Issue Briefs

OPM published in the August 2 Federal Register rules to carry out a presidential order of last December overhauling career developmental programs that allow for conversion into competitive service positions if certain standards are met. Following is an excerpt outlining the main points.

SUMMARY: The Office of Personnel Management (OPM) is proposing regulations to implement the Pathways Programs established by E.O. 13562, signed December 27, 2010, to provide clear paths to Federal internships and potential careers in Government for students and recent graduates. As directed by the President, the Pathways Programs consist of the Internship Program, the Recent Graduates Program and the Presidential Management Fellows Program.

The President determined that these programs should be excepted from the competitive service and placed in the newly created Schedule D of the excepted service.

OPM’s proposed implementing regulations would provide for more transparency in Federal internship opportunities, limit the programs so they are used as a supplement to competitive examining and not a substitute for it, apply veterans’ preference, and provide for OPM oversight. Agencies would only be permitted to use the Pathways Programs as part of an overall workforce planning strategy and pursuant to an agreement with OPM. The regulations would require agencies to make an investment in the program participants’ development through training, mentorship, and other means. The regulations would further require agencies to conduct meaningful assessments of participant performance as part of an agency’s determination as to whether the program participants should be converted to permanent positions in the competitive service.

SUPPLEMENTARY INFORMATION: The President is authorized by statute to provide for “necessary exceptions of positions from the competitive service” whenever warranted by “conditions of good administration.” 5 U.S.C. 3302. The President has also delegated to OPM the authority to except positions from the competitive service. 5 CFR 6.1(a). It has been a long-standing practice under these authorities for the President, and for OPM exercising its delegated authority, to permit positions that would otherwise be in the competitive service to be filled through excepted service appointments where conditions of good administration warrant exceptions from competitive examining procedures (e.g., people with disabilities and students). One of the purposes for which exceptions has been made in the past is to fulfill the merit system principles, which provide, in part, that “[r]ecruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society . . . .” In keeping with that objective, President Obama issued Executive Order 13562, which established the concept of the Pathways Programs, “find[ing] that conditions of good administration (specifically, the need to promote employment opportunities for students and recent graduates in the Federal workforce) make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.” Exec. Order No. 13562, 75 Fed. Reg. 82,585 (Dec. 27. 2010). The Pathways Programs consist of three discrete excepted service internship programs for students and recent graduates: the Internship Program; the Recent Graduates Program; and the Presidential Management Fellows Program.

The Internship Program is for current students. It will consolidate provisions of the Student Educational Employment Program (SEEP) into a new student internship program designed to provide high school, vocational and technical, undergraduate, and graduate students opportunities to be exposed to the work of Government through Federal internships. This program is designed to attract the interest of students enrolled in a wide variety of educational institutions, with paid opportunities to work in agencies and explore Federal careers while still in school. Agencies may convert Interns who successfully complete program and academic requirements to any competitive service position for which the Intern is qualified, but they are not required to do so. It is expected that, even if an agency does not convert an Intern, service in the Internship Program will increase the likelihood that the Intern will consider applying for a Federal position at some point in the future, based upon the exposure to employment in the Pathways Program.

The Recent Graduates Program is a new program that will provide opportunities for individuals who have recently graduated (or obtained certificates) from qualifying educational institutions or programs. To be eligible, applicants must apply within 2 years of educational program completion (except that veterans who are precluded from applying within 2 years due to a military service obligation will have up to 6 years from the date they completed their educational program to participate in the Recent Graduates Program (i.e., A veteran’s 2-year eligibility is postponed until completion of military service obligation. Thus, a veteran will have up to a 6-year period to exercise his or her 2-year eligibility). Successful applicants will be placed in a 2-year career development program. Agencies may convert Recent Graduates Program participants who successfully complete the program to competitive service jobs, but they are not required to do so. Once again, it is expected that, even if an agency does not convert an employee participating in the Recent Graduates Program to a position in the competitive service at the expiration of the Recent Graduates Program, service in the Pathways Program will make it more likely that the Recent Graduate will want to pursue Federal service later in his or her career.

For more than three decades the Presidential Management Fellows (PMF) Program has been the Federal Government’s premier leadership development program for advanced degree candidates. Executive Order 13562 expands the eligibility window for applicants, making it more “student friendly” by aligning it with academic calendars and including those who have received a qualifying advanced degree within the preceding 2 years. Like Recent Graduates, PMFs work in a 2-year developmental program and, upon successful completion of the program, may be converted to competitive service jobs. Indeed, the Recent Grads program, in some respects, is patterned after the PMF Program.

Each of these programs share 5 core principles that advance merit system principles and the policies established by the President in the Executive order:

1. Transparency. The Pathways Programs provide for more transparency in Federal internship or other developmental opportunities. Members of the public interested in these opportunities with the Federal Government will now be able to learn about them through USAJOBS.gov. That website is the portal to all Federal jobs in the competitive service, and it will now also be used to provide information to the public about agency internship needs and the process for applying for agency internships as these opportunities become available.

2. Limited Scope. The Pathways Programs are limited in nature, intended to provide agencies a supplemental authority to use as part of an overall workforce planning strategy.

Accordingly, agencies must report the positions for which they intend to use the Pathways Programs to OPM on an annual basis. OPM will review the information provided by the agencies and, if appropriate, establish a cap on the number of individuals who may be converted from the Pathways Programs to positions in the competitive service. This safeguard will permit OPM to ensure that agencies use these programs in a limited way as part of an overall strategic plan rather than using them to avoid competitive examining altogether.

3. Fairness to Veterans. The Pathways Programs will be fair to veterans because they will honor veterans’ preference and provide additional flexibility to veterans in recognition of their military service. Thus, when agencies are making selections for internship positions in any of the three Pathways programs, they must apply veterans’ preference in accordance with Part 302 when selecting from among qualified applicants. Moreover, the eligibility rule for the Recent Graduates Program is more flexible for veterans than it is for non-veterans. Whereas the general rule is that, to be eligible for the Recent Graduates Program, an individual must have completed his or her educational program within the preceding 2 years, veterans who were precluded from applying within that period due to a military service obligation have up to 6 years from the date they completed their educational program to participate in the Recent Graduates Program.

4. OPM Oversight. The Pathways Programs will also be subject to OPM oversight.

Agencies will be required to enter a memorandum of understanding (MOU) with OPM before using any of the Pathways Programs. The MOU will set forth the agency’s obligations to the President and the Executive Branch in using the programs, and OPM will use the MOUs as an oversight tool. In addition, as mentioned above, agencies will be required to report to OPM annually on their usage of the Pathways Programs and will be subject to a cap on conversions of Pathways participants to non-Pathways positions in the competitive service if necessary.

5. Agency Investment. Agencies that use the Pathways Programs will have to be committed to investing in the participants. The Pathways Programs are intended to be more than simple excepted service hiring authorities; they are intended to fulfill a need for developmental programs that will inspire interest in more permanent Federal service. The purpose of the programs is to foster a positive experience for participants that will help prepare them for successful careers in Government—either immediately or at some future date. Agencies are encouraged to create cohorts of Pathways participants, and provide them with common training and developmental experiences. In order to continue participating in the programs, they will be required as well to conduct meaningful assessments of the participants for purposes of determining whether they should be converted to the competitive service.

By crafting the Pathways Programs around these core principles, we respond to the President’s direction to address the special challenges the Federal Government faces in competing with private industry for the best candidates for Federal service, while safeguarding veterans’ preference and ensuring that the normal competitive examining process is preserved to the greatest extent practicable.