Washington, DC

U.S. Office of Personnel Management
Classification Appeal Decision
Under section 5112 of title 5, United States Code

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Linda Kazinetz
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


07/25/2017

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Date

Introduction

The appellant’s position is currently classified as Global Outreach Specialist, GS-301-13, but he believes it should be classified at the GS-14 grade level.  The position is assigned to the Global Outreach Section, Stakeholder Engagement Office, Liaison Division, Financial Crimes Enforcement Network (FinCEN), Department of the Treasury (Treasury), in Washington, DC.  We have accepted and decided this appeal under section 5112 of title 5, United States Code (U.S.C.).

General issues

The appellant raises concerns about the classification of his position by stating the grade level is not accurate (e.g., the complexity and level of responsibility of his work have increased, there are extensive contacts with senior officials within his assigned geographic area, and his position requires “Spanish language expertise”).  He also alludes to classification inconsistency by stating the duties, responsibilities, language requirements, and interactions with high-ranking officials of positions like his are not classified the same.  By law, we must classify positions solely by comparing their duties and responsibilities to OPM position classification standards (PCS) and guidelines (5 U.S.C. 5106, 5107, and 5112).  Since comparison to the PCSs and guidelines is the exclusive method for classifying positions, we cannot compare the appellant’s duties to those of other positions, which may or may not be properly classified, as the basis for deciding this appeal.

By law, the agency must classify positions consistently with published classification standards and in accordance with the principle of equal pay for substantially equal work.  Under 5 CFR 511.612, agencies must review their own classification decisions for identical, similar, or related positions to ensure consistency with OPM certificates.  Treasury has primary responsibility for ensuring classification consistency within its subordinate bureaus.  If the appellant believes his position is classified inconsistently with another position within FinCEN, he may pursue this matter by writing to Treasury’s human resources office.  He should specify the precise organizational location, series, title, grade, and responsibilities of the position in question.  Treasury should explain to him the differences between his position and the others, or classify those positions in accordance with this appeal decision.

The appellant alludes to the amount of work he performs by stating his position description does not reflect the increased duties and responsibilities of his position.    However, volume of work cannot be considered in determining the grade of a position (see The Classifier’s Handbook, chapter 5).

Position information

The FinCEN mission is to collect and analyze financial information to combat money laundering, terrorist financing, and other financial crimes.  Foreign intelligence units (FIUs) have been established within the governments of most countries or jurisdictions to receive, analyze, and disseminate to authorized personnel financial information concerning suspected money laundering and terrorist financing activities.  FinCEN is the FIU for the United States.  The Egmont Group is an informal body of over 150 FIUs which provides a platform for the secure exchange of financial intelligence between its FIU members in combatting money laundering and terrorist financing.

The appellant recommends ways to combat financial and other crimes to the FIUs in his assigned jurisdiction, which includes countries in the Western Hemisphere, Central America, and non-U.S. jurisdictions in the Caribbean.  He keeps up-to-date on relevant events in these countries by interacting with and reading information provided by other FinCEN divisions and Government agencies; reading information found on-line, in newspapers, and on classified computer systems; and interacting with FIU and embassy staff members.  He assists Egmont Group staff with improving information sharing between FIUs and the FIUs’ ability to combat money laundering and terrorist financing activities.  He works with his assigned FIUs to identify the threats (e.g., smuggled counterfeit goods and weapons trafficking) they may encounter and assists other FinCEN divisions with providing specialized assistance in those areas.  He represents FinCEN at interagency meetings and international groups to advocate FinCEN priorities and participated in the development of “best practices” for the appropriate use and protection of FIU information shared with a third party.  He serves on a Policy Division working group to develop strategies to combat organized crime.  When he encounters an unauthorized disclosure of FinCEN information, information sharing with the FIU is suspended and he works with a special unit within the Enforcement Division and speaks to embassy officials and FIU personnel to determine how the unauthorized disclosure occurred.  After he has gathered the facts, he briefs the FinCEN Director and others, which includes providing recommendations on how or if to resume information sharing, e.g., which skills are lacking in FIU staff, and provides the training and explains the safeguards that need to be put in place to protect information in the future.  When the FinCEN Director approves a meeting between FinCEN and one of his assigned FIUs, the appellant develops a briefing memorandum, which includes the topics that should be covered in the meeting after discussing topic ideas with other division personnel and information about the FIU, e.g., organizational structure, number of staff, and key issues.  For example, the appellant may recommend providing training to FIU staff members on combatting weapons, narcotics, or counterfeit goods being smuggled across its borders due to the country’s susceptibility to these types of crimes.

