Table of Contents

• Chapter 1 - General Information



• Chapter 2 - Performance Appraisal for the Senior Executive Service



• Chapter 3 - Actions Based on Less Than Fully Successful Performance



• Appendix 1 - Establishment and Functions of the SES Performance Review Boards

Chapter 1 - General Information

1. Purpose.   This framework establishes the Department of Justice (DOJ or Department) Performance Management System (PMS) for Senior Executive Service (SES) employees¹ throughout the Department except for the Federal Bureau of Investigation and the Drug Enforcement Administration.



2. Scope.   This model plan provides general guidelines for component heads to use in developing performance management plans for their organizations. Component heads may adopt this plan or develop their own to tailor their PMS and approach for managing SES performance to fit their unique and changing mission, operational needs, and organizational climates. Component performance plans must be consistent with law and regulation as listed in paragraph 4 of this plan.



3. Policy.   The Department recognizes the importance of integrating its performance appraisal, pay, and incentive award programs into the management of its human resources to promote efficient and effective attainment of its mission, program objectives, and strategic planning initiatives. The Department's PMS for SES members is a management tool to motivate high levels of achievement, and for holding senior executives accountable for their individual and organizational performance by:
   
   
   1. Expecting excellence in senior executive performance;
   
   
   
   2. Linking performance management with the results-oriented goals of the Government Performance and Results Act of 1993;
   
   
   
   3. Setting and communicating individual and organizational goals and expectations;
   
   
   
   4. Systematically appraising senior executive performance using measures that balance organizational results with customer, employee, or other perspectives; and
   
   
   
   5. Using performance results as a basis for pay, awards, development, retention, removal, and other personnel decisions.



4. Authorities.   The PMS is established in accordance with the following authorities:
   
   
   1. Performance Appraisal - 5 U.S.C. chapter 43, subchapter II (Performance Appraisal in the Senior Executive Service); 5 CFR Part 430, Subpart C (Managing Senior Executive Performance).
   
   
   
   2. Superior Accomplishment Awards - 5 U.S.C. chapter 45 (Incentive Awards); 5 CFR Part 451, Subpart A (Agency Awards).
   
   
   
   3. Records of Employee Performance - 5 CFR Part 293, Subpart D (Employee Performance File System Records).



5. Responsibilities.
   
   
   1. Component heads, with the exception of the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Office of the Inspector General (OIG) are responsible for:
      
      (1) Appointing SES members within their respective organizations to serve on Performance Review Boards;
      
      (2) Approving performance appraisals for all career SES members within their respective organizations except for certain key career executives²; and
      
      (3) Approving performance based reassignments for all career SES members within their respective organizations except for certain key career executives.
   
   
   
   2. The Deputy Attorney General (DAG) is responsible for:
      
      (1) Approving performance appraisals for noncareer and key career executives except for SES executives in the OIG;
      
      (2) Approving Superior Accomplishment Awards (Special Act or Service) for all noncareer and career executives except for SES executives in the OIG; and
      
      (3) Approving bonus recommendations for all career executives except for SES executives in the OIG.
      
      
   3. The Inspector General is responsible for:
      
      (1) Appointing SES members to serve on OIG Performance Review Boards;
      
      (2) Approving performance appraisals for all noncareer and career executives in the OIG;
      
      (3) Approving Superior Accomplishment Awards (Special Act or Service) for all noncareer and career executives in the OIG; and
      
      (4) Approving bonus recommendations for all career executives in the OIG.



6. Definitions
   
   
   1. Annual Summary Rating.   The overall rating level that an appointing authority assigns at the end of the appraisal period after considering a Performance Review Board's recommendations. This is the official rating.
   
   
   
   2. Appointing Authority.   The agency head, Department component heads, or other Department official with authority to make appointments in the SES.
   
   
   
   3. Award or Superior Accomplishment Award.   A monetary or nonmonetary award for a special contribution resulting in tangible benefits or savings and/or intangible benefits to the government.
   
   
   
   4. Balanced Measures.   An approach to performance measurement that balances organizational results with the perspectives of distinct groups, including customers and employees.
   
   
   
   5. Component.   An Office, Board, Division, or Bureau, i.e., the first major subdivision of the Department that is separately organized and clearly distinguished from other components in work functions and operation.
   
   
   
   6. Component Head.   The official who directs the administration and operations of each Office, Board, Division, and Bureau of the Department of Justice. However, for the purposes of this plan, the component head for the United States Attorneys and United States Trustees shall be the Director of the Executive Office for United States Attorneys and the Director of the Executive Office for United States Trustees, respectively.
   
   
   
   7. Critical Element.   A key component of an executive's work consisting of one or more duties and responsibilities that contributes to organizational goals and results and is so important that unsatisfactory performance of the element would make the executive's overall job performance unsatisfactory.
   
