5 U.S.C. § 3131 — The Senior Executive Service

Page 346 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3131 (g) REGULATIONS.—Not later than 180 days after the date of enactment of this section, the Director shall issue interim regulations, with an opportunity for comment, for the administra- tion of this section. (h) REPORTING.— (1) IN GENERAL.—Not later than September 30 of each of the first 3 fiscal years beginning after the date of enactment of this section, the head of an agency that makes an appointment under this section shall submit a report to— (A) Congress that assesses the impact of the use of the authority provided under this section during the fiscal year in which the report is submitted; and (B) the Director that contains data that the Director considers necessary for the Di- rector to assess the impact and effectiveness of the authority described in subparagraph (A). (2) CONTENT.—The head of an agency shall include in each report under paragraph (1)— (A) the total number of individuals ap- pointed by the agency under this section, as well as the number of such individuals who are— (i) minorities or members of other under- represented groups; or (ii) veterans; (B) recruitment sources; (C) the total number of individuals ap- pointed by the agency during the applicable fiscal year to a position in the competitive service at the GS–11 level, or an equivalent level, or below; and (D) any additional data specified by the Director. (i) SPECIAL PROVISION REGARDING THE DEPART- MENT OF DEFENSE.— (1) AUTHORITY.—Nothing in this section shall preclude the Secretary of Defense from exer- cising any authority to appoint a post-sec- ondary student under section 1106 of the Na- tional Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any ap- plicable successor statute. (2) REGULATIONS.—Any regulations pre- scribed by the Director for the administration of this section shall not apply to the Depart- ment of Defense during the period ending on the date on which the appointment authority of the Secretary of Defense under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute, terminates. (Added Pub. L. 115–232, div. A, title XI, § 1108(a), Aug. 13, 2018, 132 Stat. 2007; amended Pub. L. 116–92, div. A, title XI, § 1115, Dec. 20, 2019, 133 Stat. 1604.) Editorial Notes REFERENCES IN TEXT GS–11, referred to in subsecs. (b)(1), (d)(1), and (h)(2)(C), is contained in the General Schedule which is set out under section 5332 of this title. The date of enactment of this section, referred to in subsecs. (g) and (h)(1), is the date of enactment of Pub. L. 115–232, which was approved Aug. 13, 2018. Section 1106 of the National Defense Authorization Act for Fiscal Year 2017, referred to in subsec. (i), is section 1106 of Pub. L. 114–328, which is set out as a note preceding section 1580 of Title 10, Armed Forces. AMENDMENTS 2019—Subsec. (d)(1). Pub. L. 116–92 amended par. (1) generally. Prior to amendment, text read as follows: ‘‘Except as provided in paragraph (2), the total number of students that the head of an agency may appoint under this section during a fiscal year may not exceed the number equal to 15 percent of the number of stu- dents that the agency head appointed during the pre- vious fiscal year to a position in the competitive serv- ice at the GS–11 level, or an equivalent level, or below.’’ SUBCHAPTER II—THE SENIOR EXECUTIVE SERVICE § 3131. The Senior Executive Service It is the purpose of this subchapter to estab- lish 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 Senior Executive Service shall be administered so as to— (1) provide for a compensation system, in- cluding salaries, benefits, and incentives, and for other conditions of employment, designed to attract and retain highly competent senior executives; (2) ensure that compensation, retention, and tenure are contingent on executive success which is measured on the basis of individual and organizational performance (including such factors as improvements in efficiency, productivity, quality of work or service, cost efficiency, and timeliness of performance and success in meeting equal employment oppor- tunity goals); (3) assure that senior executives are ac- countable and responsible for the effectiveness and productivity of employees under them; (4) recognize exceptional accomplishment; (5) enable the head of an agency to reassign senior executives to best accomplish the agen- cy’s mission; (6) provide for severance pay, early retire- ment, and placement assistance for senior ex- ecutives who are removed from the Senior Ex- ecutive Service for nondisciplinary reasons; (7) protect senior executives from arbitrary or capricious actions; (8) provide for program continuity and pol- icy advocacy in the management of public pro- grams; (9) maintain a merit personnel system free of prohibited personnel practices; (10) ensure accountability for honest, eco- nomical, and efficient Government; (11) ensure compliance with all applicable civil service laws, rules, and regulations, in- cluding those related to equal employment op- portunity, political activity, and conflicts of interest; (12) provide for the initial and continuing systematic development of highly competent senior executives; (13) provide for an executive system which is guided by the public interest and free from im- proper political interference; and (14) appoint career executives to fill Senior Executive Service positions to the extent Page 347 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3131 practicable, consistent with the effective and efficient implementation of agency policies and responsibilities. (Added Pub. L. 95–454, title IV, § 402(a), Oct. 13, 1978, 92 Stat. 1154.