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Briefing Book: Transition Book - 1980 & 1988 [1]
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472802388
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Briefing Book: Transition Book - 1980 & 1988 [1]
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CF00555-001
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Records of the White House Office of the Chief of Staff to the President (George H. W. Bush Administration)
Andrew Card Briefing Books Files
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Originally Processed With FOIA(s):
FOIA Number:
2016-2614-F; 2016-2628-F; 2025-0373-S
S
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Chief of Staff, White House Office of
Series:
Card, Andrew, Files
Subseries:
Briefing Books
OA/ID Number:
CF00555/1
Folder ID Number:
CF00555-001
Folder Title:
Briefing Book: Transition Book - 1980 & 1988 [1]
Stack:
Row:
Section:
Shelf:
Position:
G
15
22
2
7
1980
CIVIL SERVICE AND TRANSITION .TO
A NEW PRESIDENTIAL ADMINISTRATION
Each Administration has the opportunity to appoint a number of officials
in the civil service essentially on the basis of their support for its
aims and policies. These officials are generally those responsible for
formulating, advocating and directing Administration policies and pro-
grams, or who serve such officials in a confidential relationship.
In the context of the total Government, only a relatively few positions
are subject to change at the discretion of a Presidential Administration.
Most executive branch positions are in the competitive civil service or
are under a separate merit system. For these latter positions, it is a
violation of civil service law and regulations to base personnel deci-
sions on any factor not related to job performance. (See 5 U.S.C. 2301,
2302; 5 CFR Parts 4, 7, 1250.)
It is traditional, of course, that the vast majority of the incumbents
of positions which are subject to change at the discretion of a Presi-
dential Administration resign before any new Administration takes office
or at the request of Administration officials. However, there is no legal
requirement that they do SO. It also is common for an incoming Administra-
tion to ask certain persons to remain on their jobs during the early stages
of the new Administration to ensure needed continuity and to provide required
personnel during the initial period of staffing.
In any event, employees in positions that are subject to change at the
discretion of the Administration are not part of the competitive civil
service. Rather, they are excepted from the requirements placed on the
competitive service by statute, Executive order or regulation. There are
a variety of such employees. They include Presidential appointees or
direct appointees of the agency head; noncareer, limited term, or limited
emergency appointees in the Senior Executive Service; incumbents of Non-
career Executive Assignments; and incumbents of Schedule C positions.
Positions or Individuals Subject to Change
Positions or individuals subject to change at the discretion of a new Ad-
ministration include:
(1)
Presidential appointments made with the advice and consent of
the Senate to positions in which the incumbent serves at the
pleasure of the President;
(2) Other Presidential appointments to positions in which the
incumbent serves at the pleasure of the President;
2
(3) Appointments to positions in which the incumbent serves
in the excepted service at the pleasure of the agency
head. Excepted service positions in this category are
those which are excepted from the competitive service by
statute; and,
(4) Individuals serving in the Senior Executive Service on
either a noncareer or limited term basis.
Positions in these categories normally include Cabinet Officers and heads
of other Executive branch agencies; Under Secretaries; Assistant Secre-
taries; Directors of Bureaus, Services, and Administrations; and Chair-
persons and Members of Boards, Commissions, and Committees. Positions in
all four categories are often authorized by specific provisions of law.
Many are in the Executive Schedule, some are under the General Schedule
or other position-oriented pay system.
In the past, categories (1) and (2) included most of the positions in Level
I (Cabinet level) through Level V of the Executive Schedule. Now managerial
Level IV and Level V positions (not requiring Senate confirmation) are in
SES, although their titles may continue to be listed in sections 5315 and
5316 of title 5 pending revision of the statute. Also, now included in SES
are most of the former managerial GS-16, 17, and 18 positions in the Execu-
tive branch and equivalent positions in other pay systems.
An executive's tenure in the former Level IV, Level V, supergrade, and other
type positions now in SES is determined by the type of appointment held by
the individual and not by the type of position. The positions identified in
(1), (2), and (3) above and the various types of SES appointments are discussed
below.
INDIVIDUALS APPOINTED BY THE PRESIDENT OR HEAD OF THE AGENCY
Officers and employees who serve "at the pleasure of" the President or other
appointing official may be asked to resign or may be dismissed at any time.
They are not covered by standard Civil Service removal procedures and have
no right of appeal. However, under recent court decisions which may be
applicable, such employees may not be discharged for political party af-
filiation, unless party affiliation is necessary for the performance of
their job. It appears, however, that they may be discharged for the des-
truction 4450.5. of the 507 policy (1980) determining or confidential relationship, [Branti v.
4450.5
Finkel, decided by the U. S. Supreme Court March 31, 1980]. A sample notice
of removal is included in Tab A. Agencies should consult their General
tos
Counsel or OPM's General Counsel for assistance in this area.
(1980)
In limited cases, the organic statute creating a position provides that an
individual appointed by the President, may be removed only for cause. These
provisions are most commonly found in statutes establishing quasi-judicial
entities or regulatory agencies. The Office of Legal Counsel at the De-
partment of Justice is the expert in this field. (1926) The issue is discussed
in such cases as: Myers v. U.S., 272 U.S. 52; Humphrey's Executor v. U.S.,
295 U.S. 602 Wiener V. U.S. U.S. 349; and Buckley V. Valeo, 424 U.S. 1.(1976).
357 (1458)
3
OTHER APPOINTEES IN THE EXCEPTED SERVICE
Noncareer Executive Assignments
Noncareer Executive Assignments (NEA) are positions at GS-16, 17, and 18
that are administratively excepted from the competitive service through
action of OPM. The exception is based on the degree of involvement of the
incumbent in the policies and actions of the Administration or on a con-
fidential relationship with a political appointee. Before the Senior
Executive Service was established, NEAs were the primary Administration
officials below the Executive Levels. There now are very few of these
positions because most were incorporated into the SES.
Except in the rare case of an NEA with status in his or her position, an
NEA has no right to appeal a removal action to the Merit Systems Protection
Board. Nonetheless, the removal of such an individual must be in accordance
with any procedures which have been established by the employing agency.
These employees may not be dismissed because of party affiliation unless
such affiliation is necessary for the performance of their job. Vitarelli
V. Seaton, 359 U.S. 599 (1959); Watson V. U.S., 162 F. Supp. 755 (Ct. C1.
1959)+
535
A sample notice of separation for these employees is contained in Tab A.
In the rare case of an individual having status in the position, the Execu-
tive Personnel and Management Development Group of OPM will, provide advice.
4
Schedule C Positions
Another category of individuals who are subject to change at the discretion
of a new Administration are appointees to Schedule C positions, or to
equivalent positions in agencies that are statutorily excepted from the
competitive service. Schedule C positions consist of jobs at GS-15 and
below which the Office of Personnel Management has excepted from the com-
petitive civil service because they include policy-determining responsibi-
lities or require the incumbent to serve in a confidential relationship to
a key official.
(a) Establishment of Positions
OPM authorizes the establishment of each Schedule C position and may
revoke the authority when the position changes. Additionally, several
agencies have received approval to establish and maintain their own inven-
tory of Schedule C positions via a delegation agreement negotiated with
OPM. OPM does not review the qualifications of a Schedule C appointee;
final authority on this matter rests with the appointing official. Cur-
rently, there are about 1,800 Schedule € positions. A list of them Schedule positions C
is published annually in Part 213 of OPM's regulations and is updated
as changes occur by publication in the Federal Register.
(b) Procedures for Removal
Schedule C employees may be separated at any time if the confidential
or policy-determining relationship between the incumbent and his or her
superior no longer exists. They also may be removed based on political
affiliation if political affiliation is required for effective job per-
formance. Agencies should consult their General Counsel or OPM's General
Counsel on this issue. The only Schedule C employees covered by statutory
appeal procedures and who, therefore, may appeal removal actions to the
Merit Systems Protection Board (MSPB) are those who are serving in a
position in the competitive service when OPM authorized its conversion
to Schedule C and who still serve in those positions (i.e., have status
in the positions--c.f. Roth V. Brownell, 215 F 2d 500.)
OR
Incumbents of Schedule C positions who have no status in those positions
regardless of veterans preference or length of service in the positions,
are not covered by statutory procedures and have no rights to appeal
removal actions to MSPB. (Please refer to the revised FPM Chapter 752,
Adverse Actions, subchapter 3-1, d(2) (A) This chapter was published
in advance of incorporation in the FPM via FPM Letter 752-11 dated
September 12, 1980.) However, the removal of any Schedule C employees
must be in accordance with any internal appeal procedures which have
been established by the employing agency [Vitarelli v. Seaton, 359 U.S.
538 (1959); Watson V. U.S., 162 F. Supp. 755 (Ct. C1. 1958.)]
Different 5 went Sopere Cout decrease opthion on the subject dep pat afford
Jm.
According To a recent Sup. Ct dec, the CSRA prictures just
for Nonpret of ning exc. an adv. pus. axn sunder 5 USC Ch. 75. (howerer) U.S.V. this opinier
expand the appeal Asvex. its surce of Sch. this C ees. decision Farsts wor conclude us (1288)
5
An employee who was serving in a position in the competitive service
when OPM authorized its conversion to Schedule C and is still serving
in that position may be removed from that position "for such cause as
will promote the efficiency of the service". Moreover, the action must
be taken in accordance with the procedures established by 5 U.S.C. 7511
et seq. and part 752 of OPM's regulations. These procedures provide for
the right: (1) to a 30-day advance written notice which states the
reasons for the proposed removal specifically and in detail; (2) to
reply personally and in writing; (3) to be represented; (4) to have the
reply considered; and (5) to a written decision stating the reasons for
the action. The employee may appeal the action to MSPB.
In this connection it should be noted that removal for loss of confi-
dence comes within the concept of "for such cause as will promote the
efficiency of the service" when the incumbent occupies the policy-
determining or confidential position, i.e., a Schedule C position.
Leonard V. Douglas, 321 F 2d 749 (D.C. Cir. June 26, 1963.)] Ad-
ditionally, agencies are reminded that there are very few instances
where an employee has status in his/her Schedule C position since OPM
does not generally authorize conversion of encumbered competitive
positions to Schedule C. Therefore, we would expect very few if any
of these cases.
A sample notice of separation for all Schedule C employees except those
with status in their positions is contained in Tab A. Tabs B and C con-
tain sample letters of proposed removal for an individual with status
in his/her position who is covered by part 752 of OPM's regulations.
(c) Temporary Schedule C Positions
Pursuant B 6PM regulations issued bs OPM,
are pumittd
On April 18, 1980, OPM issued a final regulation permitting agencies to
establish temporary Schedule C positions at the GS-15 grade level and
below following Inauguration in order to facilitate the orderly transi-
tion of duties as a consequence of a change in Presidential Administration,
changes in department or agencies heads or changes resulting from the
creation of a new department or agency. This authority permits the estab-
lishment of (1) positions identical to existing Schedule C positions if
an intent to vacate these positions has been put in writing by manage-
ment or the present incumbents, and (2) new temporary Schedule C positions
when it is determined that the department or agency heads' needs cannot be
met through the establishment of a position identical to an existing
Schedule C position. Service under either type of position may not
exceed 120 days. For more specific information on the use of this
authority, please refer to FPM Bulletin 213-33 dated May 9, 1980
6
Other Excepted Service Positions
In addition to the policy-determining or confidential positions des-
cribed in the preceding section, certain agencies and groups of posi-
tions are also excepted by statute, Executive order, or OPM action from
the competitive civil service. These exceptions have been made for a
variety of reasons, none of which relate to the policy-determining factors
associated with the initial three categories. Examples of positions
which have been excepted by statute include doctors, dentists, and
nurses in the Department of Medicine and Surgery of the Veterans
Administration, the Foreign Service of the Department of State, the
Federal Bureau of Investigation of the Department of Justice; and,
all positions in the Tennessee Valley Authority, the General Accounting
Office, the Nuclear Regulatory Commission, and the Postal Service.
Most of these positions are under special merit systems and are not
subject to change in a new Administration. In addition to positions
excepted by statute, there are about 100,000 positions which are ex-
cepted from the competitive service by Executive order. Most of these
are jobs overseas held by foreign nationals.
Finally, there are two other categories of positions which the Office of
Personnel Management has administratively excepted from the competitive
service. Schedule A positions are those which are not of a confidential
or policy-determining character, but for which it is not practicable to
hold any examination. Examples of positions in Schedule A include
chaplains, teachers in military dependent school systems overseas,
faculty positions of Service academies, and certain positions at iso-
lated localities. Attorney positions are also in Schedule A because
the OPM is prohibited in its appropriations legislation from spending
funds to examine for attorney positions. There are about 100,000 posi-
tions in this schedule.
Schedule B positions are those which are not of a confidential or policy-
determining character, but for which it is impracticable to administer
open competitive examinations. However, an individual must meet qualifi-
cation requirements established by OPM for the occupation and grade level
in order to be appointed to a Schedule B positions. Examples include
student trainee positions (co-op), National Bank examiners in the
Treasury Department and loan specialists in the Export-Import Bank.
There are about 17,000 positions in this schedule, over 14,000 of which
are under cooperative education programs.
Consoltant Pstns
7
APPOINTEES IN THE SENIOR EXECUTIVE SERVICE
SES positions, appointments, and special features of SES tenure are discus-
sed below. Appointees in the SES who are subject to change at the discretion
of a new Administration are those in Noncareer, Limited Term, and Limited
Emergency appointments. The continued tenure of these SES appointees
should be examined carefully and should take into account the reasons
for the appointment (including expeditious processing) and the prospect
for continued contribution by the executive within the scope of the
established need for the appointment.
Each agency receives a number of SES position spaces in a biennial position
allocation, based on the agency's demonstrated need for the positions. The
agency is then free to establish within that limit Career Reserved or General
positions as appropriate. Career Reserved positions must be filled by career
SES appointees; General positions can be filled by either career or non-
career appointees. Since, by statute, only 10 percent of the SES government-
wide may be given noncareer appointments, most General positions are filled
by career appointees. Each agency is allocated a maximum number of noncareer
appointments which may be in effect at any one time.
Noncareer SES Appointees
Noncareer SES appointments are made by the agency. The agency has the
authority to establish qualifications, approve the candidate's qualifi-
cations, make the appointment without regard to competitive process,
and fix the pay of the appointee.
A noncareer appointee may be removed following written notice, or re-
quested to resign at any time at the discretion of the appointing
authority.
As discussed previously, these employees may not be dismissed because of
party affiliation unless such affiliation is necessary for the performance
of their job. Lack of confidence in the relationship or in the appointee's
ability to carry out present programs or policy is sufficient. Noncareer
SES appointees removed from the Federal service are not entitled to veterans
preference and have no right of appeal to the Merit Systems Protection Board
(MSPB). Further assistance should be obtained from the agency's General
Counsel or the OPM General Counsel. A sample removal notification letter
is shown in Tab A.
Under the Civil Service Reform Act, the removal of a noncareer SES appointee
in an independent regulatory commission may not be subject, directly or in-
directly, to review or approval by any officer or entity within the Executive
Office of the President. (5 U.S.C. 3392(d))
8
Limited Term and Limited Emergency SES Appointees
Limited Term SES appointments are made to General positions having duties
terminating within 3 years of the date of appointment. Limited Emergency
SES appointments are made to General positions when an unexpected situation
develops that does not permit the more time-consuming process of advertising
and competitive selection. Positions are established by the agency with
prior OPM approval for position type and appointment involved. As in all
SES appointments, the limited term or limited emergency. appointee must meet
the qualification requirements established for the position by the agency.
