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By Debra Roth

Rules safeguard senior executives when the new administration begins

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Every four years, our government has a transition. Sometimes that transition is quite dramatic, with political appointees changing at virtually every position. Other times, such as this year, the change will happen on a lesser scale, but change will occur. Because of these changes at the political level, special safeguards have been enacted to protect the career civil service from being politicized when there is a presidential transition.

Political appointees with previous government service recognize the value of the civil service and the reality that career federal employees are free from partisan politics as they perform their day-to-day duties. Unfortunately, many new political appointees do not know this and come to office believing those who served the previous administration ably and competently must have done so out of loyalty to the policies of that party. Stories have been told over the years, particularly in the years when political parties change, about hit lists of career senior executives who should be reassigned to insignificant jobs or otherwise made into targets because “they can’t be trusted.”

This usually happens at the Senior Executive Service level because career senior executives are usually the federal employees who interact day to day with political appointees to carry out that administration’s political policies. Because of this and because Congress wanted to provide some protection to career senior executives, the law on transition of government prohibits career senior executives from being reassigned or involuntarily removed from the SES for 120 days after the appointment of a new agency head or new political immediate supervisor with the authority to rate or remove the career senior executives from their positions.

The 120-day rule serves primarily to institutionalize continuity and expertise during a get-acquainted period. In an ideal world, all career senior executives would stay in their positions of record for four months after a new agency head or immediate supervisor is appointed. Agency operations should continue as necessary, with the political leadership learning the agency structure and the career senior executives learning how to serve the new political leadership. Often this is what happens, with career senior executives using the four-month period to dispel preconceived notions held by some political appointees. It is the responsibility of every career senior executive to make effective use of this get-acquainted period. Remember that in every change of administration there are those who believe that a career executive did well only out of loyalty to predecessors, not necessarily competence.

Sometimes an agency may go through the 120-day rule somewhat pro forma and political appointees may start making noise about reassignments well before the 120-day period ends. There are two ways for the senior executive to respond to this. First, continue to pursue the get-acquainted period with vigor, competence and optimism hoping to turn things around. This sometimes works. Second, start negotiating for a place to land. The second option is perhaps the result of recognizing the reality of the situation.

An exception to the 120-day get-acquainted period is the “detail.” Career senior executives detailed out of their regular jobs during a transition will never have a get- acquainted period, and such a technique could be used to validate secret political hit lists and thwart the intent of Congress for continuity during transitions. As a solution, the statute on the 120-day rule and the Office of Personnel Management’s implementing regulations require a 60-day extension of the 120-day rule for an executive on detail during a transition. Thus, a detailed executive cannot be reassigned for six months. There are other exceptions to the 120-day rule for misconduct and performance-based actions that were ongoing when the agency head or political supervisor was first appointed.

While the changes in 2012 may not be as dramatic as they were in 2000 or 2008, there are always new appointees at the beginning of an administration, even of a second-term president. It is helpful to understand the transition rules.

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