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 95–454, title IV, § 415, Oct. 13, 1978, 92 Stat. 1179, provided that: ‘‘(a)(1) The provisions of this title, other than sec- tions 413 and 414(a) [enacting this subchapter and sec- tions 2101a, 3391 to 3397, 3591 to 3595, 4311 to 4315, 4507, 5381 to 5385, 5752, and 7541 to 7543 of this title, amending sections 2102, 2103, 2108, 3109, 3501, 5311, 5331, 5504, 5541, 5595, 5723, 6304, 8336, and 8339 of this title, and enacting provisions set out as a note under section 5311 of this title], shall take effect 9 months after the date of the enactment of this Act [Oct. 13, 1978]. ‘‘(2) The provisions of section 413 of this title [set out as a note under section 3133 of this title] shall take ef- fect on the date of the enactment of this Act [Oct. 13, 1978]. ‘‘(3) The provisions of section 414(a) of this title [amending sections 3104 and 5108 of this title and enact- ing provisions set out as notes under sections 3104 and 5108 of this title] shall take effect 180 days after the date of the enactment of this Act [Oct. 13, 1978]. ‘‘(b)(1) The amendments made by sections 401 through 412 of this title [enacting this subchapter and sections 2101a, 3391 to 3397, 3591 to 3595, 4311 to 4315, 4507, 5381 to 5385, 5752, and 7541 to 7543 of this title, amending sec- tions 2102, 2103, 2108, 3109, 3501, 5311, 5331, 5504, 5541, 5595, 5723, 6304, 8336, and 8339 of this title] shall continue to have effect unless, during the first period of 60 calendar days of continuous session of the Congress beginning after 5 years after the effective date of such amend- ments, a concurrent resolution is introduced and adopt- ed by the Congress disapproving the continuation of the Senior Executive Service. Such amendments shall cease to have effect on the first day of the first fiscal year beginning after the date of the adoption of such concurrent resolution. ‘‘(2) The continuity of a session is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an ad- journment of more than 3 days to a day certain are ex- cluded in the computation of the 60-day period. ‘‘(3) The provisions of subsections (d), (e), (f), (g), (h), (i), (j), and (k) of section 5305 of title 5, United States Code, shall apply with respect to any concurrent reso- lution referred to in paragraph (1) of this subsection, except that for the purpose of this paragraph the ref- erence in such subsection (e) to 10 calendar days shall be considered a reference to 30 calendar days. ‘‘(4) During the 5-year period referred to in paragraph (1) of this subsection, the Director of the Office of Per- sonnel Management shall include in each report re- quired under section 3135 of title 5, United States Code (as added by this title) an evaluation of the effective- ness of the Senior Executive Service and the manner in which such Service is administered.’’ CONGRESSIONAL FINDINGS RESPECTING CONTINUATION OF SENIOR EXECUTIVE SERVICE Pub. L. 98–615, title III, § 301, Nov. 8, 1984, 98 Stat. 3217, provided that: ‘‘The Congress finds that the Senior Ex- ecutive Service should be continued indefinitely.’’ Executive Documents EX. ORD. NO. 13714. STRENGTHENING THE SENIOR EXECUTIVE SERVICE Ex. Ord. No. 13714, Dec. 15, 2015, 80 F.R. 79225, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to strengthen the recruitment, hir- ing, and development of the Federal Government’s sen- ior executives; I hereby order as follows: SECTION 1. Policy. It is in the national interest to fa- cilitate career executive continuity between adminis- trations; to increase senior leadership attention to, and involvement in, executive recruitment; to reduce un- necessary burdens on applicants for executive posi- tions; and to efficiently document demonstrated execu- tive experience. Furthermore, it is imperative to peri- odically explore and promote new selection methods that effectively and efficiently identify the most capa- ble and talented candidates for executive leadership po- sitions to enhance the breadth and diversity of experi- ences among our Federal executives; to better support, recognize, and reward our executives, especially our top performers; and to strengthen executive account- ability, all while maintaining a system that is focused on the public interest and free from improper political influence. An important aspect of strengthening our Senior Executive Service (SES) members is valuing the work they do every day, rewarding excellence, profes- sionalism, and outstanding achievement through spe- cial act awards, Presidential Rank Awards, and other non-monetary and honorary awards. Consistent with the requirements of Executive Order 13583 of August 18, 2011 (Establishing a Coordinated Government-Wide Ini- tiative to Promote Diversity and Inclusion in the Fed- eral Workforce), and with merit-based principles, this order continues to support executive departments and agencies (agencies) to develop and implement a com- prehensive, integrated, and strategic focus on diversity and inclusion as a key component of the recruitment, hiring, retention, and development of their SES cadre. Pursuing these goals will significantly improve the Federal Government’s ability to serve the American