Following is a recent Congressional Research Service document describing the special job protections that apply to SES members.
Recent events at the Department of Veterans Affairs (VA) have prompted a number of questions about the removal of members of the Senior Executive Service (SES). The SES was created during the Carter Administration as part of the Civil Service Reform Act (CSRA) of 1978. The SES consists mostly of noncareer and career senior executives. Noncareer senior executives are considered political appointees because they often change with presidential administrations and serve at the pleasure of the appointing authority, meaning that they can be removed at any time. Career senior executives, like other members of the civil service, have certain protections in place to safeguard against their removal for political or partisan reasons. As stated by President Carter upon enactment of the CSRA, the law “provides better protection for employees against arbitrary actions and abuses and contains safeguards against political intrusion.” These protections were thought to be particularly important for career senior executives, who constitute the highest-level career employees in the federal government and often report directly to the President’s political appointees. On the other hand, critics have suggested that the protections for senior executives are too strong, and that agency heads are unable to remove senior executives when quick removal may be warranted.
Under current law, a career executive may be removed from the SES or removed from the civil service (i.e., federal service). First, he or she may be removed from the SES under certain circumstances relating to performance as a manager, as laid out under the SES appraisal system. Specifically, Section 359.501 of Title 5 of the Code of Federal Regulations states that an “agency may remove a career appointee from the SES after the appointee has been given one final rating of unsatisfactory,” while an “agency must remove a career appointee from the SES after—(1) the appointee has been given two final ratings of unsatisfactory within 5 consecutive years; or (2) the appointee has been given two final ratings of less than fully successful within 3 consecutive years” (italics added). Removal for performance reasons generally relates to a senior executive’s difficulty with fulfilling the duties of the position, which could be due to such issues as a lack of necessary knowledge or insufficient managerial skills.
This form of removal allows the senior executive to remain in federal service but no longer be a part of the SES—if removed from the SES for performance reasons, a senior executive is generally guaranteed a position in the agency at a GS-15 level or above. Senior executives may not be removed for performance reasons within 120 days of either (1) the appointment of a new agency head, or (2) the appointment of a new supervisor, if that person has removal authority over the senior executive and is a political appointee. However, a removal for performance reasons may be carried out during that 120-day period if the removal is based on a performance rating that was given prior to the start of the period (i.e., while the previous agency head or supervisor was still in office). Finally, if a senior executive is removed from his or her position for performance reasons, he or she may request an informal hearing before the Merit Systems Protection Board (MSPB).
In addition to removal from the SES for reasons relating to his or her performance as a manager, a career senior executive can be removed from the federal service, not just the SES, for disciplinary reasons. Removal for disciplinary reasons constitutes an “adverse action.” Specifically, the agency can take an adverse action against a senior executive “only for reasons of misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.” Removal of a senior executive pursuant to adverse action would result in outright removal from the civil service, rather than guarantee placement in another non-SES or civil service position. A senior executive against whom an agency has brought an adverse action may appeal the action to the MSPB.