A limited term or limited emergency SES appointee may serve no more than
36 months on any combination of such appointments in any 48 month period.
A special type of limited term SES appointment is available for use following
Inauguration. In this special appointment, the executive may be appointed
as a limited term Senior Executive to a position with duties that relate to
the transition and which will terminate within 6 months. Tenure in such an
appointment is the same as in any other limited term SES appointment. Pre-
sidential nominees subject to Senate confirmation may be placed in this
short-term appointment awaiting confirmation, but may not "act" in the
target position. Such individuals should function in an advisory or con-
sultative capacity.
An executive holding either a limited term or limited emergency SES
appointment may be removed or requested to resign at any time on the
decision of the appointing authority.
The procedures for removal are the same as for noncareer SES executives.
Limited term SES appointees being removed are not entitled to veterans
preference and have no right of appeal to MSPB. Also, the removal of a
limited SES appointee in an independent regulatory commission cannot be
subject to review or approval in the Executive Office of the President.
Statutory Controls on Career SES Personnel Actions
With creation of the Senior Executive Service, it became possible for an
agency to assign an executive to any position for which he or she qualified.
This possibility is in contrast with the previous system in which some posi-
tions were identified as "noncareer" and only noncareer executives could be
assigned to them. Now, an agency head has greater flexibility to assign
either a career or noncareer SES member to a position within the statutory
controls described below:
(1)
SES members may be assigned into or out of critical positions
to meet the staffing needs of the new leadership, except that
positions designated Career Reserved must be filled by a
career executive.
9
(2) A career executive may not be involuntarily reassigned to
another SES position in the agency or involuntarily removed
from SES within 120 days after the appointment of a new
agency head or the appointment of an immediate supervisor
who is a noncareer appointee and who has authority to remove
or reassign the career executive. This restriction does not
apply to an action already underway or being taken as a result
of an unsatisfactory performance appraisal, nor generally to
removal from Federal service for misconduct. However, a
career executive's performance appraisal and rating may not
be made within 120 days after the beginning of a new Presidential
Administration.
3)
Although Presidential appointees are among the executives subject to change
in a new Administration, it should be noted that certain former SES career
executives have entitlement to reinstatement and the Senior Executive Ser-
vice after leaving the Presidential appointment for reasons other than mis-
conduct, neglect of duty, or malfeasance. The number of such appointees is
small and the special circumstances must be addressed individually in each
case. See 5 U.S.C. 3993(b).
3)A career exec my be deass. D any SES pstN any if the carele
exec. received mitten natire, however, the executive
i7c
mg not be reass. D an SES pstn ortside hisor her
not u. 5USC85359
com areA withut rec'y 60dgsnotes OTHERMATERS
1. The involuntary separation for "discontinued-service retirement"
provisions apply to Presidential appointees, NEA's, Schedule C
employees, and noncareer and limited term SES appointees. Material
from the FPM on this subject is included in Tab D. For additional
information on eligibility for retirement, contact the OPM Compensa-
tion Group, Advisory Services.
2. In dismissal cases, Constitutional requirements oblige agencies to
provide an employee with a hearing if his or her moral character
is impugned by the stated reasons for dismissal. These rights arise
only when the stigmatizing reasons for dismissal are recorded in any
document which may be disseminated to others either inside or outside
Government. For this reason, notices of separation should be mild in
tone.
OM
Tab A
SAMPLE OF NOTICE OF REMOVAL OF AN EMPLOYEE WHO IS NOT COVERED BY TENURE
AND PROCEDURE PROVISIONS OF LAW, CIVIL SERVICE REGULATION OR
APPROPRIATE AGENCY REGULATION - E.G., NEA AND SCHEDULE C WITHOUT
STATUS IN THE POSITION, AND SES NONCAREER
Mr. C. B. Blank
4731 99th Avenue
Washington, D. C.
Dear Mr. Blank:
This is to notify you that your service as
will be terminated effective at
the close of business,
1981.
This action is due to lack of confidence in your ability to carry out
the programs and policies of the current leadership of this agency, and
should not be construed in any way as a reflection on you personally.
Sincerely yours,
(Name)
(Title)
Tab B
SAMPLE OF ADVANCE NOTICE UNDER SECTION 752.404 OF THE CIVIL SERVICE
REGULATIONS TO REMOVE AN EMPLOYEE IN A POLICY-DETERMINING SCHEDULE C
POSITION WHO HAS STATUS IN THAT POSITION
Mr. A. C. Waters
7809 Mayday Avenue
Washington, D. C. 23456
Dear Mr. Waters:
As Secretary of Public Insurance I plan to make several adjustments in
the immediate staff upon which I must depend to carry out my day-to-day
responsibilities. The position of Special Assistant that you occupy is
one of those affected. It is excepted from the competitive service un-
der Schedule C of Part 213 of the Civil Service Regulations because of
its policy-determining character, as is evidenced by the attached de-
scription of its duties which is hereby made a part of this letter.
Because your position requires that you participate in determining
agency policies, it is an inherent qualification that the incumbent be
an individual who has the full confidence of and can work closely with
the Secretary of Public Insruance in determining the policies of the
agency. With the departure of the previous Secretary, and as a result
of my accession to the position, this relationship has ceased to exist
and does not now exist between you and me. For this reason I propose
to remove you from your position as Special Assistant no earlier than
30 days from the date of your receipt of this notice.
I wish to assure you that these are the only reasons for this action
and that this notice is provided to meet the requirements of section
752.404 of the Civil Service Regulations. Your written answer to this
proposal with any supporting documents or affidavits, and any request
to answer personally, should be directed to my personal attention with-
in the next seven calendar days. Under regulation, you have right to
attorney or other representation in this matter.
Let me assure you that full consideration will be given to any reply
and support therefor that you care to submit. As promptly as possible
after such consideration, or after the time for reply has passed, a
final notice of decision will be issued to you. Meanwhile, you may
continue in your position in either an active duty or leave status,
as you prefer.
Sincerely yours,
T. B. Bernard
Secretary of Public Insurance
Tab C
SAMPLE OF ADVANCE NOTICE UNDER SECTION 752.404 OF THE CIVIL SERVICE
REGULATIONS TO REMOVE AN EMPLOYEE IN A CONFIDENTIAL
SCHEDULE C POSITION WHO HAS STATUS IN THAT POSITION
Mr. D. 0. Davis
1234 Ace Place
Washington, D. C. 24680
Dear Mr. Davis:
As Secretary of Public Insurance I plan to make several adjustments in
the immediate staff upon which I must depend to carry out my day-to-
day responsibilities. The position of Confidential Assistant that you
occupy is one of those affected. It is excepted from the competitive
service under Schedule C of Part 213 of the Civil Service Regulations
because of its confidential character, as is evidenced by the attached
description of its duties which is hereby made a part of this letter.
It is inherent in the character of a confidential position that the in-
cumbent thereof shall be an individual suitable to his superior and a
person in whom he has complete personal confidence and trust. With the
departure of Mr. Brown from the position of Secretary of Public Insur-
ance, this relationship ceased to exist and does not now exist between
you and me. For this reason, I propose to remove you from your position
of Confidential Assistant no earlier than 30 days from the date of your
receipt of this notice.
I wish to assure you that these are the only reasons for this action
and that this notice is provided to meet the requirements of section
752.404 of the Civil Service Regulations. Your written answer to this
proposal, with any supporting documents or affidavits, and any re-
quest to answer personally, should be directed to my personal attention
within the next seven calendar days. Under regulation, you have right
to an attorney or other representation in this matter.
Let me assure you that full consideration will be given to any reply and
support therefore that you care to submit. As promptly as possible after
such consideration, or after the time for reply has passed, a final notice
of decision will be issued to you. Meanwhile, you may continue in your
position in either an active duty or leave status, as you prefer.
Sincerely yours,
T. B. Bernard
Secretary of Public Insurance
-2-
Let me assure you that full consideration will be given to
any reply and support therefore that you care to submit. As
promptly as possible after such consideration, or after the time
for reply has passed, a final notice of decision will be issued
to you. Meanwhile, you may continue in your position in either
an active duty or leave status, as you prefer.
Sincerely yours,
T. B. Bernard
Secretary of Public Insurance
transition
CIVIL SERVICE AND TRANSITION TO
A NEW PRESIDENTIAL ADMINISTRATION
Each Administration has the opportunity to appoint a number
of officials in the civil service essentially on the basis of
their support for its aims and policies. These officials are
generally those responsible for formulating, advocating and
directing Administration policies and programs, or who serve
such officials in a confidential relationship.
In the context of the total Government, only a relatively few
positions are subject to change at the discretion of a
Presidential Administration. Most executive branch positions
are in the competitive civil service or are under a separate
merit system. For these latter positions, it is a violation of
civil service law and regulations to base personnel decisions on
any factor not related to job performance. (See 5 U.S.C.
§ 2301, 2302; 5 CFR Parts 4, 7, 1250.)
It is traditional, of course, that the vast majority of the
incumbents of positions which are subject to change at the
discretion of a Presidential Administration resign before any
new Administration takes office or at the request of
Administration officials. However, there is no legal
requirement that they do so. It also is common for an incoming
Administration to ask certain persons to remain on their jobs
during the early stages of the new Administration to ensure
needed continuity and to provide required personnel during the
initial period of staffing.
In any event, employees in positions that are subject to
change at the discretion of the Administration are not part of
the competitive civil service. Rather, they are excepted from
the requirements placed on the competitive service by statute,
Executive order or regulation. There are a variety of such
employees.
Positions or Individuals Subject to Change
Positions or individuals subject to change at the discretion
of a new Administration include:
(1) Presidential appointments made with the advice and
consent of the Senate to positions in which the incumbent serves
at the pleasure of the President;
(2) Other Presidential appointments to positions in which the
incumbent serves at the pleasure of the President;
-2-
(3) Individuals serving in the Senior Executive Service on
either a noncareer or limited basis; and,
(4) Appointments to positions in which the incumbent serves
in the excepted service at the pleasure of the agency
head. Excepted service positions in this category are
those which are excepted from the competitive service
by statute, executive order, or OPM action (e.g.,
Schedule C positions).
Positions in these categories normally include Cabinet
Officers and heads of other Executive branch agencies; Under
Secretaries; Assistant Secretaries; Directors of Bureaus,
Services, and Administrations; and Chairpersons and Members of
Boards, Commissions, and Committees. Positions in all four
categories are often authorized by specific provisions of law.
Many are in the Executive Schedule, some are under the General
Schedule or other position-oriented pay system.
In the past, categories (1) and (2) included most of the
positions in Level I (Cabinet level) through Level V of the
Executive Schedule. Now managerial Level IV and Level V
positions (not requiring Senate confirmation) are in the SES,
although their titles may continue to be listed in sections 5315
and 5316 of title 5 pending revision of the statute. Also, now
included in SES are most of the former managerial GS-16, 17, and
18 positions in the Executive branch and equivalent positions in
other pay systems.
-3-
INDIVIDUALS APPOINTED BY THE PRESIDENT OR HEAD OF THE AGENCY
Officers and employees who serve "at the pleasure of" the
President or other appointing official may be asked to resign or
may be dismissed at any time. They are not covered by standard
Civil Service removal procedures and have no right of appeal.
However, under court decisions which may be applicable, such
employees may not be discharged for political party affiliation,
unless party affiliation is necessary for the performance of
their job. It appears, however, that they may be discharged for
the destruction of the policy determining or confidential
relationship. Branti v. Finkel, 445 U.S. 507 (1980). A sample
notice of removal is included in Tab A. Agencies should consult
their General Counsel or OPM's General Counsel for assistance in
this area.
In limited cases, the organic statute creating a position
provides that an individual appointed by the President may be
removed only for cause. These provisions are most commonly
found in statutes establishing quasi-judicial entities or
regulatory agencies. The Office of Legal Counsel at the
Department of Justice is the expert in this field. The issue is
discussed in such cases as: Myers V. U.S., 272 U.S. 52 (1926) ;
Humphrey's Executor V. U.S., 295 U.S. 602 (1935) ; Wiener V.
U.S., 357 U.S. 349 (1958) ; and Buckley V. Valeo, 424 U.S. 1
(1976)
Role of the Office of Government Ethics
The Ethics Act established a statutory role for the Office
of Government Ethics within OPM. With respect to every
Presidential nominee requiring Senate confirmation, the Director
of the Office, currently Frank Q. Nebeker, must sign and deliver
the nominee's public financial disclosure report to the Senate
Confirmation Committee. He provides an opinion letter
conforming the nominee's compliance with all applicable laws and
regulations. This letter is a condition precedent to scheduling
each confirmation hearing. Opinion letters culminate a review
process by the agencies and the Office of Government Ethics
which focuses on the formal requirements of Title II of the
Ethics Act ("Executive Personnel Public Financial Disclosure
Requirements") and the substantive conflict of interest laws (18
U.S.C. § 202-209). The Confirmation Committees may require
other detailed information.
-4-
APPOINTEES IN THE SENIOR EXECUTIVE SERVICE
SES positions, appointments, and special features of SES
tenure are discussed below. Appointees in the SES who are
subject to change at the discretion of a new Administration are
those in noncareer, limited term, and limited emergency
appointments. The continued tenure of these SES appointees
should be examined carefully and should take into account the
reasons for the appointment (including expeditious processing)
and the prospect for continued contribution by the executive
within the scope of the established need for the appointment.
Each agency receives a number of SES position spaces in a
biennial position allocation, based on the agency's demonstrated
need for the positions. The agency is then free to establish
within that limit Career Reserved or General positions as
appropriate. Career Reserved positions must be filled by career
SES appointees; General positions can be filled by career,
noncareer or limited appointees. Since, by statute, only 10
percent of SES positions governmentwide may be given noncareer
appointments, most General positions are filled by career
appointees. Each agency is allocated a maximum number of
noncareer appointments which may be in effect at any one time.
Noncareer SES Appointees
Noncareer SES appointments are made by the agency. The
agency has the authority to establish qualifications, approve
the candidate's qualifications, make the appointment without
regard to competitive process, and fix the pay of the appointee.
A noncareer appointee may be removed following written
notice, or requested to resign at any time at the discretion of
the appointing authority.
As discussed previously, these employees may not be
dismissed because of party affiliation unless such affiliation
is necessary for the performance of their job. Lack of
confidence in the relationship or in the appointee's ability to
carry out present programs or policy is sufficient. Noncareer
SES appointees removed from the Federal service are not entitled
to veterans preference and have no right of appeal to the Merit
Systems Protection Board (MSPB). Further assistance should be
obtained from the agency's General Counsel or the OPM General
Counsel. A sample removal notification letter is shown in Tab
A.
The removal of a noncareer 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. (5 U.S.C.
§ 3392 (d)
-5-
Limited Term and Limited Emergency SES Appointees
Limited Term SES appointments are made to General positions
having duties terminating within 3 years of the date of
appointment. Limited Emergency SES appointments not to exceed
18 months are made to General positions when an unexpected
situation develops that does not permit the more-consuming
process of advertising and competitive selection. Prior OPM
approval for the appointment is required. As in all SES
appointments, the limited term or limited emergency appointee
must meet the qualification requirements established for the
position by the agency. A limited term or limited emergency SES
appointee may serve no more that 36 months on any combination of
such appointments in any 48-month period.
