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HR Order DOJ 1200.1: Part 1. Employment: Chapter 1-7, Employment of Experts and Consultants (Jan. 28, 2000)

A. References.

Statute 5 U.S.C. 3109

5 U.S.C. 5703
Code of Federal Regulations

5 CFR Part 304

5 CFR 2634.904

Guidance Employment Guidelines

Sample Format for Certificates

Sample Employment Data Format
Key terms Consultant


B. Policy.

  1. Employment. Department components may employ individuals regarded as authorities in their fields or as practitioners of unusual competence and skill to meet special needs of the Department. These individuals will be appointed as experts or consultants under the authority of 5 U.S.C. 3109. This authority will not be used to appoint experts and consultants in situations described in 5 CFR 304.103(b), or to positions which are of a continuing nature, or can properly be performed by employees in the competitive service.
  2. Certification. Each expert and consultant appointment will be certified by a Department management official, who has authority to give final approval to selections, to assure compliance with law, regulation, and Department policy. Certifying officials authorized to certify the employment of experts and consultants include component heads or other officials delegated authority to act on their behalf.

    If an expert or consultant is to work directly for the component head, the next higher level official in the chain of command (i.e., the Associate Attorney General or the Deputy Attorney General) becomes the certifying official. (The Attorney General is the certifying official when the appointee will work directly for either the Associate Attorney General or Deputy Attorney General.) Heads of components will submit these cases to the Assistant Attorney General for Administration (AAG/A) for review and processing. Requests must be in writing, submitted through the component's servicing personnel office to the Director, Human Resources Staff, and contain all documentation required to complete the appointment action. Upon review by the Human Resources Staff, the AAG/A will forward the request to the appropriate certifying official with a recommendation for approval or disapproval.

    The following information will be made available to the certifying official:

    1. A description of duties of sufficient detail to show that the position requires an expert or consultant.
    2. A Federal application or resume which demonstrates that the appointee's background and qualifications match the requirements of the position.
    3. A justification which includes the following information:
      1. The necessity for the position as an expert or consultant, or in the case of reappointment, the continuing need for the position and the services of an expert or consultant. A statement which certifies that the services of the expert or consultant do not duplicate any previously performed work or service, and are not already available within the Department.
      2. An evaluation of the appointee's qualifications, citing superior qualifications not available elsewhere, e.g., national or international expertise, highly specialized knowledges and skills.
      3. A determination of the daily or hourly rate to be paid in relation to both the work to be performed and the appointee's qualifications.
      4. The proposed tour of duty, i.e., a regularly scheduled tour of duty or intermittent work schedule.
      5. A certification that the employment of the expert or consultant does not violate appropriate use restrictions in 5 CFR 304.103(b).
    4. A Confidential Financial Disclosure Report, OGE-Form 450, if the work or advice the expert or consultant will provide will impact on non-Federal entities.
  3. Determining Level of Pay. In addition to the factors listed in 5 CFR 304.104(b), the following factors will be considered in setting the initial rate of basic pay for an expert or consultant:
    1. The value of the services to the Department in relation to the General Schedule pay system. (This requires a comparison with properly graded General Schedule positions.)
    2. The individual's stature in the field, and the extent to which their unique personal qualifications increase the value of their services.
    3. Any unusually burdensome and otherwise uncompensated aspect of the assignment, such as the frequent need to work more than 8 hours a day without overtime pay.
    4. The rate of pay the expert or consultant earns in his or her regular occupation.
    5. The rate paid by another agency for the individual's expert or consultant services, with consideration of the similarities and differences in the services required by the two agencies, and the programs and circumstances in which they are rendered.
    6. Whether or not the expert or consultant continues to receive full pay in their regular employment.
    7. Whether or not any nonmonetary rewards figure in the assignment.

    Given the nature of expert and consultant assignments and the level of qualifications required, no expert or consultant will be paid at a rate lower than the equivalent of grade GS-12, Step 1.

  4. Training and Compliance Review. Bureau Personnel Officers will provide training and information on expert and consultant employment to component officials and employees to ensure that individuals using the authority understand the statutory and regulatory requirements, and Department policy.

    Bureau Personnel Officers will conduct annual reviews of expert and consultant appointments to ensure compliance with 5 U.S.C. 3109, 5 CFR Part 304, and Department policy. The review will be completed by January 15th, for the preceding calendar year. Actions to correct any deficiencies noted in the review will be completed by January 31st.

C. Documentation and Reporting

  1. Documentation. The following documents will be completed for each expert and consultant appointment:
    1. Expert/Consultant Certificate;
    2. Certificate of Understanding;
    3. Summary of Expert/Consultant Employment Data; and
    4. OGE-Form 450, Confidential Financial Disclosure Report (if work or advice will impact on non-Federal entities).
  2. Reporting. The Human Resources Staff, JMD, will report to the Office of Personnel Management (OPM) on an annual basis, the days worked by, and the amounts paid to each expert and consultant hired under the authority of 5 U.S.C. 3109 in the prior calendar year. The annual report is generally due to OPM by February 28th.

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Updated August 29, 2014

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