium,” GAO wrote. “However, Interior could not provide us with a written waiver for the reassignment made during the new, noncareer supervisor moratorium . . . We found that the updated process was silent on how the agency would ensure it met the requirement for reassignments during the new, noncareer supervisor moratorium, and therefore it is not clear how the updated process will help Interior meet the related requirement.”
While OPM provides tools and guidance to agencies to help officials handle SES reassignments in accordance with regulations, GAO wrote that the federal government would be well served if the agency used its oversight authority to actively monitor reassignments at federal agencies.
“OPM officials stated that OPM has not previously used its authority to require agencies to take corrective action on any SES reassignments,” the report stated. “Any corrective actions that OPM might require of agencies would depend on the facts of the situation, according to OPM officials. Without monitoring agencies’ compliance with SES reassignment requirements, however, OPM cannot be assured SES programs are being administered in accordance with the requirements.”
OPM disagreed with GAO’s recommendations that the agency actively monitor reassignments and take corrective actions when agencies run afoul of the regulations, citing in part limited resources.
“While it is true that OPM has the authority to enforce the statutes governing the civil service, and has given itself the ability . . . to direct corrective action when it becomes aware ‘that an agency has taken an action contrary to law or regulation,’ the use of these authorities by OPM is permissive, not mandatory,” wrote Associate Director Dennis Kirk. “Agencies remain primarily responsible for following the statutes and regulations governing the SES. Thus, although OPM could use its authority to require the agency to take corrective action should it become aware of a violation of regulation or statute, it has chosen not to make reassignments a focus of its enforcement efforts, in light of the scarce resources available to OPM and the many mandates OPM is required to meet.”
GAO maintained that it should be OPM’s job to oversee agencies’ administration of the Senior Executive Service.
“While we acknowledge that federal agencies are primarily responsible for complying with SES requirements, OPM is responsible for governmentwide management of the SES program,” the report stated. “Therefore, we maintain that OPM should use its oversight authority to ensure agencies’ reassignments of SES staff are consistent with requirements.”