The appellant’s supervisor certified to the accuracy of the duties described in the appellant’s position description (PD) of record (FIN#901).  However, the appellant stated during his interview that his PD is not completely accurate because it no longer includes a language requirement and his duties have increased.  Regardless, classification appeal regulations permit OPM to investigate or audit a position and decide an appeal on the basis of the actual duties and responsibilities currently assigned by management and performed by the employee.  Therefore, this decision is based on the work currently assigned to and performed by the appellant.

To help decide the appeal, we conducted separate telephone audits with the appellant and with his supervisor.  In reaching our classification decision, we carefully considered all of the information obtained from these interviews, as well as the written information furnished by the appellant and the agency.  After a careful review, we find the appellant’s PD meets the standards of PD adequacy for classification purposes as discussed in section III.E of the Introduction and we incorporate it by reference into our decision as it contains the major duties and responsibilities assigned to and performed by the appellant.  However, as we found the position requires Spanish language proficiency, the PD should be amended by the agency to include a foreign language requirement.

Series, title, and standard determination

The agency determined the appellant’s duties and responsibilities are consistent with the GS-301 Miscellaneous Administration and Program Series and the appellant does not disagree.  Based on careful review, we agree.  OPM has not prescribed titles for positions in this series.  Therefore, the agency may construct a title by following the guidance in the Introduction.

The GS-301 series does not contain grade-level criteria.  As instructed in the Introduction, an appropriate general classification guide or criteria in a PCS for related work should be used when there are no specific grade-level criteria for the position being classified.  Standards used for cross comparison should cover work as similar as possible to the work being performed with regard to the kind of work processes, functions, or subject matter; qualifications required to do the work; the level of difficulty and responsibility; and the combination of classification factors that have the greatest influence on the grade level.

The agency applied the grading criteria in the Administrative Analysis Grade Evaluation Guide (AAGEG), which provides criteria for nonsupervisory staff administrative analytical, planning, and evaluative work at grades GS-9 and above.  After careful review of the record, we concur with the agency’s application of the AAGEG.

The appellant asserts the grading criteria in the PCS for the Language Specialist Series, GS-1040 should have been applied to his Spanish language interpretation and translation duties. The appellant stated in the interview that he translates emails and questionnaires from Spanish to English for co-workers as needed and may interpret between the English and Spanish languages if a foreign delegation member cannot understand what is being said.  He also gives numerous speeches and has conversations with Spanish-speaking FIU personnel.  However, the GS-1040 PCS is not intended for application to positions that require use of a foreign language to communicate directly with others in that language but rather to positions that involve interpreting and translating for other people.  As instructed in the Introduction, work may be considered grade-controlling only if it occupies a significant and substantial part of the position (i.e., at least 25 percent of the time).  Because the appellant translates or interprets for others only occasionally, the GS-1040 PCS will not be applied to his Spanish language interpretation and translation duties.  Also, we note that the highest grade level that may be derived from application of the GS-1040 PCS, if the highest described factor levels are credited under all nine factors, is GS-13.  Therefore, application of this PCS would not affect the grade of the appellant’s position. ,

Grade determination

The AAGEG uses the Factor Evaluation System (FES), which employs nine factors.  Under the FES, each factor level describes the minimum characteristics needed to receive credit for the described level.  Therefore, if a position fails to meet the criteria in a factor-level description in any significant aspect, it must be credited at a lower level, unless an equally important aspect that meets a higher level balances the deficiency.  Conversely, the position may exceed those criteria in some aspects and still not be credited at a higher level.  Each factor level has a corresponding point value.  The total points assigned are converted to a grade by use of the grade conversion table in the Guide.

The appellant disputes the agency’s evaluation of Factors 2, 3, 5, 6, and 7.  We reviewed the agency’s determination for Factors 1, 4, 8, and 9, concur, and have credited the position accordingly.  Therefore, our evaluation will focus on the disputed factors.