   
   
   8. Higher Level Review Official.    The official who is responsible for providing a higher level review of an SES member's initial appraisal. The reviewer must be at a higher level than the rating official, but not necessarily in the same organization.
   
   
   
   9. Intangible Benefits.   Benefits to the Government which cannot be measured in terms of dollar savings.
   
   
   
   10. Initial Summary Rating.   The overall rating level the supervisor derives from appraising the senior executive's performance during the appraisal period and forwards to the Performance Review Board.
   
   
   
   11. Interim Rating.    An interim rating is issued to appraise employee performance during details, or during assignment to any Department PMS position in which the employee served for the minimum appraisal period during the annual appraisal cycle. The weight given to interim ratings in deriving the employee's annual summary rating should be proportionate to their share of the appraisal cycle.
   
   
   
   12. Minimum Appraisal Period.    The minimum amount of time in which an employee must have served in a position under written performance elements and requirements in order for an appraisal to be rendered concerning such performance. The Department's minimum appraisal period is 90 days. Component heads may establish longer minimum appraisal periods.
   
   
   
   13. Nonmonetary Award.   A medal, certificate, plaque, citation, badge, or other similar item that is given to honor an individual.
   
   
   
   14. Other Performance Elements.   Components of an executive's work that do not meet the definition of a critical element, but may be important enough to factor into the executive's performance appraisal.
   
   
   
   15. Performance.   The accomplishment of the work described in the senior executive's performance plan.
   
   
   
   16. Performance Appraisal.   The review and evaluation of a senior executive's performance against performance elements and requirements.
   
   
   
   17. Performance Award.   Performance awards, commonly called "bonuses," recognize and reward excellence of career SES appointees or a former career SES appointee who has elected to retain bonus eligibility under 5 U.S.C. § 3392(c). Specific due dates and instructions for recommending executives for bonuses will be issued by the Deputy Attorney General for each appraisal cycle.
   
   
   
   18. Performance Management System.   The framework of policies and practices established under 5 U.S.C. chapter 43, subchapter II and 5 CFR Part 430, Subpart C, for planning, monitoring, developing, evaluating, and rewarding both individual and organizational performance and for using resulting performance information in making personnel decisions.
   
   
   
   19. Performance Requirement.   A statement of the performance expected for a critical element or other element. A performance requirement may include, but is not limited to, factors such as quality, quantity, timeliness, and manner of performance.
   
   
   
   20. Performance Review Board.   Performance Review Boards are established under the provisions of 5 U.S.C. § 4314(c) and shall review and evaluate the initial summary rating of a senior executive's performance by his/her supervisor, along with any response by the senior executive or higher level review determination (if appropriate), and make recommendations to the appointing authority relative to the performance of the senior executive. The appointing authority shall issue appraisals/ratings only after considering the recommendations of a Performance Review Board. The Performance Review Board must also make recommendations concerning individual performance awards (bonuses) to the Deputy Attorney General.
   
   
   
   21. Progress Review.    The review of the senior executive's progress in meeting the performance requirements. A progress review is not a performance rating. Regulations require at least one progress review midway through the appraisal period.
   
   
   
   22. Rating Levels.    The plan describes five rating levels: Outstanding, Excellent, Fully Successful, Minimally Satisfactory, and Unsatisfactory.
   
   
   
   23. Rating Official.   The individual who is responsible for communicating to the employee the elements of his or her position, establishing performance requirements for those elements, appraising performance, and assigning the initial performance rating. Normally this is the employee's immediate supervisor.
   
   
   
   24. Senior Executive Performance Work Plan.   The written summary of work the senior executive is expected to accomplish during the appraisal period and the requirements against which performance will be evaluated. The plan addresses all critical elements and any other performance elements established for the senior executive.
   
   
   
   25. Senior Executive Resources Board.   The Senior Executive Resources Board (SERB) provides overall management and control of the Department's SES. The members of the SERB are the Deputy Attorney General, Associate Attorney General, and Assistant Attorney General for Administration. The Assistant Director for Executive Resources, Personnel Staff, Justice Management Division serves as the Executive Secretary for the SERB. Additional members may be added at the direction of the Attorney General.
   
   
   
   26. Special Act or Service.   A contribution or accomplishment in the public interest which is: (l) a nonrecurring contribution either within or outside of job responsibilities, (2) a scientific achievement, or (3) an act of heroism.
   
   
   
   27. Strategic Planning Initiatives.   Department or component strategic plans, annual performance plans, organizational workplans, and other related initiatives.



7. Training.   Component heads are required to make effective use of available resources (e.g., technology, learning, information, etc.) to maximize SES employee performance. It is essential that training and information on the PMS be provided to SES employees and their managers and supervisors to assure effective administration of the PMS. Topics covered should include the Department's PMS for SES members, performance appraisal, and pay incentive programs (i.e., superior accomplishment awards).



