In addition to (or instead of) Senior Executive Service (SES) positions, some agencies have authority for other kinds of positions above GS-15, such as Executive Schedule (EX) positions, senior- level (SL) positions, scientific and professional (ST) positions, or positions in other executive services, such as the Defense Intelligence Senior Executive Service, Senior Foreign Service, or a military or other uniformed service.

Executive resources management is making the most effective and efficient use of the employees at the top levels of the agency to ensure the success of public programs. The SES is designed to give greater authority to agencies to manage their executive resources and hold executives accountable for individual and organizational performance. Although OPM is responsible for leadership and oversight of the SES and other personnel systems Governmentwide, each agency head makes the decisions that directly impact agency staff and program results: to hire, develop, assign work, evaluate performance, and compensate the agency’s executives. The agency head also decides how best to use the executive spaces OPM allocates to the agency. How well each agency manages its executive resources determines the ability to accomplish its mission and to improve Government, both through the quality of the executives it attracts and retains and the teamwork that good management creates.

Effective executive resources management integrates decisions about executive position management, staffing, training and development, performance management, and compensation. Efficient performance of these functions involves partnership between OPM, agency heads, Executive Resources Boards (ERBs), and senior executives.

Executive Resources Boards

Agencies are required by 5 U.S.C. 3393(b) to establish one or more ERBs to conduct the merit staffing process for career entry into the SES. To be most effective, however, the ERB should have a much broader charter. Ideally, the ERB would have general oversight of the management of the agency’s executive resources and function as an advisor to the agency head in executive personnel planning, utilization of executive resources, executive development, and evaluation of executive personnel programs. Some level of ERB involvement in setting pay policy is also desirable. The ERB established for the SES may also be used to oversee other agency personnel programs for positions above GS-15, such as the senior-level (SL) and scientific and professional (ST) pay system. ERB’s also are required to oversee agency SES Candidate Development Programs (5 CFR 412.302(a)) and continuing development of executives (5 CFR 412.401(a)(4)).

Composition and Structure

Per 5 U.S.C. 3393(b), each agency shall establish one or more executive resources boards, as appropriate, the members of which shall be appointed by the head of the agency from among employees (see 5 U.S.C. 2105) of the agency or commissioned officers in the uniformed services (Army, Navy, Air Force, Marine Corps, Coast Guard, the commissioned corps of the Public Health Service, or the commissioned corps of the National Oceanic and Atmospheric Administration) serving on active duty in the agency. The operational nature of ERB responsibilities may be best served by an agile, responsive structure of modest size.

The ERB performs an important advisory and policymaking role on behalf of the agency head in guiding the executive personnel system of the agency. It should be structured to be agile and responsive to evolving agency needs and its members should be individuals in whom the agency head has great confidence and trust. Since the ERB exercises statutory responsibilities and must consist of agency employees, the head of a very small agency may need to appoint one or more GS employees. It is appropriate for the human resources director to support the ERB in a staff capacity, or even as Executive Secretary.

ERB functions and responsibilities are an integral part of agency management and decision- making. Therefore, it is not appropriate for experts or consultants to serve as ERB members. The nature of the work of these positions, as defined in 5 CFR part 304, precludes experts and consultants from performing the operational work of the agency. Additionally, an individual who is on an interagency detail cannot serve as an ERB member (voting or non-voting) in the agency to which the individual is detailed.

Responsibilities

Merit staffing. ERBs are required by 5 U.S.C. 3393(b) to conduct the merit staffing process for career appointments in the SES, including reviewing the executive qualifications of candidates for career appointment and making written recommendations to the appointing authority. [See Chapter 2 for information on the merit staffing process.] As required by 5 CFR 412.302, ERBs are also responsible for ensuring agency SES candidate development programs follow merit staffing provisions.

Individual development. ERB’s are required by 5 CFR 412.302(a) to oversee an agency’s SES Candidate Development Program (SESCDP). ERBs are also required by 5 CFR 412.302(c)(1) to approve development plans for each candidate participating in the agency’s SESCDP. The ERBs are also responsible for annual review and revision (as appropriate) of Executive Development Plans for current executives (5 CFR 412.401(a)(4)). [See Chapter 7 for information on executive and candidate development.] Additionally, ERBs are required by 5 CFR 362.405 to evaluate and certify, as appropriate, each Presidential Management Fellow under its jurisdiction.