people. Unless otherwise noted, this order applies to ca- reer members of the SES. Section 2 of this order establishes, under the Presi- dent’s Management Council (PMC), a Subcommittee to advise the Office of Personnel Management (OPM), the PMC, and the President on senior executive matters, help monitor execution of an important set of execu- tive reforms contained in section 3 of this order, and help keep the Federal Government’s executive manage- ment practices current and effective. In order to iden- tify and maximize the use of best practices, require- ments in sections [sic] 3(b)(i)–(iv) of this order will be implemented in three phases, with Phase I consisting of seven agencies, which will execute those reforms in fis- cal year (FY) 2016; Phase II consisting of seven agen- cies, which will execute those reforms in FY 2017; and Phase III consisting of all other agencies, which will execute those reforms in FY 2018. SEC. 2. Establishment of PMC Subcommittee to Strength- en the Senior Executive Service. There is established the PMC Subcommittee to Strengthen the Senior Execu- tive Service (Subcommittee) to inform and support Government-wide priorities for improved management of senior executives identified by the Deputy Director for Management of the Office of Management and Budget (OMB) in consultation with the Director of OPM. The Subcommittee shall consist of five members of the PMC: the Deputy Director for Management of OMB, the Director of OPM, and three other members of the PMC. The Subcommittee will be advised by at least two career members of the SES to be determined by the members of the Subcommittee, and shall collaborate with the Chief Human Capital Officers Council. Expres- sions of interest to serve on the Subcommittee will be solicited, and final selections will be made by the Dep- uty Director for Management of OMB in consultation with the Director of OPM. The Subcommittee will ad- vise OPM, members of the PMC, and the President on ways to strengthen and improve the SES workforce, as outlined in this order. In addition, it will identify any Government-wide obstacles it perceives to executive management, assist OPM in facilitating career execu- tive continuity between administrations, and facilitate communication among the SES cadre. Page 348 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3131 SEC. 3. Requirements. Under the direction, or, in the case of sections 3(a)(i) and 3(b)(ii) of this order, the guidance, of the Director of OPM, and in consultation with OMB and the PMC Subcommittee, agencies shall undertake the following actions: (a) Actions for Immediate Government-wide Implementa- tion. (i) Starting in FY 2017, agencies should limit their ag- gregate spending on agency performance awards for SES and Senior Level (SL) and Senior Scientific or Professional (ST) employees to 7.5 percent of aggregate SES and SL/ST salaries respectively. OMB and OPM shall undertake a review of, and revise as appropriate, their current guidance regarding aggregate spending on such awards. In addition, agencies should allocate awards in a manner that provides meaningfully greater rewards to top performers. Within 120 days of the date of this order, OPM shall issue, as appropriate, addi- tional guidance regarding the distribution of such awards. (ii) The heads of agencies with SES positions that su- pervise General Schedule (GS) employees shall imple- ment policies, as permitted by and consistent with ap- plicable law and regulation, for initial pay setting and pay adjustments, as appropriate, for career SES ap- pointees to result in compensation exceeding the rates of pay, including locality pay, of their subordinate GS employees. Similar policies shall be implemented by heads of agencies for Senior Professional (i.e., SL or ST) employees that supervise GS employees. Such poli- cies and practices support, recognize, and reward agen- cy executives, especially top performers, in a manner commensurate with their roles, responsibilities, and contributions, and may increase the competitiveness of SES positions with comparable positions outside of Government. (iii) Within 90 days of the date of this order, OPM shall evaluate the current Qualifications Review Board (QRB) process and issue guidance to agencies about ma- terials that would be acceptable for QRB consideration and that will serve as an alternative or replacement to the current lengthy essay requirement for QRB submis- sion, which may deter qualified applicants for SES po- sitions or put an additional burden on human resources staff. The guidance shall also advise agencies about ways to streamline their initial application require- ments for SES positions, including evaluation of op- tions, such as allowing individuals to apply by only submitting a resume-based application and any addi- tional materials necessary to determine relevant quali- fications, consistent with the new QRB submission re- quirements. (iv) Within 120 days of OPM issuing the guidance de- scribed in section 3(a)(iii) of this order, the heads of agencies with SES positions shall examine the agency’s career SES hiring process and make changes to the process to make it more efficient, effective, and less burdensome for all participants. Agencies shall sim- plify the initial application requirements for SES posi- tions consistent with the guidance issued in section 3(a)(iii) of this order, and should only request critically necessary