8. Program Evaluation.
   
   
   1. Reports on the Department's PMS activities will be provided to the Executive Secretary of the Department's SERB by the component heads. These reports will be used to monitor performance management activities such as rating distributions, award payouts, regulatory compliance, etc.
   
   
   
   2. PRBs will be responsible for providing recommendations to the appropriate appointing authority on the SES performance management system.
   
   
   
   3. Based on this data, recommendations or required corrective actions will be developed as appropriate for implementation in the organization.



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Chapter 2 - Performance Appraisal for the Senior Executive Service

9. Performance Appraisal Premises and Principles.   The Department has adopted the following set of premises and principles to guide performance management within the SES.
   
   
   1. The Department of Justice workforce is comprised of dedicated, hardworking public servants who strive to deliver value to the American taxpayer.
   
   
   
   2. The Department will pursue a workforce that is fully representative of the diversity of the American people.
   
   
   
   3. The Department will pursue a workforce that is engaged and involved in designing a results-oriented, performance-based, and customer-focused system that delivers value.
   
   
   
   4. Department of Justice federal leaders and managers create a climate for excellence by communicating their vision, values, and expectations clearly, and by:
      
      (1) creating an environment in which every employee may excel, regardless of race, color, religion, sex, age, national origin, disability, sexual preference, or parental status, and which is free of sexual harassment;
      
      (2) creating an environment for continual learning;
      
      (3) working in partnership with employees to ensure they reach their full potential;
      
      (4) recognizing and rewarding excellence with financial incentives and non-financial incentives, such as increased flexibility to do jobs, more meaningful work, and achieving a sense of accomplishment; and
      
      (5) taking timely action to both reward and correct performance appropriately, ensuring that excellence is the standard for all.
      
      
   5. Individuals are personally responsible for being results-oriented, performance-based, and customer-focused.
   
   
   
   6. Leaders, managers, and employees have a mutual obligation to provide value and excellence. This requires each individual to be continually challenged to perform their best. Taking action to improve the performance of each individual is imperative to achieving our mission.
   
   
   
   7. The Department of Justice is committed to pursuing effective performance management.


10. Performance Appraisal Period.
    
    
    1. The performance appraisal period for senior executives is July 1 through June 30 of the following year, unless advanced or delayed by appropriate authority.
    
    
    
    2. If a senior executive fails to complete the established minimum appraisal period because of reassignments, change in supervisor, or other legitimate management reasons, his/her appraisal period should be extended for the minimum appraisal period at which time a rating of record should be prepared.
    
    
    
    3. The established performance appraisal period may be terminated at any time after the minimum appraisal period is completed, if there is adequate basis on which to appraise and rate the senior executive's performance.
    
    
    
    4. An appraisal or rating of an SES career appointee may not be made within 120 days after the beginning of a new Presidential Administration.
    
    
    
11. Performance Work Plans.
    
    
    1. Each senior executive must have a performance work plan (PWP) that describes the individual and organizational expectations for the appraisal period and sets the requirements against which performance will be evaluated.
    
    
    
    2. Rating officials must develop PWPs in consultation with senior executives and communicate (in writing) the plans to the executives on or before the beginning of the appraisal period.
    
    
    
    3. The PWP is the written aggregation of an executive's critical and other elements and performance requirements. Critical elements must be so designated.
    
    
    
    4. Elements must reflect individual and organizational performance. They can be either capsulized aspects of the most important duties and responsibilities associated with the SES position or specific projects or tasks which can be logically inferred from the duties and responsibilities cited in the employee's position description. Accomplishment of organizational objectives MUST be included in PWPs by incorporating objectives, goals, program plans, work plans, or by other similar means that account for program results. There is no predetermined number of critical or other elements.
    
    
    
    5. Critical and other elements for each senior executive must be consistent with the goals and performance expectations in the Department's strategic planning initiatives.
    
    
    
    6. Before or at the outset of the rating period (usually within 30 days) or, in the case of an executive entering a new position, as soon as possible (but no later than 30 days) after entry into the position, a PWP must be either developed or reviewed for continued appropriateness and the elements and performance requirements covered by the PWP communicated to the executive.
    
    
    
    7. Final authority for establishing the elements and requirements rests with the rating official. However, the PWP can be modified, as appropriate, at any time during the appraisal period to reflect changing priorities or shifts in workload. Component guidance may require a second level review of SES PWPs.


12. Performance Requirements.
    
    
    1. Like critical and other elements, performance requirements must be consistent with the goals and performance expectations in the Department's strategic planning initiatives.
    
    
    
    2. Performance requirements MUST be written at the Fully Successful level. They may also be written at additional levels consistent with component level guidance. These requirements are the standards against which the senior executive's performance will be appraised.
    
    
    
    3. The absence of a written performance requirement at a given level does not preclude the assignment of a rating at that level.
    
