Order Code RL34706
Federal Personnel: Conversion of Employees
from Appointed (Noncareer) Positions to Career
Positions in the Executive Branch
October 14, 2008
Barbara L. Schwemle
Analyst in American National Government
Government and Finance Division

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Federal Personnel: Conversion of Employees from
Appointed (Noncareer) Positions to Career Positions in
the Executive Branch
Summary
The term “burrowing in” is sometimes used to describe an employment status
conversion whereby an individual transfers from a federal appointed (noncareer)
position to a career position in the executive branch. Critics of such conversions note
that they often occur during the transitional period in which the outgoing
administration prepares to leave office and the incoming administration prepares to
assume office. Conversions are permissible when laws and regulations governing
career appointments are followed, but they can invite scrutiny because of the
differences in the appointment and tenure of noncareer and career employees.
Appointments to career positions in the executive branch are governed by law
and regulations that are codified in Title 5 of the United States Code and Title 5 of
the Code of Federal Regulations, and are defined as personnel actions. In taking a
personnel action, each department and agency head is responsible for preventing
prohibited personnel practices; for complying with, and enforcing, applicable civil
service laws, rules, and regulations and other aspects of personnel management; and
for ensuring that agency employees are informed of the rights and remedies available
to them. Such actions are required to adhere to the merit principles and prohibited
personnel practices that are codified at 5 U.S.C. §2301(b) and §2302(b), respectively.
These principles and practices are designed to ensure that the process for selecting
career employees is fair and open (competitive), and without political influence. The
Office of Personnel Management (OPM) has general authority to examine
conversions. Additionally, from March 17, 2008, through January 20, 2009,
conversions of employees from noncareer positions to career positions in the
competitive service and the career Senior Executive Service are subject to pre-
appointment review by OPM. Certain senior politically appointed officers are
prohibited from receiving financial awards during the Presidential Election Period,
defined in statute and currently covering June 1, 2008, through January 20, 2009.
As part of its oversight of government operations, Congress also monitors
conversions. In the 110th Congress, staffing at the Departments of Homeland
Security (DHS) and Justice (DOJ) has been of particular interest. Both departments
received letters from Members of Congress reminding them to examine conversions:
the Chairman of the House Committee on Homeland Security, Representative Bennie
Thompson, wrote to the DHS Secretary in February 2008, and Senators Dianne
Feinstein and Charles Schumer, members of the Senate Committee on the Judiciary,
wrote to the Attorney General in July 2008 about this issue. In assessing the current
situation, Congress may decide that the existing oversight is sufficient. If Congress
determines that additional measures are needed, OPM, and the departments and
agencies, could be directed to include information on conversions in their annual
performance plans accompanying the budget justifications. The Government
Accountability Office and OPM could be asked to explore options that might result
in their recommending and taking timely remedial actions that are seen as necessary
to address conversions that occurred under improper procedures. This report will be
updated as events dictate.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Selected Law and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Oversight of Conversions from Noncareer to Career Positions . . . . . . . . . . . 6
The Current Transition Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Considerations to Enhance Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
List of Tables
Table 1. Merit System Principles and Prohibited Personnel Practices . . . . . . . . . 3

