Expert and Consultant Appointments

SUMMARY: The Office of Personnel Management (OPM) is proposing a rule

to comply with a statutory change requiring OPM to regulate expert and

consultant appointments. The Technical and Miscellaneous Civil Service

Amendments Act of 1992 requires OPM to prescribe regulations for the

employment and pay of persons appointed under the expert and consultant

authority and to ensure agency compliance. In making the statutory

change, Congress adopted a General Accounting Office recommendation for

achieving better agency compliance with the legal requirements of this

special appointment authority.

DATES: Comments must be received on or before February 27, 1995.

ADDRESSES: Send or deliver written comments to Leonard R. Klein,

Associate Director for Career Entry, U.S. Office of Personnel

Management, 1900 E Street, NW., room 6F08, Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Tracy E. Spencer (202) 606-0830, or fax (202) 606-2329.

SUPPLEMENTARY INFORMATION: A longstanding law, 5 U.S.C. 3109,

authorizes agencies to make excepted appointments of qualified persons

to perform expert or consultant work that is temporary (not to exceed 1

year) or intermittent. Business and government have used experts and

consultants for many years to obtain outside advice and expertise to

improve services and operations.

In 1991, the General Accounting Office (GAO) reported its review of

expert and consultant appointments made under section 3109 by nine

installations during a 30-month period. GAO determined that 37 out of

106 of those appointments were improper because the duties were

appropriate for permanent employees or the appointees were not

qualified as experts or consultants. GAO also found instances in which

agencies used the authority as a quick way to hire someone destined for

other duties or to fill in during staff shortages; did not know of

other short-term hiring authorities; misread Federal Personnel Manual

(FPM) guidance as allowing experts or consultants to perform regular,

continuing work; did not follow OPM internal control procedures; or

lacked required documentation.

Among its report recommendations, GAO asked Congress to amend 5

U.S.C. 3109 to authorize OPM to regulate the employment of experts and

consultants. Congress responded by enacting section 2(8) of Public Law

102-378, October 2, 1992, to require OPM to regulate appointments under

5 U.S.C. 3109 and to collect data on pay and days worked.

OPM recognizes agency needs to obtain outside opinion and expertise

to improve programs, organizations, operations, and services. The

purpose of section 3109 is to allow agencies to bring in special types

of employees to address special situations requiring short-term or

occasional attention. By bringing their talents and insights to bear on

new or unusual problems, experts and consultants can help agencies work

more economically and effectively.

At the same time, agencies may use section 3109 only to meet

genuine expert and consultant needs. For other short-term needs,

agencies should consider other appointing authorities, including

special need, temporary limited, term, various Schedule A, temporary

Schedule C, SES limited term, and SES limited emergency.

a. Coverage

Our proposed regulations apply only to Federal civil service

appointments made under 5 U.S.C. 3109. They do not apply to

appointments of experts and consultants under other authorities or to

procurement contracts for consulting services.

b. Definitions

The regulations provide definitions of ``expert,'' ``consultant,''

and related terms. The definitions vary slightly from those in FPM

Chapter 304, and reflect GAO, OPM, and former Civil Service Commission

views and opinions issued over many years. We clarified those

definitions in FPM Letter 304-4, dated January 4, 1993. One difference

from our past instructions is the definition of intermittent

employment. Our proposed regulations replace that definition with OPM's

general definition of ``intermittent employment'' published at 5 CFR

340.401(c), that is, ``employment without a regularly scheduled tour of

duty.''

c. Authority

The section 3109 authority is summarized. Restrictions on agency

use reflect GAO concerns and OPM guidance. Use of the authority for

persons awaiting Presidential appointment is clarified.

d. Reappointments

The law requires that experts and consultants be employed on a

temporary or intermittent basis. Unlimited reappointments would not

comply with this condition. Therefore, the proposed regulations provide

that experts and consultants who work on a full-time basis may be

employed for no more than 2 years (initial appointment not to exceed 1

year and no more than one 1-year extension). This parallels our revised

limit for all temporary appointments.