    
    
13. Review of Performance Work Plans.
    
    
    1. Although a higher level review of all SES ratings to ensure appropriate levels of quality and difficulty of performance requirements within each SES PWP and in SES PWPs across the component is encouraged, it is not required.
    
    
    
    2. The SERB will ensure that the review process across the Department is fairly managed. These reviews may be made during the appraisal process or at such other times as deemed appropriate.
    
    
    
14. Progress Reviews.
    
    
    1. Component heads and supervisors must monitor each senior executive's performance during the appraisal period and provide ongoing, timely, and honest feedback to the senior executive on progress in accomplishing the performance elements and requirements described in the performance plan to sustain and reinforce expected performance.
    
    
    
    2. A progress review shall be held for each SES member at least once during the appraisal period. At a minimum, senior executives must be informed about how well they are performing including their level of performance by comparison with the elements and performance requirements established for their positions.
    
    
    
    3. Supervisors must provide advice and assistance to senior executives on how to improve their performance.
    
    
    
    4. If either the rating official or the executive feels that modifications to previously established elements or performance requirements are warranted because of unforeseen shifts in workload or changes in priorities, he/she must be prepared to discuss possible alternatives. If the rating official feels that performance in one or more of the established elements is lacking, he/she should discuss possible corrective actions as well as the ramifications of unimproved performance. The progress review should not be viewed solely as a discussion of performance weaknesses or deficiencies, but also serve as a forum for encouraging employees whose performance is Fully Successful or Excellent to strive for even greater achievement.
    
    
    
    5. If modifications in either elements or requirements are warranted, they must be discussed and recorded during the review process. At the end of the review session, both the rating official and the executive should share a common understanding of where the employee stands in relationship to his/her PWP, what is expected of the employee through the remainder of the rating period, and what actions, if any will be initiated as a result of performance to date. The executive and the rating official each sign and keep a copy of the PWP, acknowledging that the progress review was conducted and reflecting any modifications in the elements or requirements.
    
    
15. Appraising performance.
    
    
    1. If an SES member has served in his/her current position under written performance elements and requirements for the established minimum appraisal period when the performance appraisal cycle ends (June 30 of each year), and there is adequate basis on which to rate the senior executive, the employee must be rated as soon as practical after the end of the appraisal period on the appropriate performance appraisal record.
    
    
    
    2. Each executive must be appraised on each element of the PWP, unless the employee has had insufficient opportunity to demonstrate performance on the element. On the rating date or as soon as possible thereafter, the rating official should be prepared to compare the overall achievements of the employee with respect to each element and performance requirement.
    
    
    
    3. The rating official should then briefly summarize in narrative fashion the achievements of the executive against each performance requirement established for the elements. Rating officials have the option of summarizing in a narrative fashion the achievements of the executive against the performance requirements established for the job elements, or to provide narrative comments only for rating levels to be assigned that are not described in the executive's PWP.
    
    
    
    4. Appraisals of senior executive performance must be based on both individual and organizational performance, taking into account such factors as:
       
       (1) Results achieved in accordance with the goals of the Government Performance and Results Act of 1993;
       
       (2) Customer satisfaction;
       
       (3) Employee perspectives;
       
       (4) The effectiveness, productivity, and performance quality of the employees for whom the senior executive is responsible; and
       
       (5) Meeting affirmative action, equal employment opportunity, and diversity goals and complying with the merit system principles set forth under section 2301 of title 5, United States Code.
    
    
    
    5. The supervisor will assign individual element ratings as follows:
       
       (1) Outstanding.    Performance on an individual critical or other element of the job which clearly demonstrates a level of achievement which exceeds to an exceptional degree the performance requirements for Fully Successful. Performance at this level so exceeds what is normally required of the job that it is deserving of special recognition.
       
       (2) Excellent.    Performance on an individual critical or other element which markedly exceeds the performance requirements for Fully Successful.
       
       (3) Fully Successful.    Performance on an individual critical or other element of the job which completely meets, or exceeds to a limited degree, the performance requirements for Fully Successful established at the beginning of, or modified during, the rating period.
       
       (4) Minimally Satisfactory.   Performance on an individual critical or other element of the job which just falls short of the performance requirements for Fully Successful. Performance at this level shows significant deficiencies that require correction.
       
       (5) Unsatisfactory.   Performance on an individual critical or other element of the job which is substantially below the performance requirements for Fully Successful. Usually the employee's performance will show serious deficiencies in terms of quantity, quality, timeliness of work, or manner of performance.
       
       
16. Initial Summary Rating.
    
    
    1. The supervisor must develop an initial summary rating of the senior executive's performance, in writing, and share that rating with the senior executive.
    
    
    
    2. The supervisor will assign an initial summary rating level as follows:
       
       (1) Outstanding.   In the individual element ratings, a majority of the critical elements must be rated Outstanding; no critical element may be rated less than Excellent; and no individual performance element may be rated less than Fully Successful.
       
