LETTER TO MR. MAX HUGEL FROM DONALD J. DEVINE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP84B00890R000300090025-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 13
• Document Creation Date: December 19, 2016
• Document Release Date: October 20, 2005
• Sequence Number: 25
• Publication Date: March 23, 1981
• Content Type: LETTER

ROUTING AND TRANSMIT'T'AL SLIP .,u.Q
TO: (Name, office symbol, room number,
building, Agency/Post)
_D/OPPP&M
5E 58 Has
24 March 1981
)Comment Investigate
Coordination Justif
y
REMARKS
25X1
Harry:
Please have someone from your office highlight
and make any appropriate comments'for my meeting on
Friday on the. attached. Please return to me by
Thursday, 26 March. Thank you.
Max Hugel
Att: DDA 81-0637
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
Note and Return
Date
Prepare Reply
Signature
Room No.-Bldg.
7D 24 Hqs
~rxa=ioz ST
OPTIONAL LORM 41 (Rev. 7-76)
Prescribed CA) GSA
o: i~3'h-o -261-6.17 33:;4 FPMR (41 CFR) 101-11.23$
FROM: (Name, org. Symbol, Agency/post)
Deputy Director for Administration
DDA:MHugel:kmg (24 Mar 81)
Distribution:
Orig - Adse (via tube) w/cy of att
- DDA Subj w/cy of att (Orig)
Officers Group meeting on personnel obligations and responsibilities of each agency
(DDA 81-0637)
1 - DDA Chrono
1 - MH Chrono
Att: Ltr dtd 23 Mar 81 to DDA fr Director-Designate of OPM re Inter-Agency Personnel
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 Approved Mr RdlWbai2SWd9/6AA6i@iWP84BOMOR000300090025-1
Office of
Personnel Management Washington, D.C. 20415
? March 23, 1981
Mr. Max Hugel
Deputy Director for Administration
Central Intelligence Agency
Washington, D.C. 20505
Dear Mr. Hugel:
At a recent Cabinet meeting, I requested, through the Office of
Cabinet Administration, individuals to be assigned to the Inter-Agency
Personnel Officers Group (IAPOG). I have been advised you are that
personnel contact for your agency.
An initial briefing on the personnel obligations and responsibi-
lities of each agency, will take place in the Executive Conference
Room at the Office of Personnel Management Building on March 27th,
at 9:00 A.M: 1900 E Street N.W.
As you know it is very important to get off to a good start in
the complex area of government personnel. In fact, I apologize
for not being able to do this sooner. We need to meet and discuss
common problems; and set-up a formal procedure through the IAPOG.
I'know you have a very busy schedule, but I would appreciate it
if you made time available.
Donald J. Devine
Director-Designate
P.S. I am including a copy of a memorandum put together at OPM on
the Civil Service and Transition to a new Presidential
Administration.
On file OPM release instructions apply.
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CON 114-24-3
January 1979
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CIVIL SERVICE AND TRANSITION TO
A NEW PRESIDENTIAL ADMINISTRATION
Each Administration has the opportunity to appoint a number of officials
in the civil service essentially on the basis of their support for its
aims and policies. These officials are generally those responsible for
formulating, advocating and directing Administration policies and pro-
grams, or who serve such officials in a confidential relationship.
In the context of the total Government, only a relatively few positions
are subject to change at the discretion of a Presidential Administration.
Most executive branch positions are in the competitive civil service or
are under a separate merit system. For these latter positions, it is a
violation of civil service law and regulations to base personnel deci-
sions on any factor not related to job performance. (See 5 U.S.C. 2301,
2302; 5 CFR Parts 4, 7, 1250.)
It is traditional, of course, that the vast majority of the incumbents
of positions which are subject to change at the discretion of a Presi-
dential Administration resign before any new Administration takes office
or at the request of Administration officials. However, there is no legal
requirement that they do so. It also is common for an incoming Administra-
tion to ask certain persons to remain on their jobs during the early stages
of the new Administration to ensure needed continuity and to provide required
personnel during the initial period of staffing.
In any event, employees in positions that are subject to change at the
discretion of the Administration are not part of the competitive civil
service. Rather, they are excepted from the requirements placed on the
competitive service by statute, Executive order or regulation. There are
a variety of such employees. They include Presidential appointees or
direct appointees of the agency head; noncareer, limited term, or limited
emergency appointees in the Senior Executive Service; incumbents of Non-
career Executive Assignments; and incumbents of Schedule C positions.
