Background Information for
DOJ Order 1200.1, Part 8, Senior Executive Service

Chapter 1.   Performance Management System for Senior Executive Service Employees
December 10, 2003

This order chapter cancels Chapter 6 of DOJ 1920.1, Senior Executive Service, Oct. 29, 1979. (See paragraph 3 of Change 17.)

Discussion of comments:

As suggested by a component, we have added 5 U.S.C. 3151(a)(4) to the References table. That statue states that the regulations establishing the FBI-DEA Senior Executive Service (SES) shall provide a performance appraisal system for the FBI-DEA SES that conforms to the provisions of 5 U.S.C. chapter 43, subchapter II.

One component suggested using the official title of the model plan in the order. We agree, and we have changed the title in the Guidance section of the References table to "Department of Justice Performance Management System for Senior Executive Service Employees" followed by "Model Plan" in parentheses. "Model Plan" is used thereafter throughout the document.

We have added "key career executives," "Performance Review Board," and "Senior Executive Resources Board" as key terms on the References table. The terms are defined in Appendix I of the Order, Human Resources Dictionary. Definitions of other terms that are relevant to component plans are in the Model Plan (see the Guidance section of the References table).

A component commented that paragraph B.1. of the draft circulated for comment was not accurate because it stated that the chapter establishes the Department's policy for evaluating the performance of SES employees. The component pointed out that the Department has had a long-standing policy for SES performance management. We have deleted this paragraph. Paragraph B.2. of the draft has become paragraph B.1., Employees Covered, in the final chapter. There is a statement on "Purpose" in the Forward to the Order, which applies to all of the chapters in the order and states that the Order provides mandatory human resources policies of the United States Department of Justice. (Paragraph numbers in the discussion below refer to the paragraph numbers in the final chapter.)

A bureau recommended including a statement that SES performance appraisals and ratings are not appealable, which is covered by regulation (5 CFR 430.308(f)). In general, the Order does not repeat law or regulation, and we have not added it to the Order. However, we have included a statement on appeals in the Model Plan.

A bureau suggested adding FBI-DEA SES members to employees covered. As described in paragraph B.1., all Department SES employees are covered by the Department's performance management system. However, the FBI-DEA SES is not covered by the Department's model plan.

A commenter said that components should be allowed use of less than 5 performance levels. We agree and have not included a draft paragraph on rating levels in the final chapter. Although the model plan requires 5 performance levels, a minimum of 3 performance levels is allowed by 5 CFR 430.304. Therefore, components who develop their own plans and have them approved by the Department could use less than 5 performance levels.

Two components suggested that the order chapter include a section describing specific division of responsibilities and guidance on how to perform the functions delegated to component heads. The chapter provides a description of the delegation of authority for performance management in paragraph B.2. A further description of the responsibilities and guidance to execute the authority delegated is provided in the Model Plan and in guidance for appraising SES performance that is distributed to all component heads each year. Since these documents provide guidance on this topic, we have not included it in the Order.

The Office of the Inspector General commented that its authority for executive resources is provided by a specific delegation from the Attorney General and the Inspector General Act and that this should be acknowledged in the order. We agree and have made the modification in paragraph B.2.b.

We have added a new paragraph B.4.a. to the chapter regarding mandatory elements that may be issued by the Attorney General or the Deputy Attorney General. Subsequent paragraphs have been renumbered accordingly.

A component commented that a provision in the draft under "Performance Appraisal Timetable" on critical elements and performance requirements did not relate to time requirements and should be moved. We agree, and have moved this provision to paragraph B.4., which discusses the criteria for performance appraisals. Also in paragraph B.4., in response to a comment, we have replaced the term "non-critical elements," which is no longer used, with "other performance elements."

A component requested information and guidance on using balanced measures and objected to including customer satisfaction and employee perspectives as individual items in paragraphs B.4.b.(3) and (4). Consistent with the delegation of authority for performance management, component heads can define the measures, determine the appropriate balance among various measures, and implement a system that best meets their organizational and operational needs. Further information and guidance would inhibit that flexibility. Accordingly, the order has not been modified to include the requested information.

A bureau suggested that the order explicitly require a written initial appraisal. We agree that the appraisal should be written and have inserted "written" before "initial appraisal" in paragraph B.6.a. to prevent misunderstanding.

Two components pointed out that the order provision indicating that PRB members should be in a position equivalent to an SES position is too narrowly restricted to bureaus. Regulation requires that this provision apply to all components in the Department. Accordingly, we have modified paragraph B.8. by deleting the term "bureau" and substituting the term "component."

A component commented that the requirement that Performance Review Boards (PRBs) be made up of a majority of career members appeared in two places. We have deleted the requirement from paragraph B.8. and retained it in paragraph B.8.b.

As suggested by a component, we have clarified in paragraph B.9.a.(1) that a Meritorious or Distinguishe Ad rank award is based on more than one appraisal during a five year period.

A component suggested inserting "bonus" between performance and awards in paragraph 9.a.(2) of the draft under "Consequences of Performance Appraisals." Although performance awards are sometimes referred to as bonuses, performance award is the official term. Accordingly, this paragraph has not been modified to insert "bonus."

A component commented that listing "pay level increase" as an action that could result from a performance appraisal in paragraph B.9. could preclude lowering an executive's pay level for performance reasons. Consistent with 5 CFR 534.401(f)(1)(i), the pay level of an executive may be reduced one level based on a less than fully successful performance rating under 5 CFR part 430, subpart C. We agree with the comment that "change of basic pay" is more accurate and have made the appropriate change to paragraphs B.9.a.(4) and B.9.b.(2).

Several editorial suggestions were made. If appropriate, they were incorporated into the chapter.