Factor 2, Supervisory controls

This factor covers the nature and extent of direct or indirect controls exercised by the supervisor, the employee’s responsibility, and the review of completed work.

At Level 2-4, within a framework of priorities, funding, and overall project objectives, the employee and supervisor develop a mutually acceptable project plan which typically includes identification of the work to be done, the scope of the project, and deadlines for its completion.  Within the parameters of the approved project plan, the employee is responsible for planning and organizing the study, estimating costs, coordinating with staff and line management, and conducting all phases of the project.  This frequently involves the definitive interpretation of regulations and study procedures, and the initial application of new methods.  The employee informs the supervisor of potential controversies or problems with widespread impact.  Completed work is reviewed internally by the supervisor for compatibility with organizational goals and effectiveness in achieving objectives.

At Level 2-5, as a recognized authority in the analysis and evaluation of programs and issues, the employee is subject only to administrative and policy direction concerning overall project priorities and objectives.  The employee is typically delegated complete responsibility and authority to plan, schedule, and carry out major projects concerned with the analysis and evaluation of programs.  The employee typically exercises discretion in determining whether to broaden or narrow the scope of projects or studies.  Analyses and recommendations developed by the employee are normally reviewed by management officials only for potential influence on broad agency policy objectives and program goals.  Findings and recommendations are normally accepted without significant change.

The appellant’s supervisory controls meet Level 2-4.  Comparable to this level, the appellant and his supervisor discuss his work projects as needed, which include the overall objectives, progress made, and the FinCEN divisions or Government agencies that can provide assistance.  The appellant informs his supervisor of potential problems and his work products are reviewed for compatibility with FinCEN’s goals and effectiveness in achieving objectives.  In contrast, Level 2-5 is predicated on a significant degree of program or project management authority, where the employee has the authority to initiate major projects and to determine the scope of those projects.  These types of program responsibilities provide the context for the degree of supervisory controls described at this level, i.e., administrative and policy direction concerning overall priorities and objectives. The appellant seeks to credit his position at Level 2-5, providing in his appeal request to OPM what he states are examples of this level, including providing assistance to approximately 50 FIUs, his level of independence in performing his work, and his being considered an “expert” in his field.  However, although the appellant may operate independently in carrying out his work, he does not have an equivalent level of authority as described at Level 2-5.  His work is not self-initiated as would be expected at Level 2-5, nor does he have the latitude to initiate major projects or determine the scope of those projects.

This factor is evaluated at Level 2-4 and 450 points are credited.

Factor 3, Guidelines

This factor covers the nature of guidelines and the judgment needed to apply them.

At Level 3-4, guidelines consist of general administrative policies and management and organizational theories which require considerable adaptation and/or interpretation for application to issues and problems studied.  At this level, administrative policies and precedent studies provide a basic outline of the results desired, but do not go into detail as to the methods used to accomplish the project.  Administrative guidelines usually cover program goals and objectives of the employing organization, such as agency controls on size of workforce, productivity targets, and similar objectives.  Within the context of broad regulatory guidelines, the employee may refine or develop more specific guidelines such as implementing regulations or methods for the measurement and improvement of effectiveness and productivity in the administration of operating programs.

At Level 3-5, guidelines consist of basic administrative policy statements concerning the issue or problem being studied, and may include reference to pertinent legislative history, related court decisions, State and local laws, or policy initiatives of agency management.  The employee uses judgment and discretion in determining intent, and in interpreting and revising existing policy and regulatory guidance for use by others within or outside the employing organization (e.g., other analysts, line managers, or contractors).  Some employees review proposed legislation or regulations which would significantly change the basic character of agency programs, the way the agency conducts its business with the public or with private industry, or which modify important inter-agency relationships.  Other employees develop study formats for use by others on a project team or at subordinate echelons in the organization.  At this level, the employees are recognized as experts in the development and/or interpretation of guidance on program planning and evaluation in their area of specialization (e.g., contingency/emergency planning, workforce management, position management, work measurement, or productivity improvement).