An executive holding either a limited term or limited
emergency SES appointment may be removed or requested to resign
at any time on the decision of the appointing authority.
However, many limited appointees have return rights to the
competitive service (5 CFR § 317.605 (d)
The procedures for removal are the same as for noncareer SES
executives. Limited term SES appointees being removed are not
entitled to veterans preference and have no right of appeal to
MSPB upon termination of the appointment. Also, the removal of
a limited SES appointee in an independent regulatory commission
cannot be subject to review or approval in the Executive Office
of the President.
Statutory Controls on Career SES Personnel Actions
With the creation of the Senior Executive Service, it became
possible for an agency to assign an executive to any position
for which he or she qualified. This possibility is in contrast
to the previous system in which some positions were identified
as "noncareer" and only noncareer executives could be assigned
to them. Now, an agency head has greater flexibility to assign
either a career or noncareer SES member to a position within the
statutory controls described below:
(1) SES members may be assigned into or out of critical
positions to meet the staffing needs of the new
leadership, except that positions designated Career
Reserved must be filled by a career executive.
(2) A career executive may not be involuntarily reassigned
to another SES position in the agency or involuntarily
removed from the SES within 120 days after the
appointment of a new agency head or the appointment of
an immediate supervisor who is a noncareer appointee
and who has authority to remove or reassign the career
executive. This restriction does not apply to an
-6-
action already underway or being taken as a result of
an unsatisfactory performance appraisal, nor generally
to removal from Federal service for misconduct.
However, a career executive's performance appraisal and
rating may not be made within 120 days after the
beginning of a new Presidential Administration.
(3) A career executive may be reassigned to any SES
position only if the career executive receives a 15-day
written notice, however, the executive may not be
reassigned to an SES position outside his or her
commuting area without receiving 60 days written
notice. 5 U.S.C. § 3395.
Although Presidential appointees are among the executives
subject to change in a new administration, it should be noted
that certain former SES career executives have entitlement to
reinstatement in the Senior Executive Service after leaving the
Presidential appointment for reasons other than misconduct,
neglect of duty, or malfeasance. The number of such appointees
is small, and the special circumstances must be addressed
individually in each case. See 5 U.S.C. § 3593 (b).
-7-
OTHER APPOINTEES IN THE EXCEPTED SERVICE
Noncareer Executive Assignments
Noncareer Executive Assignments (NEA) are positions at
GS-16, 17, and 18 that are administratively excepted from the
competitive service through action of OPM. The exception is
based on the degree of involvement of the incumbent in the
policies and actions of the Administration or on a confidential
relationship with a political appointee. Before the Senior
Executive Service was established, NEAs were the primary
Administration officials below the Executive Levels. There now
are very few of these positions because most were incorporated
into the SES.
Except in the rare case of an NEA with status in his or her
position, an NEA has no right to appeal a removal action to the
Merit Systems Protection Board. Nonetheless, the removal of
such an individual must be in accordance with any procedures
which have been established by the employing agency. These
employees may not be dismissed because of party affiliation
unless such affiliation is necessary for the performance of
their job. Vitarelli V. Seaton, 359 U.S. 535 (1959) ; Watson V.
U.S., 162 F. Supp. 755 (Ct. Cl. 1959).
A sample notice of separation for these employees is
contained in Tab A. In the rare case of an individual having
status in the position, the Executive Personnel and Management
Development Group of OPM will provide advice.
Schedule C Positions
Another category of individuals who are subject to change at
the discretion of a new Administration are appointees to
Schedule C positions, or to equivalent positions in agencies
that are statutorily excepted from the competitive service.
Schedule C positions consist of jobs at GS-15 and below which
the Office of Personnel Management (or the President under Civil
Service Rule 6.8) has excepted from the competitive civil
service because they include policy-determining responsibilities
or require the incumbent to serve in a confidential relationship
to a key official.
(a) Establishment of Positions
OPM authorizes the establishment of each Schedule C position
and may revoke the authority when the position changes.
Additionally, several agencies have received approval to
establish and maintain their own inventory of Schedule C
positions via a delegation agreement negotiated with OPM. OPM
does not review the qualifications of a Schedule C appointee;
final authority on this matter rests with the appointing
official. As of September 1987 about 1600 employees were under
-8-
a Schedule C appointment. A list of them is published annually
in the Federal Register, under Part 213 of OPM's regulations.
(b) Procedures for Removal
Schedule C employees may be separated at any time if the
confidential or policy-determining relationship between the
incumbent and his or her superior no longer exists. They also
may be removed based on political affiliation if political
affiliation is required for effective job performance. Agencies
should consult their General Counsel or OPM's General Counsel on
this matter. The only Schedule C employees covered by statutory
appeal procedures and who, therefore, may appeal removal actions
to the Merit Systems Protection Board (MSPB) are those who are
serving in a position in the competitive service when OPM
authorized its conversion to Schedule C and who still serve in
those positions (i.e., have status in the position -- c.f. Roth
V. Brownell, 215 F.2d 500 (D.C. Cir. 1954).
Incumbents of Schedule C positions who have no status in
those positions regardless of veterans preference or length of
service in the positions, are not covered by statutory
procedures and have no rights to appeal removal actions to
MSPB. 5 U.S.C. § 7511 (b) (2). (Refer to FPM Chapter 752,
Adverse Actions, subchapter 3-1, d(2) (A)). However, the removal
of any Schedule C employees must be in accordance with any
internal appeal procedures which have been established by the
employing agency. Vitarelli V. Seaton, 359 U.S. 535 (1959) ;
Watson V. U.S., 162 F. Supp. 755 (Ct. Cl. 1958).
According to a recent Supreme Court opinion, the Civil
Service Reform Act does not afford judicial or administrative
review of an adverse personnel action under 5 U.S.C. chapter 75
for nonpreference eligibles in the excepted service. U.S. V.
Fausto, 484 U.S. (1988). As members of the excepted
service, Schedule C employees would clearly be included in the
scope of this decision.
An employee who was serving in a position in the competitive
service when OPM authorized its conversion to Schedule C and is
still serving in that position may be removed from that position
"for such cause as will promote the efficiency of the service".
Moreover, the action must be taken in accordance with the
procedures established by 5 U.S.C. § 7511 et seq. and Part 752
of OPM's regulations. These procedures provide for the right:
(1) to a 30-day advance written notice which states the reasons
for the proposed removal specifically and in detail; (2) to
reply personally and in writing; (3) to be represented; (4) to
have the reply considered; and (5) to a written decision stating
the reasons for the action. The employee may appeal the action
to MSPB.
In this connection it should be noted that removal for loss
of confidence comes within the concept of "for such cause as
-9-
will promote the efficiency of the service" when the incumbent
occupies the policy-determining or confidential position, i.e.,
a Schedule C position. Leonard V. Douglas, 321 F.2d 749 (D.C.
Cir. 1963). Additionally, agencies are reminded that there are
very few instances where an employee has status in his/her
Schedule C position since OPM does not generally authorize
conversion of encumbered competitive positions to Schedule C.
Therefore, we would expect very few if any of these cases.
A sample notice of separation for all Schedule C employees
except those with status in their positions is contained in Tab
A. Tabs B and C contain sample letters of proposed removal for
an individual with status in his/her position who is covered by
Part 752 of OPM's regulations.
(c) Temporary Schedule C Positions
Pursuant to OPM's regulations, agencies are permitted to
establish temporary Schedule C positions at the GS-15 grade
level and below following Inauguration in order to facilitate
the orderly transition of duties as a consequence of a change in
Presidential Administration, changes in department of agencies
heads or changes resulting from the creation of a new department
or agency. 5 CFR § 213.3302. This authority permits the
establishment of (1) positions identical to existing Schedule C
positions if an intent to vacate these positions has been put in
writing by management or the present incumbents, and (2) new
temporary Schedule C positions when it is determined that the
department or agency heads' needs cannot be met through the
establishment of a position identical to an existing Schedule C
position. Service under either type of position may not exceed
120 days.
Other Excepted Service Positions
In addition to the policy-determining or confidential
positions described in the preceding section, certain agencies
and groups of positions are also excepted by statute, Executive
order, or OPM action from the competitive civil service. These
exceptions have been made for a variety of reasons, none of
which relate to the policy-determining factors associated with
the initial three categories. Examples of positions which have
been excepted by statute include doctors, dentists, and nurses
in the Department of Medicine and Surgery of the Veterans
Administration, the Foreign Service of the Department of State,
the Federal Bureau of Investigation of the Department of
Justice; and, all positions in the Tennessee Valley Authority,
the General Accounting Office and the Postal Service. Most of
these positions are under separate merit systems and are not
subject to change in a new Administration. In addition to
positions excepted by statute and by OPM action, there are other
positions which are excepted from the competitive service by
Executive order. Most of these are jobs overseas held by
foreign nationals.
-10-
Finally, there are two other categories of positions which
the Office of Personnel Management has administratively excepted
from the competitive service.
Schedule A positions are those which are not of
a confidential or policy-determining character,
but for which it is not practicable to hold any
examination. Examples of positions in Schedule
A include chaplains, teachers in military
dependent school systems overseas, faculty
positions of Service academies, and certain
positions at isolated localities. Attorney
positions are also in Schedule A because OPM is
prohibited in its appropriations legislation
from spending funds to examine for attorney
positions. There are about 134,000 employees in
this schedule.
Schedule B positions are those which are not of
a confidential or policy-determining character,
but for which it is impracticable to administer
open competitive examinations. However, an
individual must meet qualification requirements
established by OPM for the occupation and grade
level in order to be appointed to a Schedule B
position. There are about 13,000 employees in
this schedule, including those who are under
cooperative education programs.
Consultant Appointments
Consultant appointments made under authority of 5 U.S.C.
§ 3109 may be used for individuals who have been nominated, but
not confirmed or for individuals whose permanent appointments
are in process. Consultants may be paid a rate not to exceed
the daily equivalent of the highest payable rate in the General
Schedule, unless specifically authorized by statute. They may
also be reimbursed for travel but not moving expenses and may
participate in orientation/training programs at government
expense.
White House employees (excepted service)
are appointed under us code 5
Tab A
SAMPLE OF NOTICE OF REMOVAL OF AN EMPLOYEE WHO IS NOT
COVERED BY TENURE AND PROCEDURE PROVISIONS OF LAW,
CIVIL SERVICE REGULATION OR APPROPRIATE AGENCY
REGULATION - E.G., NEA AND SCHEDULE C WITHOUT STATUS IN
THE POSITION, AND SES NONCAREER
Mr. C. B. Blank
4731 99th Avenue
Washington, D.C.
Dear Mr. Blank:
This is to notify you that your service as
will be terminated effective at
the close of business,
1989.
This action is due to lack of confidence in your ability to
carry out the programs and policies of the current leadership of
this agency, and should not be construed in any way as a
reflection on you personally.
Sincerely yours,
(Name)
(Title)
Tab B
SAMPLE OF ADVANCE NOTICE UNDER SECTION 752.404 OF
THE CIVIL SERVICE REGULATIONS TO REMOVE AN EMPLOYEE
IN A POLICY-DETERMINING SCHEDULE C POSITION WHO
HAS STATUS IN THAT POSITION
Mr. A.C. Waters
7809 Mayday Avenue
Washington, D.C. 23456
Dear Mr. Waters:
As Secretary of Public Insurance I plan to make several
adjustments in the immediate staff upon which I must depend to
carry out my day-to-day responsibilities. The position of
Special Assistant that you occupy is one of those affected. It
is excepted from the competitive service under Schedule C of
Part 213 of the Civil Service Regulations because of its
policy-determining character, as is evidenced by the attached
description of its duties which is hereby made a part of this
letter.
Because your position requires that you participate in
determining agency policies, it is an inherent qualification
that the incumbent be an individual who has the full confidence
of and can work closely with the Secretary of Public Insurance
in determining the policies of the agency. With the departure
of the previous Secretary, and as a result of my accession to
the position, this relationship has ceased to exist and does not
now exist between you and me. For this reason I propose to
remove you from your position as Special Assistant no earlier
than 30 days from the date of your receipt of this notice.
I wish to assure you that these are the only reasons for
this action and that this notice is provided to meet the
requirements of section 752.404 of the Civil Service
Regulations. Your written answer to this proposal with any
supporting documents or affidavits, and any request to answer
personally, should be directed to my personal attention within
the next seven calendar days. Under regulation, you have a
right to an attorney or other representation in this matter.
-2-
Let me assure you that full consideration will be given to
any reply and support therefore that you care to submit. As
promptly as possible after such consideration, or after the time
for reply has passed, a final notice of decision will be issued
to you. Meanwhile, you may continue in your position in either
an active duty or leave status, as you prefer.
Sincerely yours,
T. B. Bernard
Secretary of Public Insurance
Tab C
SAMPLE OF ADVANCE NOTICE UNDER SECTION 752.404 OF THE
CIVIL SERVICE REGULATIONS TO REMOVE AN EMPLOYEE IN A
CONFIDENTIAL SCHEDULE C POSITION WHO HAS STATUS IN
THAT POSITION
Mr. D. O. Davis
1234 Ace Place
Washington, D.C. 24680
Dear Mr. Davis:
As Secretary of Public Insurance I plan to make several
adjustments in the immediate staff upon which I must depend to
carry out my day-to-day responsibilities. The position of
Special Assistant that you occupy is one of those affected. It
is excepted from the competitive service under Schedule C of
Part 213 of the Civil Service Regulations because of its
policy-determining character, as is evidenced by the attached
description of its duties which is hereby made a part of this
letter.
It is inherent in the character of a confidential position
that the incumbent thereof shall be an individual suitable to
his superior and a person in whom he has complete personal
confidence and trust. With the departure of Mr. Brown from the
position of Secretary of Public Insurance, this relationship
ceased to exist and does not now exist between you and me. For
this reason, I propose to remove you from your position of
Confidential Assistant no earlier than 30 days from the date of
your receipt of this notice.
I wish to assure you that these are the only reasons for
this action and that this notice is provided to meet the
requirements of section 752.404 of the Civil Service
Regulations. Your written answer to this proposal with any
supporting documents or affidavits, and any request to answer
personally, should be directed to my personal attention within
the next seven calendar days. Under regulation, you have a
right to an attorney or other representation in this matter.
Tab D
MEANING OF "INVOLUNTARY SEPARATION"
FOR PURPOSES OF "DISCONTINUED-SERVICE RETIREMENT"
The following quotations from Federal Personnel Manual Supp.
831-1, S11-2, contain the Office of Personnel Management's
interpretation of involuntary separation:
"m. Separation of Presidential appointees and their
immediate staff. The separation of a Presidentially
appointed policy making officer because of acceptance
of his or her resignation by the President is
considered involuntary. It is considered involuntary
at any time the resignation is submitted and
accepted, not only with the advent of a new
administration. Further, the separation of a
Schedule c, Excepted Service, assistant to the
appointee who resigns when it is known that the
Presidential appointee for whom he or she works is
leaving, is involuntary for retirement purposes
As minimum documentation, the agency should include
with the retirement application documentation that
the President has accepted the resignation of his
appointee, or, in the second case, that the
Presidential appointee for whom a Schedule c,
Excepted Service, assistant works is leaving."