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Federal Personnel: Conversion of
Employees from Appointed (Noncareer)
Positions to Career Positions in the
Executive Branch
Background
Some individuals, who are serving in appointed (noncareer) positions in the
executive branch, convert to career positions in the competitive service, the Senior
Executive Service (SES), or the excepted service.1 This practice, commonly referred
to as “burrowing in,” is permissible when laws and regulations governing career
appointments are followed. While such conversions may occur at any time,
frequently they do so during the transition period when one administration is
preparing to leave office and another administration is preparing to assume office.
Generally, these appointees were selected noncompetitively and are serving in
such positions as Schedule C, noncareer SES, or limited tenure SES2 that involve
policy determinations or require a close and confidential relationship with the
department or agency head and other top officials. Many of the Schedule C
appointees receive salaries at the GS-12 through GS-15 pay levels.3 The noncareer
and limited tenure members of the SES receive salaries under the pay schedule for
senior executives that also covers the career SES.4 Career employees, on the other
1 Appointments to career competitive service positions include requirements for approved
qualification standards, public announcement of job vacancies, rating of applicants, and
completion of a probationary period and three years of continuous service; career SES
positions include review by the Office of Personnel Management (OPM) and certification
of a candidate’s ability by a Qualifications Review Board; and career excepted service
positions allow agencies to establish their own hiring procedures, but require those systems
to conform to merit system principles and veterans preference.
2 Appointments to SES positions that have a limited term may be for up to 36 months, and
those that are to meet an emergency (unanticipated or urgent need) may be for up to 18
months.
3 GS refers to the General Schedule, the pay schedule that covers white-collar employees in
the federal government. As of January 2008, the salaries from GS-12, step 1, to GS-15, step
10, in the Washington, DC, pay area ranged from $69,764 to $149,000.
4 Salaries for members of the SES are determined annually by agency heads “under a
rigorous performance management system,” and range from the minimum rate of basic pay
for a senior level (SL) employee (120% of the minimum basic pay rate for GS-15; $114,468,
as of January 2008) to either EX Level III ($158,500, as of January 2008), in agencies whose
performance appraisal systems have not been certified by OPM as making “meaningful
(continued...)

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CRS-2
hand, are to be selected on the basis of merit and without political influence
following a process that is to be fair and open in evaluating their knowledge, skills,
and experience against those of other applicants. The tenure of noncareer and career
employees also differs. The former are generally limited to the term of the
administration in which they are appointed or serve at the pleasure of the person who
appointed them. The latter constitute a work force that continues the operations of
government without regard to the change of administrations.
Paul Light, a professor of government at New York University, who has studied
appointees over the past several administrations, reportedly believes that the pay,
benefits, and job security of career positions underlie the desire of individuals in
noncareer positions to “burrow in.”5 The President of the Senior Executives
Association, Carol Bonosaro, echoed this viewpoint in stating the following:
Remember, not everybody who comes in is going to have a very high-profile job
where they are going to be able to leave and make really good money.... Not
everyone has had necessarily a strong enough background to go back out. They
may just have been a campaign worker.6
Beyond the fundamental concern that the conversion of an individual from an
appointed (noncareer) position to a career position may not have followed the legal
and regulatory requirements, “burrowing in” raises other concerns. When the
practice occurs, there may be these perceptions (whether valid or not): that an
appointee converting to a career position may limit the opportunity for other
employees (who were competitively selected for their career positions, following
examination of their knowledge, skills, and experience) to be promoted into another
career position with greater responsibility and pay; or that the individual who is
converted to a career position may seek to undermine the work of the new
administration whose policies may be at odds with those that he or she espoused
when serving in the appointed capacity. Both perceptions may increase the tension
between noncareer and career staff, thereby hindering the effective operation of
government at a time when the desirability of creating “common ground” between
these staff to facilitate government performance has been emphasized.7
4 (...continued)
distinctions based on relative performance,” or EX Level II ($172,200, as of January 2008),
in agencies whose performance appraisal systems have been so certified.
5 Christopher Lee, “Political Appointees Burrowing In,” Washington Post, October 5, 2007,
p. A19.
6 Ibid.
7 See, for example, Maranto, Robert, Beyond a Government of Strangers: How Career
Executives and Political Appointees Can Turn Conflict to Cooperation, Lanham: Lexington
Books, 2005; and Dana Michael Harsell, “Working With Career Executives to Manage for
Results,” in IBM Center for The Business of Government, Essays on Working in
Washington, The Center: January 2005, pp. 34-44.

