U.S. Office of Personnel Management

Variations to Staffing Regulations

NOTICE AND POSTING SYSTEM

Notice No: 45 Washington, DC 20415
Date: August 9, 1996  


Notice of OPM Variations

AGENCIES: THIS NOTICE PROVIDES INFORMATION RELATIVE TO VARIATION REQUESTS. Section 5.1 of civil service rule V requires the Office of Personnel Management to inform agencies about variations which it grants under that rule.

Heads of Departments and Independent Establishments:

1.   This notice describes non-precedent-setting variations to staffing regulations granted between April 1, 1996, and June 30, 1996.
     
    Extension of Term Appointments Beyond 4 Years
     
2.   Thirteen variations were granted to the 4-year service limit for term appointments contained in 5 CFR 316.301:

- On April 16, 1996, a 90-day extension was granted to an employee of the Federal Deposit Insurance Corporation in Washington, DC, who served as Chief, Closeout Services Section, an Executive Level I position. The extension permits the employee to complete closing out former Resolution Trust Corporation field leases.

- On April 17, 1996, a 2-year extension was granted for a Total Quality Leadership Instructor, GS-1712-13, with the Department of the Navy, Pensacola, Florida, to provide Total Quality Leadership training to military and civilian personnel under the agency's Total Quality Leadership initiative.

- On April 26, 1996, a 4-year extension was granted for four Museum Technicians, GS-1016-5, with the Smithsonian Institution in Washington, DC, to complete a project that involves the relocation of large numbers of scientific collections from two museums to the agency's Museum Support Center.

- On April 26, 1996, a 1-year extension was granted for an Architect, GS-808-11, with the Department of the Interior who is assigned to the joint National Park Service/Federal Highway Administration Cumberland Gap Tunnel Project in Claiborne, Tennessee, to oversee the restoration and protection of the Cumberland Gap Wilderness Trail during construction of a highway.

- On May 10, 1996, a 2-year extension was granted for a Construction Manager Engineer, GM-801-14, with the United States Information Agency's International Broadcasting Bureau in Greece. The employee manages critical contracts requiring installation of sophisticated high power transmitters at two Radio Relay Stations.

- On May 15, 1996, extensions were granted ranging from 90 days to 1 1/2 years for three employees in Accountant and Auditor positions at the Federal Deposit Insurance Corporation in Dallas and Chicago, to complete work associated with the closeout of former Resolution Trust Corporation business.

- On May 30, 1996, extensions for up to 4 years were granted to two Department of Veterans Affairs Computer Assistants, GS-335-6, in Perry Point, Maryland, and one Program Assistant in Temple, Texas. These employees provide data management and administrative support to medical research projects.

- On May 31, 1996, a 4-month extension was granted for a Geologist, GS-1350-9, with the Department of the Interior, Geological Survey, to provide scientific support to a wetland study.

- On June 12, 1996, extensions were granted for up to 9 months for seven Training Instructors/Specialists, GS-1712-9/12 with the Department of the Army. These employees support the U.S. Army Armor School's Foreign Military Sales Program that provides armor training to foreign military students.

- On June 14, 1996, a 7-month extension was granted for a Park Ranger, GS-025-12, with the Department of the Interior, U.S. Fish and Wildlife Service, to oversee the completion of exhibit and audio visual contracts associated with the construction of the Walnut Creek National Wildlife and Prairie Learning Center in Iowa.

- On June 17, 1996, a 30-day extension was granted for a Criminal Investigator, GG-1811-12, with the Federal Deposit Insurance Corporation in Washington, DC, to assist with a specific criminal case.

- On June 20, 1996, a second extension was granted, for 4 months, to permit a Geologist, GS-1350-11, with the Department of the Interior, U.S. Geological Survey, in Los Angeles, California, to complete an earthquake project.

- On June 26, 1996, a 2-year extension was granted for two Department of the Air Force Construction Inspectors, GS-809-8, at Sheppard Air Force Base, Texas, to complete the last phases of a housing renovation project.

    In keeping with the variation criteria and precedents, each of these variations: avoids unnecessary hardship to the agency that disruption to the project/work in which the employee is involved would cause, if staff change must occur now; is within the spirit of the term appointment regulation by extending the employment in a manner consistent with the nonpermanent nature of the work; and promotes Government efficiency by enabling expeditious continuation of the project through retention of employees already knowledgeable of the ongoing work.
     
    Correction of Erroneous Appointments
     
3.   To correct administrative errors, three variations were granted to allow credit for career tenure and time-in-grade purposes for employees whose appointments did not meet the requirements of the authorities used. These variations involve exceptions to the requirements of 5 CFR 330.101 that positions in the competitive service be filled by one of the methods authorized in civil service law and regulations:

- On May 23, 1996, variation was granted to allow service credit for an employee of the Department of Justice, Bureau of Prisons, in Chicago, Illinois. On July 1, 1990, the agency erroneously appointed the individual as a Computer Specialist, GS-334-11, under a direct hire authority that was not applicable to the position. On September 17, 1996, the agency was able to properly appoint the employee to that position.