"n. Resignation requested. Separation of an
employee who submits his or her resignation in
response to a request from a recognized
representative of a new incoming administration
having the authority to request such resignation, is
involuntary for retirement purposes. The resignation
request must be specific about the particular
employee. Unsolicited resignations, those based on
the belief or possibility that resignation will be
requested and those prompted solely by personal
conviction or choice, are voluntary rather than
involuntary for retirement purposes. A copy of each
resignation in this category must accompany the
retirement application."
Questions in this area should be directed to the Advisory
Services Division, Retirement and Insurance Group, OPM.
Tab D
MEANING OF "INVOLUNTARY SEPARATION"
FOR PURPOSES OF "DISCONTINUED-SERVICE RETIREMENT"
The following quotations from Federal Personnel Manual Supp. 831-1,
S11-2, contain the Office of Personnel Management's interpretation
of involuntary separation:
"m. Separation of Presidential appointees and their immediate
staff. The separation of a Presidentially appointed policy
making officer because of acceptance of his or her resignation
by the President is considered involuntary. It is considered
involuntary at any time the resignation is submitted and ac-
cepted, not only with the advent of a new administration.
Further, the separation of a Schedule C, Excepted Service,
assistant to the appointee who resigns when it is known that
the Presidential appointee for whom he or she works is leaving,
is involuntary for retirement purposes.
n. Resignation requested. Separation of an employee who submits
his or her resignation in response to a request from a recognized
representative of a new incoming administration having the authori-
ty to request such resignation, is involuntary for retirement pur-
poses. The resignation request must be specific about the parti-
cular employee. Unsolicited resignations, those based on the belief
or possibility that resignation will be requested and those prompted
solely by personal conviction or choice, are voluntary rather than
involuntary for retirement purposes."
Questions in this area should be directed to OPM's Compensation Group,
Advisory Services.
-11-
OTHER MATTERS
1. The involuntary separation for "discontinued-service
retirement" provisions apply to Presidential appointees,
NEA's, Schedule C employees, and noncareer and limited SES
appointees. Material from the FPM on this subject is
included in Tab D. For additional information on
eligibility for retirement, contact the Advisory Services
Division, Retirement and Insurance Group.
2. In dismissal cases, Constitutional requirements oblige
agencies to provide an employee with a hearing if his or her
moral character is impugned by the stated reasons for
dismissal. These rights arise only when the stigmatizing
reasons for dismissal are recorded in any document which may
be disseminated to others either inside or outside
Government. For this reason, notices of separation should
be mild in tone.
3. Salary levels are set in four ways. Salaries of
Presidential appointees are prescribed in law. SES salaries
may be set at any one of six steps by agency heads, from
ES-1 ($65,994) to ES-6 ($77,500). For General Schedule
positions there is a range of salary steps prescribed for
each grade level. A new General Schedule employee can only
be paid the first step unless OPM authorizes a higher step
in advance. (Note: Some agencies have been delegated this
authority.) There are Special Presidential authorities to
set the pay of White House employees.
4. Pre-employment interview travel expenses may be paid to
applicants for Presidential appointments, Schedule C
positions and Senior Executive Service positions. Travel
expenses to attend confirmation hearings are considered part
of the pre-employment interview process.
The Federal Government may not reimburse moving expenses for
Schedule C appointees. For new appointees to the Senior
Executive Service and Presidential appointees only, the
Federal Government may reimburse the appointee for
transportation of the appointees' family, household goods
and personal effects in accordance with the applicable law
and regulations. See U.S.C. § 5723.
Office of Personnel Management
FPM Bulletin 273-22
Federal Personnel Manual System
FPM Bulletin
Bulletin No. 273-22
Washington. D. C. 20415
March 10, 1988
SUBJECT: Agency Responsibility for Competitive and
Noncompetitive Appointments
Heads of Departments and Independent Establishments:
1. As is OPM's practice during election years, we are issuing this bulletin to remind agencies to review
all personnel actions carefully to be sure that they meet all civil service laws, rules, and regulations and
are free of any impropriety.
2. Agencies have substantial discretion in filling vacancies. Under Civil Service Rules, they may fill
positions in the competitive service either by competitive appointment from a civil service register or by
noncompetitive selection of a present or former Federal employee. But, whether positions are filled
competitively or noncompetitively, agencies must exercise their discretion "solely on the basis of merit
and fitness and without regard to political or religious affiliations, marital status, or race."
3. Changes affecting agency heads occur during the life of an Administration. Moreover, 1988 is an
election year. While personnel actions always must meet legitimate management needs, we must take
special care over the coming year to avoid even the appearance of political favoritism. The records in
all personnel actions must show clearly that the actions are proper and legitimate. Both OPM and
agencies have an obligation to ensure that all appointments conform fully to the spirit and the letter of
Civil Service Rules 4.2 and 7.1 and to section 2302 of title 5, especially the prohibition against political
consideration, either favorable or unfavorable.
4. Agency personnel directors should review carefully all proposed actions to place incumbents of
positions excepted under Schedule A, B, or C or by statute into positions in the competitive service.
Even if these actions will be made from a competitive register or will require prior OPM approval,
personnel directors should determine that the selections have been made in accordance with their
agencies' merit promotion requirements. Once a Schedule C position has been established, the Schedule
C elements (i.e., its confidential and/or policy determining characteristics) may not be unilaterally
removed from that position solely for the purpose of converting the position, along with the incumbent,
into the competitive service. Reinstatements, of course, must be processed through competitive
promotion procedures if they are to higher grades than the employees last held in the competitive
service.
5. OPM will monitor agency requests for certificates of eligibles for positions at grades GS-9 through
15. We will be particularly watchful for any requests that might appear improper or that might reduce
competition. Any procedures established by OPM examining offices to ensure the propriety of name
requests involving current excepted employees will, of course, remain in effect. Agencies that have
delegated examining authority covering positions in the GS-9/15 range should also set up appropriate
safeguard procedures. Similar safeguards are in place for the Senior Executive Service's staffing
processes, which will ensure that an agency's selection of any noncareer SES member for a career SES
appointment meets these same tests of propriety and competition.
Inquiries: Staffing Policy Division, Career Entry Group, (202) 632-6817
Code: 273, Personnel Management Evaluation, Surveys and Audits
Distribution: Basic FPM
Bulletin Expires: January 20, 1989
OPM FORM 854 6/82
FPM Bulletin 273-22 (2)
6. We strongly urge agency Directors of Personnel to pre-audit all noncompetitive actions involving
incumbents of positions in the excepted service. If advice and assistance are needed from OPM on methods
and techniques to be used in eonducting the pre-audits, please contact the Compliance and Operations
Division, (202) 632-5691, in the Washington, D.C., area or the compliance or oversight division of the
appropriate OPM regional office.
(notance Home
Constance Horner
Director
*U.S.GOVERNMENT PRINTING
Office of Personnel Management
FPM Bulletin 273-22
Federal Personnel Manual System
FPM Bulletin
Bulletin No. 273-22
Washington, D. C. 20415
March 10, 1988
SUBJECT: Agency Responsibility for Competitive and
Noncompetitive Appointments
Heads of Departments and Independent Establishments:
1. As is OPM's practice during election years, we are issuing this bulletin to remind agencies to review
all personnel actions carefully to be sure that they meet all civil service laws, rules, and regulations and
are free of any impropriety.
2. Agencies have substantial discretion in filling vacancies. Under Civil Service Rules, they may fill
positions in the competitive service either by competitive appointment from a civil service register or by
noncompetitive selection of a present or former Federal employee. But, whether positions are filled
competitively or noncompetitively, agencies must exercise their discretion "solely on the basis of merit
and fitness and without regard to political or religious affiliations, marital status, or race."
3. Changes affecting agency heads occur during the life of an Administration. Moreover, 1988 is an
election year. While personnel actions always must meet legitimate management needs, we must take
special care over the coming year to avoid even the appearance of political favoritism. The records in
all personnel actions must show clearly that the actions are proper and legitimate. Both OPM and
agencies have an obligation to ensure that all appointments conform fully to the spirit and the letter of
Civil Service Rules 4.2 and 7.1 and to section 2302 of title 5, especially the prohibition against political
consideration, either favorable or unfavorable.
4. Agency personnel directors should review carefully all proposed actions to place incumbents of
positions excepted under Schedule A, B, or C or by statute into positions in the competitive service.
Even if these actions will be made from a competitive register or will require prior OPM approval,
personnel directors should determine that the selections have been made in accordance with their
agencies' merit promotion requirements. Once a Schedule C position has been established, the Schedule
C elements (i.e., its confidential and/or policy determining characteristics) may not be unilaterally
removed from that position solely for the purpose of converting the position, along with the incumbent,
into the competitive service. Reinstatements, of course, must be processed through competitive
promotion procedures if they are to higher grades than the employees last held in the competitive
service.
5. OPM will monitor agency requests for certificates of eligibles for positions at grades GS-9 through
15. We will be particularly watchful for any requests that might appear improper or that might reduce
competition. Any procedures established by OPM examining offices to ensure the propriety of name
requests involving current excepted employees will, of course, remain in effect. Agencies that have
delegated examining authority covering positions in the GS-9/15 range should also set up appropriate
safeguard procedures. Similar safeguards are in place for the Senior Executive Service's staffing
processes, which will ensure that an agency's selection of any noncareer SES member for a career SES
appointment meets these same tests of propriety and competition.
Inquiries: Staffing Policy Division, Career Entry Group, (202) 632-6817
Code: 273, Personnel Management Evaluation, Surveys and Audits
Distribution: Basic FPM
Bulletin Expires: January 20, 1989
OPM FORM 654 6/82
FPM Bulletin 273-22 (2)
6. We strongly urge agency Directors of Personnel to pre-audit all noncompetitive actions involving
incumbents of positions in the excepted service. If advice and assistance are needed from OPM on methods
and techniques to be used in conducting the pre-audits, please contact the Compliance and Operations
Division, (202) 632-5691, in the Washington, D.C., area or the compliance or oversight division of the
appropriate OPM regional office.
(nstance Home
Constance Horner
Director
*U.S.GOVERNMENT PRINTING OFfICE:1998-200-571:60103
THE WHITE HOUSE
WASHINGTON
November 4, 1980
MEMORANDUM FOR ALL DEPARTMENT AND AGENCY HEADS
FROM
:
JACK AL MCDONALD WATSON Jack
This is to advise you that effective COB November 3 all
Schedule C and SES non-career vacancies have been frozen.
Presidential Personnel will be in touch with each agency
to set up the clearance process for filling any of these
positions.
THE WHITE HOUSE
WASHINGTON
November 5, 1980
MEMORANDUM FOR: WHITE HOUSE STAFF
FROM
: Instructions Jack on Transition
: JACK WATSON
AL MCDONALDO
SUBJECT
The President has instructed that we provide the finest
transition in history for the President-elect and his team.
He directed further that we carry out this important task in
as gracious, constructive and helpful way as possible.
The President, his Cabinet and his staff continue to bear
the full authority and the responsibility for determination
of policy and the conduct of the government until the end of
the term. Therefore, the transition should in no way
diffuse this authority or responsibility. Its aim is to
provide for appropriate orientation, informational exchanges
and planning for a smooth transition of the Presidency on
Inauguration Day.
Our office will be overseeing the transition efforts and
making sure these activities are conducted in a planned,
disciplined and orderly way. Until appropriate contact
points are named and links established between unit transition
leaders and the President-elect's designees, you should
refer all requests for information, orientation sessions or
other actions to this office for coordination and clearance.
We welcome ideas and suggestions you may have to make this
transition the finest ever. Many of you shared the experience
of an earlier transition, and your advice and counsel would
be much appreciated. Please send your suggestions directly
to us marked "Administratively Confidential."
THE WHITE HOUSE
WASHINGTON
November 12, 1980
MEMORANDUM FOR CABINET AND AGENCY HEADS
FROM:
The purpose of this memorandum is to inform you of persons
JACK WATSON Jack
designated by the President and Governor Reagan as members of
their respective transition teams. A description of the tran-
sition teams is attached.
This memorandum also establishes guidelines for the filling
of SES positions during the transition period and the detailing
of agency employees to the Reagan transition team.
Filling SES Vacancies
As part of the President's commitment to an effective transition,
it is important that the new Administration be given appropriate
latitude in filling key career Senior Executive Service (SES)
positions when it assumes office. This is particularly true
since involuntary reassignments of career SES employees may
not be made within 120 days after the appointment of a new
agency head.
Accordingly, the President expects all department and agency
heads personally and carefully to review all recommendations
for new SES appointments and transfers of career SES employees
between now and January 20, 1981.
Use of Detailees
The Presidential Transition Act of 1963 (Sec. 2) provides that
any employee of any agency of any branch of the government may
be detailed to a Presidential transition team on a reimbursable
basis with the consent of the head of the agency. An employee
so detailed shall continue to receive compensation for regular
employment and retain the rights and privileges of such employ-
ment without interruption. The detailee will be responsible
only to the President-elect or Vice President-elect for the
performance of such duties.
As stated in previous memoranda, it is the President's desire
that all departments and agencies should cooperate fully with
the transition team. This general policy extends to any requests
for detailees. Requests should generally be granted, unless
the person requested is necessary for the continued effective
performance of agency functions and operations.
2
The agency head should personally approve the use of any detailees.
In order for us to maintain a complete record of transition
services, you are requested to include in your transition progress
reports, a list of the detailees whom you have approved. Please
report any decision to deny a request for detailees to Harrison
Wellford, Executive Associate Director of OMB.
Request for detailees should be discussed by the respective
transition officers for the agency. Formally, the request must
be transmitted to the agency head in writing, and signed by
Mr. Peter McPherson or Vernon Orr (or their designee) with
a copy to the Comptroller of GSA (Mr. Raymond Fontaine).
William E. Timmons, Deputy Director of the
Transition, is responsible for the Office of
Executive Branch Management.
Frank A. Whetstone is the senior advisor to
this office and Stanley Ebner is Coordinator.
The following is a listing of Executive Branch agencies
and the Director responsible for teams to be assigned to
them. The groupings are for the administrative conveni-
ence of the transition staff only and have no policy
implications.
NATIONAL SECURITY GROUP
Dr. David M. Abshire
Department of State
Department of Defense
Central Ingelligence Agency
International Development Cooperation Agency
Arms Control Disarmament Agency
International Communication Agency
Veterans Administration
International Bank for Reconstruction and Development
Overseas Private Investment Corporation
Foreign Claims Settlement Commission
Board for International Broadcasting
RESOURCES AND DEVELOPMENT GROUP
Richard Fairbanks
Department of Agriculture
Department of Energy
Federal Energy Regulatory Commission
Department of the Interior
Environmental Protection Agency
Nuclear Regulatory Commission
Alaska Natural Gas Transportation System
Commodity Futures Trading Commission
Farm Credit Administration
Tennessee Valley Authority
Syn-Fuels Corporation
Office for Micronesian Status Negotiations
National Aeronautics and Space Administration
HUMAN SERVICES GROUP
Elizabeth Dole
Department of Education
Department of Health and Human Services
Department of Housing and Urban Development
ACTION
Community Services Administration
Federal Council on Aging
National Credit Union Administration
ECONOMIC AFFAIRS GROUP
Stanton D. Anderson
Council on Wage and Price Stability
Office of Special Trade Representative
Department of Commerce
Department of Treasury
Department of Transportation
Comptroller of the Currency
Export-Import Bank
Federal Home Loan Bank Board
Small Business Administration
International Trade Commission
Federal Deposit Insurance Corporation
Federal Reserve System
National Transportation Safety Board
Regional Development Commissions
National Labor Relations Board
Department of Labor
Federal Labor Relations Authority
Federal Mediation and Conciliation Service
National Mediation Board
Occupational Safety and Health Review Commission
Federal Savings and Loan Insurance Corporation
LEGAL AND ADMINISTRATIVE AGENCIES GROUP
Loren A. Smith
Department of Justice
General Services Administration
Office of Personnel Management
United States Railway Association
Civil Aeronautics Board
Federal Communications Commission
Federal Trade Commission
Interstate Commerce Commission
Securities Exchange Commission
Federal Maritime Commission
Consumer Product Safety Commission
Federal Emergency Management Agency
National Science Foundation
Advisory Commission on Intergovernmental Relations
United States Postal Service
Federal Election Commission
Merit System Protection Board
Smithsonian Institution
National Endowment for the Arts
National Endowment for the Humanities
Advisory Council on Historic Preservation
Postal Rate Commission
Civil Rights Commission
Equal Employment Opportunity Commission
Miscellaneous Boards and Commissions
Team leaders report to one of five Group Directors
who manage issues clusters.