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CRS-3
Selected Law and Regulations
Appointment to a career position in the executive branch is governed by law and
regulations, and is defined in law as a type of personnel action.8 In taking any
personnel action, including appointment to a career position, each department and
agency head is responsible for preventing prohibited personnel practices; for
complying with, and enforcing, applicable civil service laws, rules, and regulations
and other aspects of personnel management; and for ensuring that agency employees
are informed of the rights and remedies available to them. Personnel actions must
adhere to the nine merit principles and 12 prohibited personnel practices that are
codified in Title 5 of the United States Code at 5 U.S.C. §§2301(b) and 2302(b),
respectively. Table 1 below presents these principles and practices.
Table 1. Merit System Principles and Prohibited
Personnel Practices
Merit System Principles
Prohibited Personnel Practices
Recruit from qualified individuals to achieve a workforce
Discriminating for or against any employee or applicant for
from all segments of society; selection and advancement
employment on the basis of race, color, religion, sex,
solely on the basis of relative ability, knowledge, and skills;
national origin, age, handicapping condition, marital status,
and assure equal opportunity through fair and open
or political affiliation.
competition.
Fair and equitable treatment of employees and applicants
Soliciting or considering any recommendation or statement,
for employment in all aspects of personnel management
oral or written, with respect to any individual who requests,
without regard to political affiliation, race, color, religion,
or is under consideration for, any personnel action unless
national origin, sex, marital status, age, or handicapping
such recommendation or statement is based on the personal
condition, and with proper regard for their privacy and
knowledge or records of the person furnishing it, and
constitutional rights.
consists of an evaluation of the work performance, ability,
aptitude, or general qualifications of such individual, or an
evaluation of the character, loyalty, or suitability of such
individual.
Equal pay for work of equal value, with appropriate
Coercing the political activity of any person (including the
consideration of both national and local rates paid by
providing of any political contribution or service) or taking
employers in the private sector, and appropriate incentives
any action against any employee or applicant for
and recognition for excellence in performance.
employment as a reprisal for the refusal of any person to
engage in such political activity.
Employee adherence to high standards of integrity, conduct,
Deceiving or willfully obstructing any person with respect
and concern for the public interest.
to such person’s right to compete.
Efficient and effective use of the federal work force.
Influencing any person to withdraw from competition for
any position for the purpose of improving or injuring the
prospects of any other person for employment.
8 The law, codified at 5 U.S.C. §2302(a), defines personnel actions as appointments;
promotions; adverse actions or other disciplinary or corrective action; details, transfers, or
reassignments; reinstatements; restorations; reemployment; performance evaluations;
decisions concerning pay, benefits, or awards, concerning education or training, if such may
reasonably be expected to lead to a personnel action; a decision to order psychiatric testing
or examination; and any other significant change in duties, responsibilities, or working
conditions.

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Merit System Principles
Prohibited Personnel Practices
Retain employees on the basis of the adequacy of their
Granting any preference or advantage not authorized by
performance; correct inadequate performance; and separate
law, rule, or regulation to any employee or applicant for
those who cannot or will not improve performance to meet
employment (including defining the scope or manner of
required standards.
competition or the requirements for any position) for the
purpose of improving or injuring the prospects of any
particular person for employment.
Provide employees effective education and training to
Appointing, employing, promoting, advancing, or
improve organizational and individual performance.
advocating such, in or to a civilian position any individual
who is a relative of such employee if such position is in the
agency in which such employee is serving as a public
official or over which such employee exercises jurisdiction
or control as an official.
Protect employees against arbitrary action, personal
Taking or failing to take, or threatening such, a personnel
favoritism, or coercion for partisan political purposes, and
action with respect to any employee or applicant for
prohibit the use of official authority or influence to interfere
employment because of any disclosure of information,
with or affect the result of an election or a nomination for
including to the Special Counsel or an agency Inspector
election.
General, by the individual which he or she reasonably
believes evidences a violation of any law, rule, or
regulation, or gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety; provided the disclosure is
not specifically prohibited by law and if such information is
not specifically required by executive order to be kept
secret in the interest of national defense or the conduct of
foreign affairs.
Protect employees against reprisal for the lawful disclosure
Taking or failing to take, or threatening such, any personnel
of information reasonably believed to evidence a violation
action against any employee or applicant for employment
of any law, rule, or regulation, or mismanagement, a gross
because of the exercise of any appeal, complaint, or
waste of funds, an abuse of authority, or a substantial and
grievance right granted by any law, rule, or regulation;
specific danger to public health or safety.
testifying for, or otherwise lawfully assisting, any individual
in the exercise of any right referred to above; cooperating
with or disclosing information to, the Inspector General of
an agency, or the special counsel, in accordance with the
law; or for refusing to obey an order that would require the
individual to violate a law.
Discriminating for or against any employee or applicant for
employment on the basis of conduct which does not
adversely affect the performance of the individual or the
performance of others; except this shall not prohibit an
agency from taking into account, in determining suitability
or fitness, any conviction of the employee or applicant for
any crime under federal, state, or District of Columbia law.
Knowingly taking, recommending, or approving, or failing
to do such, any personnel action if the taking of, or failing
to take, such action would violate a veterans’ preference
requirement.
Taking or failing to take any other personnel action if such
would violate any law, rule, or regulation implementing, or
directly concerning, the merit system principles.

