The Office of Personnel Management, asserting its jurisdiction over the system by which government agencies rate their employes, has told the Merit Systems Protection Board's special counsel to butt out of a brouhaha at the Energy Department.
The unusual action comes less than three weeks after OPM Director Donald J. Devine told Congress that the personnel agency had no legal authority in the DOE situation.
Special counsel K. William O'Connor had asked the merit board to grant a second stay in the firings of 19 senior DOE employes. O'Connor, who heads an office set up to investigate federal employes' complaints of personnel abuse, cited evidence of a "pattern of prohibited personnel practices" stemming from the system used to measure the performance of Senior Executive Service employes.
Yesterday the MSPB denied O'Connor's request, noting that OPM had put its own freeze on the firings while it conducted a review of the performance-appraisal system. OPM, which had examined DOE's appraisal system as recently as last May, told the merit board it was "actively in control and standing ready to take appropriate corrective action."
"Moreover, any interference by the special counsel . . . would be duplicative and would work at cross-purposes with OPM's efforts" to enforce the law, according to a brief filed by the personnel agency.
In a rebuttal brief, O'Connor noted that OPM's "judicious and vigorous exercise of this assumed . . . authority" came only after he had requested the first stay of the firings. He also argued unsuccessfully that OPM's stay could be dissolved at any time and could not be enforced by the merit board.
A spokesman for O'Connor said yesterday, however, that, "We abide by the decision and are glad that OPM is exhibiting interest."
Eleven members of Congress had asked Devine to look into the DOE situation last October, expressing concern that the firings--the first department-level reduction in force affecting SES members--might threaten the integrity of the the corps of highly trained federal executives.
In a response dated Dec. 15, the day O'Connor filed his first request for a stay, Devine told Rep. Patricia Schroeder (D-Colo.) that he had authorized a site investigation even though he saw little role for OPM. The RIFs at DOE, he told Schroeder, stemmed from a departmental reorganization. "This is an area in which OPM has no legal authority," he said.
But in its brief to the merit board, OPM said it maintains jurisdiction "over the entire subject matter of this case."
In a letter to Energy Secretary Donald Paul Hodel, dated Dec. 29, Devine said OPM had enough evidence to determine that the DOE performance-appraisal system "may have been applied improperly" to some of the fired SES employes.
Devine told Hodel that the personnel agency's review would be finished by Jan. 11, although "corrective actions" might be ordered earlier. He also told Hodel that "it appears some of the 19 executives received performance appraisals that are in proper order" and permission to fire them might be granted before then.