Pay Setting and Performance Management. Some level of ERB involvement in the execution of the agency’s SES Pay Policy may be desirable, to include recommendations on pay setting/adjustments or performance-based awards ranges.

SL/ST Management. The ERB established for the SES also may be used to oversee agency personnel matters for other senior positions, such as the senior-level (SL) and scientific and professional (ST) pay systems.

Other

ERB Subcommittees. The ERB can create subordinate bodies or subcommittees to deal with some of its responsibilities depending on agency size and anticipated workloads, e.g., SES staffing, pay and performance management, workforce and succession planning (space allocations, reassignments, CDPs). The responsibility remains with the ERB; however, it can create substructures to facilitate issue development and decision making.

Performance Review Board. The agency should clearly delineate the relationship and separation of authorities between the ERB and PRB with respect to performance management. For example, the ERB may take responsibility for oversight of the performance management system, e.g., establishing cycles, standards, and administrative systems, while the PRB would be responsible for evaluating individual performance and making recommendations on awards and other recognition.

Executive Resources Planning and Evaluation 

Agencies are required to carefully consider how to make the best use of their resources, including those at the executive and management levels, to ensure public programs produce high-quality, cost-effective results for the American people.

Planning

The executive planning process should begin with a strategic analysis of current and future executive resource needs:

• identify current and anticipated vacancies;
• analyze the organization to eliminate unnecessary management layers;
• review each vacant and occupied position in terms of agency mission, strategic plans and budget projections, and identify positions that should be abolished or restructured to reflect new priorities and goals;
• analyze positions to determine if individual positions are classifiable above the GS-15 level and if they should be SES, SL, or ST positions; and
• prioritize supportable SES/SL/ST positions. 

In addition, such a comprehensive analysis of current and future executive personnel needs would provide an informed basis for an agency’s biennial allocations request to OPM (see upcoming section on allocating spaces).

Evaluation

Agencies should monitor SES resource management on a continuous basis to ensure that SES positions are used to respond most effectively to changing conditions. Periodic evaluations, especially those in advance of the biennial allocation request to OPM, should take the following into account:

• the extent to which the organization has successfully accomplished its mission objectives;
• changes in program priorities and emphasis, as reflected in budget or legislative developments, the vacancy attrition rate, or other indicators;
• the number of vacant SES positions in the organization, and the length of time they have been vacant; and
• changes in the duties and responsibilities of individual SES positions that could affect the extent to which the positions continue to satisfy SES criteria.

It is good management to reassess and reprioritize SES positions in light of the agency’s current program requirements, either on an ad hoc basis (as they become vacant), or as part of a comprehensive review.

Allocating Spaces

OPM allocates spaces to the head of the agency on a biennial cycle as specified in law. Flexibility is built into the allocation process to allow for necessary adjustments; however, the extent of such adjustments is limited. Generally, agencies are expected to manage their executive resource needs within the levels set during the biennial allocation process. This includes reprogramming existing resources to meet the agency’s highest priority requirements, as well as maintaining sufficient flexibility to meet unanticipated needs. When it is not possible to accommodate needs in a timely manner, OPM will work with the agency to identify acceptable alternatives, such as the use of a temporary allocation(s).

Biennial Allocation

Under 5 U.S.C. 3133, agencies are required during each even-numbered calendar year to examine their SES position needs and submit a written request to OPM for a specific number of SES position allocations for the 2 succeeding fiscal years, e.g., a request in December 2018, which is in Fiscal Year 2019, would be for the FY 2020/2021 biennial cycle. Although not required to do so by law, OPM also invites agencies to use this opportunity to assess Senior-level (SL) or Scientific and Professional (ST) requirements and request allocation adjustments, if needed. OPM issues a memo calling for agencies to submit detailed justification of their allocation requests. This justification may be required from all agencies or from a subset of agencies, e.g., only those requesting an increase. The initial call memo to agencies will include a template that must be completed and submitted as record to OPM to SERS@opm.gov by the required deadline of the notice. (A memo dated May 6, 2019, was sent to all Heads of Executive Departments, Agencies and Inspectors General communicating OPM’s new streamlined process beginning with the FY 2020-2021 Biennial Cycle).