Positions or Individuals Subject to Change
Positions or individuals subject to change at the discretion of a new Ad-
ministration include:
(1)
Presidential appointments made with the advice and consent of
the Senate to positions in which the incumbent serves at the
pleasure of the President;
(2)
Other Presidential appointments to positions in which the
incumbent serves at the pleasure of the President;
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(3)
Appointments to positions in which the incumbent serves
in the excepted service at the pleasure of the agency
head. Excepted service positions in this category are
those which are excepted from the competitive service by
statute; and,
(4) Individuals serving in the Senior Executive Service on
either a noncareer or limited term basis.
Positions in these categories normally include Cabinet Officers and heads
of other Executive branch agencies; Under Secretaries; Assistant Secre-
taries; Directors of Bureaus, Services, and Administrations; and Chair-
persons and Members of Boards, Commissions, and Committees. Positions in
all four categories are often authorized by specific provisions of law.
Many are in the Executive Schedule, some are under the General Schedule
or other position-oriented pay system.
In the past, categories (1) and (2) included most of the positions in Level
I (Cabinet level) through Level V of the Executive Schedule. Now managerial
Level IV and Level V positions (not requiring Senate confirmation) are in
SES, although-their titles may continue to be listed in sections 5315 and
5316 of title 5 pending revision of the statute. Also, now included in SES
are most of the former managerial GS-16, 17, and 18 positions in the Execu-
tive branch and equivalent positions in other pay systems.
An executive's tenure in the former Level IV, Level V, supergrade, and other
type positions now in SES is determined by the type of appointment held by
the individual and not by the type of position. The positions identified in
(1), (2), and (3) above and the various types of SES appointments are discussed
below.
INDIVIDUALS APPOINTED BY THE PRESIDENT OR HEAD OF THE AGENCY
Officers and employees who serve "at the pleasure of" the President or other
appointing official may be asked to resign or may be dismissed at any time.
They are not covered by standard Civil Service removal procedures and have
no right of appeal. However, under recent court decisions which may be
applicable, such employees may not be discharged for political party af-
filiation, unless party affiliation is necessary for the performance of
their job. It appears, however, that they may be discharged for the des-
truction of the policy determining or confidential relationship [Branti v.
Finkel, decided by the U. S. Supreme Court March 31, 19801. A sample notice
of removal is included in Tab A. Agencies should consult their General
Counsel or OPM's General Counsel for assistance in this area.
In limited cases, the organic statute creating a position provides that an
individual appointed by the President, may be removed only for cause. These
provisions are most commonly found in statutes establishing quasi-judicial
entities or regulatory agencies. The Office of Legal Counsel at the De-
partment of Justice is the expert in this field. The issue is discussed
in such cases as: Myers v. U.S., 272 U.S. 52; Humphreys E;-?cutor v. U.S.,
295 U.S. 602; Wiener v. U.S., U.S. 349; and Buckley v. Valea, 424 U.S. 1.
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 "M *490
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OTHER APPOINTEES IN THE EXCEPTED SERVICE
Noncareer Executive Assignments
Noncareer Executive Assignments (NEA) are positions at GS-16, 17, and 18
that are administratively excepted from the competitive service through
action of OPM. The exception is based on the degree of involvement of the
incumbent in the policies and actions of the Administration or on a con-
fidential relationship with a political appointee. Before the Senior
Executive Service was established, NEAs were the primary Administration
officials below the Executive Levels. There now are very few of these
positions because most were incorporated into the SES.
Except in the rare case of an NEA with status in his or her position, an
NEA has no right to appeal a removal. action to the Merit Systems Protection
Board. Nonetheless, the removal of such an individual must be in accordance
with any procedures which have been established by the employing agency.
These employees may not be dismissed because of party affiliation unless
such affiliation is necessary for the performance of their job. [Vitarelli
v. Seaton, 359 U.S. 539 (1959); Watson v. U. S., 162 F. Supp. 755 (Ct. Cl.
1959)].
A sample notice of separation for these employees is contained in Tab A.
In the rare case of an individual having status in the position, the Execu-
tive Personnel and Management Development Group of OPM will, provide advice.
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Schedule C Positions
Another category of individuals who are subject to change at the discretion
of a new Administration are appointees to Schedule C positions, or to
equivalent positions in agencies that are statutorily excepted from the
competitive service. Schedule C positions consist of jobs at GS-15 and
below which the Office of Personnel Management has excepted from the com-
petitive civil service because they include policy-determining responsibi-
lities or require the incumbent to serve in a confidential relationship to
a key official.