technical qualifications, with the goal of minimizing requirements that may deter qualified ap- plicants from applying. Agencies shall also monitor time to hire of SES positions, and identify appropriate process improvements or other changes that can help reduce time to hire while ensuring high quality of hires. (v) By May 31, 2016, the heads of agencies with 20 or more SES positions shall develop and submit to OPM a 2-year plan to increase the number of SES members who are rotating to improve talent development, mis- sion delivery and collaboration. While agency specific targets will not be required, this order establishes a Government-wide goal of 15 percent of SES members rotating for a minimum of 120 days (including to dif- ferent departments, agencies, subcomponents, func- tional areas, sectors, and non-federal partners) during FY 2017, and thereafter, in order to ensure the mobility of the corps while also maintaining stability of oper- ations. Within 45 days of the date of this order, OPM shall issue guidance for implementation of section 3(a)(v) of this order. OPM shall evaluate the percent- ages set forth in this subsection on an ongoing basis and make adjustments as necessary and appropriate. These plans shall take into consideration the policy priorities of the agency, agency needs and rules in the context of administration transitions, needs identified in agency hiring plans and succession plans, the devel- opment opportunities listed in individuals’ Executive Development Plans (EDP), and the Federal Govern- ment’s interest in cultivating generalist executives with broad and diverse experiences who can lead a vari- ety of organizations. These plans shall build on existing succession management processes and those estab- lished in section 3(b)(i) of this order to ensure high po- tential and top performers have an opportunity to cycle through rotations. These plans shall also incor- porate, as appropriate, flexibilities agencies have such as the Intergovernmental Personnel Act (implemented in 5 CFR part 334) to encourage SES members to pursue temporary assignments to State and local govern- ments, colleges and universities, tribal governments, and other eligible organizations, and to better under- stand the impact of the Federal Government’s work on those it serves. Finally, these plans shall include an as- sessment of the degree to which these rotation assign- ments achieve the desired goals for the individual and agency. (b) Actions for Phased Implementation. Under the direc- tion, or, in the case of section 3(b)(ii) of this order, the guidance, of the Director of OPM, in consultation with OMB and the PMC Subcommittee, the reforms listed in sections [sic] 3(b)(i)–(iv) of this order shall be imple- mented by agencies on the following schedule: the Sec- retaries of Defense, Energy, Health and Human Serv- ices, Housing and Urban Development, and Veterans Affairs; the Administrator of General Services; and the Director of OPM shall implement these reforms by Sep- tember 30, 2016; the Secretaries of Agriculture, Edu- cation, Labor, and Transportation, and the Administra- tors of the National Aeronautics and Space Adminis- tration, the Environmental Protection Agency, and the Small Business Administration shall implement these reforms by September 30, 2017; the Secretaries of State, the Treasury, the Interior, Commerce, and Homeland Security, the Attorney General, and the Administrator of the U.S. Agency for International Development, as well as the Directors of OMB and the National Science Foundation, shall implement these reforms by Sep- tember 30, 2018. By October 1 of each year, OPM shall issue additional guidance after each phase of imple- mentation that reflects lessons learned and any adjust- ments to these reforms based on the agencies that have implemented them. By the respective date specified above, the heads of agencies shall: (i) Establish an annual talent management and suc- cession planning process to assess the development needs of all SES members, and SL and ST employees as appropriate, to inform readiness decisions about hiring, career development, and executive reassignments and rotations. These assessments shall include input from each executive, as well as the executive’s supervisor, and shall be used to recommend development activities and inform the organization’s succession planning, de- cisions about duty assignments, and agency hiring plans; (ii) Proactively recruit individuals for vacant SES positions and regularly review those recruitment ef- forts at the Deputy Secretary (or direct designee) level on at least a quarterly basis, consistent with existing rules and regulations. Establish a mechanism to track, and raise for appropriate senior-level attention, infor- mation about each position that agencies are seeking to fill, including, at a minimum, source of the recruit- ment, number, quality and diversity (as available) of applicants, source of applicants (subcomponent, agency or non-government), and timeliness of the hiring proc- ess. Use the talent management and succession plan- ning process described in section 3(b)(i) of this order Page 349 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3132 1 So in original. 