Summary of HR/NEP Meeting Regarding FSL Authority
July 5, 2005

Attendance: Dave Eckerson, Head of HR; Dennis Diamond, Senior Attorney Advisor to Head of HR; Frank McDonough, Chief, Labor Relations-HR; Rebecca Cohn-Chief-POD- HR; John Rifenbark-FSL Coordinator-HR; Cecilia Pitas - Coordinator NEP Program; Bill Carter-VP for USAID, AFSA; Doug Broome-AFSA Labor Relations; Asgeir Sigfusson-AFSA; Rachel Herr Cintron-NEP; Patrick Wilson-NEP; Kevin Smith-NEP; Michael Johnson-NEP; Sue Tatten-NEP

Introduction

On May 26, 2005 representatives of NEP groups 1-13 held a meeting with HR, which lasted 2 ½ hours. After an initial NEP presentation outlining the big picture of using the new FSL authority, some key points from the presentation and memo were discussed. Major points of discussion were: availability of career positions, the difference between the two hiring mechanisms (career vs. non-career), and the overall goal of HR in their human capital strategic planning. HR management was able to clarify some issues which was helpful. We (representatives of NEPs 1-13 and AFSA) feel that this was a first step toward increased transparency on how and why HR will implement this authority. HR management is sympathetic to our position, genuinely wants to preserve the integrity of USAID and its foreign service, and sees this authority as "short-term," not long-term.

Major outcomes of the meeting were as follows:

1. The authority will continue to be implemented as written, and no additional regulations are foreseen.
2. HR management agreed to continue to work with career candidate and career Foreign Service officers (hereafter all referred to as FSOs) in concrete ways to increase transparency in their human capital planning and to respond to individual situations where the authority is perceived as being abused in the field.

At a separate event the same day HR described this authority to PASA and RSSA employees who are candidates for FSL conversion. Information from that meeting is also included in these notes.

History and Background:

Prior to 1976, there was no OE account. Operations and programming were done from one account (what we now call program funds). When the account was created, it underestimated the true cost of operations by about 20%. While USAID's program funds have been increasing, our OE account, low to start with, has not kept pace. In addition, a 10-year hiring freeze in the 1990s left many vacancies in the mid-level positions. As a consequence, to staff its expanding mission, USAID has utilized program funds to provide personnel support - thus the existence of many categories of program-funded staff (RSSAs, PASAs, TAACS and CASUs and PSCs). Now the Agency is again hiring career candidates and is in a time of growth, so it is seeking to reduce its reliance on contractors and interagency staff. Converting contractors and interagency staff to FSL (non-career direct hire) is the first step to "homogenize" the workforce with direct hires. We note that the original intent behind the NEP program was to bring in "mid-level" professionals for vacant slots and so wonder why some NEPs are now being placed in "supported ceiling" or deputy-level positions for "mentoring" rather than in mid-level slots according to their experience.

Intent of the Authority:

HR views this as a short-term fix, not a long-term solution. It is actively seeking (in discussions with OMB and Congress) more OE or the authority to fund career staff with program funds. No one can say whether or not the Agency will be successful in receiving additional funding or authorization for career positions. The intent is to develop a staffing pattern with more career positions, and less reliance on non-direct hires. If unsuccessful, the Agency will have to continue to rely on non-direct hire and/or FSL staff to help run its programs as it currently does. HR, in collaboration with FSOs, needs to plan strategically for either scenario, and what should happen when the FSL authority ends.

Starting in 2005, and continuing in 2006, HR expects most FSL conversions to occur in Washington. This is where most of the overhead savings to the Agency are. The limit of "75 in Washington" in 2006 may be lifted, which could allow up to 175 to be converted in Washington in that year. Perhaps "Civil Service Limited" title might be more accurate than the "foreign service" title for Washington conversions since this more accurately describes the nature of their responsibilities. However, they are nonetheless FSLs because the Foreign Service Act provides the flexibility for conversions in place (which Civil Service regulations do not) and the FSL legislative authority allows USAID to program fund non-career FSL appointees.