OPM’s streamlined process focuses on the specific requirement resulting in the need for additional allocations, rather than a detailed analysis of the proposed position. Additionally, OPM will complete a comprehensive review of the agency’s vacant allocations. This reduces the amount of information agencies are required to provide OPM, while focusing on the strategic requirement for increasing executive allocations.

Beginning with the FY 2020-2021 Biennial Cycle, OPM’s streamlined process incorporates the following changes:

• Simplifying the templates;
• Eliminating the requirement for agencies to submit written correspondence if existing allocations are not changing;
• Eliminating the requirement to provide position descriptions (position titles will be required); and
• Eliminating the requirement to prioritize positions. 

OPM expects agencies to be judicious in making requests for additional allocations. Agency biennial reviews should include a rigorous evaluation to ensure effective utilization of all existing allocations. Accordingly, priority will be given to requests based upon new or changed legislation, or unforeseen exigent needs. Additionally, agencies will be required to address vacancy rates at or exceeding 8%.

Agency Justifications for Requested Increases. OPM’s call letters for agency justifications to support their biennial requests will require an agency to submit a comprehensive, agency-wide assessment of its executive resources needs, covering existing (established) positions as well as projected positions for which any additional resources are sought. While specific requirements may vary from cycle to cycle, the following generally summarizes the information required.

Agency submissions must identify the specific positions (by title and organizational location). Position Descriptions (PD), with the certified OF8 form, are encouraged but not required. However, they may assist in OPM’s review process by providing additional information.

Biennial packages will be submitted to the OMB MAX system where a model for Biennial has been developed.

• Describe the specific circumstances giving rise to the need (e.g., legislative mandate or presidential directive; new agency mission or expanded agency program; succession planning requirements; issues raised by OMB).
• Identify source of funding or other resources to support the new/expanded initiative(s) if resources are being reprogrammed within the agency, identify those functions from which resources are being diverted.
• Specify the results/outcome expected from each additional position. For example, an increase in casework does not necessarily dictate a need for additional executive slots; if an additional position is requested, what result will it bring to the management of the program? How will it impact the administration’s mission/goals?

Agency submissions must prioritize all current (i.e., established) and proposed positions, whether vacant or encumbered, in terms of their relative contributions to the agency’s mission requirements.

• Priorities must be identified in terms of agency-wide goals and objectives. While an executive may believe that a particular position (e.g., a deputy or assistant) is critical to his or her specific program area, the position may not rank as high in relation to the agency’s mission.
• Positions in the lowest priority category will be those which present opportunities for reprogramming of executive resources – i.e., positions that may be filled at a lower level or abolished, as turnover occurs, or positions from which the current incumbent may be reassigned if an appropriate opportunity is identified. Provide an analysis (including estimated time frames) of how the agency can best meet its highest priority needs by redirecting resources from lower priority areas.
• Address current position vacancies and the status of those vacancies (i.e., in X stage of recruitment).

 OPM may consider other information in addition to that provided by the agency. Other factors may include:

• Changes in functions or programs;
• Overall agency funding levels or personnel ceilings;
• Number of vacancies and length of time positions remain vacant;
• Extent to which individual positions do not appear to meet SES criteria;
• Designation of SES position (i.e., Career Reserved or General);
• Consultation with OMB

Agencies’ Biennial submissions must be uploaded to the OMB MAX (www.max.gov) system where a module for the current Biennial cycle is available.

OPM Action. After completing its review of agency justifications and consulting with the Office of Management and Budget (OMB) as required by law, OPM issues each agency its position allocation for the upcoming 2 years. It may include SES, SL and/or ST positions as determined by the review. This is the biennial allocation.

Out-of-Cycle Allocations

Agencies are expected to manage their executive resource needs within the levels set during the biennial allocation process. OPM is authorized by 5 U.S.C. 3133(d) to adjust an agency’s allocation up or down at any time during the biennial cycle. This may be done based upon an agency’s written request or at OPM’s initiative. OPM will work with the agency to identify acceptable alternatives, as it is in an agency’s best interest to minimize the number of spaces deployed to support established, vacant SES positions. By law, the result of the upward adjustments Governmentwide may not exceed 105 percent of the total number of SES positions initially authorized by OPM, through the Biennial process, for each fiscal year. Downward adjustments may become necessary for such reasons as unanticipated changes in budgets or programs, or a reduction-in-force affecting SES members. Requests are submitted to OPM at SERS@opm.gov.