Department team leaders are:
Department of State: Robert E. Neumann
Department of Defense: William Van Cleave
Department of Treasury: Gerald L. Parsky
Department of Justice: Richard Wiley
Department of Interior: Richard Richards
Department of Agriculture: Richard Lyng
Department of Commerce: Calvin J. Collier
Department of Labor: Richard Shubert
Department of Health and Human Services: Robert Carleson
Department of Housing and Urban Development: Gerald Carmen
Department of Transportation: Arthur E. Teele
Department of Energy: Michael Halbouty
Department of Education: Loreli Kinder
Team leaders for agencies and independent commissions,
as well as members of the departmental teams, will be
announced later.
TRANSITION OFFICERS
WHITE HOUSE
Jack Watson
456-679
White House Chief of Staff
Al McDonald
456-7873
White House Staff Director
Harrison Wellford
395-3864
OMB Executive Director
Michael Rowny
456-7873
Deputy to the Staff Director
White House Administrative Contact:
Hugh Carter
456-2702
Special Assistant to the President
for Administration
White House Press Contacts:
Ray Jenkins
456-2100
Rex Granum
456-2100
Deputy Press Secretaries
Vice President's Office:
Dick Moe
456-6606
Vice President's Chief of Staff
THE WHITE HOUSE
WASHINGTON
November 12, 1980
LIST OF TRANSITION OFFICERS
DEPARTMENTS AND AGENCIES
DEPARTMENT OF AGRICULTURE
Jim Williams
447-6158
(Howard Hjort - budget)
(Joan Wallace - space, tech., pers.)
DEPARTMENT OF COMMERCE
Ms. Elsa Porter
377-4951
DEPARTMENT OF DEFENSE
Peter Hamilton
697-8388
DEPARTMENT OF EDUCATION
Under Secretary Steven A. Minter 755-1100
DEPARTMENT OF ENERGY
Douglas G. Robinson
252-6476
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Randy Kinder
245-7163
Alair Townsend
245-6396
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Terrence Duvernay
755-6810
DEPARTMENT OF INTERIOR
William Kendig
343-4701
DEPARTMENT OF JUSTICE
Kevin D. Rooney
633-3101
DEPARTMENT OF LABOR
Paul Jensen
523-8231
DEPARTMENT OF STATE
Peter Tarnoff
632-2540
DEPARTMENT OF TRANSPORTATION
Deputy Secretary Bill Beckham
426-2222
DEPARTMENT OF THE TREASURY
Curtis Hessler
566-2551
2
ACTION
Robert Currie
254-7264
COMMUNITY SERVICES ADMINISTRATION
Mr. Lee Foley
254-5590
COUNCIL OF ECONOMIC ADVISERS
Susan Irving
395-5084
COUNCIL ON ENVIRONMENTAL QUALITY
Malcolm Baldwin
395-4522
COUNCIL ON WAGE AND PRICE STABILITY
Bob Russell
456-6466
ENVIRONMENTAL PROTECTION AGENCY
Jack Ford
755-2705
FEDERAL EMERGENCY MANAGEMENT AGENCY
William S.W. Jones
653-7776
GENERAL SERVICES ADMINISTRATION
Mr. E. Perley Eaton, Jr.
566-1212
NATIONAL SECURITY COUNCIL
Les Denend
456-2235
(For National Security Affairs)
Ms. Christine Dodson
395-3440
(For the NSC staff)
OFFICE OF ADMINISTRATION
Ms. Sarah T. Kadec
456-2804
OFFICE OF MANAGEMENT AND BUDGET
Ms. Alice Rogoff
456-6992
OFFICE OF PERSONNEL MANAGEMENT
Alan Campbell, Director
632-4724
SELECTIVE SERVICE SYSTEM
Dr. Bernard Rotsker
724-0817
SMALL BUSINESS ADMINISTRATION
Bill Mauk
653-6678
SPECIAL REPRESENTATIVE TO THE PRESIDENT
(AMBASSADOR SOL LINOWITZ)
Andy Marks
456-7620
U.S. TRADE REPRESENTATIVE
Ambassador Robert Hormats
395-5114
Robert Cassidy
395-3150
VETERANS ADMINISTRATION
Rufus H. Wilson
389-2817
3
CIA
Richard Lehman
351-6724
INTERNATIONAL COMMUNICATIONS AGENCY
Richard Cohen
724-9185
OFFICE OF SCIENCE & TECHNOLOGY POLICY
Frank Press
456-7116
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Jerry Griffin
755-3972
PEACE CORPS
Dick Celeste
254-7970
OFFICE OF CONSUMER AFFAIRS
Esther Peterson
456-6970
THE WHITE HOUSE
WASHINGTON
November 13, 1980
MEMORANDUM FOR WHITE HOUSE OFFICE STAFF MEMBERS AND HEADS
OF ALL EXECUTIVE OFFICE OF THE PRESIDENT
ELEMENTS
FROM:
LLOYD N. CUTLER
Lnc
SUBJECT:
Private Job offers and Post-Employment
Conflicts of Interest
As this Administration comes to an end, some staff members
may be contemplating private employment or may receive
offers or expressions of interest concerning private employ-
ment. If so, you should familiarize yourself with restric-
tions imposed by Federal criminal statutes and standard of
conduct regulations that may apply to 1) your discussions
about employment with prospective private employers and 2)
your subsequent business dealings with the government after
you have departed.
This memorandum contains a general outline of pertinent post-
employment restrictions. You should consult with counsel if
you have questions about their applicability to your specific
situation.
The post-employment restrictions contained in the Letter of
Commitment you may have signed upon your appointment have
been superseded by the post-employment conflict of interest
provisions of the Ethics in Government Act of 1978, as amended,
which are incorporated in the following summary.
Negotiation for Future Employment
A government* employee ("employee") is generally not barred
from seeking other employment while in government, even if
the prospective employer has dealings with his agency. How-
ever, an employee should disqualify himself from acting on
any matter that would directly affect a prospective employer.
Federal law (18 USC 208) specifically prohibits an employee
from personally and substantially participating in any
particular matter involving a financial interest of any
person or organization with whom the employee is negotiating
or has an arrangement concerning prospective employment.
Executive Order 11222 and regulations carrying out that
*The term "government," as used in this memorandum, refers to
the Executive Branch of the U.S. Government, its independent
agencies, and the Government of the District of Columbia.
-2-
Order impose a more stringent standard of disqualification.
They require a Government employee to avoid any action which
might result in, or create the appearance of, using public
office for private gain, giving preferential treatment to
any organization or person, losing independence or impartiali-
ty of action, or weakening the confidence of the public and
the integrity of the government. The following guidelines
are based on the Executive Order as well as the governing
statutes.
1. Disqualification Because of Contacts and Arrangements
Concerning Prospective Employment
An employee shall avoid acting on matters which directly
affect a person or organization if:
The employee has made contact with the person or
organization, either directly or through an inter-
mediary, inquiring about future employment.
The person or organization has unilaterally
expressed an interest to the employee, either
directly or through an intermediary, in employing
him in the future. Depending on the particular
circumstances involved, the employee may avoid
having to disqualify himself on matters directly
affecting the person or organization by indicating
unequivocally that he is not interested in future
employment with such employer; disqualification
will be required, however, if the employee leaves
open any opportunity to pursue further discussions.
There is an informal or tacit understanding that
the employee will join (or return to) the person or
organization upon leaving government.
As used in these guidelines, "organization" includes a non-
profit entity or state or local public body that deals with
or has matters pending before the government.
2. Particular Matters as to Which Disqualification May be
Required.
It is up to the employee to determine whether he is, or may
be, involved in a particular matter that directly affects the
prospective employer. If he determines that he is so involved,
he should refrain from participating in any aspect of the
matter and take appropriate steps to insulate himself from
-3-
influencing its outcome in any way. Examples of particular
matters requiring disqualification are listed below:
Those which specifically focus on the prospective
employer, e.g., a recommendation on a CAB ruling
concerning an airline represented by a recruiting
law firm.
Those of more general applicability which never-
theless have a direct and predictable effect on
the prospective employer, e.g., review of an agency
decision to adopt environmental regulations that
will impose restrictions on a particular industry
of which the prospective employer is a part;
Although the statute is violated only when a
prospective employer has a "financial interest"
in a particular matter, the Executive Order aims
at avoiding even the appearance of conflict. Accord-
ingly, the employee should disqualify himself when-
ever a prospective employer has a significant
personal or professional interest in the matter.
In a matter involving environmental regulations,
disqualification would be required if the prospective
employer is a public interest organization which
has taken part in the regulatory proceeding.
In most instances, the employee will know whether a matter
within his official responsibility will directly affect the
prospective employer. If he lacks adequate knowledge but
suspects a nexus because of the subject matter involved, he
should make a good faith effort to obtain additional infor-
mation by consulting appropriate government officials. If
on the basis of this information he is uncertain about whether
the nexus is sufficient to require disqualification, he should
seek counsel's advice.
3. Making a Record if any Issue of Disqualification Arises.
Written records should be made of how each issue of disqualifica-
tion is addressed and resolved. Records should be made of
the following events:
Employment-related contacts by or with a prospective
employer if there is a potential issue of disquali-
fication.
Responses made by the employee to a prospective
employer's unsolicited expression of interest.
If the response is flatly negative, this may be
relied upon to permit the employee to continue to
participate in a matter as to which disqualifi-
cation would otherwise be required.
-4-
Conclusions concerning the need for disquali-
fication and consultations with government
officials involved in providing information
or giving advice.
Steps taken to insulate himself from a matter for
which disqualification is required, for example
notifying a superior or an aide of the disqualifica-
tion and delegating responsibility for the matter
to another official.
Post-Employment Activities
A former government employee ("former employee") is generally
barred from representing a nongovernment party in matters in
which the government has an interest and in which the former
employee had been involved while in government. The scope of
the prohibition will depend on 1) whether the former employee
was a high level "Senior Employee" and/or 2) the former
employee's degree of prior involvement in the matter.
1. Restrictions Applicable to All Former Employees.
Permanent Bar from Representation in matters in
Which Former Employee Had Personal and Substantial
Involvement (18 USC 207 (a)) A former employee is
permanently barred from representing anyone before
the government, or in proceedings involving the
government, in any particular matter involving
specific parties and in which he had participated
personally and substantially while in government.
This prohibition against "switching sides" not only
encompasses acting as another's agent or attorney,
but any other kind of representation or communication
made on behalf of another with the intent to influence
the government, e.g., a telephone call to a government
official for lobbying purposes. It would not apply
to a former employee's involvement in most matters
of general applicability and interest, e.g., legis-
lation, rulemaking, formulation of general policies,
standards or objectives. Some such matters, of
course, have a direct financial effect on particular
prospective employers. In such cases, the former
employee should review the issue with counsel to
determine whether the proposed representation involves
a risk of prosecution or criticism.
-5-
Two Year Bar from Representation in Matters
Within Former Employee's Official Responsibility
(18 USC 207 (b) (i) For two years after government
service, a former employee is barred from repre-
senting anyone before the government, or in
proceedings involving the government, in any
particular matter involving specific parties and
which was actually pending under the former
employee's "official responsibility" in his last
year of government service.
2. Restrictions Applicable Only to Former "Senior Employees"
Staff members who receive compensation at a rate comparable
to or greater than that fixed for Executive level appointees
($50, 112.50) are "Senior Employees" to whom the following
restrictions will apply upon leaving the government.
Two Year Bar on Assisting in Representing
(18 USC 207 (b) (ii)) For two years after
government service, a former Senior Employee
may not assist in the representation of any-
one by personal presence at a formal or informal
appearance before the government, or in proceed-
ings involving the government, in any particular
matter in which he could not act as another's
actual representative because of his personal
and substantial participation in the matter.
This restriction is not an absolute bar from assisting
in a matter in which a former Senior Employee
participated while in government. It only prevents
rendering assistance "in representing" while personally
present at an appearance before a government official.
For example, a former Senior Employee could work
on a contract with which he was involved while
in government and could manage a company, institution,
or university where such former employee's decisions
determine the manner in which his or her organization
will perform under a government contract or grant,
so long as he does not accompany others who may re-
present the institution to meetings with government
officials in order to assist them.
One Year Bar on Contact With Former Agency
(18 USC 207 (c)) For one year after leaving a
government department or agency, a former Senior
Employee is barred from representing anyone before
his former department or agency in a particular
matter which is either pending before or of direct
-6-
and substantial interest to the department
or agency. The prohibition will apply
regardless of whether 1) the former Senior
Employee had any prior involvement in
the matter while in government and 2) the matter
involves specific parties. As in the case of the
permanent bar, any kind of representation or com-
munication made on behalf of another with the
intent to influence the government is covered.
The restriction, however, would not apply to purely
social or informational communications, the trans-
mission of filings which do not require government
action, personal matters, any expression of personal
views where the former employee has no pecuniary
interest, and responses to the former agency's
request for information.
Former Senior Employees elected to state or local
government office or employed full-time by a state
or local government agency, an institution of higher
education, or a non-profit hospital or medical re-
search organization, are not subject to the above
restriction to the extent that the former Senior
Employee is acting as the representative of such an
entity.
You will be further advised as to which components of
the Executive Office of the President are considered
separate agencies for purposes of applying the "no
contact" ban.
Prohibition Against Receipt of Compensation
For Certain Representational Services
A former employee is barred from receiving or participating
in the receipt of compensation (fee sharing) for representational
services performed by anyone in regard to a particular
matter, where such representation occurred before any part
of the Executive or Legislative Branches while he or she was
in government service. Representational services rendered
before the courts are not within the scope of this ban. The
prohibition might apply, for example, to a former employee
who becomes a partner in a law firm. It would be unlawful
for the former employee to share in fees received by the
firm for representational services rendered before any
government department or agency while he was in government
service, regardless of his lack of knowledge or prior involve-
ment in the matter. (18 USC 203).
Financial Disclosure Report
All employees who are required to file a Financial Disclosure
Report (Standard Form 278) annually, must file a Financial
-7-
Disclosure Report within 30 days of termination of employ-
ment. Generally, the report must cover the period from
January 1, 1980 to date of termination. Schedule D of the
report requires the filing official to provide information
"regarding any agreements or arrangements concerning (i)
future employment".
Special Rules Applicable to Lawyers
Lawyers returning to the private practice of law should
consider whether applicable rules of professional conduct
impose restrictions above and beyond those contained in
Federal statutes and regulations. These rules contain
additional limits on a lawyer's activities in dealing with
the government, as well as on the activities of his partners
and associates.