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CRS-5
Department and agency heads also must follow regulations, codified at Title 5
of the Code of Federal Regulations, that govern career appointments. Among these
are Civil Service Rules 4.2 and 7.1:
Sec. 4.2. Prohibition against racial, political or religious discrimination. No
person employed in the executive branch of the Federal Government who has
authority to take or recommend any personnel action with respect to any person
who is an employee in the competitive service or any eligible or [sic] applicant
for a position in the competitive service shall make any inquiry concerning the
race, political affiliation, or religious beliefs of any such employee, eligible, or
applicant. All disclosures concerning such matters shall be ignored, except as to
such membership in political parties or organizations as constitutes by law a
disqualification for Government employment. No discrimination shall be
exercised, threatened, or promised by any person in the executive branch of the
Federal Government against or in favor of any employee in the competitive
service, or any eligible or applicant for a position in the competitive service
because of his race, political affiliation, or religious beliefs, except as may be
authorized or required by law.
Sec. 7.1 Discretion in filling vacancies. In his discretion, an appointing officer
may fill any position in the competitive service either by competitive
appointment from a civil service register or by noncompetitive selection of a
present or former Federal employee, in accordance with the Civil Service
Regulations. He shall exercise his discretion in all personnel actions solely on the
basis of merit and fitness and without regard to political or religious affiliations,
marital status, or race.
Other regulations provide that Office of Personnel Management (OPM)
approval is required before employees in Schedule C positions may be detailed to
competitive service positions, public announcement is required for all SES vacancies
that will be filled by initial career appointment, and details to SES positions that are
reserved for career employees (known as Career-Reserved) may only be filled by
career SES or career-type non-SES appointees.9
During the period June 1, 2008, through January 20, 2009, defined as the
Presidential Election Period, certain appointees are prohibited from receiving
financial awards.10 These appointees, referred to as senior politically appointed
officers, are
! individuals serving in noncareer SES positions;
! individuals serving in confidential or policy determining positions
as Schedule C employees; and
! individuals serving in limited term and limited emergency positions.
9 These regulations are codified at 5 C.F.R. §300.301(c), 5 C.F.R. §317.501, and 5 C.F.R.
§317.903(c), respectively.
10 5 U.S.C. §4508 and 5 C.F.R. §451.105.