Please include the following information in your request for an Out-of-Cycle Allocation:

• Identify why the request is submitted outside the regular biennial cycle. Requests submitted outside the regular biennial cycle should be rare. If the number of filled positions is less than the number of allocated spaces, explain why the available allocated spaces cannot be used (e.g., selections under QRB review; anticipate filling positions within 30 days).
• Identify specific positions and provide position descriptions for each. 
• Describe the particular circumstances giving rise to the need (e.g., legislative mandate or presidential directive; new agency mission or expanded agency program; succession planning requirements; or issues raised by OMB).
• Specify the results expected from each additional position. For example, an increase in quantity of work does not necessarily dictate a need for additional executive slots; if an additional position is requested, what result will it bring to the management of the program? How will it impact the administration’s goals?
• For each type of allocation requested (i.e., SES, SL, or ST), specify the priority of all established and proposed positions, whether vacant or encumbered, in terms of their relative contributions to the agency’s mission requirements.
• Provide an organizational chart(s) and annotate the location of each requested position on the chart(s).

Agencies should consider approaches whereby unused allocations from other areas (i.e., SES, SL and/or ST) may be officially assigned to a position until a staffing action can be completed.

Agencies cannot convert one type of allocation for another without OPM approval. Example: An agency cannot convert an available SL allocation to an SES allocation to support an SES position. The agency must submit a written request to OPM to have its allocations adjusted.

Temporary Allocations (including Phased Retirement)

OPM may grant a temporary allocation to support an agency sending an executive or senior professional on a short-term assignment, e.g., an interagency detail, during which the individual will occupy an agency space even though he or she is not available for agency work. The temporary space “compensates” an agency for the fact that the executive continues to encumber an agency space while on detail. Examples of short-term assignments include certain intra- agency details, executive development assignments, Intergovernmental Personnel Act (IPA) assignments, short-term transfers that involve a reemployment right (e.g., to an international organization), and short-term reassignments, if the position to which the individual would be reassigned cannot be established within the agency’s current allocation. Requests for a temporary allocation should be submitted in writing to OPM’s Senior Executive Resources Services. Please include the following information in your request for a temporary allocation to support the new or continuing development of an SES, SL or ST employee:

• Provide the individual’s name, describe the assignment (developmental, IPA, short-term or Limited Term). Identify the position to which the individual will be assigned; the type of assignment, (e.g., detail, transfer, reassignment), including any applicable statutory or regulatory authority, such as the Intergovernmental Personnel Act or Detail or Transfer to International Organizations; the agency, organizational component and location; and the planned duration of the assignment.
• Identify the challenges or development opportunities that the assignment will provide that he individual has not had in previous positions.
• Describe the agency's future plans for the individual, presuming the anticipated benefits of the developmental assignments are fully realized. What position(s) will this assignment prepare the individual to assume?

Agencies should monitor the deployment of their SES resources on a continuous basis to ensure that SES positions are used to respond most effectively to changing agency conditions. As discussed under Allocating Spaces, an SES allocation is required to establish and fill an SES position as long as the position is occupied; a space is not required for a vacant SES position. When an SES position becomes vacant, the allocation may be “floated” and used to establish and fill a different SES position, or it may be returned to a “pool” of unused agency SES allocations and redeployed as needed to support future SES staffing actions, including reassignment of an executive entering phased retirement to an appropriate SES position.

Generally, agencies are expected to manage within their existing executive allocations to support phased retirement. When this is no longer possible, an agency may request an additional temporary SES allocation to support an executive's phased retirement. SES allocations approved for this purpose will revert to OPM when the phased retirement ends.

Requests for such temporary allocations should be signed by the agency head (or designee in the agency head’s absence) and must include and address the following factors:

• The agency’s current Phased Retirement Plan and Policy (including identification and implementation of time-limited or open-ended plans);
• Analysis of space utilization, including numbers of SES allocations committed to encumbered SES positions, pending SES appointments, advertised SES positions, pending SES recruitments, and any other circumstance deemed to prevent committing an unused allocation for a phased retirement;
• Expected duration of the senior executive's phased retirement;
• Participating individual's name, current position, organizational component, location, and current appointment type;
• Proposed title, organizational component, location and position description of the position the individual will occupy during phased retirement; and
• The Phased Employment/Phased Retirement Status Elections Form (SF3116) signed by all parties.