- On May 30, 1996, variation was granted to confer service credit from May 16, 1982 to March 16, 1996, for an employee who was erroneously reinstated to a career appointment as an Electronics Mechanic Foreman, WS-2604-8, with the Department of Justice, Bureau of Prisons, Milan, Michigan. The individual's prior service was in the excepted service which did not confer reinstatement. On March 17, 1996, the employee was properly appointed through competitive procedures.

- On June 21, 1996, variation was granted to confer service credit for two employees of the Defense Logistics Agency in Dallas, Texas, who were appointed by incorrectly using a direct hire authority that did not apply to the position. One individual was appointed on September 9, 1991, as an Electronics Engineer, GS-861-12, and the other on September 16, 1991, as an Aerospace Engineer, GS-855-12. Both employees were given proper career-conditional appointments on March 28, 1993. For the period of de facto employment both employees would have been within reach for their appointment if the proper direct hire authority would have been used.

    In each of these cases, variation was granted to avoid unnecessary hardship to the employees who, though now properly appointed, would otherwise face loss of important service credit due to administrative error. The variations permitted crediting the period of de facto service, from the date of erroneous appointment to the date of proper appointment, for full service credit.
     
4.   One variation was granted as an exception to 5 CFR 330.101 to permit retention of an employee whose appointment did not meet the requirements of the authority used:

- On April 22, 1996, variation was granted to permit an employee of the Department of Education to be retained as an Office Automation Clerk, GS-326-4, in San Francisco, California. The individual was improperly reinstated under a temporary appointment on January 9, 1995, based on career tenure erroneously granted by the employee's former agency, and was subsequently converted to a career appointment on January 22, 1995. The agency was unable to regularize the appointment.

    Retention was granted to avoid hardship to the employee who would face loss of employment. However, to protect the integrity of the competitive service, credit for career tenure and time in grade was granted only from the effective date of the variation.
     
5.   One variation was granted as an exception to 5 CFR 330.101 for an employee whose appointment did not meet the requirements of the authority used:

- On April 26, 1996, variation was granted to permit the retention and full service credit for an employee of the Department of the Army who was erroneously reinstated on May 5, 1986, to a career appointment as a Clerk Typist, GS-322-3, at Fort Leonard Wood, Missouri. The individual's reinstatement was based on career tenure erroneously granted by another agency in 1982.

    Variation was the only way to avoid the extreme hardship of separation. Following established precedent that treats old administrative errors, the variation permitted retention of the employee and also allowed full service credit from the date of appointment, including career tenure and time in grade. Since so much time has passed since the date of appointment, it was not possible to judge if the individual could have been reached for competitive appointment.
     
    Appointment at Above the Minimum Rate
Based on Superior Qualifications
     
6.   Two variations were granted to the requirement that Federal employees must have a break in service of 90 days or more before appointment under 5 CFR 531.203(b), which permits appointments to be made above step 1 of the GS grade based on the appointee's superior qualifications:

- On May 13, 1996, variation was granted to permit pay adjustment from step 1 to step 10 of grade GS-7 for a Legal Technician with the Department of Justice's Antitrust Division, San Francisco, California. The employee accepted the position expecting to be appointed at the above higher step, as was promised by the selecting official. Through administrative oversight, agency staff failed to obtain the required level of agency approval for the promised pay rate before the individual was appointed.

- On May 30, 1996, variation was granted to permit pay adjustment to step 10 for a Medical Officer (Psychiatrist), GS-602-15, with the Department of Justice, Bureau of Prisons, in Atlanta, Georgia. Due to administrative error, agency staff failed to obtain the required level of agency approval for the advanced pay rate before appointing the individual who had accepted the employment based on that promised salary.

    Variation was the only way to avoid both the hardship of income reduction to the employee and the potential loss of a highly qualified employee by the agency. In each case, the employee met the superior qualifications criteria and a timely request for the appointment at the advanced rate would have been approved. Because OPM has no authority to grant back pay, the salary adjustment could not be effective before the date of the approved variation.
     
7.   Section 5.1 of civil service rule V requires that like variations be granted in like circumstances. Therefore, if an agency believes it has a case which parallels one of those described in this notice, a variation may be requested. Agencies are reminded, however, that variation is appropriate only when no other authority exists to remedy the hardship or practical difficulty. All requests for variation must be sent through the headquarters of the agency or department involved and must be transmitted to the Office of Personnel Management for final action. Agencies do not have authority to approve variations.

[SIGNED]

 

Lorraine A. Green
Deputy Director

Inquiries: Staffing Reinvention Office
Employment Service, (202) 606-0830

Page created October 16, 1997