       (2) Excellent.   In the individual element ratings, a majority of the critical elements must be rated Excellent or higher and no individual performance element may be rated less than Fully Successful.
       
       (3) Fully Successful.    In the individual element ratings, a majority of the critical elements must be rated Fully Successful or higher; no more than one critical element may be rated Minimally Satisfactory; and no individual performance element may be rated less than Minimally Satisfactory.
       
       (4) Minimally Satisfactory.   In the individual element ratings, more than one critical element must be rated Minimally Satisfactory and no critical element may be rated Unsatisfactory.
       
       (5) Unsatisfactory.   In the individual element ratings, performance in one or more critical elements must be rated Unsatisfactory.
    
    
    
    3. In the event the critical elements are evenly divided between two rating levels, the rating official may select the more appropriate of the two levels (provided other applicable minimum requirements for the level selected are met).


17. Right to Respond in Writing and Request Higher Level Review.
    
    
    1. Senior executives in the Department are entitled to one higher level review, unless the component provides for more than one review level.
    
    
    
    2. At the time of rating, the rating official shall advise the senior executive of his or her right to respond in writing to any aspect of the rating and to have that rating (along with the written response, if any) reviewed at a higher executive level, i.e., higher organizational level.
    
    
    
    3. If the senior executive chooses to exercise his or her right to respond or seek higher level review, such response must be made to the rating official within 7 calendar days.


18. Higher Level Review.
    
    
    1. After any initial discussions are completed and the written response, if any, to the initial summary rating is received, the rating official will, upon request of the executive, forward the completed rating form to the appropriate reviewing official (normally the next higher official in the supervisory chain) for the higher level review.
    
    
    
    2. The higher level official cannot change the supervisor's initial summary rating, but may recommend a different rating to the PRB and the appropriate appointing authority.
    
    
    
    3. Both the executive and the rating official must be given copies of the reviewer's findings and recommendations.
    
    
    
    4. After the higher level review is completed, the appraisal package (the rating and accompanying documentation, including the higher level review's comments and recommendation, if any) will be forwarded to a PRB for review.


19. Performance Review Board Review.
    
    
    1. The PRB must review the rating and comments from the senior executive and the higher level official, if any, and make recommendations to the appropriate appointing authority.
    
    
    
    2. The PRB will consider the material forwarded and make a written recommendation to the appropriate appointing authority regarding the annual summary rating to be assigned as well as any related matters such as performance pay, basic pay rate adjustments, performance awards, reassignments, and removals. (See Appendix 1 for the Establishment and Functions of the Department of Justice PRBs.)
    
    
20. Annual Summary Rating.
    
    
    1. The appropriate appointing authority will make the final decision in writing regarding the annual summary rating to be assigned and related personnel recommendations after considering any PRB recommendations.
    
    
    
    2. The annual summary rating approved by the appropriate appointing authority is final and becomes the executive's official rating. Senior executive performance appraisals and ratings are not appealable.
    
    
    
    3. One copy of the approved rating form must be provided to the employee; another copy may be retained by the rating official; and a third copy will be forwarded to the servicing personnel office for retention in the Official Personnel File (OPF) or Employee Performance File (EPF).
    
    
    
    4. Personnel actions resulting from the annual summary rating must be promptly initiated by the rating official.


21. Details and Job Changes.
    
    
    1. Position Changes Within the Department.   When an executive occupies two or more positions in the Department during the appraisal cycle (in which the executive served under written elements and performance requirements for the minimum appraisal period) an interim rating must be prepared. This interim rating, along with the PWP upon which it was based, must be forwarded to the new supervisor for inclusion in the rating of record due at the end of the appraisal cycle. The weight given to this interim rating should generally be proportionate to its share of the appraisal period. When such interim ratings are used to develop a rating of record, both the interim ratings and the PWPs upon which they are based must be attached to the final annual summary rating.
    
    
    
    2. Temporary Assignments Within the Department.   If the senior executive is detailed or temporarily reassigned WITHIN the Department and if the assignment is expected to last the minimum appraisal period or longer, written critical elements and performance requirements MUST be provided to the employee and an interim rating must be prepared based on the performance during the assignment. The weight given to this interim rating in preparing the rating of record should generally be proportionate to its share of the appraisal period.
    
    
    
    3. Temporary Assignments Outside the Department.   If the employee is temporarily assigned OUTSIDE the Department, reasonable efforts must be made to obtain appraisal information from the outside organization which will be considered in deriving the employee's next summary rating. Accordingly:
       
       (1) If the employee has served IN the Department for the minimum appraisal period, the employee must be rated. The rating of record shall take into account appraisal information obtained from the borrowing organization; or
       
       (2) If the employee has not served IN the Department for the minimum appraisal period, but has served for the minimum appraisal period in a position OUTSIDE the Department, reasonable efforts must be made to prepare a rating of record using appraisal information obtained from the borrowing organization.
    