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CRS-6
Oversight of Conversions from
Noncareer to Career Positions
When a department or agency, for example, converts an employee from an
appointed (noncareer) position to a career position without any apparent change in
duties and responsibilities, or that appears to be tailored to the individual’s
knowledge and experience, such actions may invite scrutiny. OPM and the
Government Accountability Office (GAO) each conduct oversight related to
conversions of employees from noncareer to career positions to ensure that proper
procedures have been followed.
In addition to its general oversight authority, OPM conducts pre-appointment
reviews of certain appointments to career positions in the competitive service and the
SES during the transition. The agency announces this review in a memorandum to
the heads of departments and agencies early in the year in which the presidential
election occurs. OPM released the memorandum covering the 2008 transition on
March 17, 2008, and it is effective from that date through January 20, 2009.
According to the memorandum, OPM must specifically authorize the following
actions by a department or agency:
Proposed competitive service appointment actions that involve a current or
former (within the last five years) incumbent of an executive branch position
excepted from the competitive service under Schedule C.
Proposed competitive service appointment actions that involve a current or
former (within the last five years) Noncareer Senior Executive Service (SES)
appointee.11
When a department or agency proposes selections to the SES that involve a
current or former Schedule C or noncareer SES appointee, OPM will conduct merit
reviews before the candidate is formally presented to a Qualifications Review
Board.12
A “Pre-Appointment Review Checklist” is included as an attachment to the
OPM memorandum and lists the documentation that a department’s or agency’s
Director of Human Resources must submit to OPM along with a dated cover letter.
The documentation includes the following:
! The position descriptions for the candidate’s current or former
appointment and the proposed appointment, including information
11 U.S. Office of Personnel Management, Memorandum for Heads of Departments and
Agencies, from Linda M. Springer, Director, Appointments and Awards During the 2008
Presidential Election Period, March 17, 2008, Attachment 1. (Hereafter referred to as
Appointments and Awards During the 2008 Presidential Election Period.)
12 According to OPM, “Qualifications Review Boards (QRBs) are OPM-administered
independent boards of senior executives that assess the executive core qualifications of SES
candidates [that] must certify that an SES candidate has the broad leadership skills to be
successful in a variety of SES positions.”

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CRS-7
on why and how the respective positions were established and the
relationship between the positions.
! A statement that explains the disposition of the proposed selectee’s
current Schedule C or noncareer SES position, if vacated.
! The complete file for the proposed merit selection, including the
vacancy announcement published in USAJOBS on OPM’s website;
recruiting sources and advertising methods used in addition to
USAJOBS; the job analysis, justification of any selective factor, and
rating schedule/crediting plan; applications from all candidates who
applied with information on how each was rated; information on
how the regulatory requirements of the Interagency Career
Transition Assistance Program were met; and the referral list(s)
issued to the selecting official and the completed referral list
documenting the tentative selection.
! A description of candidate sources considered other than from a
competitive vacancy announcement and the resulting referral lists
forwarded to the selecting official, if any.
! The name, title, telephone number, and type of appointment (e.g.,
career SES, Schedule C, presidential appointee) of the selecting
official.
OPM cautions departments and agencies not to
[C]reate or announce a competitive service vacancy for the sole purpose of
selecting a current or former Schedule C or Noncareer SES employee.
[R]emove the Schedule C or Noncareer SES elements of a position solely to
appoint the incumbent into the competitive service.13
To assist departments and agencies, OPM also publishes the Presidential
Transition Guide to Federal Human Resources Management every four years.14 The
current edition, released in June 2008, includes detailed guidance on standards of
ethical conduct, appointments, and compensation for federal employees.
GAO’s oversight focuses on review, after the fact, of conversions from
noncareer to career positions. The agency has begun to collect data from executive
branch departments and agencies on such conversions that have occurred since its
last evaluation was published in May 2006. The results of that audit covered the
period May 2001 through April 2005, and provide the most current retrospective
data. The evaluation found that, of 130 conversions at GS-12 or higher,
13 Appointments and Awards During the 2008 Presidential Election Period, Attachment 4.
14 U.S. Office of Personnel Management, Presidential Transition Guide to Federal Human
Resources Management, June 2008, available at [http://www.chcoc.gov/Transmittals/
Attachments/trans1300.pdf].