2 So in original. See References in Text note below. and agency hiring plans to inform these recruitment ef- forts; and develop a tailored outreach strategy for proactive recruitment for key strategic positions; (iii) Require supervisors of executives in their agency to work with their subordinate executives to update EDPs for each executive required by 5 CFR part 412.401, to include at least one developmental activity annually and at least one leadership assessment involving em- ployee feedback (for example, 360 degree-type reviews) every 3 years to inform each executive’s developmental needs. In addition, non-career SES and equivalent ap- pointees should also have one leadership assessment during their first 2 years, and additional assessments every 3 years thereafter; and (iv) Establish a formal Executive Onboarding Pro- gram informed by OPM’s Enhanced Executive Onboarding Model and Government-Wide Executive Onboarding Framework, which shall provide critical support and guidance to executives through their first year of service in new positions, consistent with guid- ance to be issued by OPM no later than 60 days after the date of this order. Onboarding shall be provided for career and non-career SES, SL and ST employees, and SES-equivalent positions. SEC. 4. Additional Implementation Considerations. (a) Actions for Agencies with SES-Equivalent Positions. Cer- tain agencies have independent authorities enabling them to establish positions that are equivalent to SES or Senior Professional positions, or an executive per- sonnel system that includes such positions. Whether the positions or employment systems are established in title 5 (for example, FBI/DEA SES) or in other titles of the United States Code (for example, Senior Foreign Service, Defense Intelligence SES, Senior National In- telligence Service), the agency head shall determine the extent to which the agency implements policies and processes to support objectives identified in sec- tions 3(a) and 3(b) of this order for such positions con- sistent with the agency’s authorities and purposes for which the law provides them, with such consultation with the Director of OPM, OMB, and the PMC Sub- committee as the agency may require. (b) Agency Status and Reporting. Within 45 days of the date of this order, OPM will issue guidance, concurrent with guidance in section 3(a)(v) of this order, that de- fines regular reporting on the status of each agency’s implementation of the provisions in this order. SEC. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. BARACK OBAMA. § 3132. Definitions and exclusions (a) For the purpose of this subchapter— (1) ‘‘agency’’ means an Executive agency, ex- cept a Government corporation and the Gov- ernment Accountability Office, but does not include— (A) any agency or unit thereof excluded from coverage by the President under sub- section (c) of this section; or (B) the Federal Bureau of Investigation, the Drug Enforcement Administration, the Central Intelligence Agency, the Office of the Director of National Intelligence, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the Na- tional Security Agency, Department of De- fense intelligence activities the civilian em- ployees of which are subject to section 1590 of title 10, and, as determined by the Presi- dent, an Executive agency, or unit thereof, whose principal function is the conduct of foreign intelligence or counterintelligence activities; (C) the Federal Election Commission or the Election Assistance Commission; (D) the Office of the Comptroller of the Currency, the Office of Thrift Supervision,,1 the Resolution Trust Corporation, the Farm Credit Administration, the Federal Housing Finance Agency, the National Credit Union Administration, the Bureau of Consumer Fi- nancial Protection, and the Office of Finan- cial Research; (E) the Securities and Exchange Commis- sion; or (F) the Commodity Futures Trading Com- mission; (2) ‘‘Senior Executive Service position’’ means any position in an agency which is clas- sified above GS–15 pursuant to section 5108 or in level IV or V of the Executive Schedule, or an equivalent position, which is not required to be filled by an appointment by the Presi- dent by and with the advice and consent of the Senate, and in which an employee— (A) directs the work of an organizational unit; (B) is held accountable for the success of one or more specific programs or projects; (C) monitors progress toward organiza- tional goals and periodically evaluates and makes appropriate adjustments to such goals; (D) supervises the work of employees other than personal assistants; or (E) otherwise exercises important policy- making, policy-determining, or other execu- tive functions; but does not include— (i) any position in the Foreign Service of the United States; (ii) an administrative law judge position under section 3105 of this title; (iii) any position established as a qualified position in the excepted service by the Sec- retary of Homeland Security under section 226 2 of the Homeland Security Act of 2002; or (iv) any position established as a qualified position in the excepted service by the Sec- retary of Defense under section 1599f of title 10; (3) ‘‘senior executive’’ means a member of the Senior Executive Service; (4) ‘‘career appointee’’ means an individual in a Senior Executive Service position whose appointment to the position or previous ap- pointment to another Senior Executive Serv- ice position was based on approval by the Of- fice of Personnel Management of the executive qualifications of such individual; (5) ‘‘limited term appointee’’ means an indi- vidual appointed under a nonrenewable ap-