    
    
    4. Transfers From Other Agencies.   If an employee transfers from another agency into the Department during the appraisal cycle, any interim or summary rating(s) which are forwarded from the losing agency (and which encompass periods of time included in the Department's appraisal cycle) MUST be considered in deriving the rating of record. Weight given to these ratings should be proportionate to their share of the appraisal cycle.
    
    
    
    5. Transfers To Other Agencies.   If an executive transfers to a new agency at any time during the appraisal period, a summary (interim) rating must be prepared by the employee's supervisor and provided to the gaining agency.


22. Processing and Retention of Performance Ratings.
    
    
    1. Control dates established by departmental guidance must be adhered to in order to ensure the proper review of ratings by PRBs.
    
    
    
    2. All performance related records must be maintained in either the OPF or EPF for no less than 5 years from the date the rating is issued.
    
    
    
    3. The performance appraisals for the most recent 5 years and the most recent PWP and interim rating will be forwarded as part of the OPF to a gaining agency upon an employee's transfer.
    
    
    
23. Validity of Ratings.
    
    
    1. Each final annual summary rating issued within a component of the Department (or other agency which is subject to the performance appraisal requirements of 5 U.S.C. chapter 43, subchapter II) supersedes the previous one and is considered to be the valid rating of record.
    
    
    
    2. When a new SES employee enters on duty with the Department at any time during the appraisal period, the most recent annual summary rating rendered in the former agency will be recognized as the official rating of record until it is superseded by a rating of record issued under this plan.



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Chapter 3 - Actions Based on Less Than Fully Successful Performance

24. General.
    
    
    1. 5 CFR § 430.306(a) requires that supervisors must advise and assist employees in improving their performance.
    
    
    
    2. Any SES member receiving an Unsatisfactory rating shall be reassigned or transferred within the SES or removed from the SES. However, any SES member who receives two Unsatisfactory ratings within any period of 5 consecutive years shall be removed from the SES.
    
    
    
    3. A Minimally Satisfactory rating permits a year's period to show improvement. However, any SES member who receives two less than Fully Successful ratings within 3 consecutive years shall be removed from the SES.
    
    
    
    4. When an employee's performance falls below Fully Successful (whether or not a formal appraisal has been given), good personnel practice suggests that this determination should trigger prompt action on the part of the supervisor to bring the employee's performance up to an acceptable level or, if warranted in the case when an employee is Unsatisfactory, to begin steps leading to the placement of the employee in a job he or she can successfully perform. Exactly what steps should be taken depends on the circumstances of the case.
    
    
    
    5. Formal training, on-the-job training, counseling, and closer supervision are common approaches to below par performance problems. An organization has no justification, however, for continuing to retain an employee whose performance is Unsatisfactory after attempts to improve the employee's performance or place him or her in another position fail.
    
    
    
25. Procedures.    Since performance appraisal is a continuous process, the following procedures shall be followed at any time during the year after the minimum appraisal period has been completed when a supervisor concludes that the employee's performance in one or more critical elements is below Fully Successful.
    
    
    1. Discussion.   There must be a discussion between the supervisor and the employee for the purpose of:
       
       (1) Advising the employee of specific shortcomings between observed performance in the critical element(s) under scrutiny and the performance requirements associated with the particular element(s); and
       
       (2) Providing the employee with a full opportunity to explain the observed deficiencies.
    
    
    
    2. Determine Appropriate Action.
       
       (1) If the supervisor feels that the matter has been resolved to his or her satisfaction during the course of the discussion, the supervisor need not take further formal action at this point.
       
       (2) If the supervisor of the senior executive feels that further action is necessary, he or she shall complete an appraisal and record his or her assessments on the rating form. The supervisor shall advise the senior executive of his or her right to respond in writing within 7 calendar days and of the action he or she is recommending with respect to the proposed Minimally Satisfactory or Unsatisfactory rating. The supervisor should also advise the senior executive of the review levels required before the rating and proposed action become final, i.e., a possible review by a higher level official, the PRB, and, ultimately, the Deputy Attorney General or component head as appropriate. The senior executive should also be advised that the rating and proposed action do not become final until the Deputy Attorney General's/component head's decision is made.
       
       (3) If a first-time rating of Minimally Satisfactory is approved by the Deputy Attorney General/component head, it does not carry with it any legally mandated personnel action. However, as a practical matter, such a rating should carry with it a recommendation reflecting the marginal performance it represents. Recommended actions that the rating official may wish to consider include: (1) a reduction in SES pay level (limited by OPM regulation to one level within a 12-month period); (2) additional training designed to correct the deficient performance; or (3) reassignment to another SES position.
       
       (4) A career appointee may be reassigned to another SES position only if the appointee receives at least 15 days advance written notice for a reassignment within the commuting area and at least 60 days advance written notice for a reassignment outside the commuting area. The appointee may voluntarily waive the above notices. Such waivers must be in writing.
       
