If You Thought SES Discipline Was Unique, Wait Until You Read About SES Performance Procedures

By Deborah J. Hopkins, June 16, 2021

Last month, we looked at some of the unique aspects to disciplining a member of the Senior Executive Service (SES). This month, we will cover your agency’s options in the rare event a non-probationary member of the career SES has a performance issue.

Unlike GS employees who can be removed for unacceptable performance entirely unrelated to an annual performance rating, a performance-based removal for an SES member must be based on that employee’s final rating(s) – typically the rating given as part of the annual performance appraisal.

If an SES member is performing unacceptably, however, agencies do not have to wait until the end of the appraisal year. There is flexibility to end an SES member’s appraisal period at any time (after the minimum appraisal period, which is 90 days in most agencies) if there is an adequate basis to prepare a final rating. According to OPM, this rating may “serve as the basis, or part of the basis, for a performance-based action.”

However, the word removal in this context does not mean removal from Federal service (also known as firing); it is removal from the SES, and in cases of unacceptable performance, the SES member has a guaranteed placement right to a non-SES career civil service position. This right to placement does not exist if the SES member is removed for misconduct.

If an SES member is performing unacceptably, the process generally follows these steps:

1 – The agency issues final rating of unsatisfactory or its equivalent (Level 1 in most agencies), at annual rating time or sooner, if the agency has an adequate basis to rate the employee, as detailed above.

2 – The agency notifies the SES member, in writing, of the impending “removal” from the SES, at least 30 days in advance of the removal date. The notice must contain:

• The reason(s) for the action.
• The effective date of the action.
• The employee’s placement rights and information on the position to which the employee will be moved. The placement may be:
  1. A reassignment or transfer to another position within the SES, or
  2. Removal from the SES and placement into a GS-15 or equivalent position, with SES saved pay.

According to OPM, SES saved pay is set at the highest of three alternative rates –

1. Rate of pay for the position in which the employee is placed;
2. Rate of pay for the position from which the employee was appointed to the SES; or
3. Rate of pay earned immediately before removal from the SES

• Notice of the right to request an informal hearing from the MSPB at least 15 days before the removal is effective (although such an opinion is advisory only and is not binding on the agency). If applicable, the notice must also include the employee’s eligibility for immediate retirement under 5 U.S.C. 8336(h) or 8414(a).

3 – The SES member is placed into the new position on the effective date. Those SES members who held a career or career conditional appointment immediately before entering the SES are entitled to an appointment of equivalent tenure. Those who did not hold such an appointment before SES (for example, they were hired from the private sector) may be appointed using Schedule B authority under 5 CFR 213.3202(m).

There is no traditional MSPB appeal right for a performance-based “removal” from the SES. If the SES member is placed into a GS-15 position and then performs unacceptably, chapter 43 performance procedures would apply.

But wait! We’re not done yet.

Here are a few other odds and ends:

Marginal performance won’t cut it. The SES member receives two final ratings of unsatisfactory within 5 consecutive years, or two final ratings of less than fully successful (a Level 2 rating) within 3 consecutive years, that employee must be removed from the SES and placed in a GS position – they may not be reassigned or transferred to another SES position.

Moratoriums exist. A career SES member may not be reassigned or removed from the SES within 120 days after appointment of a new agency head or of a new noncareer who is the initial rater for the career appointee, unless the reassignment or removal is based upon a final rating of unsatisfactory completed before the moratorium began. This is to protect the SES members from political motivations.

Not demotions, but pay decreases. If an SES member receives a less than fully successful rating or otherwise fails to meet requirements of a critical element and remains in the SES, the agency may reduce the employee’s pay by up to 10 percent, subject to the 12-month restriction on pay adjustments. 5 CFR 534.404(j). Hopkins@FELTG.com