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CRS-8
for 37 of these conversions it appears that agencies did not follow proper
procedures or agencies did not provide enough information for us to make an
assessment. For 18 of the 37 of these conversions, it appears that agencies did not
follow proper procedures. Some of the apparent improper procedures included:
selecting former noncareer appointees who appeared to have limited
qualifications and experience for career positions, creating career positions
specifically for particular individuals, and failing to apply veteran’s preference
in the selection process.15
The GAO findings are examined closely by Congress, as evidenced by
correspondence sent to the OPM director by Representatives Henry Waxman (then
the Ranking Member, and now the Chairman of the House Committee on Oversight
and Government Reform) and Danny Davis (then the Ranking Member, and now the
Chairman of the House Subcommittee on Federal Workforce and Agency
Organization) following the most recent evaluation. In a letter dated May 25, 2006,
both Members directed OPM’s attention to the GAO evaluation and urged the agency
to consider whether its procedures for pre-appointment review of conversions “are
sufficient to prevent further abuses.” The letter emphasized that, “The merit-based
federal workforce is critical to ensuring a competent government that will enforce
laws consistently across administrations” and stated that selecting political
appointees on the basis of favoritism jeopardizes this.16
The Current Transition Period
Members and committees of Congress scrutinize conversions as part of their
oversight of government operations. Particular focus in the 110th Congress, for
example, has been on staffing at the Departments of Homeland Security (DHS) and
Justice (DOJ), especially in the wake of the leadership and management deficiencies
at DHS during and after Hurricane Katrina, and improper procedures used by DOJ
staff in selecting and removing United States attorneys.17
15 U.S. Government Accountability Office, Personnel Practices; Conversions of Employees
from Noncareer to Career Positions May 2001-April 2005. GAO-06-381 (Washington:
GAO, May 2006), pp. 4-5. For a discussion of findings from earlier GAO evaluations, see
CRS Report RS20730, Presidential Transitions and Administrative Actions, by L. Elaine
Halchin, June 5, 2001.
16 Letter from Representatives Henry A. Waxman and Danny K. Davis, to Linda M.
Springer, Director of the Office of Personnel Management, May 25, 2006.
17 See, for example, U.S. Congress, House Select Bipartisan Committee to Investigate the
Preparation For and Response to Hurricane Katrina, A Failure of Initiative: Final Report
of the Select Bipartisan Committee to Investigate the Preparation For and Response to
Hurricane Katrina, 109th Cong., 2nd sess. (Washington: GPO, February 15, 2006); U.S.
Congress, Senate Committee on Homeland Security and Governmental Affairs, Hurricane
Katrina: A Nation Still Unprepared. Special Report, 109th Cong., 2nd sess., S.Rept. 109-322
(Washington: GPO, 2006); and U.S. Department of Justice, Office of Professional
Responsibility and Office of the Inspector General, An Investigation of Allegations of
Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney
General, July 28, 2008.

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In a January 2008 report to the DHS Secretary on the transition, the Homeland
Security Advisory Council recommended that the department “consider current
political appointees with highly specialized and needed skills for appropriate career
positions.”18 That same month, an entry in the DHS leadership journal, published on
the department’s website, discussed transition planning. Then Acting Deputy
Secretary Paul Schneider wrote that,
as part of this planning, we’re filling some of the top jobs previously held by
political appointees with career professionals. For example, last year, we made
Jay Ahern, a 30-year veteran of the federal government, second-in-command of
our Customs and Border Protection component. Just recently, at our
Transportation Security Administration, we filled our deputy slot with Gale
Rossides, who also has had a 30-year federal career and has served at TSA since
its inception six years ago. And we are training and cross-training such senior
career people to ensure that DHS will have the continuity of leadership it needs
following the transition.19
The Wall Street Journal discussed the initiative in a January 11, 2008, article noting
that DHS “has begun an unusual — and potentially controversial — effort to smooth
the transition to a new administration.”20 On February 7, 2008, Representative
Bennie Thompson, Chairman of the House Committee on Homeland Security, wrote
a letter to DHS Secretary Michael Chertoff. He reiterated his concerns about
personnel vacancies at DHS and stated these views:
I am sure that you would agree that it would be inappropriate to fill career non-
political executive level positions with political appointees absent an open and
fully competitive process. While I understand that some could argue that these
individuals may be well-qualified and can provide continuity during a transition
period, others could well argue that to permit political appointees to occupy non-
political positions could be viewed by some as an attempt to insulate political
appointees from the vagaries of the political appointment system and provide an
internal obstruction to the policies of the new administration. Clearly, the latter
interpretation is deeply troubling.21
Representative Thompson also requested that Secretary Chertoff “issue a policy
directive to prohibit the ‘burrowing in’ of political appointees into non-political
career positions within the Department.”22 CRS research did not locate a publicly
available record of any such directive.
18 U.S. Department of Homeland Security, Homeland Security Advisory Council, Report of
the Administration Transition Task Force, January 2008, p. 6.
19 U.S. Department of Homeland Security, Leadership Journal, “Transition: Heads We Win,
Tails You Lose,” January 19, 2008, available at [http://www.dhs.gov/journal/leadership/
2008/01/transition-heads-we-win-tails-you-lose.html].
20 Siobhan Gorman, “Politics and Economics: Homeland Security Handoff; Career
Employees Move Into Positions Once Held by Political Appointees,” Wall Street Journal,
January 11, 2008, p. A5.
21 Letter from Representative Bennie G. Thompson to Michael Chertoff, Secretary of the
Department of Homeland Security, February 7, 2008.
22 Ibid.