SES Career Reserved Minimum

CSRA requires OPM to establish a minimum number of SES Career Reserved positions that must be maintained Governmentwide at all times. 5 U.S.C. 3133(e)(1) requires that this number shall reflect the number of positions authorized to be filled through competitive civil service examination as of October 1978 (the day before the enactment of CSRA in 1978), that is, 3,571. It also authorizes the Director of OPM to subsequently establish by rule, as appropriate, a minimum number of Career Reserved positions that is higher than the 3,571 positions originally established in July 1979. 5 U.S.C. 3133(e)(2) permits the Director to designate, by rule, a number of Career Reserved positions that is fewer than the original 3,571.

To ensure the Governmentwide figure is maintained, OPM establishes a minimum number (“floor”) of Career Reserved positions for each agency. An agency must maintain a number of established CR positions equal to or exceeding its CR floor at all times (agency CR numbers can be obtained from ESCS). For this purpose, an established CR position counts whether it is vacant or filled. An agency may cancel CR positions and establish new positions without OPM approval, as long as the agency’s numerical floor is maintained. However, changes in the designation of an established position (e.g., from career reserved to general) require prior approval from OPM. [5 CFR 214.403] See Changing Position Designations, under SES Position Designations and Appointment Authorities, later in this chapter. Changes in the floor must also be approved by OPM [5 CFR 214.402(e)].

Establishing SES Positions

Statue: 5 U.S.C. 3132(a)(2)

Regulations: 5 CFR 214.202

Each agency determines, within the allocation authorized by OPM, which of its positions will be in the SES. These positions must meet both the SES functional and grade level criteria prescribed in 5 U.S.C. 3132(a)(2) and must be within the allocation authorized by OPM. The agency does not need a new allocation from OPM as long as there is an existing space. A position must be formally cancelled in ESCS (either permanently or temporarily) when a space allocation is withdrawn from the position for use elsewhere. [See Allocating Spaces earlier in this chapter.] Agencies are required to report changes affecting positions (establishment, abolishment) or appointees (incumbency, vacancy) by updating incumbent or position records in ESCS.

SES Criteria

Grade level criteria. The position must be classifiable above GS-15 or equivalent, based on the level of duties, responsibilities, and qualifications required by the job.

Functional criteria. A position meets the SES functional criteria if its incumbent engages in any of the following activities:

• directs the work of an organizational unit;
• is held accountable for the success of one or more specific programs or projects;
• monitors progress toward organizational goals and periodically evaluates and makes appropriate adjustments to such goals;
• supervises the work of employees (other than personal assistants); or
• otherwise exercises important policy-making, policy-determining, or other executive functions. 

Applying the SES Criteria

The SES is intended to be a corps of executives, not technical experts. As stated in 5 U.S.C. 3131, “It is the purpose of this subchapter to establish a Senior Executive Service to ensure that the executive management of the Government of the United States is responsive to the needs, policies, and goals of the Nation and otherwise is of the highest quality.” The following guidelines interpret the section 3132(a)(2) criteria in the context of the SES as an executive corps.

Determining if a position meets the criteria for placement in the SES should not be a mechanical process. Rather, the agency must evaluate the position as a whole and determine if it functions as part of the management team, or as an independent advisor or technical expert. This evaluation should consider the position’s duties, responsibilities, and qualifications. In borderline cases, particular attention should be paid to the position’s qualifications and the impact these qualifications have on the position’s duties and responsibilities.

For example, a staff assistant position should be placed in the SES if executive qualifications are critical to successful performance of the position’s duties and responsibilities.

Directing the work of an organizational unit includes the responsibility to—

• assess policy, program, and project feasibility;
• determine program goals and develop implementation plans;
• design an organizational structure to promote effective work accomplishment; and
• set effectiveness, efficiency, productivity, and management/internal control standards.

At the SES level, accountability for the success of a program or project encompasses responsibility for the full range of factors that affect program and project accomplishment. This includes:

• obtaining the resources necessary to accomplish the program or project and assume responsibility for their effective use; and
• dealing with key officials from within and/or outside the agency to gain understanding and support for the program or project.

Responsibility for monitoring progress toward organizational goals and making appropriate adjustments to such goals is an extension of an individual’s responsibility for directing the work of an organization. It includes:

• monitoring work status through formal and informal means to evaluate progress toward objectives;
• assessing overall effectiveness, efficiency, and productivity of the organization; and
• identifying, diagnosing, and consulting on problem areas related to implementation and goal achievement and making decisions on alternative courses of action.