For experts and consultants who work less than full time, the

proposed regulations would give agencies two options for determining

reappointment eligibility. One option would allow unlimited

reappointments as long as an expert or consultant worked no more than 6

months (130 days) in a service year. Experts and consultants who exceed

the 6-month limit could be reappointed only once. This, too, tracks the

proposed limits for temporary appointments.

The second option would set a maximum lifetime earnings limit of

twice the annual rate of basic pay rate for GS-15, step 10 (or for

Executive Level IV if that maximum payable rate is specifically

authorized in the agency's appropriation or other statute). An agency

could reappoint an expert or consultant as long as his/her cumulative

earnings did not exceed the lifetime limit. (This option would not, of

course, apply to experts and consultants employed without

compensation.)

An agency could use either or both reappointment options, but not

for the same employee. The agency would be expected to use objective

criteria (e.g., pay rate, nature of duties, work schedule) to determine

which reappointment option would apply to specific expert and

consultant positions.

e. Determining Rate of Pay

The rate of pay for experts and consultants is set by

administrative action. Each agency has the flexibility to establish pay

on an hourly or daily basis; however, agencies should consider the

implications involved, such as possible entitlement to overtime pay for

``hourly'' employees, the limitation on the maximum daily rate of basic

pay, etc. Agencies also have authority to appoint experts and

consultants under 5 U.S.C. 3109 without pay because these appointments

may be made without regard to the pay entitlements that would normally

apply under title 5 of the United States Code.

In determining the rate of pay, agencies must consider criteria

such as the level and difficulty of work to be performed, the

individual's qualifications, comparable Federal and non-Federal pay

rates, and the availability of qualified candidates.

f. Daily and Biweekly Pay Limitations

Under 5 U.S.C. 3109, the maximum daily rate of pay for experts and

consultants employed by agencies subject to chapter 41 (the General

Schedule classification system) and subchapter III of chapter 53

(General Schedule pay rates) of title 5, United States Code, is limited

to the daily equivalent of the highest rate payable under 5 U.S.C.

5332--that is, the General Schedule rate for GS-15, step 10, excluding

any geographic or locality pay adjustment or special salary rate.

Aggregate pay for the day (including any locality pay under 5 U.S.C.

5304 or any premium pay under subchapter V of chapter 55 of title 5,

United States Code), not just basic pay, is subject to the daily pay

limitation.

Agencies may pay a daily rate exceeding the daily rate for GS-15,

step 10, only when specifically authorized to do so by an appropriation

or other statute. Any daily rate limit must be computed under the

provisions of 5 U.S.C. 5504(b)--that is, by dividing the applicable

annual rate by 2,087 hours and then multiplying it by 8 hours.

(Agencies are not expected to pay the maximum daily rate routinely.)

As provided by section 101(c) of the Federal Employees Pay

Comparability Act of 1990 (FEPCA), and reference in statutes other than

title 5, United States Code, to a maximum daily rate equivalent to the

former rate for GS-18 (under former section 5108 of title 5, United

States Code) now will be read as subject to the maximum daily

equivalent rate payable under 5 U.S.C. 5376--that is, the rate for

level IV of the Executive Schedule.

The proposed regulations also establish a biweekly limitation on

expert and consultant pay subject to 5 U.S.C. 3109. For experts and

consultants subject to the GS-15, step 10, daily pay limitation, the

aggregate amount of pay (including premium pay and locality pay) for

any biweekly pay period may not exceed the biweekly rate of basic pay

for GS-15, step 10, excluding any geographic or locality pay adjustment

or special salary rate. The biweekly rate must be computed under the

provisions of 5 U.S.C. 5504(b)--that is, by dividing the annual GS-15,

step 10, rate by 2,087 hours and then multiplying by 80 hours. For

experts and consultants covered under laws that provide a pay

limitation above the GS-15, step 10, rate, the Executive Level IV

limitation on basic pay established under 5 U.S.C. 5373 may be

applicable.

g. Pay and Leave Administration

When managing pay and leave administration for experts and

consultants. Agencies should examine carefully each underlying

authority to determine which pay and leave entitlements apply. For

example, experts and consultants are not entitled to interim geographic

adjustments and locality-based comparability payments under title 5,

except by specific agency request for extension of the authority.

