On February 24, 2025, the Office of Personnel Management (OPM) issued a new guidance memorandum on review of SES career reserved positions, an issue previously analyzed in this blog.
OPM’s new guidance memorandum clarified the deadline for agencies to complete their review of career SES positions as March 24, 2025. OPM in its February 5, 2025 memorandum had set the deadline at 45 calendar days from the date of that memorandum, which would set the deadline on Saturday, March 22, 2025; the new memorandum adjusts the deadline to avoid it falling on a weekend. OPM noted that, by statute and regulation, no less than 3,571 SES positions could be designated as ‘career reserved’ SES positions. OPM’s memorandum asserted that the present number of ‘career reserved’ SES positions is now double that minimum. According to OPM statistics reported in the press, as of August 2024 a total 7,887 career SES positions existed, representing a reported 800 position increase over the prior decade. For comparison, the total number of SES positions has been reported at approximately 8,700, indicating that approximately 90.6% of the SES is ‘career reserved,’ which is generally consistent with the reported proportions of career SES positions in many years dating back to at least 1998. By statute, the total percent of noncareer SES positions and SES positions with a temporary or term appointment cannot exceed 15% (10% noncareer, and 5% term or temporary). On these statistics, approximately 250 SES positions could be reclassified from “career reserved” to “noncareer” or temporary or term appointment before hitting the statutory limits.
OPM’s guidance memorandum directed agencies to focus their review of positions for possible designation as “general” SES positions on positions focused on policy work, and in particular cited those SES positions focused on policy issues (which OPM claimed applied to over 200 ‘career reserved’ SES positions), and those at the seniormost levels of agency management. Agencies were directed to provide specific justifications for not redesignating as ‘general’ SES positions any SES position at the assistant secretary level or principal deputy assistant secretary level, and many other positions at the deputy assistant secretary level or above, as well as any assistant attorney general positions, general counsel positions, and positions of directors of program offices reporting to the head of a given agency. Similar justifications were required for any position that had been designated as an SES ‘general’ position which had been converted to a ‘career reserved’ SES position during the Biden Administration. OPM noted that certain of those positions may be required by statute or regulations to be ‘career reserved.’
This guidance memorandum is part of a larger effort seeking to expand the number of SES positions designated as “general positions,” and thus open to being filled by limited emergency appointees, limited term appointees or by noncareer appointees—many of whom serve only at the pleasure of the appointing authority.
It should be noted that redesignation of an SES position from “career reserved” to “general” does not by itself cause an incumbent ‘career appointee’ SES employee in that position to involuntarily lose their ‘career appointee’ status, at least under present regulations. ‘Career appointee’ SES employees are also eligible to hold ‘general’ SES positions—the positions are simply not restricted to being solely staffed with ‘career appointee’ SES employees. See 5 U.S.C. §§ 3132(a)(8, 9). “An agency may not require a career SES appointee to accept a noncareer or limited SES appointment as a condition of appointment to another SES position. If a career appointee elects to accept a noncareer or limited appointment, the voluntary nature of the action must be documented in writing before the effective date of the new appointment.” See 5 C.F.R. § 317.904. ‘Career appointee’ SES employees are also eligible to hold ‘general’ SES positions—the positions are simply not restricted to being solely staffed with ‘career appointee’ SES employees. See 5 U.S.C. §§ 3132(a)(8, 9).
If you are an SES employee and wish to seek advice regarding your rights based on these OPM guidance memoranda, consider contacting Gilbert Employment Law, P.C. to request an initial consultation.