Exec abandoned by Interior's new SES RIF rule

William Schmidt, a Senior Executive Service (SES) member and an employee of the Interior Department, discovered that his agency did not care enough to protect him when the position he occupied was abolished.

Schmidt was chief of environmental technology at Interior's Bureau of Mines for about six years and then was removed from the SES as part of a reduction in force (RIF).

In 1995, Interior updated its SES RIF procedures to bring them into compliance with revised regulations issued by the Office of Personnel Management (OPM). Interior had been using departmentwide competitive areas in its SES RIF procedures. If a RIF were needed anywhere in the department, the entire departmental SES cadre was placed in a RIF situation. Top management felt this was not an efficient approach.

In updating its RIF procedures, Interior decided to provide for bureauwide competitive areas. By reducing the area of competition, Interior officials felt that disruption and expense also would be reduced.

In July 1995, Interior issued its final revised SES RIF procedures, which established competitive areas composed of bureaus and organizational components equivalent to bureaus. The SES members who received the most retention credit were those with the highest performance appraisals in the past four years and those with performance recognition awards.

After the revised procedures were adopted, a RIF notice dated March 29, 1996, informed Schmidt that his position had been abolished and that he was subject to removal from the SES.

The RIF took effect June 4, 1996. Schmidt was removed from the SES and placed in a GS-15 position with the National Park Service.

Schmidt appealed his removal from the SES to the Merit Systems Protection Board. He contended that by revising its SES RIF plan so that competitive areas were limited to bureaus, Interior failed to comply with the procedures for SES RIFs required by law. He also claimed that agency officials did not follow proper procedures when they failed to place him in another SES position within Interior.

The MSPB rejected Schmidt's arguments. First, in pre-hearing rulings, the board's administrative judge determined that Schmidt's challenge to the agency's efforts to place him and other employees of the bureau did not concern the "competitive procedures" required by law and therefore was not within the jurisdiction of the MSPB.

Following a hearing, the judge concluded that Interior had not violated the law by developing an SES RIF plan that narrowed the scope of competition. The judge also said the revised SES RIF plan did not run afoul of the law by retaining individuals based on their location in the agency rather than on their performance. Accordingly, the judge sustained the action of Interior, prompting Schmidt to turn to the U.S. Court of Appeals for the Federal Circuit.

Schmidt asserted the same arguments that he raised before the MSPB. He cited federal law which states that an agency determining who will be removed from the SES during a RIF should do so primarily based on performance. Schmidt also argued that the RIF procedures adopted by Interior in 1995 violated the law and federal regulations because they limited competitive areas to bureaus.

But in its review (William B. Schmidt v. Department of the Interior, U.S. Court of Appeals for the Federal Circuit, 97-3379, Aug. 20, 1998), the court noted that no language in the statute requires an agency conducting a RIF of SES employees to adopt departmentwide competitive areas.

The law only requires that agencies design RIF procedures to ensure that the determination as to which employees will be removed will be made "primarily on the basis of performance." The court also noted that Congress had been urged by the Senior Executive Association to adopt statutory language that would have required departmentwide competitive areas but declined to do so.

Neither the language of the statute, the legislative history nor OPM's guidance on the statute supported Schmidt's contention that Interior was required to adopt departmentwide competitive areas as part of its SES RIF procedures.

As for Schmidt's contention that the MSPB should have heard his case, the court disagreed. "Congress specifically amended [the law] to eliminate MSPB jurisdiction for exactly the type of claim asserted by Mr. Schmidt," the court ruled.

The letter of the law was not violated when Interior changed its SES RIF procedures. But what about the spirit of the law? I thought the SES represented an elite corps of government executives. When an agency, for budgetary reasons, reduces its need for an SES position, shouldn't the individual in that position be allowed to compete among all his peers?

Members of the SES are expected to be mobile. If necessary, they are expected to move their families wherever their agency tells them to move. Shouldn't such a commitment be matched by a similar commitment from the agency to find another position for the employee if a position is abolished? I think it should, no matter what the law says. Schmidt wasn't treated right by Interior. It's a pity that he couldn't find a legal leg to stand on.

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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