The A.B.A. Code of Professional Responsibility contains two
Disciplinary Rules that are of special significance to former
government officials in private practice. DR 9-101 (B) bars
a lawyer from accepting private employment in a matter in
which he had substantial responsibility while serving as a
public employee.
DR 5-105 (D) provides that if a lawyer is required to decline
employment or withdraw from employment under a Disciplinary
Rule, no partner, associate, or any other lawyer affiliated
with the lawyer's firm may accept or continue such employment.
This rule seems to require the disqualification of an entire
law firm if one of its lawyers is disqualified by virtue of
former government service under Rule 9-101 (B). A.B.A. Formal
Opinion No. 342 recognizes that absent an appearance of sig-
nificant impropriety, a government agency may waive Rule
5-105 (D) if adequate screening procedures are established
which effectively isolate the former government official from
lawyers of his firm involved in the matter in question. 62
A.B.A. Journal 517,521 (1976). However, the question whether
an absolute rule of disqualification should apply, even where
a screening mechanism exists, continues to stir considerable
debate. See, e.g., Armstrong V. McAlpin, 606 F.2d 28 (1979)
where a panel of Second Circuit judges, reversing a District
Court, concluded that an entire law firm was disqualified.
The panel's opinion was subsequently vacated upon reconsidera-
tion en banc,
F.2d
2nd Cir. No.
1010745 (June 20, 1980). See also A.B.A. Model Rules of
Professional Conduct 1.11 (a), (e) and (f) (January 30, 1980,
Kutak Commission discussion draft) which would adopt an
absolute rule of imputed disqualification.
In April, 1980, the District of Columbia Court of Appeals
issued a Notice of Proposed Order to Amend the Disciplinary
Rules relating to lawyers moving in and out of government (the
"Revolving Door" proposals) * The amendments would permit
*The District of Columbia Court of Appeals has adopted the
A.B.A. Code of Professional Responsibility.
-8-
the employing government agency or department to waive the
imputed disqualification of lawyers affiliated with the
former government official, if the government body determines
that the waiver is not inconsistent with the public inter-
est and if specified screening procedures are followed. In
lieu of the screening procedures set forth in the amendments,
a government body could adopt its own for waivers relating
to matters within its jurisdiction. The Court of Appeals
has not yet adopted these proposals.
THE WHITE HOUSE
WASHINGTON
November 14, 1980
NOTICE TO WHITE HOUSE AND EOP STAFF
FROM
: AL MCDONALD
SUBJECT : Voluntary Program on Career Assessment
We are fortunate to be able to provide some professional
career guidance and counselling to those staff members who
will be relocating with the change of Administration. This
is a strictly volunteer program, and those professionals
providing the briefings and individual guidance are volunteering
their services to us.
A series of evening seminars are being scheduled in room 450
of the OEOB for interested persons beginning on November 17
at 5:15 p.m. Attached is a calendar outlining the subjects
to be covered in the sessions. These seminars are designed
to assist staff in thinking through their career options in
ways to pursue their preferred choices.
Any staff member wishing to participate in this voluntary
program should contact the White House personnel office on
extension 2260 or visit room 6 of the OEOB to sign up for
the sessions.
Professionals will be available as indicated for individual
one-on-one counselling sessions if desired. As the program
progresses additional assistance will be provided by Presidential
personnel in arranging contacts with prospective employers.
Details on the arrangements will be provided during the
course of the program.
Attachment
SESSIONS CAREER ASSESSMENT
NOVEMBER
17/EVE MONDAY
18/EVE TUESDAY
19/ WEDNESDAY
20/EVE THURSDAY
21/DAY FRIDAY
22/DAY SATURDAY
INTRODUCTORY SEMINAR
SEMINAR #1
SEMINAR #2
One-On-One
One-On-One
Discussion
Discussion
Individual Profile/
Skills/Personal
(Optional extra
Communications:
Sessions
Sessions
Job Search
Assessment
Seminar if
Resume/Letter
Orientation
needed)
Development
Resume Critiquing
By Appointment
Career Counselling
By Appointment
NOVEMBER
24/MONDAY
25/EVE TUESDAY
26/DAY WEDNESDAY
27/ THURSDAY
28/ FRIDAY
29/ SATURDAY
SEMINAR #3
One-On-One
(Thanksgiving)
Discussion
Interviewing
(Optional extra
Sessions
Techniques
Seminar if
By
needed)
Appointment
DECEMBER
1/MONDAY
2/EVE TUESDAY
3/ WEDNESDAY
4/ THURSDAY
5/ FRIDAY
6/ SATURDAY
SEMINAR #3
One-On-One
Discussion Sessions
The Job Search:
(Optional extra
Resourcing Jobs
Seminar if
How to Make Con-
Individual Profiling
needed)
tacts Using
Career Direction
Exec. Search
By
Appointment
Firms
Additional Seminar(s) If Needed
*Semir
Lmes: 5:15 - - 7:00 p.m.
THE WHITE HOUSE
WASHINGTON
November 17, 1980
MEMORANDUM FOR WHITE HOUSE OFFICE STAFF MEMBERS AND
HEADS OF ALL EXECUTIVE OFFICE OF THE
PRESIDENT ELEMENTS
FROM:
LLOYD N. CUTLER Inc
SUBJECT:
DISPOSITION OF PRESIDENTIAL PAPERS
BY DEPARTING STAFF MEMBERS
Within the next few days, the President will review and
approve procedures to be followed for the disposition of
"Presidential papers" originated or received during his
Administration. A memorandum defining "Presidential" and
"Personal" papers and their proper disposition will be
promulgated at that time. Until that memorandum is cir-
culated, no papers or documents should be removed from the
White House or destroyed.
If you have any questions in the interim, please direct them
to Michael Cardozo or Philip Bobbitt in the office of the
Counsel to the President.
THE WHITE HOUSE
WASHINGTON
November 18, 1980
NOTE FOR WHITE HOUSE AND EOP STAFF
FROM:
ARNIE MILLER
MM
SUBJECT:
Career Assistance
As Al McDonald indicated yesterday, the Presidential
Personnel Office will try to help identify job oppor-
tunities. We intend to contact potential employers and
executive recruitment firms to build a list of avail-
able positions.
If you are interested in any such assistance, please
send your resume and a completed copy of the attached
form to my office. Someone will then contact you and
discuss possible jobs that match your experience and
interest.
Attachment
EMPLOYMENT ASSESSMENT
Name
Current Position
Are you willing to relocate?
yes
no
If yes, where? (Be specific if you have preferences)
Size of organization
large
medium
small
Type of organization
State Government
local government
private sector
Salary range
State specifically, if possible, what you want to do. (E.g.,
manage a specific agency, Assistant to a Chief Executive Officer,
public affairs, etc.)
Attach your resume and forward to: Presidential Personnel Office,
145 Old Executive Office Building, Attn: Vella Traynham.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
November 18, 1980
MEMORANDUM FOR ALL WHITE HOUSE STAFF
FROM:
LARRY E. BYRNE
SUBJECT:
Secretary Announcement for Potential Civil Service Jobs
The Office of Personnel Management is accepting applications for
secretary positions, GS-3 through GS-7, until December 12. The
necessary forms to file can be obtained from the White House
Personnel Office, Room 6, extension--2260.
Applicants' qualifications will be reviewed and evaluated by
OPM on the quality of their experience, education, training,
and other achievements described on their application and
supplemental forms. They will be given a numerical rating
from 70 to 100 for each grade level.
Eligibles for grades GS-3 and GS-4 may apply directly to Federal
agencies within the Washington, D.C. metropolitan area for employ-
ment consideration by submitting copies of their Notice of Rating
and Personal Qualifications Statement (SF-171).
Eligibles for grades GS-5 through GS-7 will be referred to agencies
for employment consideration based upon their numerical score and
any selective criteria applicable to the specific vacancy to be
filled.
If you have any questions, please call Barbara Walter on exten-
sion 2260.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
November 20, 1980
NOTICE TO WHITE HOUSE AND EOP STAFF
FROM:
SUBJECT: Career Counselling Laby Seminars
LARRY E. BYRNE
Based on our planned reevaluation of those interested
after the first introductory seminar, we have made a
number of changes in the schedule for this week and
next. We have specifically expanded the opportunity
for one-on-one counselling sessions, which were requested
by a large number of the participants. We have also
consolidated the seminars to provide more substance
at each individual session. The attached calendar
contains the latest revisions.
REVISED SCHEDULE
CAREER COUNSELLING SEMINAR, NOVEMBER 1980
MONDAY
TUESDAY
WEDNESDAY
THURSDAY
FRIDAY
17
18
19
20
21
Introduction:
SEMINAR I
ONE-ON-ONE
ONE-ON-ONE
ONE-ON-ONE
JOB SEARCH
SKILLS/
SESSION
SESSION
SESSION
ORIENTATION
PERSONAL
(By Appointment)
ASSESSMENT
(By appointment,
(By appointment)
(OEOB 450
3745,3581)
5:15-6:30)
(OEOB 450
SEMINAR II
Arthur Letcher
5:15-7:00)
Mark O'Brien
Placement
RESUME DEV./
Mark O'Brien
Arthur J. Letcher Dr. Roderic
Richard Sherman
Associate,
INTERVIEWING
Graduate Placement
Hodgins, Ed. D.
Director
(Private
(Wharton)
TECHNIQUES
(Wharton)
Practice)
(OEOB 450
5:15-7:15)
David Wolford
(Director Oral
Communication
Program)
Richard Sherman,
Ph. D. (Consultant)
Larry M. Robbins,
Ph.D.
(Wharton Communica-
tions Program)
Monday
TUESDAY
24
25
SEMINAR III
ONE-ON-ONE
SESSIONS
James Newpher, President
THE JOB CAMPAIGN:
RESOURCING JOBS
Newpher-Haas Inc.
(To be scheduled
HOW mo MAKE CONTACTS
if necessary)
US
"XECUTIVE SEARCH FIRMS
John Steele,
tor
Career Plann
iacement
(FOB :15-7:00)
(Beaton
THE WHITE HOUSE
WASHINGTON
November 19, 1980
MEMORANDUM FOR:
WHITE HOUSE STAFF
FROM:
HUGH CARTER He
SUBJECT:
Employment Survey
We have been requested by the Reagan transition group to
determine if any White House secretarial/administrative
assistant staff members are interested in working at the
White House in the new administration. Secretarial/
administrative assistant staff members who would like to
be considered for continuing employment should contact
the White House Personnel Office on Ext. 2260 or 6470.
Those employees who work within the White House Operating
Units are historically part of the career service, and
we have no reason to believe they will not be retained.
The White House Personnel Office will prepare a listing
of those who are interested in remaining, and will provide
that to the Reagan transition group for their review.
Decisions on continuing employment will be determined
solely by the incoming administration.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
November 25, 1980
MEMORANDUM FOR
FROM:
ALL LARRY WHITE E. BYRNE HOUSE June Ry GS-8/9/10 STARF
SUBJECT:
Secretaries,
The Office of Personnel Management is accepting applications
for secretary positions, GS-8/9/10, until December 31. OPM
considers opportunities good for these positions.
Attached is OPM's explanation of duties, experience require-
ments and basis of rating.
If you are interested, call Barbara Walter in the White House
Personnel Office, extension-2260 for more information.
Attachment
WA-5-03
U.S. Civil Service Commission
Washington Area Office
OCCUPATIONAL DUTY SHEET
Job Title: Secretary
Series: GS-318-7,8,9,10,11
Duties of the Position
A secretary is the personal office assistant to a designated supervisor,
and generally handles a variety of administrative and clerical details of
office management in close support of that supervisor. Some positions may
or may not require stenographic, typing, or dictating machine transcribing
skills.
Experience Requirements
You must meet the following experience requirements:
Grade
General Experience
Specialized Experience
Total
GS-7
2½ years
1½ years
4 years
GS-8
2½ years
2 years
4½ years
GS-9
2½ years
2½ years
5 years
GS-10
2½ years
3 years
5½ years
GS-11
2½ years
3½ years
6 years
General Experience is experience obtained in the performance of clerical
duties in any area of work.
Specialized Experience is experience in secretarial work which has involved
responsibility for serving as the principal personal office assistant to a
designated supervisor in a close and direct working relationship.
Additionally, the experience must provide evidence of progressively broader
knowledges, greater judgment, and higher skills commensurate with the level
of the positions for which you are applying.
Credit for Education
Education above the high school level is creditable for up to 2½ years of
general and 1/2 year of specialized experience.
Basis of Rating
No written, typing or stenographic tests are required for GS-8 positions
and above. You will be rated on the nature and scope of secretarial and
other experience, relative proficiency as a secretary, and personal
qualities necessary for successful performance of secretarial work. The
rating will be based on your own statement of your background and on any
additional information obtained by the Civil Service Commission.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
November 25, 1980
MEMORANDUM FOR
ALL WHITE HOUSE ADMINISTRATIVE CONTACTS
an
FROM:
LARRY E. BYRNE
SUBJECT:
Printing of Personnel Resumes
For the convenience of staff members, we have found a number
of commercial printing shops within walking distance of the
Old Executive Office Building who can and will do resume
layouts and printing. The listing below should be of assistance
to you in having your resume printed.
Lexicon Graphics
1850 K Street, N.W.
lower level
typesetting services
293-1362
Campbell Printing
1328 I Street, N.W.
typesetting and layout
available
347-9804
John Robertson
Insta-Print
1850 K Street, N.W.
no typesetting or
layout service
223-3901
Lorenz Wheatley
THE WHITE HOUSE
WASHINGTON
December 3, 1980
MEMORANDUM FOR EOP STAFF
FROM:
Harley Frankel IF
Deputy Director, Presidential Personnel Office
SUBJECT:
Interviews with Executive Recruiting Firms and
PPO Job File
We have been in touch with many potential employers and executive
recruitment firms to identify available jobs.
Executive Recruitment Firms
We have made arrangements with two major national firms to interview
EOP staff here during the next two weeks.
1. Boyden Associates, a New York based firm, is recruiting for
400 senior managers and staff positions located throughout
the country. They will interview interested senior EOP
staff on Wednesday, December 10.
If you would like to interview with Boyden's representative,
please sign up with Janie Leighton-Miller in Room 148 by
Monday, December 8. Please bring a resume with you that
you can leave with Janie.
2. Billington, Fox & Ellis, an Atlanta based company, will be
here on December 17. They will send us information soon
about the positions for which they are recruiting. In the
meantime, please sign up with Janie by December 8 if you
think you would like to see their representative. Once we
have more information we will be in touch with those who
express an interest.
We are completing arrangements with several other major executive
recruiting firms. When the details for their visits have been
developed, we will send you a notice.
PPO Job File
We have identified approximately 50 positions for which employers
would like to consider EOP staff. A card file has been established
in Room 148 that describes each position and lists its salary range
and geographic location. A majority of the employers have asked
that we refer resumes to them, so some of the cards will not list
the employer by name. Announcement numbers have been placed on
each card for your use in telling us what particular job interests
you. We will log that number and refer your resume to the employer.
In instances where the card lists the employer, you should apply
directly.
We expect to receive more jobs, Our file will be updated daily to
include new jobs. If you have questions, call Vella Traynham
(Room 148 - ext. 2995).