A position should be credited with supervising the work of employees if it requires accomplishing work through combined technical and administrative direction of employees other than personal assistants. For example, a position that meets the lowest level of Factor 3 in the General Schedule Supervisory Guide based on supervision of non-contractor personnel should receive this credit.

A position with policy-making or policy-determining functions would be expected to include responsibility for:

• reviewing staff recommendations of policies developed to affect the organization’s mission;
• considering political, social, economic, technical, and administrative factors with potential impact on the recommended policies; and
• approving the policies or formally recommending action to the approving official.

As long as a position satisfies both the grade level and functional criteria, it must be established in the SES.

Analyzing Positions

Before establishing a position in the SES, agencies should make a systematic and documented analysis of the position to determine that it meets both the functional and grade level criteria for SES. The following analytical methods are suggested:

Comparison with existing SES positions. A key element in the analysis normally entails comparing the proposed position against one or more positions, within or outside the organization that satisfies both the functional and executive criteria for inclusion in the SES. The positions used should be comparable to the subject position in terms of function, role (e.g., compare managers to managers and staff advisers to staff advisers), and rationale for SES designation (e.g., don’t compare positions where technical considerations are paramount with positions where size and complexity of the organization supervised are paramount).

Agencies should analyze the similarities to and differences from the subject position in terms of factors such as:

• organizational characteristics, including the level in the agency where the position is located, and the size and complexity of the organization (including subordinate organizational units);
• functional and program responsibilities, including geographic scope (e.g., local, regional, national, or international), budget size, and impact on accomplishment of the agency’s and organization’s mission;
• degree and scope of executive, managerial, and/or supervisory authorities and responsibilities;
• level and purpose of contacts (contacts should be essential for successful performance of the work, be a recurring requirement of the position, and have a demonstrable impact on the difficulty and responsibility of the position); and
• nature of the staff, e.g., staff size (including staff in subordinate organizational units) and grade levels of individuals reporting directly to the position.

Comparison with classification standards and guides. This method can be used where a standard or guide provides valid comparison criteria.

Guides include the General Schedule Supervisory Guide and the Research Grade Evaluation Guide. Note that even if a position appears to exceed the level in a GS-15 classification standard, that in itself does not necessarily mean the position is classifiable above GS-15 and should be placed in the SES, since standards generally provide a minimum threshold for classification at a particular grade level. A comparison with existing SES positions may still be needed.

Documentation. To document the analysis, agencies should prepare a position description and an evaluation statement. These documents should be retained at least for the life of the position.

The position description should set forth the duties and responsibilities of the position in sufficient detail to support the evaluation statement, the qualifications standard, and the performance standards.

The evaluation statement should support the position’s placement in the SES in terms of both the SES functional and grade level criteria. Evaluation statements will vary in length and detail; for example, the statement for a position supervising a number of SES subordinates can be brief and straightforward. On the other hand, positions near the borderline in terms of function or grade level will require more critical and detailed analysis. The statement should avoid generalizations and be as specific as possible. Agencies should keep the following factors in mind when preparing the statement:

• If an existing position (e.g., GS-15) is being placed in the SES, the agency should identify specific growth factors (e.g., budget, programs).
• If a new position is being established, the source of the duties should be identified. If the position places an additional layer of supervision or management over other SES positions, or takes duties from other SES positions, the affected positions should be reviewed to determine if they still support the SES designation.
• If the position is being established at a lower organizational level than where SES positions previously existed, the statement should explain why this is being done and what the effect is on other positions at that level (e.g., whether this is a precedent for other SES designations).
• If the position is being placed in the SES based primarily on the impact of the proposed incumbent, this should be indicated so that when the incumbent leaves, the position can be reviewed to determine whether it still supports an SES designation.

Classification Appeals

There is no classification appeal right to OPM for an employee who asserts the position he or she occupies should be in the SES. In 5 U.S.C. 5112, a classification appeal applies in determining if a position is in its appropriate class and grade. The SES is excluded from coverage by that section since the SES is gradeless and separate from the General Schedule.