Advantages:

The Agency perceives the advantages to be:

1. Overhead, i.e. indirect cost, savings (while this remains to be fully realized, the Agency currently spends approximately $13 million/year on overhead for interagency agreements and the TAACS);
2. Homogenizing the work force (possible elimination of other hiring mechanisms over time);
3. Demonstrating to Congress and OMB a direct-hire staffing pattern that needs to be funded (in other words, FSLs bolster our argument to Congress for OE in a way that PSCs don't); and
4. Allowing non-direct hire staff currently performing "inherently governmental functions" to have a direct hire status reflecting that responsibility (NOTE: It will, however, also allow staff not performing "inherently governmental functions" to also share this title).
   
   These advantages will not all be evident in the short term and their magnitude in the long-term remains to be seen. The "cost" of moving staff from one program-funded authority to another also needs to be taken into account in evaluating the advantages to the Agency of this program.

Competition for positions:

It was made very clear to us that there are two different categories of hiring - career (staffing pattern) positions, and non-permanent positions (FSLs and contractors). OE-funded staff can only fill staffing pattern positions through the bidding process, and non-permanent staff can only fill non-permanent (mostly program-funded) positions. (NOTE: there are some instances of FSLs filling OE-funded positions in critical priority posts such as Iraq and Afghanistan.) We understand that the person, not the position, becomes classified as "FSL" - the position is now and will remain in the "non-permanent" category. HR was emphatic that an FSL (or PSC for that matter) cannot take a career slot. They were equally emphatic that an FSL cannot move from one position to another, even within the same office, except in extraordinary circumstances.

We pointed out that the real competition lies not in bidding, but in the designation of positions - how many will be career, and how many will be non-permanent. Many EXO, controller and technical staff positions have been "removed from the direct-hire books because PSCs, both OE and program-funded, have been hired to replace USDH staff." ¹ HR agrees that we need more direct hire career positions in the field.

The process as to how a position is designated seems to be as follows: The mission has an approved staffing pattern. If they wish to add or delete an OE-funded position, this is supposed to go through HR. Eckerson said "about half of the missions don't do this." Many decisions also happen in the Bureaus themselves (AMS office). Bureaus have a designated number of OE-funded positions (AFR, for example has 185). They will keep all these positions (for now), but they may move them around, from mission to mission. So when an OE-slot gets eliminated from a mission, it does not disappear - another Mission or office gains it. These can be transferred across backstops, however. So, for example, if DG becomes a priority, an Agriculture position could be re-designated as a DG position. The grade level of a position can also be re-classified (FS-2, FS-1 or SFS). I think we've all seen cases where a mission, with only one or two career slots to fill, thinks only the most senior person should do it, so classifies it as high as possible to attract more senior bidders, and sometimes too high (FS-1 or SFS) for a NEP or recent NEP to bid. Thus arises the perception of a decreasing number of positions for us to bid on - but it's not the FSL authority per se that is doing it.

Qualified FSLs and Competition:

A few cases regarding the qualifications of certain FSLs were brought to the attention of HR during the 2004 FSL conversion process, and have brought about a change in how the 2005-7 authority will be implemented. HR and AFSA were familiar with our examples of this. As a results, all FSL conversions in 2005 must be recommended by the Mission Director (that's the same) and the AA of the regional Bureau after it has been cleared by bureau technical staff (that's new).

On competition, Eckerson disagreed with the assertion that PSCs or contractors are hired "non-competitively" and HR dismissed this issue as "irrelevant." There is some form of competition for PSCs, as positions are advertised worldwide, but it's hard to judge their hiring process in comparison to the NEP system. While USAID contractors are valuable assets to the Agency, and technically qualified for what they do, they are usually not hired or competed against a scope of work which includes inherently governmental functions such as representation of US foreign policy, contract and grant management, or supervision skills– things that FSOs are required to have in our skills matrix. They are also not graded on language ability or time overseas. On these skills, we feel their hire is unfairly non-competitive. NOTE: HR points out that FSLs have no retention rights and can be terminated at will.