THE WHITE HOUSE
WASHINGTON
December 15, 1980
MEMORANDUM FOR WHITE HOUSE OFFICE STAFF MEMBERS AND
HEADS OF ALL EXECUTIVE OFFICE OF THE
PRESIDENT ELEMENTS
FROM:
SUBJECT:
JACK WATSON Jack
Meeting on the Disposition of
Presidentíal Papers
At 4:00 p.m., Tuesday, December 16, 1980, a meeting will be
held in Room 450 OEOB to discuss the attached memorandum on
the handling of Presidential Papers and the Departure
Agreement.
I request that a representative of each White House staff
office and each office within EOP attend. In addition,
any staff member interested in the removal of Presidential
Papers from the White House or the EOP is encouraged to
attend.
This is the only scheduled meeting on this important subject
and I stress the importance of a full understanding of pro-
cedures to be followed for the handling of Presidential Papers.
THE WHITE HOUSE
WASHINGTON
December 15, 1980
MEMORANDUM FOR WHITE HOUSE OFFICE STAFF MEMBERS AND
HEADS OF ALL EXECUTIVE OFFICE OF THE
PRESIDENT ELEMENTS
FROM:
OF PRESIDENTIAL Jack PAPERS AND COPIES
JACK WATSON
LLOYD CUTLER
SUBJECT:
PROCEDURES FOR THE DISPOSITION AND REMOVAL
1.
Introduction.
1.1
Until 1974, Presidential Papers were treated as the
personal property of the outgoing President, to be disposed of as
he saw fit. While no statute specifically legalized this custom,
the Presidential Libraries Act of 1955 tacitly recognized it by
authorizing government-operated Presidential libraries in which
outgoing Presidents could deposit any papers they wished, and
could specify the terms under which Government or public access
would be permitted.
1.2
In 1974, because of the legal controversies over former
President Nixon's right to dispose of his tape recordings, Congress
enacted a special law dealing solely with the Nixon records. And
in 1978, Congress enacted the Presidential Records Act of 1978
setting forth procedures for the retention and disposition of all
Presidential Papers beginning with the next term starting January 20,
1981.
-2-
1.3
Accordingly, President Carter's Papers are his own
personal property, as in the case of all of his predecessors
except President Nixon. In making his own decisions, President
Carter has considered the practices of his predecessors, as well
as the principles and policies of the Presidential Records Act of
1978.
1.4
President Carter intends to donate most of his Presi-
dential Papers to the United States Government, subject to certain
restrictions on access described below.
1.5
President Carter's three predecessors who completed
-
their terms in office, Presidents Eisenhower, Johnson and Ford,
each established procedures which prohibited members of their
respective staffs from removing Presidential Papers or copies of
such papers.* President Carter recognizes that staff members may
have a legitimate interest in retaining copies of some papers
recording actions in which they participated. He has, therefore,
decided to allow members of the White House Staff and members of
the staffs of elements of the Executive Office of the President
to remove copies of certain Presidential Papers with his prior
permission under the restrictions set forth below.
1.6
The President respects the right of every staff member
to speak and write freely about his experiences as a member of
the White House Staff or the EOP. But he also expects those who
*Presidents Kennedy and Nixon, of course, did not complete
their terms.
-3-
have had the privilege of serving on the White House Staff or in
the EOP to respect the President's rights of ownership and control
over the Presidential Papers generated during his term, and the
principle that White House advisers do not disclose their own
non-public advice or that of other advisers, or the President's
non-public response, without the President's consent.
2.
Distinction Between Presidential Papers and Personal Papers.
2.1
"Papers" include, but are not limited to, all correspon-
dence, memoranda, documents, photographs, maps, recordings, logs,
appointment books, journals, pamphlets, documentary material and
copies of the above.
(a) "Personal Papers". Personal Papers are all materials,
including personal correspondence, journals, diaries, and
their functional equivalents, which are neither developed in
connection with nor utilized during the transaction of
official government business. The important criterion is
not whether the papers merely refer to or are derived from
public business, but whether they are actually used, or were
created in the transaction of governmental operations. For
example, an evening diary which refers to government business
but is not used in transacting such business is a Personal
Paper. On the other hand, office diaries, appointment books,
telephone logs and personal notes taken during a government
meeting or used in transacting subsequent government business
are Presidential Papers.
-4-
(b) "Presidential Papers". Presidential Papers are all
records which are not Personal Papers and were either
originated or received by the following officials and
elements of the Executive Office of the President:
White House Office
Intelligence Oversight Board
Domestic Policy Staff (except for the Drug Abuse Policy
Section)
Council of Economic Advisers
National Security Adviser and Deputy National Security
Adviser, and deposited in the White House Situation Room
Chairman of the Council on Wage and Price Stability
Director of the Office of Administration
Those files of the Office of Science and Technology Policy
reflecting its advisory role to the President.
(c) "Campaign Papers". Campaign Papers are all papers
which were developed in connection with or utilized during
the 1980 Presidential campaign and which originated in or
were received by the above enumerated officials or elements
of the Executive Office of the President. President Carter
has decided to treat Campaign Papers as Presidential Papers.
President Carter may segregate these papers from other
Presidential Papers in order to provide special protection
for their confidentiality.
2.2
A staff member owns his personal papers. Originals and
all copies of Presidential Papers are owned by the President.
The President intends to grant staff members access to Presidential
Papers relating to actions in which they participated when such
papers have been deposited in the Presidential Library. Consistent
-5-
with the practice of previous Presidents and President Carter's
deed of gift, members of the general public will not be granted
access to the Presidential Papers placed in the Carter Library
until President Carter authorizes such access.
3.
Copying or Removal of Papers from White House Files.
3.1
Staff members may remove their own Personal Papers from
White House or EOP files.
3.2
Staff members may remove the following types of Presi-
dential Papers: photographs and copies of published documents.
The original of a staff member's personnel records, appointment
books and telephone logs may not be removed. Copies of personnel
records, appointment books and telephone logs may be removed.
3.3
Original drafts of documents which were circulated to
any other office for comment are Presidential Papers which should
remain in files for transfer to the Presidential Library. (Copies
of such drafts may be removed as provided in subparagraph 3.4 (b)
below.) Subject to the restrictions of paragraph 4 below, original
drafts which were not circulated by the author for any purpose,
including comment by other staff or any other office, may be
treated as Personal Papers and removed by the staff member who
prepared them. The staff member may of course make originals or
copies of drafts available for deposit in the Presidential Library.
The President encourages doing so for drafts of historical interest.
-6-
3.4
Subject to the restrictions of paragraphs 4 and 6 below,
staff members may also make and remove copies of a limited number
of other selected Presidential Papers, but only after the following
procedures are observed:
(a) The staff member shall execute a "Departure Agreement
Relating to Presidential Papers" (hereinafter "Departure
Agreement"), a copy of which is attached.
(b) Attachment A of the Departure Agreement shall list all
Presidential Papers (other than those covered by paragraph
3.2), of which the staff member requests permission to remove
copies. The list shall have appended to it a copy of each
such Presidential Paper and a brief description of its
contents -- e.g., staff member's weekly reports to the staff
head or to the President. In the absence of special justi-
fication, the President expects every staff member to hold
to an absolute minimum the number of Papers for which permis-
sion to remove copies is requested.
(c) Presidential Papers listed on Attachment A of the
Departure Agreement shall be removed from the White House
or EOP element only after Jack Watson or his designee has
authorized their removal on behalf of the President.
(d) Copies of Presidential Papers removed by staff members
under the procedures of this paragraph 3.4 may not be further
-7-
published or disclosed by the staff member except in com-
pliance with the executed Departure Agreement and paragraph
6 below.
4. Classified Materials and Other Sensitive Files.
4.1
Staff members may not destroy or retain the original or
a copy of any document which is:
(a) Classified for reasons of national security pursuant to
Executive Order 12065, or any predecessor order;
(b) Restricted Data or Formerly Restricted Data pursuant to
the Atomic Energy Act of 1954, as amended;
(c) Submitted to the government pursuant to statutes which
make disclosure of such information a crime;
(d) Submitted to the Office of the Counsel to the President
and related to the personal or financial affairs of any
Administration nominee, proposed nominee or federal employee,
unless submitted by the staff member.
4.2 (a) Permission may be obtained to remove copies of selected
documents, classified pursuant to subparagraphs 4.1(a) and (b)
above, if the departing staff member makes confirmed arrange-
ments to store the documents in secure storage containers in
an approved facility, and establishes a chain of secure
custody over the documents. This permission must first be
-8-
obtained from the National Security Adviser after consulta-
tion with the Counsel to the President, and then from Jack
Watson or his designee in accordance with the procedures
described in paragraph 3 above.
(b) A staff member may have in his or her files originals
or copies of sensitive Presidential Papers which do not bear
security classification markings. If a staff member requests
permission to remove a copy of any such Presidential Paper,
its sensitivity should be specifically called to the attention
of the Counsel to the President at the time Attachment A of
the Departure Agreement is submitted.
4.3
The President intends to donate most of the classified
materials in the Presidential Papers to the United States. In
the President's deed of gift of his Papers to the United States,
he will establish restrictions on access to all Presidential
Papers. However, he intends to allow former staff members to
have access under the terms of the Departure Agreement to any
such materials they originated or received while working in the
White House.
4.4
The use and transfer of classified materials are governed
by criminal statutes. Strict adherence to the above rules is
essential.
-9-
5.
Disposition Recommendations to the President.
5.1
The President intends to donate the bulk of his Presi-
dential Papers to the United States for deposit in the President's
library. The President will, however, retain certain selected
papers in his personal files. If the head of a White House
Office staff or EOP element believes that the President should
consider retaining an individual document or category of papers
as part of his personal files rather than in the Presidential
Library, he should bring this recommendation to the attention of
the President or his Counsel.
5.2
If the head of a White House Office staff or EOP
element concludes that the ongoing nature and importance of a
particular matter makes it essential that copies of selected
Presidential Papers be provided to the succeeding Administration,
he should recommend this to the President. Such recommendations
should be the exception rather than the rule.
6.
Duty of Non-disclosure, Liability to Subpoena, and
Executive Privilege.
6.1
Duty of non-disclosure. Permission for staff members
to remove copies of or obtain access to Presidential Papers is
subject to the staff member's signed agreement and continuing
duty to preserve the President's legal right as the owner of such
papers to decide whether the papers should be published or disclosed
to third parties. Publication or disclosure to third parties of
-10-
the complete or partial text of a Presidential Paper by a staff
member shall be made only after approval from the President or
his designee, pursuant to the procedures established in the
attached Departure Agreement. The President's approval will be
confined to the publication or disclosure of the Presidential
Paper and will not be conditioned on prior review or approval of
any comment the staff member desires to make in connection with
such publication or disclosure.
6.2
Subpoena and Executive Privilege. Any papers retained
by the departing President or a departing staff member, whether
Presidential or Personal, remain subject to a valid judicial,
Congressional or agency subpoena. If such a subpoena is served,
its validity may be judicially challenged on various grounds
(e.g., relevancy, specificity, or if President Carter or the
incumbent President so elects in the case of Presidential Papers,
Executive Privilege). The power to assert Executive Privilege
resides both in the former President and in the incumbent President
at the time the issue of disclosure arises. If a departing staff
member is asked to produce his copy of a Presidential Paper by a
court, Congressional committee or agency (whether by informal
request or enforceable subpoena), the staff member should consult
with President Carter and the Counsel to the incumbent President
to determine whether President Carter or the incumbent President
desires to assert Executive Privilege. As the attached Departure
Agreement provides, if Executive Privilege is asserted by President
Carter or the incumbent President, the departing staff member
-11-
should defer disclosing the information subject to the objection
until such objection has been withdrawn or judicially resolved.
7.
Departure Procedure.
7.1
Plans have been developed for the storage of Presidential
Papers both before and after January 20, 1981. Procedures for
packing files of Presidential Papers in cartons and identifying
the cartons have been developed by the National Archives Office
of Presidential Libraries, which has been responsible for the
packing, shipment and storage of Presidential Papers of previous
Presidents. Archives personnel will be assisted by the Office of
Records Management. Presidential Papers are to be collected,
packed, carefully identified and then stored in the Executive
Office Building until January 19 or 20. Thereafter, they will be
shipped under armed guard to a storage facility in Georgia.
Presidential Library archivists will be in Georgia to receive the
Presidential Papers when they arrive, to supervise their unloading
and to maintain inventory control over them. If necessary,
specific files and folders will be retrievable almost immediately.
7.2
The President, of course, retains control of these
papers throughout the inventory and cataloguing process. Access
to the papers will be controlled by the terms and conditions of
the deed of gift which will convey the President's papers to the
United States. The President intends to permit staff members who
-12-
comply with the terms of the Departure Agreement to have access
to papers they originated or received after they go into the
Presidential Library.
7.3
Representatives of the Office of Presidential Libraries
will shortly be in touch with you to initiate the inventory and
packing of the files in your office or in storage. You may reach
these archivists by calling Extention 2545 (Room 415 OEOB). You
are requested to follow their instructions for packing and storing
of records.
7.4
The volume of Presidential Papers is great and it is
important that we begin immediately to prepare the papers for
storage and ultimate transfer to the Carter Presidential Library.
We will need the cooperation of the entire staff to carry out
this procedure efficiently.
7.5
Staff members departing before being contacted by
archivists should make direct arrangements with the Office of
Records Management to pack Presidential Papers in their respective
offices for temporary storage.
8.
Exit Interviews.
8.1
We are continuing the process of exit interviews of
selected staff members by representatives of the Office of
-13-
Presidential Libraries of the National Archives and Records
Service. The information obtained from these interviews will be
of considerable value in establishing the Carter Library. The
President urges your cooperation with Archives personnel in this
process.
9.
Consulting Counsel.
9.1
As each staff member reviews his or her files, a number
of questions of interpretation will arise. All such questions
should be raised with the office of the Counsel to the President.
THE WHITE HOUSE
WASHINGTON
SUMMARY OF AGREEMENT
The attached agreement provides two benefits to staff members:
(1) it permits you to take certain Presidential Papers with you
when you leave the government, and (2) it grants you access after
January 20, 1981 to all Presidential Papers which you originated
or received at the EOP. In return for these benefits, you accept
two obligations: (1) you must obtain approval before you take
copies of these Presidential Papers with you, and (2) you must
obtain approval before publishing or disclosing to third parties
the complete or partial text of any unpublished paper of which
you have a copy or to which you have access.
These obligations are not intended to inhibit in any way
your freedom to write or talk about this Administration's policies
and practices. Indeed, in paragraph 3 the President specifically
commits that his future approval to publish selected Presidential
Papers "shall not be conditioned on reviewing or approving any
comment" which a staff member plans to make. In short, you may
write whatever you please; clearance procedures apply only to
actual quotations from Presidential Papers.
The President's goal is to assure reasonable protection for
the integrity of the Presidential decision-making process. The
frankness of such interchanges can be irreparably impaired if any
participant is free to publish what any other participant has
said or written. All of us, from the day we began working here,
have understood our obligation to protect the confidentiality of
unpublished advice given to the President and exchanged among his
advisers, and of his unpublished responses. As the Agreement
records, this obligation continues beyond January 20, 1981.
THE WHITE HOUSE
WASHINGTON
DEPARTURE AGREEMENT RELATING TO PRESIDENTIAL PAPERS
Agreement between President Jimmy Carter and
(hereinafter "Staff Member") dated
.