(Payments to non-GS employee categories must be consistent with 5

U.S.C. 5304 and OPM's regulations at 5 CFR, part 531, subpart F.)

Otherwise, agencies may adjust pay for experts and consultants to take

into account geographic pay considerations by exercising their

administrative pay-setting authority under 5 U.S.C. 3109, subject to

the pay-setting criteria in these regulations and the applicable pay

limitations.

Experts and consultants are not entitled to overtime pay if they

are paid on a daily basis. They may be entitled to overtime pay if paid

on an hourly basis and if additional overtime work (more than 8 hours

in a day or more than 40 hours in a week) is ordered and approved by

the agency. Agencies should note the possibility that some types of

experts or consultants may be covered by the Fair Labor Standards Act

(FLSA) overtime pay provisions because they do not meet the criteria

for an FLSA exemption.

Experts and consultants who are appointed on an intermittent basis

or who are on intermittent tours of duty--i.e., not regularly

scheduled--are not entitled to earn leave. However, if appointed as

temporary employees with a regularly scheduled tour of duty, they are

entitled to earn and use leave based on the established regular tour of

duty.

Experts and consultants with intermittent tours of duty are not

entitled to holiday pay for a day on which they perform no work or to

premium pay for holiday work. Those with a regularly scheduled tour of

duty are entitled to paid holidays or holiday premium pay, subject to

applicable pay limitations.

Expert and consultant pay is subject to the setoff provisions for

civil service annuity payments and retired military pay.

h. Reports

Section 2(8) of Public Law 102-378 also added subsection (e) to 5

U.S.C. 3109 to require each agency to report annually to OPM the number

of days worked and the pay received for each expert and consultant. OPM

will provide separate reporting instructions.

i. Compliance

Agencies are responsible for ensuring that their use of this

employment authority complies with 5 U.S.C. 3109 and those regulations.

Agencies must provide the controls and oversight necessary to ensure

compliance. OPM will review as necessary both agency employment of

experts and consultants and agency control and oversight of this

employment authority.

Because agencies will be responsible for control and oversight,

present FPM internal control requirements for agencies will be

discontinued. Those requirements were preappointment review and

certification, quarterly internal reviews, and the annual Notification

to employees of legal and FPM requirements. Agencies may adopt these

and/or other measures as part of their oversight and control systems.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic

impact on a substantial number of small entities because it applies

only to Federal Government employment practices.

List of Subjects in 5 CFR Part 304

Administrative practice and procedure, Government employees.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM proposes to add part 304 to title 5, Code of

Federal Regulations, as follows:

PART 304--EXPERT AND CONSULTANT APPOINTMENTS

Sec.

304.101 Coverage.

304.102 Definitions.

304.103 Authority.

304.104 Determining rate of pay.

304.105 Daily and biweekly pay limitations.

304.106 Pay and leave administration.

304.107 Reports.

304.108 Compliance.

Authority: 5 U.S.C. 3109.

Sec. 304.101 Coverage.

These regulations apply to the appointment of experts and

consultants as Federal employees under 5 U.S.C. 3109. They do not apply

to the appointments of experts and consultants under other employment

authorities or to the procurement of services by contracts under the

procurement laws.

Sec. 304.102 Definitions.

For purposes of this part:

(a) A consultant is a person who can provide valuable and pertinent

advice generally drawn from a high degree of broad administrative,

professional, or technical knowledge or experience. When an agency

requires public advisory participation, a consultant also may be a

person who is affected by a particular program and can provide useful

views from personal experience.

(b) A consultant position is one that requires providing advice,

views, opinions, alternatives, or recommendations on a temporary or

intermittent basis on issues, problems, or questions presented by a

Federal official.

(c) An expert is a person who is specially qualified by education

and experience to perform difficult and challenging tasks in a

particular field beyond the usual range of achievement of competent

persons in that field. An expert is regarded by other persons in the

field as an authority or practitioner of unusual competence and skill

in a professional, scientific, technical or other activity.