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With regard to personnel actions at the Department of Justice, Senators Dianne
Feinstein and Charles Schumer, members of the Senate Committee on the Judiciary,
reportedly wrote a letter to Attorney General Michael Mukasey on July 24, 2008.
According to the Washington Post, the letter asked the Attorney General to “exercise
vigilance” against political appointees moving into career positions, and stated that
When unqualified political appointees take over jobs better left to skilled
candidates, it threatens the agency’s professionalism and independence. We
don’t need ideological stowaways undermining the work of the next
administration.23
Considerations to Enhance Oversight
In assessing the current situation, Congress may decide that the existing system
of oversight is sufficient. However, if Congress determines that additional measures
are needed to further ensure that conversions from appointed (noncareer) positions
to career positions are conducted according to proper procedures and transparent, the
following options could be considered:
! OPM could be directed by Congress to report on the results of its
examinations of conversions, including those that are subject to pre-
appointment review. The report could be included in the agency’s
annual performance plan that accompanies the budget justification
submitted to the House and Senate Committees on Appropriations
each February. It could provide information on conversions that did
not follow proper procedures and the remedial actions taken, and
discuss whether any amendments to current law are needed to ensure
that the legal and regulatory requirements are met. OPM is
authorized to review awards programs at departments and agencies.
Congress could direct OPM to review awards granted in the
executive branch and certify in its annual performance plan that
awards were not granted during the Presidential Election Period.
! OPM could be directed by Congress to report on whether any
changes are needed in the time period covered by the agency’s pre-
appointment review of conversions, or in the Presidential Election
Period, that restricts awards to senior politically appointed officers.
OPM issued its memorandum on pre-appointment review for 2000
on February 18; for 2004, on March 18; and for 2008, on March 17.
As discussed above, the dates of the Presidential Election Period are
defined by law, and in a presidential election year, cover the period
from June 1 through the following January 20.
! Congress could mandate that the annual performance plans that
accompany department and agency budget justifications submitted
to Congress in February of each year include information on
23 Carrie Johnson, “Mukasey Asked to Watch for Lingerers,” Washington Post, July 25,
2008, p. A8.

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CRS-11
conversions during the applicable fiscal year. The performance plan
submitted in the month following the inauguration of the President
could include a certification that awards were not granted during the
Presidential Election Period.
! Departments and agencies could mandate that all officials with
hiring authority be required to annually certify, in writing, that they
understand the legal and regulatory requirements on the conversion
of employees from appointed (noncareer) positions to career
positions and on the prohibition on awards during the Presidential
Election Period. A training session, that could be available
electronically, could be provided to those officials who desire to
review their knowledge and understanding of the procedures. A
hiring official’s failure to follow the proper procedures could be
noted on the individual’s performance evaluation.
! GAO and OPM could jointly explore options for the personnel
agency, and the departments and agencies, to expedite the transmittal
of information on conversions to GAO so that any necessary
remedial actions can be recommended by GAO and taken by OPM
quickly, and closer to the time that the conversions occurred.

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