Salaries/promotions:

In the Foreign Service Act of 1980 (which guides all Foreign Service agencies) there is a cap on new entry professionals at FS-04. We recognized that as a non-negotiable point. We asked about possibilities for faster promotion for qualified NEPs, establishing a broader salary scale for PSCs against which to be measured (FS-05 to FS-01), and basing their salary on skills matrix, time in service, and salary history (not just the latter). We learned that there is no timeline for promotion from a 4 to a 3. This can happen in the first evaluation cycle (the average time for NEPs is 3 years). To get promoted to FS-02, FSOs must have 4 years in the field. This is cumulative, and counts the time spent in the field as a 4 and a 3. So those who get promoted to FS-03 after 3 years are eligible to be FS-02 after one more year if they have the appropriate skills in the skills matrix (i.e. Take "stretch" positions!). FSLs are not eligible for promotion during their 5-year appointment, although they receive step increases the same way we do. They will receive both rank and step based on their salary history. When FSL salaries are set, if a salary falls within 2 grade levels and the lower grade and step if Step 9 or above, then the higher grade is awarded. If Step 8 or below, then the lower grade will be given. CHECK It is unclear how any subsequent five-year appointments will handle salary setting and possible promotions for these employees.

Eckerson advised us to tell you this: There is no better time to be a junior career Foreign Service officer. The retirement rates are so high that "[you] will be promoted up to these higher positions before [you] know it." We don't know what's happening in the field yet, but hope this prophecy comes true. Those of you ready for your third posting – are you getting or feeling close to being in senior (office director or higher) positions? Eckerson also pointed out that FSOs will eventually be eligible to be promoted into the Senior Foreign Service. For the visual people (like me), here's a rendition of what the staffing situation looks like, bearing in mind that shape is not an indication of number of positions since there are as many non-direct hires and FSLs as there are FSOs (I just like the pyramid shape):

 

 

Supervision

We strongly believe that FSLs, whose performance is not reviewed with the same accountability or in the same process, should not be allowed to supervise FSOs, especially non-tenured FSOs (who can be terminated with only one "C" rating in their AEF). HR replied that GS employees already supervise FS, and they are not part of the same review process either (we don't understand this justification and see this as a separate issue, but understand that HR is unlikely to change the GS supervisory rules). HR assured us that the Appraisal Committee will make sure there are no renegade reviewers, and HR and/or AFSA will handle grievances if there are problems. Those who are familiar with the FS AEF process understand the importance of appropriate language, the skills matrix, and review boards, all issues with which FSLs are unfamiliar. We will continue to push this issue. In the meantime, Eckerson requested numbers - how many FSLs are actually supervising (filling out AEFs on) career FSOs?

Washington:

USAID is seeking "more flexibility" to the FSL authority. FY '05 legislation allows for conversion of 175 FSL positions each year, up to 75 of which may be in Washington. This Washington restriction may be waived for this authority in 2006, meaning most or all of the conversions can take place in Washington. The RSSAs and PASAs at the May 26 meeting had many questions about the advantages of this authority and also appear skeptical of the lack of transparency regarding what happens to them at the end of 5 years. Obviously they want to see this authority renewed indefinitely. They received the news that "for now" the process is "voluntary" but later it may become "less voluntary" as the Agency intends to fill all 175 FSL slots in each of these 3 years, and to convert as many PASAs and RSSAs as possible (there are estimated to be 500-600 of them).

Outcomes:

There were some positive outcomes: Eckerson liked the memo and that it codified the issue in a useful way. He mentioned that he had heard a few of our concerns before, but never in a systematic fashion. He immediately authorized a working group - headed by Rebecca Cohn, the head of the Personnel Operations Division (POD). We (career FSOs) will determine the mandate and participation on this working group. Some initial ideas on its role are:

• Hear grievances from the field - clarify and address them immediately with HR (a channel for field officers directly into HR HQ).
• Continue to advocate for NEP/FSO interests in HR human capital planning processes (a representative is invited to sit on the human capital planning subcommittee with Eckerson)
• Keep communication open between HR and field FSOs to increase transparency on human capital planning in the Agency
• Keep communication open between field FSOs and HR - occasional polls or solicitation of opinions/buy-in.

We need NEP volunteers to fill these roles, and keep this process alive.

 

¹ USAID Human Capital Strategic Plan 2004-2008, p. 35