(d) An expert position is one that requires the services of a

specialist with skills superior to those of others in the same

profession, occupation, or activity to perform work on a temporary or

intermittent basis assigned by a Federal official. For example, a

microbial contamination specialist may apply new test methods to

identify bacteria on products, a computer scientist may adapt advanced

methods to develop a complex software system, or a plate maker may

engrave a novel design.

(e) Intermittent employment, as defined in part 340, subpart D, of

this chapter, means employment without a regularly scheduled tour of

duty.

(f) Temporary employment means employment not to exceed 1 year. An

expert or consultant serving under a temporary appointment may have a

full-time, part-time, or intermittent work schedule.

Sec. 304.103 Authority.

(a) Basic authority. When authorized by an appropriation or other

statute to use 5 U.S.C. 3109, an agency may appoint a qualified expert

or consultant to an expert or consultant position that requires only

intermittent or temporary employment. Such an appointment is excepted

from competitive examination, position classification, and the General

Schedule pay rates. An individual appointed under this authority may be

reappointed in the same agency only as provided in paragraph (c) of

this section.

(b) Inappropriate use. An agency must not use 5 U.S.C. 3109 to

appoint an expert or consultant:

(1) To a position requiring Presidential appointment. However,

subject to the conditions of this part, an agency may appoint an

individual awaiting final action on a Presidential appointment to an

expert or consultant position.

(2) To a Senior Executive Service position (including an FBI or DEA

Senior Executive Service position).

(3) To perform managerial or supervisory work, to make final

decisions on substantive policies, or to otherwise function in the

agency chain of command (e.g., to approve financial transactions,

personnel actions, etc.).

(4) To do work performed by the agency's regular employees.

(5) To fill in during staff shortages.

(6) Solely in anticipation of giving that individual a career

appointment. However, subject to the conditions of this part, an agency

may appoint an individual to an expert or consultant position pending

Schedule C appointment or noncareer appointment in the Senior Executive

Service.

(c) Reappointment. (1) An agency may employ an expert or consultant

who works on a full-time basis for a maximum of 2 years--i.e., on an

initial appointment not to exceed 1 year and a reappointment not to

exceed 1 additional year.

(2) An agency may reappoint an expert or consultant who works on a

part-time or intermittent schedule in accordance with one of the

following options. The agency must determine in advance of the

appointment which option it will use and must base its determination on

objective criteria (e.g., nature of duties, pay level, whether or not

work is regularly scheduled). Option 1 must be applied to

reappointments of experts and consultants appointed without

compensation.

(i) Option 1--Annual service. An agency may reappoint an expert or

consultant, with no limit on the number of reappointments, as long as

the individual is paid for no more than 6 months (130 days or 1,040

hours) of work, or works for no more than that amount of time without

compensation, in a service year. (The service year is the calendar year

that begins on the date of the individual's initial appointment in the

agency.) An expert or consultant who exceeds this limit in his/her

first service year may be reappointed for 1 additional year. An expert

or consultant who exceeds the limit during any subsequent service year

may not be reappointed thereafter.

(ii) Option 2--Cumulative earnings. Each expert or consultant will

have a lifetime limit of twice the maximum annual rate payable under

the annualized basic pay limitations of section 304.105. The agency may

reappoint an expert or consultant until his/her total earnings from

expert or consultant employment with the agency reach the lifetime

maximum, as determined by using the applicable current maximum salary

rate. At that point, the employment must be terminated.

Sec. 304.104 Determining rate of pay.

(a) The rate of basic pay for experts or consultants is set by

administrative action. The head of an agency, or his or her designee,

must determine the appropriate rate of basic pay on an hourly or daily

basis, subject to the limitations described in Sec. 304.105.

(b) The head of an agency, or his or her designee, shall make the

pay determination based on the following criteria:

(1) The level and difficulty of the work to be performed;

(2) The qualifications of the expert or consultant;

(3) The pay rates of comparable individuals performing similar work

in Federal or non-Federal sectors; and

(4) The availability of qualified candidates.