1. Staff Member has read and understands the attached memorandum
from Jack Watson and Lloyd Cutler dated December 15, 1980, relating
to Presidential Papers. Staff Member acknowledges that all Presi-
dential Papers are owned by President Carter; that "Presidential
Papers" are all records which are not "Personal Papers" and were
either originated or were received by the following officials and
elements of the Executive Office of the President:
White House Office
Intelligence Oversight Board
Domestic Policy Staff (except for the Drug Abuse Policy
Section
Council of Economic Advisers
National Security Adviser and Deputy National Security
Adviser, and deposited in the White House Situation Room
Chairman of the Council on Wage and Price Stability
Director of the Office of Administration
Those files of the Office of Science and Technology Policy
reflecting its advisory role to the President
2. Staff Member further acknowledges that all campaign-related
papers either originated or received by the above enumerated
officials or elements of the EOP are "Presidential Papers"; that
"Personal Papers" are all materials, including personal correspon-
dence, journals, diaries and their functional equivalents, which
were neither developed in connection with nor utilized during the
transaction of official government business; that "Papers" include
but are not limited to, all correspondence, memoranda, documents,
-2-
photographs, maps, recordings, logs, appointment books, journals,
pamphlets, documentary material and the copies of the above.
3. Staff Member hereby requests permission to make or remove
from files copies of the selected Presidential Papers described
in Attachment A. (If Staff Member does not desire to remove
copies of any such papers, Attachment A need not be filled out.)
4. Staff Member hereby requests access to Presidential Papers
to be placed in the President's Library which Staff Member originated
or received while a Staff Member, subject to the terms of the
President's deed of gift of such Papers to the United States.
5. In consideration of the President's approval to remove
copies as set forth in paragraph 3 and/or in consideration of the
President's approval of access as requested in paragraph 4, Staff
Member accepts the obligations set forth in paragraphs 6 and 7.
6. Staff Member acknowledges President Carter's sole right to
decide whether the complete or partial text of any Presidential
Paper, of which Staff Member has made or removed a copy, or to
which Staff Member has been granted access, should be disclosed
to third parties. Staff Member hereby agrees to submit for
approval on behalf of President Carter or his designee any materials
which contain the complete or partial text of any Presidential
Paper that Staff Member contemplates publishing or disclosing to
-3-
any person. Staff Member agrees not to disclose the complete or
partial text of any such paper (other than papers exempted from
the prior approval requirement under paragraph 2 of the attached
memorandum) to any person until Staff Member has received written
authorization to do so on behalf of President Carter. The President
agrees that his approval shall not be conditioned on reviewing or
approving any comment the Staff Member plans to make about such
paper and shall be limited solely to the publication or disclosure
of the complete or partial text of such paper.
7. Nothing contained herein limits a Staff Member's right to
disclose the complete or partial text of a Presidential Paper in
response to a valid and enforceable subpoena, provided that
before disclosure Staff Member gives reasonable prior notice of
the issuance of such a subpoena to President Carter and Counsel
for the incumbent President and, if either decides to object on
grounds of Executive Privilege, Staff Member agrees to defer
disclosing the material subject to the objection until such
objection has been withdrawn or judicially resolved.
8. This agreement may be enforced by proceedings for injunction
or damages or both.
Date
Name of Departing Staff Member
Date
Jimmy Carter
THE WHITE HOUSE
WASHINGTON
ATTACHMENT A
DEPARTURE AGREEMENT RELATING TO
PRESIDENTIAL PAPERS
I hereby request permission to remove from the White House
or Executive Office of the President copies of the attached
Presidential Papers. [Insert brief description and attach copies.]
Date
Name
Date
Approved on behalf of the President
THE WHITE HOUSE
WASHINGTON
December 17, 1980
MEMORANDUM FOR:
WHITE HOUSE STAFF
FROM:
AL MCDONALD
Wed
HUGH CARTER
Ae
SUBJECT:
Resignations
As part of a smooth and orderly transition, White House
staff members should be making their personal plans for
the transition.
White House staff members, not part of the permanent staff,
should submit their resignations by January 6, 1981, with
an effective date of January 20, 1981, or earlier. Senior
staff members and deputies should submit their resignations
directly to the President through the Staff Secretary. All
other staff members should submit their resignations to their
department head.
Those staff members who are part of what has historically
been the career White House Operating Units should assume
they will remain beyond January 20, 1981. After a reasonable
amount of time, the new administration will then make whatever
decisions they feel are appropriate on the continuation of
individual staff members.
Secretarial staff and other support personnel in the White
House Policy Offices who have expressed interest in staying
should anticipate remaining with the White House after
January 20. The new administration will then have an opportunity
to select those staff members whom they wish to retain.
Since our task forces and special project efforts will be phased
out, most detailees will be returning to their agencies between
January 10 and January 19, 1981.
Some staff members will be leaving prior to January 20. It is
important those leaving complete the formal check out procedures.
To do so, please contact the White House Personnel Office on
Ext. 2260. There will be further guidance provided on check out
procedures for the remainder of the staff who will be leaving on
or close to January 20.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
January 7, 1981
MEMORANDUM FOR
WHITE HOUSE STAFF
FROM:
HUGH A. CARTER, JR.
SUBJECT:
Check-out Procedures
White House staff members who will be leaving need to go
through the check-out process before departing. For the
convenience of departing staff members a central check-out
station will be set up in the Treaty Room (474), OEOB, on
Wednesday, January 14 and Thursday, January 15 from 10:00 a.m.
to 11:00 a.m. and 2:00 p.m. to 4:00 p.m. Check-out forms
will be available in the Treaty Room on the days and times
specified above or in the White House Personnel Office.
If the form is not completed properly and on time, staff
members final pay check may be delayed.
Most of the check-out processes can be completed at the one
stop, but those with unfinished business with the Credit
Union will need to stop there separately and passes will
not be turned in to the Secret Service in Room 23 until
the employees last day.
Staff members who have equipment issued by the White House
Communications Agency; i.e., TV receiver, AM/FM radio,
dictation equipment, tape recorder, pageboy and FFN's
(handi talkie), may schedule prior pickup by calling
x4040 or SIG-442. WHCA will be grateful for any assistance
you extend in scheduling pickup as early as possible. You
should also be prepared to settle any outstanding bills
with the White House Mess at check-out time.
Final pay checks will be mailed on January 30 for the pay
period ending January 24. Those staying until the 20th will
be paid for the full day. Payments for any unused annual
leave will be included in the final check. Those requesting
refunds of their retirement payment should expect to receive
the checks in four to six weeks. Staff members who will
want to continue their health benefits will have their
notification to provide to their carrier mailed to them
the week after they leave. Their coverage will continue
31 days from the date of the form.
Staff members with any specific questions, please call the
Personnel Office, x2260.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
January 7, 1981
MEMORANDUM FOR
ADMINISTRATIVE OFFICE CONTACTS
FROM:
LARRY
She
SUBJECT:
Personnel Information
We have been receiving a number of inquiries on the benefits
available to departing White House staff members. It is
apparent a number of staff members have not reviewed the
attached memo from Hugh Carter and I am sending you these
copies for you to use informing them of their benefits.
THE WHITE HOUSE
WASHINGTON
November 10, 1980
MEMORANDUM FOR THE WHITE HOUSE STAFF
FROM:
HUGH A. CARTER He
SUBJECT:
PERSONNEL INFORMATION
(1) Federal Benefits Available to White House Staff Members Who Leave
Federal Government Employment
I thought it would be helpful to review for you the benefits that White House
Staff members are entitled to when leaving employment in the Federal Government.
This section is directed specifically to White House staff members who are
political appointees and not those on the career staff. However, much of the
information contained herein applies equally to civil servants who plan to leave
the Government.
I. Civil Service Retirement Fund
Contributions to the civil service retirement fund through payroll
deductions result in a guaranteed return from the retirement fund
of an amount which is at least equal to your contribution. The
return may be in the form of annuity payments or in the form of
a lump sum refunded to you or your survivors. In order to have
a vested annuity right, you must have an aggregate of five years
of civilian Government service.
A. Less Than Five Years of Civilian Government Service
If you leave Government before completing five years of civilian
service, your annuity will not have vested. At any time that
an employee leaves Federal employment, he or she may receive
a refund of retirement deductions. Though an interest rate of
3 pércent is paid on retirement deductions during the time of
Government service, that interest is not paid after the employee
leaves Government. If an individual re-enters Government service,
he or she may place the prior deductions back in the retirement
fund upon payment of interest for the period of the deductions
and for the period of separation at a probable interest rate
of 3 percent. Re-payment of prior deductions is not necessary
for vesting, does not have to take place when an individual
starts his or her new period of Federal employment, but must
take place prior to eligibility for annuity payments and during
a period of Government service after vesting. Thus, you should
carefully consider taking a refund of your retirement deductions
when leaving the Government.
2
B.
Vested Annuity Right: Five Years of Civilian Government Service
If you have completed five years of civilian government service,
you have a vested annuity right. Most military service counts
toward retirement, but in all cases an employee must have had
at least five years of civilian service in order to be vested.
A vested annuity right means that you may retire at the fol-
lowing ages, and receive an immediate annuity, if you have at
least the amount of Federal service shown:
Earliest
Years of
Age
Service
Remarks
62
5
None
60
20
None
55
30
None
Any*
25
May retire voluntarily in major
50*
20
reduction in force situations as
determined by the Office of
Personnel Management
Any*
25
Separation must be involuntary
50*
20
without cause
Any
5
Must be totally disabled
*Annuity is reduced if under age 55.
In order to be eligible for an immediate annuity at any age
with 25 years of Federal service or at age 50 with 20 years
of Federal service, your separation from the Federal Govern-
ment "must be involuntary without cause". In the case of
White House staff, a change of Administrations is considered
involuntary separation. In the category of 25 years of
service and any age, an immediate annuity will be reduced
by 2 percent a year for every year under the age of 55.
For the category of 20 years of service and age 50, an
immediate annuity will be reduced by 2 percent a year for
every year under the age of 55. However, if you are involun-
tarily separated at age 55 or older with 20 years of Federal
service, there will be no percentage reduction in an immediate
annuity.
to
3
If you leave after completing at least five years of service,
but before you are eligible for an "immediate" annuity, you
will be entitled to a "deferred" annuity at age 62. A survivor
annuity can be provided under either an "immediate" or a
"deferred" annuity. However, if you die before age 62 under
a "deferred" annuity, no survivor annuity can be paid. Instead,
your deductions will be paid in a lump sum to your designated
beneficiary or to your heirs.
Your basic annuity is computed on the basis of your length
of service (which includes unused sick leave if you are
retiring on an immediate annuity) and "high-three" average
pay. Your "high-three" average pay is the highest average
basic pay you earned during any three consecutive years of
service.
The general annuity formula is as follows: (a) 1-1/2
percent of your "high-three" average pay times five years
of service, plus (b) 1-3/4 percent of your "high-three"
pay times years of service over five and up to ten, plus
(c) 2 percent of your "high-three" pay times years of
service over ten. Annuities may also be adjusted on the
basis of future cost-of-living increases.
If you take your deductions out of the retirement fund
when you leave the Government, you may put the deductions
back into the fund with interest at any time that you
re-enter Government service but before you are actually
eligible for annuity payments. If you leave your deduc-
tions in the retirement fund when you leave the Government
and later decide that you want a refund, a refund will
be made, provided you are not already eligible (or within
31 days of being eligible) for an annuity at the time you
apply for the refund.
II. Payment for Unused Annual Leave
A. Executive Level Appointees
Executive Level Appointees do not accrue annual leave.
However, if an executive level appointee was in Government
service, either appointive or civil service, before
receiving his or her appointment the leave time that
4
individual accrued during that period is credited to the
individual. Further, unused leave time is credited to
the salary rate that the individual was earning immediately
before he or she received the executive level appointment.
B. Other White House Staff Members
Any other White House staff member who is leaving
Government employment is paid a lump sum for unused
accrued annual leave. Unused leave generally may be
accumulated up to a maximum of 240 hours.
C.
Sick Leave
Staff members are not entitled to payment for unused
sick leave. However, unused sick leave will be
re-credited to you if you return to Government within
a three-year period. Further, for those who are
retiring on an immediate annuity, unused sick leave
may be credited to your years of service, but cannot
be utilized to reach the 20 or 25 year retirement
requirements.
III. Life Insurance
Federal life insurance is straight term insurance and your
coverage will terminate upon your leaving the Federal Government
unless you meet certain special requirements for carrying it
into retirement. However, you life insurance protection will
continue for an additional 31 days beyond the final date of
your employment. During this 31-day period, you may convert
all or any part of your life insurance to a policy issued on
a participating or non-participating basis, without having to
5
take a medical examination. This individual policy may be
purchased from any eligible insurance company you select and
will be a private transaction between you and the company.
The premium will be that applicable to your age and class
of risk and will be payable by you without contribution from
the Government.
You may continue your regular life insurance into retirement,
free, provided you retire: (1) on an immediate annuity;
(2) after at least 12 years of Federal service or for
disability; and (3) do not convert to an individual policy.
Any option life insurance (for which you pay the full cost
until you are age 65) can also be carried into retirement
provided your regular insurance continues and you have had
the optional insurance since your first opportunity to get it.
IV. Health Benefits
The Federal Employees Health Benefits Program provides various
types of hospital, surgical and medical benefits for Federal
employees. Your health insurance will continue in effect for
31 days from the end of the pay period in which you leave
Government. During that 31-day period, you are entitled to
convert to a private individual plan with the company that
provided you with Federal coverage. The company must provide
you with a rate and coverage as equivalent as possible to
that which you had while in the Federal Government, though
you will now pay the full cost. You will not be required
to take a medical examination.
If you are eligible for retirement and do retire, you may
continue your enrollment in one of the Federal plans and
the Government will continue to pay the same contribution
it pays for active employees, provided: (1) you retire on
an immediate annuity after at least 12 years of Federal
service, or for disability; and (2) you have been continuously
enrolled or covered as a family member during all of your
service (a) for the five years immediately preceding your
retirement, or (b) since your first opportunity to enroll,
or (c) from on or before December 31, 1964.
V. Unemployment Compensation
Federal workers are eligible for unemployment compensation
rights similar to those of workers in private industry. In
order to be eligible for unemployment compensation, a Federal
6
employee must have been involuntarily separated from his or her
job. As noted earlier in this memorandum, the change in Administra-
tion constitutes involuntary separation for staff members. Staff
members who intend to submit resignation letters to the President
may do so and still be considered involuntarily separated for pur-
poses of unemployment compensation.
The law of the District of Columbia will govern benefits available
to White House staff members, though you may apply, if you wish,
in your state of residence.
(2) Civil Service Eligibility for White House Staff Members
Pursuant to 5 C.F.R. 315.602, White House staff members, who are paid from
White House Office appropriations may be eligible for appointment to the
Federal competitive service on a non-competitive basis under the following
conditions:
A. The staff member must have served at least two aggregate years on
the White House and/or VP staff;
B. The White House staff member must be fully qualified for the agency
position;
C. The White House staff member must begin the job in the Federal Agency
without a single day's break in Federal service.
White House staff members who have acquired civil service status during
some period of their past Federal employment may be eligible for
non-competitive reinstatement to any position in the competitive civil
service for which they meet the experience and other requirements.
Assistance will be provided to departing staff members in seeking
other employment. Further information on the scope of this effort
will be provided later.
Staff members who are interested in further information about the above
procedures should contact the White House Personnel Office, on extension
2260.