The appellant’s guidelines meet Level 3-4.  Similar to this level, he applies broad guidelines contained in law, agency regulations, FinCEN’s strategic plan, international standards and guidelines, and best practices on the use and protection of information.  He identifies specific problems and issues, and then chooses applicable methods and techniques to develop recommendations for encouraging FIU implementation of anti-money laundering and counter-terrorism financing programs, increasing information sharing between FIUs, and providing or arranging for training in subjects in which FIU staff is deficient.  Comparable to Level 3-4, the appellant applies and adapts the information disclosure laws of a country that has released FinCEN information without prior authorization to determine the precautions the FIU should take to safeguard information or if revised/new laws need to be recommended.  For example, FinCEN is sponsoring an FIU within the appellant’s jurisdiction for admission to the Egmont Group.  Within the group’s broad standards and guidelines, it states member FIUs must be independent of external influences.  The appellant analyzed the country’s laws and procedures and recommended the FIU lobby for passage of new laws providing the FIU such powers as the right to sign international agreements.  Although the appellant’s guidelines are not always applicable to his work, they are more specific and detailed (e.g., identifying who is impacted, how they are impacted, and the actions to be taken) than the general statements of intent described at Level 3-5.

The appellant seeks to credit his position at Level 3-5, stating in part:

[The appellant] is a recognized authority in his assigned area of responsibility…in the review of proposed legislation or regulations requiring extensive Spanish language translation, interpretation and subject matter expertise; advise [sic] provided to Egmont member countries on legislative and regulatory activities, operational engagements, planning and funding strategies, supporting FIUs at interagency or international working groups…participated in the development and adoption of a “set of Principles” and a “ Set of Best Practices” for the appropriate use and protection of FIU information when shared with third parties.  He also developed and implemented a set of Standard Operating Procedures (SOPs) on how to handle unauthorized disclosure of FinCEN information in a foreign jurisdiction…

Contrary to the appellant’s rationale, his guidelines are not limited to basic administrative policy statements (i.e., a general statement of intent rather than an outline of policies and procedures) such as legislative history, related court decisions, State and local laws, or policy initiatives of agency management.  For example, comparable to Level 3-4, the appellant provides procedural guidance to FIU staff on how to protect FinCEN information and participates in a Policy Division working group developing strategies to combat organized crime.  The appellant reviews proposed legislation or regulations affecting how the FIUs operate but, unlike Level 3-5, they do not affect the relationship between FinCEN and the FIUs.  Thus, the appellant’s work does not significantly change the basic character of agency programs, how it conducts business with the public or with private industry, or important inter-agency relationships as described at Level 3-5.

This factor is evaluated at Level 3-4 and 450 points are credited.

Factor 5, Scope and Effect

This factor covers the relationship between the nature of the work; i.e., the purpose, breadth, and depth of the assignments, and the effect of work products or services both within and outside the organization.

At Level 5-5, the purpose of work is to analyze and evaluate major administrative aspects of substantive, mission-oriented programs.  This may involve, for example, developing long-range program plans, goals, objectives, and milestones, or evaluating the effectiveness of programs conducted throughout a bureau or service of an independent agency, a regional structure of equivalent scope, or a large complex multi-mission field activity.  Work involves identifying and developing ways to resolve problems or cope with issues directly affecting the accomplishment of principal goals and objectives (e.g., the delivery of program benefits or services).  Work products at Level 5-5 typically include complete decision packages, staff studies, and recommendations which upon implementation would significantly change major administrative aspects of missions and programs, or substantially affect the quality and quantity of benefits and services provided to the agency’s clients.

At Level 5-6, the purpose of the work is to perform very broad and extensive study assignments related to government programs which are of significant interest to the public and Congress.  The programs studied typically cut across or strongly influence a number of agencies.  In many cases, the study assignments are of major importance to each of several departments and agencies, and because legislation may be conflicting or unclear, there may be disagreements about which department or agency has primary responsibility for significant aspects of the functions studied.  Recommendations resulting from study assignments involve highly significant programs or policy matters and may have an impact on several departments or agencies.  Analytical studies often lead to recommendations for the realignment of functional responsibilities, the expansion or contraction of key governmental functions, or other equally significant changes in the future direction of programs.