Other Factors

In an agency identified in 5 U.S.C. 3132(a)(1) as covered by the Senior Executive Service (SES), positions that meet the criteria of 5 U.S.C. 3132(a)(2) are placed in the SES. The examples below assume that the agency is subject to SES provisions and the applicable law(s) does not contain language that explicitly removes the position(s) from coverage by SES provisions.

• Occasionally, laws will establish positions in the Executive Schedule but fail to specify an appointment authority for them. If the positions meet the functional and grade level criteria of 5 U.S.C. 3132(a)(2), they are placed in the SES and are subject to SES provisions, including the agency head’s authority to set and adjust pay within the SES rate range.
• If a law establishes an Executive Schedule position in level IV or level V that performs SES functions but does not require appointment by the President with Senate confirmation, then the position meets the criteria of 5 U.S.C. 3132(a)(2). It therefore is placed in the SES even if the law identifies an appointing authority, e.g., the President or an agency head.
• Note also that positions listed in 5 S.C. 5315 (Executive Schedule level IV) and 5316 (Executive Schedule level V) that do not require Senate confirmation and meet the SES criteria are placed in the SES. Similarly, if a statute gives an agency an independent appointing authority that could otherwise be used for positions classified or paid above GS-15, the authority does not apply to positions meeting the criteria of 5 U.S.C. 3132(a)(2).

SES Position Designations and Appointment Authorities

Statute: 5 U.S.C. 3132(b)

Regulations: 5 CFR Part 214, Subpart D

Agency heads are authorized to establish SES positions within the numerical space authorizations and appointment authorities allocated by OPM and to set the qualifications standards for these positions.

SES Position Designations

SES positions are designated as either General or Career Reserved. A General position may be filled by a career, noncareer, or limited appointee, assuming any applicable criteria are met, e.g., criteria for an SES limited term or limited emergency appointment. However, a Career Reserved position must be filled by a career appointee.

Criteria for Career Reserved Positions. A position shall be designated Career Reserved if it must be filled by a career appointee to ensure the impartiality, or the public’s confidence in the impartiality of the Government [See 5 U.S.C. 3132(b)].

Agencies must follow the criteria established by 5 CFR 214.402 to determine if a position is to be designated as Career Reserved. Such positions include those having duties which involve day-to-day operations, without responsibility for or substantial involvement in the determination, or public advocacy of the major controversial policies of the administration or agency, in these occupational disciplines:

• adjudication and appeals;
• audit and inspection;
• civil or criminal law enforcement and compliance;
• contract administration and procurement;
• grants administration;
• investigation and security matters; and
• tax liability, including the assessment or collection of taxes and the preparation or review of interpretative opinions.

Career Reserved positions also include:

• scientific or other highly technical or professional positions where the duties and responsibilities of the position are such that they must be filled by career appointees to ensure impartiality;
• other positions requiring impartiality, or the public’s confidence in impartiality, as determined by the agency in light of its mission; and
• positions that are specifically required by law to be Career Reserved or to be filled by a career appointee.

Changing Position Designations. Agency heads are authorized to establish SES positions within the agency allocation and to designate them as either Career Reserved or General, subject to the above criteria and to the requirement to maintain a career reserved floor. However, once the designation has been made, it may not be changed without written approval from OPM [5 CFR 214.403]. Requests for a designation change should be sent to Senior Executive Services and Performance Management. The request should be submitted by the agency head or the Executive Resources Board, or a designee at the human resources director level or above and should describe the circumstances that warrant a change in the designation.

Supervisory Relationships

SES positions. Agencies have asked questions regarding the supervisory relationships for SES positions.

• Can appointees in Career Reserved positions supervise noncareer appointees in General positions? The statute and regulations are silent on this point. The duties and requirements of the position should determine the position’s designation, in accordance with the above criteria. While there is no prohibition against a noncareer appointee reporting to a career appointee in a career reserved position, it is not likely that such a situation would occur given the criteria for career reserved positions. However, should there be a need to fill a subordinate position with a noncareer appointee, the agency is advised to review the career reserved position to verify that the supervisory position meets the criteria and is properly designated as career reserved. There is also no prohibition on a noncareer appointee reporting to a career appointee in a general position.
• Can an SES member report to a GS-15 or equivalent employee? While the statute and regulations do not address this directly, agencies have a statutory obligation to place each GS position in its appropriate grade placing only positions meeting the SES definition in the SES. Since 5 U.S.C. 3132(a)(2) requires an SES position to be classified above GS-15, placement of a GS-15 position above an SES position logically violates either the agency’s obligation to appropriately classify its GS positions or to appropriately designate a position as SES, or both. While short term detail of a GS-15 employee to an SES position that supervises other SES positions may be permitted under extraordinary circumstances, placement of an SES position under the supervision of a GS-15 or equivalent position is not an appropriate continuing organizational or supervisory relationship. 