(a) Establishment of Positions
OPM authorizes the establishment of each Schedule C position and may
revoke the authority when the position changes. Additionally, several
agencies have received approval to establish and maintain their own inven-
tory of Schedule C positions via a delegation agreement negotiated with
OPM. OPM does not review the qualifications of a Schedule C appointee;
final authority on this matter rests with the appointing official. Cur-
rently, there are about 1,800 Schedule C positions. A list of them
is published annually in Part 213 of OPM's regulations and is updated
as changes occur by publication in the Federal Register.
(b) Procedures for Removal
Schedule C employees may be separated at any time if the confidential
or policy-determining relationship between the incumbent and his or her
superior no longer exists. They also may be removed based on political
affiliation if political affiliation is required for effective job per-
formance. Agencies should consult their General Counsel or OPM's General
Counsel on this issue. The only Schedule C employees covered by statutory
appeal procedures and who, therefore, may appeal removal actions to the
Merit Systems Protection Board (MSPB) are those who are serving in a
position in the competitive service when OPM authorized its conversion
to Schedule C and who still serve in those positions (i.e., have status
in the positions--c.f. Roth v. Brownell, 215 F 2d 500.)
Incumbents of Schedule C positions who have no status in those positions
regardless of veterans preference or length of service in the positions,
are not covered by statutory procedures and have no rights to appeal
removal actions to MSPB. (Please refer to the revised FPM Chapter 752,
Adverse Actions, subchapter 3-1, d(2)(A). This chapter was published
in advance of incorporation in the FPM via FPM Letter 752-i1 dated
September 12, 1980.) However, the removal of any Schedule C employees
must be in accordance with any internal appeal procedures which have
been established by the employing agency [Vitarelli v. Seaton, 359 U.S.
539 (1959); Watson v. U.S., 162 F. Supp. 755 (Ct. Cl. 1958.)]
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An employee who was serving in a position in the competitive service
when OPM authorized its conversion to Schedule C and is still serving
in that position may be removed from that position "for such cause as
will promote the efficiency of the service". Moreover, the action must
be taken in accordance with the procedures established by 5 U.S.C. 7511
et seq. and part 752 of OPM's regulations. These procedures provide for
the right: (1) to a 30-day advance written notice which states the
reasons for the proposed removal specifically and in detail; (2) to
reply personally and in writing; (3) to be represented;
(4)
to have
the
reply considered; and (5) to a written decision stating
the action. The employee may appeal the action to MSPB.
the
reasons
for
In this connection it should be noted that removal for loss of conf i-
dence comes within the concept of "for such cause as will promote the
efficiency of the service" when the incumbent occupies the policy-
determining or confidential position, i.e., a Schedule C position.
[Leonard v. Douglas, 321 F 2d 749 (D.C. Cir. June 26, 1963.)] Ad-
ditionally, agencies are reminded that there are very few instances
where an employee has status in his/her Schedule C position since OPM
does not generally authorize conversion of encumbered competitive
positions to Schedule C. Therefore, we would.expect very few if any
of these cases.
A sample notice of separation for all Schedule C employees except those
with status in their positions is contained in Tab A. Tabs B and C con-
tain sample letters of proposed removal for an individual with status
in his/her position who is covered by part 752 of OPM's regulations.
(c) Temporary Schedule C Positions
On April 18, 1980, OPM issued a final regulation permitting agencies to
establish temporary Schedule C positions at the GS-15 grade level and
below following Inauguration in order to facilitate the orderly transi-
tion of duties as a consequence of a change in Presidential Administration,
changes in department or agencies heads or changes resulting from the
creation of a new department or agency. This authority permits the estab-
lishment of (1) positions identical to existing Schedule C positions if
an intent to vacate these positions has been put in writing by manage-
ment or the present incumbents, and (2) new temporary Schedule C positions
when it is determined that the department or agency heads' needs cannot be
met through the establishment of a position identical to an existing
Schedule C position. Service under either type of position may not
exceed 120 days. For more specific information on the use of this
authority, please refer to FPM Bulletin 213-33 dated May 9, 1980.