The appellant’s agency assigned Level 5-4, but the interviews show the scope and effect of the appellant’s position meet Level 5-5.  His work involves assisting his assigned FIUs with effectively combatting financial crimes.  Similar to Level 5-5, this work requires analyzing and evaluating mission-oriented programs to develop long-range program plans, goals, objectives, and milestones.  The appellant’s work involves resolving immediate problems (e.g., by providing or arranging for training in subjects FIU staff are deficient), as well as developing long-range plans to meet the goals of his assigned FIUs.  For example, the appellant recommends relocating an FIU that is placed in the Office of the President so the FIU is independent of external influences; coordinates meetings between FIU and FinCEN personnel, e.g., to discuss how FinCEN can assist in combatting financial and other illicit crimes; discusses with FIU staff the Financial Action Task Forces’ standards for combatting money laundering and terrorist financing to determine if laws are in place to battle these issues; and participates in a working group to develop strategies to combat organized crime.  Comparable to Level 5-5, the appellant’s work involves identifying and developing ways to resolve problems and issues directly affecting the accomplishment of the principal goals and objectives of his assigned FIUs in combatting illicit crimes.  In contrast, Level 5-6 covers positions with broader program responsibilities and impact than the appellant’s.  This level anticipates work of significant interest to the public and Congress and developing recommendations involving highly significant programs or policy matters, which may impact several departments or agencies.  Instead, the appellant’s work is mainly concerned with the issues and conditions directly impacting his assigned FIUs.

This factor is evaluated at Level 5-5 and 325 points are credited.

Factors 6 and 7, Personal contacts and Purpose of contacts

Personal contacts include face-to-face and telephone contacts with persons not in the supervisory chain.  Levels described under this factor are based on what is required to make the initial contact, the difficulty of communicating with those contacted, and the setting in which the contact takes place.  These factors are interdependent.  The same contacts selected for crediting Factor 6 must be used to evaluate Factor 7.  The appropriate level for personal contacts and the corresponding level for purpose of contacts are determined by applying the point assignment chart for Factors 6 and 7.

Under Persons Contacted, Level 3 includes persons outside the agency such as consultants, contractors, or business executives, and contacts with the head of the employing agency or program officials several managerial levels removed from the employee.  Level 4 includes high-ranking officials such as other agency heads, top congressional staff officials, state executive or legislative leaders, mayors of major cities, or executives of comparable private sector organizations.

The appellant seeks to credit his position at Level 4, stating in his appeal request to OPM his contacts include high-level FIU officials, U.S. diplomats, the FinCEN Director, Egmont Group officials, and intergovernmental organization representatives, which meet Level 3.  However, his contacts do not include agency heads or comparable private sector executives as required at Level 4.

Under Purpose of Contacts, Level c involves influencing managers or other officials to accept and implement findings and recommendations where resistance may be encountered due to such issues as organizational conflict, competing objectives, or resource problems.  Level d involves justifying or settling matters involving significant or controversial issues, e.g., recommendations affecting major programs, dealing with substantial expenditures, or significantly changing the nature and scope of organizations.

The appellant seeks to credit his position at Level d, describing his external contacts as involving justifying, defending, negotiating, or settling matters.  However, the interviews with the appellant and his supervisor show he develops his recommendations based on FinCEN’s position on the issue(s).  Level d implies a level of authority associated with the contacts (“justifying or settling matters”), combined with a high degree of controversy or significance surrounding the recommendations.  On issues of this magnitude, the appellant would not have the authority to independently decide and defend the position of the bureau to outside parties.

These factors are evaluated at Level 3-c and 180 points are assigned.

Summary

 

Factor	Level	Points
1.  Knowledge required by the position	1-8	1550
2.  Supervisory controls	2-4	450
3.  Guidelines	3-4	450
4.  Complexity	4-5	325
5.  Scope and effect	5-5	325
6/7. Personal contacts/Purpose of contacts	3-c	180
8.  Physical demands	8-1	5
9.  Work environment	9-1	5
Total Points		3290

The total of 3290 points falls within the GS-13 point range (3155-3600) on the grade conversion table in the AAGEG.  Therefore, the appellant’s position is properly graded at the GS-13 level.

Decision

The appellant’s position is properly classified as GS-301-13, with the title at the discretion of the agency.

 

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