(c) An expert or consultant appointed under 5 U.S.C. 3109 may be

employed without pay, provided the individual agrees in advance in

writing to waive any claim for compensation for those services.

Sec. 304.105 Daily and biweekly basic pay limitations.

(a) Unless specifically authorized by an appropriation or other

statute, agencies subject to chapter 51 and subchapter III of chapter

53 of title 5, United States Code, may not pay for any 1 day an

aggregate amount of pay (including basic pay, locality pay under

subpart F of part 531 of this chapter, and premium pay under subpart A

of part 550 of this chapter) that exceeds the daily equivalent of the

highest rate payable under 5 U.S.C. 5332--that is, the daily rate for

GS-15, step 10, under the General Schedule (excluding locality pay or

any other additional pay). The daily rate is computed by dividing the

annual GS-15, step 10, rate by 2,087 hours to find the hourly rate of

pay and by multiplying the hourly rate of pay by 8 hours.

(b) Unless specifically authorized by an appropriation or other

statute, an expert or consultant shall not be paid for any biweekly pay

period an aggregate amount of pay (including basic pay, locality pay

under subpart F of part 531 of this chapter, and premium pay under

subpart A of part 550 of this chapter) in excess of the biweekly rate

of pay for GS-15, step 10, under the General Schedule (excluding

locality pay or any other additional pay). The biweekly rate is

computed by dividing the annual GS-15, step 10, rate by 2,087 hours to

find the hourly rate of pay and by multiplying the hourly rate of pay

by 80 hours.

Sec. 304.106 Pay and leave administration.

(a) Experts or consultants are not entitled to receive automatic

adjustments in their rates of basic pay at the time of a change in the

annual rates of pay under 5 U.S.C. 5303 unless specifically provided

for in the official appointment document.

(b) Experts or consultants paid on a daily rate basis are not

entitled to overtime pay under section 5542 of title 5, United States

Code. Otherwise, experts and consultants qualify for premium pay under

subchapter V of chapter 55 of title 5, United States Code, if they meet

the applicable eligibility requirements (including the requirement that

an employee have a regularly scheduled tour of duty, where applicable).

(c) Experts or consultants may be entitled to overtime pay under

the Fair Labor Standards Act if they are nonexempt under OPM

regulations implementing that Act for Federal employees.

(d) An expert or consultant is entitled to pay for service on an

intermittent basis from more than one expert or consultant position,

provided the pay is not received for the same period of time (5 U.S.C.

5533(d)(1)).

(e) Experts or consultants are subject to the provisions of 5

U.S.C. 8344 and 8468 on reduction of basic pay by the amount of annuity

received.

(f) Experts or consultants are subject to the provisions of 5

U.S.C. 5532 on reduction of retired military pay.

(g) Experts or consultants with a regularly scheduled tour of duty

are entitled to sick and annual leave in accordance with chapter 63 of

title 5, United States Code, and to pay for any holiday occurring on a

regularly scheduled workday on which they perform no work. Those

employed on an intermittent basis do not earn leave and are not

entitled to paid holidays.

Sec. 304.107 Reports.

As required by 5 U.S.C. 3109(e), each agency shall report to the

Office of Personnel Management on an annual basis:

(a) The number of days the agency employed each paid expert or

consultant; and

(b) The total amount the agency paid each expert or consultant so

employed.

Sec. 304.108 Compliance.

(a) Each agency using 5 U.S.C. 3109 must--

(1) Establish and maintain a system of controls and oversight

necessary to assure compliance with 5 U.S.C. 3109 and these

regulations;

(2) Inform officials and employees using the authority of the

statutory and regulatory requirements through management briefings,

training classes, written instructions, or other effective means; and

(3) Include review of experts and consultants in its personnel

management evaluation (PME) program. An agency without a PME program

must review experts and consultants as part of its internal oversight

activities.

(b) OPM will, as necessary--

(1) Review agency employment of experts and consultants and agency

controls and oversight to determine compliance; and

(2) Issue instructions and guidance to agencies on employing

experts and consultants and on reporting procedures.

[FR Doc. 94-32028 Filed 12-28-94; 8:45 am]

BILLING CODE 6325-01-M