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Other Excepted Service Positions
In addition to the policy-determining or confidential positions des-
cribed in the preceding section, certain agencies and groups of posi-
tions are also excepted by statute, Executive order, or OPM action from
the competitive civil service. These exceptions have been made for a
variety of reasons, none of which relate to the policy-determining factors
associated with the initial three categories. Examples of positions
which have been excepted by statute include doctors, dentists, and
nurses in the Department of Medicine and Surgery of the Veterans
Administration, the Foreign Service of the Department of State, the
Federal Bureau of Investigation of the Department of Justice; and,
all positions in the Tennessee Valley Authority, the General Accounting
Office, the Nuclear Regulatory Commission, and the Postal Service.
Most of these positions are under special merit systems and are not
subject to change in a new Administration. In addition to positions
excepted by statute, there are about 100,000 positions which are ex-
cepted from the competitive service by Executive order. Most of these
are jobs overseas held by foreign nationals.
Finally, there are two other categories of positions which the Office of
Personnel Management has administratively-excepted from the competitive
service. Schedule A positions are those which are not of a confidential
or policy-determining character, but for which it is not practicable to
hold any examination. Examples of positions in Schedule A include
chaplains, teachers in military dependent school systems overseas,
faculty positions of Service academies, and certain positions at iso-
lated localities. Attorney positions are also in Schedule A because
the OPM is prohibited in its appropriations legislation from spending
funds to examine for attorney positions. There are about 100,000 posi-
tions in this schedule.
Schedule B positions are those which are not of a confidential or policy-
determining character, but for which it is impracticable to administer
open competitive examinations. However, an individual must meet qualifi-
cation requirements established by OPM for the occupation and grade level
in order to be appointed to a Schedule B positions. Examples include
student trainee positions (co-op), National Bank examiners in the
Treasury Department and loan specialists in the Export-Import Bank.
There are about 17,000 positions in this schedule, over 14,000 of which
are under cooperative education programs.
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SES positions, appointments, and special features of SES tenure are discus-
sed below. Appointees in the SES who are subject to change at the discretion
of a new Administration are those in Noncareer, Limited Term, and Limited
Emergency appointments. The continued tenure of these SES appointees
should be examined carefully and should take into account the reasons
for the appointment (including expeditious processing) and the prospect
for continued contribution by the executive within the scope of the
established need for the appointment.
Each agency receives a number of SES position spaces in a biennial position
allocation, based on the agency's demonstrated need for the positions. The
agency is then free to establish within that limit Career Reserved or General
positions as appropriate. Career Reserved positions must be filled by career
SES appointees; General positions can be filled by either career or non-
career appointees. Since, by statute, only 10 percent of the SES government-
wide may be given noncareer appointments, most General positions are filled
by career appointees. Each agency is allocated a maximum number of noncareer
appointments which may be in effect at any one time.
Noncareer SES Appointees
Noncareer SES appointments are made by the agency. The agency has the
authority to establish qualifications, approve the candidate's qualifi-
cations, make the appointment without regard to competitive process,
and fix the pay of the appointee.
A noncareer appointee may be removed following written notice, or re-
quested to resign at any time at the discretion of the appointing
authority.
As discussed previously, these employees may not be dismissed because of
party affiliation unless such affiliation is necessary for the performance
of their job. Lack of confidence in the relationship or in the appointee's
ability to carry out present programs or policy is sufficient. Noncareer
SES appointees removed from the Federal service are not entitled to veterans
preference and have no right of appeal to the Merit Systems Protection Board
(MSPB). Further assistance should be obtained from the agency's General
Counsel or the OPM General Counsel. A sample removal notification letter
is.shown in Tab A.
Under the Civil Service Reform Act, the removal of a noncareer SES appointee
in an independent regulatory commission may not be subject, directly or in--
directly, to review or approval by any officer or entity within the Execut.;ve
Office of the President. (5 U.S.C. 3392(d))
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Limited Term and Limited Emergency SES Appointees
Limited Term SES appointments are made to General positions having duties
terminating within 3 years of the date of appointment. Limited Emergency
SES appointments are made to General positions when an unexpected situation
develops that does not permit the more time-consuming process of advertising
and competitive selection. Positions are established by the agency with
prior OPM approval for position type and appointment involved. As in all
SES appointments, the limited term or limited emergency appointee must meet
the qualification requirements established for the position by the agency.
A limited term or limited emergency SES appointee may serve no more than
36 months on any combination of such appointments in any 48 month period.