       (5) If the Unsatisfactory rating is approved by the Deputy Attorney General/component head, the senior executive must be reassigned to a different position within the SES or removed from the SES in accordance with the provisions of 5 CFR Part 359, Subpart E.
       
       (i) A career appointee may be removed from the SES at any time prior to the completion of the probationary period required under 5 U.S.C. § 3393. However, a career appointee who has completed the probationary period and whose removal from the SES for less than Fully Successful executive performance is contemplated is entitled, to a 30-day advance written notice of such action (see 5 CFR § 359.502). In addition, upon request, the career appointee shall be granted an informal hearing before an official designated by the Merit Systems Protection Board at least 15 days before the effective date of the removal. At this time, the career appointee may appear and present arguments. Such hearing shall not give the career appointee the right to initiate an action under 5 U.S.C. § 7701 (formal appellate procedure) nor need the removal action be delayed as a result of the granting of such hearing. A career appointee who is removed from the SES for less than Fully Successful performance is entitled to be placed in a civil service position (other than an SES position) in accordance with the provisions of 5 U.S.C. § 3594.
       
       (ii) The removal of an SES career appointee for performance reasons is subject to the 120-day moratorium, except for a removal based on an unsatisfactory rating given before the appointment of a new agency head or noncareer supervisor that initiated the action. This includes an optional removal based on one unsatisfactory rating, a mandatory removal based on two unsatisfactory ratings in 5 years, and a mandatory removal based on two less than fully successful ratings in 3 years when the second rating is an unsatisfactory rating.
       
       (6) SES noncareer and limited appointees may be reassigned or removed from the SES at any time. Such SES members are not entitled to the procedures described in subparagraphs (b)(5) i-ii above. Regulations require that noncareer and limited appointees receive notice in writing before the effective date of a removal (See 5 CFR Part 359, Subpart I.).

Appendix 1
Establishment and Functions of the SES Performance Review Boards

1. General.   Under the provisions of 5 U.S.C. § 4314(c), each agency is required to establish one or more SES Performance Review Boards (PRBs) which shall review and evaluate the initial appraisal of a senior executive's performance by his/her supervisor, along with any response by the senior executive or higher level review determination (if appropriate), and make recommendations to the appointing authority relative to the performance of the senior executive. The appointing authority shall issue appraisals/ratings only after considering the recommendations of a PRB.



2. Establishment of Boards.   Component heads will jointly establish one or more PRBs to review ratings and bonus recommendations of the executives within their appointing authority. There will be a sufficient number of PRBs established to review, evaluate, and make recommendations with respect to the individual performance of the senior executives in the component.



3. Membership.
   
   
   1. Each PRB will be composed of three or more members. The size of the PRB will depend upon the number of actions to be reviewed. Generally three principals and two or three alternates are sufficient.
   
   
   
   2. During March of each year, the Assistant Attorney General for Administration shall be notified of PRB members from the component heads (except the Federal Bureau of Investigation and the Drug Enforcement Administration). The PRB members will be published in the Federal Register before service begins.
   
   
   
   3. The components will have broad flexibility in establishing the membership of the PRBs (including its chairperson), however, the law requires that when a PRB is reviewing the performance of a career appointee, more than one-half of the members of the board must be career appointees.
   
   
   
   4. Members of PRBs will be appointed in such a manner as to assure consistency, stability, and objectivity in performance appraisal. Members appointed to the PRBs shall serve for a period of 1 year.
   
   
   
   5. Members of each PRB should:
      
      (1) Be SES members (or equivalent);
      
      (2) Have current Fully Successful performance ratings or the equivalent of this rating in other rating systems;
      
      (3) Consistently have applied agency appraisal systems effectively in their respective organizations; and
      
      (4) Possess a thorough knowledge and understanding of the performance appraisal system and other pertinent aspects of the SES.
   
   
   
   6. Appointees will not serve on the PRB reviewing the actions of their own organizations. Accordingly, the supervisory official who made or reviewed the initial appraisal of an executive may not act as a member of the PRB considering the appraisal of that subordinate executive. In addition, a subordinate to an executive whose performance appraisal is under review may not act as a member of the PRB with respect to his or her superior. No senior executive may review his/her own rating. A member of a PRB in conflict with the above will remove himself or herself from action or consideration by the PRB and such action/consideration will be accomplished by other PRB members.



4. Functions.
   
   
   1. Each PRB shall review and evaluate the initial appraisal and rating by the rating official of the senior executive, the senior executive's written response (if any), and the written comments of the reviewing official (if such written comments were made), and any accompanying recommendations for awards, bonuses, proposed corrective actions, or the like. In its consideration of a case, a PRB may call witnesses if it feels added clarification is needed. Each PRB shall consider equity and consistency among the ratings of executives as well as the accuracy, fairness, and effectiveness of individual ratings. A primary goal of the review is to ensure that final ratings above the Fully Successful are awarded only to senior executives whose performance fully justifies them. A PRB may review any aspect of the appraisal process, including the critical elements and performance requirements set for a senior executive prior to or as adjusted (modified) during the performance appraisal period.
   