Schedule C positions. The supervisor of a Schedule C appointee may only be a Presidential appointee, an incumbent of an SES General position, or another Schedule C appointee. The supervisor may not be an incumbent of an SES Career Reserved position.

SES Appointment Authorities

There are four types of SES appointment authorities: career, noncareer, limited term, and limited emergency. Agency heads are authorized to make all types of SES appointments under procedures established by OPM and within the agency’s numerical allocation of appointment authorities. [See Chapter 2, General Staffing and Career Appointments, and Chapter 3, Other Staffing Actions, for information about these four types of appointments.]

Other Appointment Authorities

Some agencies have specific statutory authorities that cover positions classified above GS-15, or paid above step 10 of GS-15, and that were not repealed by CSRA. These authorities may still be used for a position, if the position does not meet the criteria for inclusion in the SES or the ST authority in 5 U.S.C. 3104.

OPM Review and Oversight

OPM evaluates SES programs and operations to improve and enhance management of the Government’s executive resources; to determine the quality and effectiveness of SES programs, procedures, and processes; and to determine if actions are being taken in compliance with civil service laws, rules, regulations, and delegated authorities and are consistent with merit system principles.

General Oversight

OPM exercises general oversight of SES operations in accordance with these civil service laws and rules:

5 U.S.C. 1103(a)(5): execute, administer, and enforce civil service laws, rules, and regulations and other OPM activities; (Specific authority for OPM to regulate on SES matters is in 5 U.S.C. 3136, 3397, 3596, 4315, 5385, and 7543.) and

5 U.S.C. 1104(b)(2): establish and maintain an oversight program which assures that activities delegated to or by OPM comply with merit system principles and OPM standards.

5 CFR Rule V, section 5.2:

• evaluate the effectiveness of agency personnel policies, programs, and operations, including merit selection and employee development; agency compliance with and enforcement of applicable laws, rules, regulations, and OPM directives, and agency personnel management evaluation systems;
• investigate, or direct an agency to investigate and report on apparent violations of applicable laws, rules, regulations, or directives requiring corrective action found during an evaluation; and
• require agencies to report personnel information relating to positions and employees in the SES through the ESCS.

Monitoring Specific SES Activities

OPM is required to monitor several specific SES activities and actions to determine if they meet the requirements of law and to take such corrective action as may be necessary. For example, the following regulations require OPM to:

5 U.S.C. 3132(b)(2): periodically review General positions to determine if they should be designated as Career Reserved.

5 U.S.C. 3396(b): monitor the implementation of programs for the systematic development of candidates for the SES and for the continuing development of senior executives.

5 U.S.C. 4312(c): review each agency’s SES performance appraisal system and take such corrective action as may be required if the system does not meet the requirements of law or regulation.

5 U.S.C. 5307(d): certify SES and SL/ST performance appraisal systems with OMB’s concurrence when, as shown by meeting certification criteria in accordance with 5 CFR 430 subpart D, the system as designed and applied makes meaningful distinctions based on relative performance.

5 CFR 214.202: review agency determinations of which positions to place in the SES, to ensure adherence with law and regulations. This authority extends to SL and ST positions, or equivalent positions subject to OPM jurisdiction, to ensure that all executive positions are placed in the proper pay system. If OPM concludes that a position established in the SES does not satisfy SES criteria, or that a position established outside the SES does meet those criteria, OPM will notify the agency.

OPM may require corrective action, including:

• directing an SES position be removed from the SES and be established in the competitive or excepted service, as appropriate; and
• directing a non-SES position classified above GS-15, or the equivalent, found to satisfy SES criteria be placed in the SES.

The actions described above would not necessarily affect the SES appointment status and tenure of an incumbent, although they could require the incumbent’s reassignment from the position in question. Any of these actions could be accompanied by an adjustment in the SES space and appointment authorities allocated to the agency.

5 CFR 317.1001: require an agency to take appropriate corrective action if OPM finds that it has taken an SES staffing action contrary to law or regulation.