A special" type of limited term SES appointment is available for use following
Inauguration. In this special appointment, the executive may be appointed
as a limited term Senior Executive to a position with duties that relate to
the transition and which will terminate within 6 months. Tenure in such an
appointment is the same as in any other limited term SES appointment. Pre-
sidential nominees subject to Senate confirmation may be placed in this
short-term appointment awaiting confirmation, but may not "act" in the
target position. Such individuals should function in an advisory or con-
sultative capacity.
An executive holding either a limited term or limited emergency SES
appointment may be removed or requested to resign at any time on the
decision of the appointing authority.
The procedures for removal are the same as for noncareer SES executives.
Limited term SES appointees being removed are not entitled to veterans
preference and have no right of appeal to MSPB. Also, the removal of a
limited SES appointee in an independent regulatory commission cannot be
subject to review or approval in the Executive Office of the President.
Statutory Controls on Career SES Personnel Actions
With creation of the Senior Executive Service, it became possible for an
agency to assign an executive to any position for which he or she qualified.
This possibility is in contrast with the previous system in which some posi-
tions were identified as "noncareer" and only noncareer executives could be
assigned to them. Now, an agency head has greater flexibility to assign
either a career or noncareer SES member to a position within the statutory
controls described below:
(1) SES members may be assigned into or out of critical positions
to meet the staffing needs of the new leadership, except that
positions designated Career Reserved must be filled by a
career executive.
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(2) A career executive may not be involuntarily reassigned to
another SES position in the agency or involuntarily removed
.from SES within 120 days after the appointment of a new
agency head or the appointment of an immediate supervisor
who is a noncareer appointee and who has authority to remove
or reassign the career executive. This restriction does not
apply to an action already underway or being taken as a result
of an unsatisfactory performance appraisal, nor generally to
removal from Federal service for misconduct. However, a
career executive's performance appraisal and rating may not
be made within 120 days after the beginning of a new Presidential
Administration.
Although Presidential appointees are among the executives subject to change
in a new Administration, it should be noted that certain former SES career
executives have entitlement to reinstatement and the Senior Executive Ser-
vice after leaving the Presidential appointment for reasons other than mis-
conduct, neglect of duty, or malfeasance. The number of such appointees is
small and the special circumstances must be addressed individually in each
case. See 5 U.S.C. 3993(b).
1. The involuntary separation for "discontinued-service retirement"
provisions apply to Presidential appointees, NEA's, Schedule C
employees, and noncarcer and limited term SES appointees. Material
from the FPM on this subject is included in Tab D. For additional
information on eligibility for retirement, contact the OPM Compensa-
tion Group, Advisory Services.
2. In dismissal cases, Constitutional requirements oblige agencies to
provide an employee with a hearing if his or her moral character
is impugned by the stated reasons for dismissal. These rights arise
only when the stigmatizing reasons for dismissal are recorded in any
document which may be disseminated to others either inside or outside
Government. For this reason, notices of separation should be mild in
tone.
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 ROUTING AND_TRANSMiTT'- SUP
b ((.Nat o ca sym o . room rtumbeel,
building, AgencylPost)
f ion
provai~
s Re Requested
ircuiate
mment
Coordination
File
For Clearance
For Correction
For Your information
Investigate
DO NOT use this form as a RECORD of approvals, concurrences: disposals,
FROM: (Name, org. symbol, Agency/Post)
Phone No.
App ?s rs IqA-5p /12/14: CIA 9P O S ;3ARG00300090025-1
og po
 Approved PT* Release 2005Jja44SfADP84B0( 0R000300090025-1
+~/~ Office of
Personnel Management Washington, D.C. 20415
THE FOLLOWING INDIVIDUALS WILL BE AT THE MEETING TOMORROW
AT 9:00 A.M.
Jim Handley
Mary Knauss
Elam Hertzler
William Heffelfinger
David Newhall
Lance Wilson
Richard Hite
James Hooley
Richard Stratford
Max Hugel
Jackie Tillman
Mike Baroody
David Chew
Stanley E. Morris
Mary Batjer
Kenneth Klinge
Jay Morris
Rick Abell
Robert Turnbull
Steve Thayer
Gilbert Robinson
Michael Masson
James Hacket
Nick Longworth
Ed Harper
Agriculture
Commerce
Education
Energy
HHS
HUD
Interior
Labor
State
CIA
State
Trade
Treasury
Justice
Defense
Transportation
AID (State)
Peace Corp
SBA
GSA
ICA
Synthetic Fules Corporation
ACDA
VA
The White House oO%&
On file OPM release instructions apply.
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CON 114-24-3
Ja?unry 19,30