   
   
   2. PRB recommendations shall be in writing and shall be submitted under signature of the PRB chairperson, along with the proposed rating and accompanying documentation, to the appropriate appointing authority. Where the PRB does not concur with the initial appraisal or rating, or the record shows employee or reviewing official disagreement with the rating official's actions, the PRB's recommendations shall be supported by a written justification. No appraisal or rating is final until the appropriate appointing authority takes final action. As has been indicated earlier, a PRB is also responsible for making recommendations to the appointing authority concerning individual performance awards to be granted to Fully Successful or better career appointees.

Footnotes

1   SES employees are those covered by 5 U.S.C. chapter 31, subchapter II.  [Return to text]

2  Key career executive positions include:

Assistant Attorney General for Administration
Director, Executive Office of Immigration Review
Director, Bureau of Prisons
Deputy Commissioner, Immigration and Naturalization Service
Counsel on Professional Responsibility
Counsel for Intelligence Policy and Review
Pardon Attorney
Officials who report directly to the Deputy Attorney General or the Associate Attorney General
All career Deputy Assistant Attorneys General and equivalent positions.  [Return to text]

Attachment 2

November 1, 2001

MEMORANDUM FOR HEADS OF DEPARTMENTS AND INDEPENDENT AGENCIES

FROM:   KAY COLES JAMES Director, OPM

SUBJECT:   Senior Executive Excellence and Accountability

"We are not here to mark time, but to make progress, to achieve results, and to leave a record of excellence." The President's charge to members of the Senior Executive Service (SES) on October 15th underscores the key principles of his Administration: formulate a Government that is citizen-centered, results-oriented, and market-based. Federal employees at all levels of government must work toward this goal, but top management -- agency leaders and senior executives -- have to create a climate that demands and sustains excellence. We must set the direction and then clearly and continually communicate our vision, values, and expectations for excellence. We are all accountable to the American people for producing results.

For most agencies, the annual appraisal period for SES members ended on September 30. Since the standards against which your executives' performance will be measured were established last fall, they may not reflect this Administration's priorities as articulated within your agency. Although many of you have only been confirmed recently, you can still use the appraisal process to reinforce our commitment to a results-oriented Government. You can ensure that measurable results, not anecdotes, form the basis of executive appraisals. It is completely appropriate to use this opportunity to ask as many follow-up questions as possible and to obtain documentation of results. You can direct rating officials and Performance Review Board members to be rigorous in preparing recommendations on ratings and bonuses. And, most importantly, you can personally communicate your intent to use the SES appraisal system to drive organizational excellence.

OPM records on FY 2000 performance ratings show that agencies rated 85% of their executives at the highest level their system permits. I believe most executives provide quality service to our citizens. However, these statistics suggest that agencies are not making meaningful distinctions between those who merely do what's expected and those with a consistent track-record of outstanding performance. In August, we asked your Human Resources Director to report on your agency's FY 2001 SES performance ratings and bonuses. Please ensure that your agency's report is submitted in a timely manner. OPM will closely monitor the distribution of FY 2001 ratings and bonuses, and prepare a comprehensive report to share with agencies and interested stakeholders.

As the FY 2002 appraisal period begins, you have the opportunity to ensure that your agency's performance management system is used to hold executives accountable – that it is more than a once a year check-the-block chore. Last year, OPM overhauled the requirements for managing senior executive performance. The OPM framework emphasizes results over process, giving agencies considerable flexibility to design systems that are tailored to their organizations' unique and changing missions, cultures, and needs. It requires executive performance standards to be linked to agency goals and expectations. Most important, OPM's framework recognizes that effective performance management requires agency leadership to communicate performance expectations, expect excellence, and take action to reward outstanding performers and deal appropriately with those who do not measure up.

OPM is available to provide technical advice on system design and implementation. Please have your staff contact Anne Kirby at 202-606-1610, or makirby@opm.gov for assistance.

While OPM can help, only you and your leadership team can change the culture to ensure that your SES performance management system is used to drive results. It is important that agencies ensure that executive performance plans reflect this Administration's priorities, including the President's Management Agenda. A critical aspect of this process is establishing executive performance goals and expectations in line with agency strategic goals and objectives, regularly assess performance against these goals, and use performance as a true basis for pay, development, and other personnel decisions.

If we are going to deliver for the President and American people, executives at all levels of Government must be held accountable for achieving excellence. Your leadership and personal involvement is essential to our success.

cc:   President's Management Council
     Human Resources Management Council