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D.C. DEPARTMENT OF HUMAN RESOURCES
NOTICE OF PROPOSED RULEMAKING
The Director, D.C. Department of Human Resources, with the concurrence of the City Administrator, pursuant to Mayor’s Order 2008-92, dated June 26, 2008, and in accordance with sections 951 through 958 of the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-609.51 et seq.) (2006 Repl.), hereby gives notice of the intent to adopt the following rules in not less than thirty (30) days from the date of publication of this notice in the D.C. Register. The main purpose of this rulemaking notice is to amend section 3809 on placement by reassignment or demotion, of Chapter 38, Management Supervisory Service, of Title 6 of the District of Columbia Municipal Regulations (DCMR). Specifically, section 3809, Placement by Reassignment or Demotion, is being amended to clarify the language in subsections 3809.1 through 3809.3, and add a new subsection 3809.8 to provide that a Management Supervisory Service employee may be reassigned or demoted non-competitively from one subordinate agency to another subordinate agency, in addition to a reassignment or demotion within the employing agency and provide the criteria for such reassignments and demotions. Additionally, section 3807 on competitive and non-competitive placement, is being amended; non-substantive changes are being made to sections 3800.1, 3800.2, 3801.1, 3804.1, 3808.3, 3810.1, 3812.1, 3813.3; and section 1199, Definitions, is being amended to add the definition of the term “demotion;” make a non-substantive change to the definition of the terms “personnel authority” and “reassignment;” and add the definition of the term “transfer.” Upon adoption, these rules will amend Chapter 38, Management Supervisory Service, of Title 6 of the DCMR, published at 48 DCR 2812 (March 30, 2001) and amended at 50 DCR 7747 (September 12, 2003), 51 DCR 9707 (October 15, 2004), 52 DCR 1314 (February 11, 2005), 52 DCR 1913 (February 25, 2005 – Errata Notice), 52 DCR 6840 (July 22, 2005), 54 DCR 4186 (May 4, 2007), 55 DCR 7974 (July 25, 2008), 56 DCR 002169 (March 13, 2009 – Errata Notice), and 56 DCR 002724 (April 10, 2009).
CHAPTER 38
MANAGEMENT SUPERVISORY SERVICE
Chapter 38, Management Supervisory Service, of Title 6 of the District of Columbia Municipal Regulations is amended as follows:
Non-substantive changes are made to sections 3800.1, 3800.2, and 3800.3:
3800 POLICY
3800.1 Pursuant to section 951 of the District of Columbia Government Comprehensive Merit Personnel Act of 1978 (CMPA), effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-609.51), the Management Supervisory Service is established within the District government to ensure that each agency has the highest quality of managers and supervisors who are responsive to the needs of the government.
3800.2 This chapter applies to all appointments to the Management Supervisory Service under the authority of sections 951 through 958 of the CMPA (D.C. Official Code § 1-609.51 et seq.).
3800.3 In accordance with section 954 of the CMPA (D.C. Official Code § 1-609.54),
an appointment to the Management Supervisory Service is an at-will appointment.
A non-substantive change is made to section 3801.1:
3801.1 The Management Supervisory Service consists of all employees who meet the definition of “management employee” in section 1411(5) of the CMPA (D.C. Official Code § 1-614.11 (5)), that is, employees whose functions include responsibility for project management and supervision of staff and the achievement of the project’s overall goals and objectives.
A non-substantive change is made to section 3804.1:
3804.1 In accordance with section 953 of the CMPA (D.C. Official Code § 1-609.53), all appointments to the Management Supervisory Service, except as specifically limited in this chapter, shall be by open competition on the basis of merit by selection from the highest qualified applicants, based on specific job requirements with appropriate regard for affirmative action goals as provided by law and as determined under this chapter.
Section 3807 is amended as follows:
3807 COMPETITIVE AND NON-COMPETITIVE PLACEMENT
A non-substantive change is made to section 3807.1:
3807.1 Except as otherwise provided in this chapter, competitive procedures shall apply to all initial appointments to the Management Supervisory Service, and subsequent assignments and placements to positions within the Management Supervisory Service, as follows:
(a) Promotions;
(b) Temporary promotions exceeding one hundred twenty (120) days;
(c) Selection for a detail for more than two hundred forty (240) days to a
position at a higher grade or to a position at the same grade level with known promotion potential; and
(d) Selection for a position, including by reassignment or demotion, with more promotion potential than the last grade held under a Management Supervisory Service competitive appointment.
3807.2 Competitive procedures shall not apply to the following actions within the Management Supervisory Service:
(a) The following types of Management Supervisory Service promotions:
(1) A promotion resulting from the upgrading of a position without significant change in the duties and responsibilities due to issuance of a new classification standard or the correction of an initial classification error;
(2) A promotion resulting from an employee’s position being reclassified at a higher grade because of accretion of additional duties and responsibilities without planned management action;
(3) A career ladder promotion if the original competition for the position clearly established the career ladder; or
(4) A temporary promotion under this chapter for a period of one hundred twenty (120) days or less.
Subsection 3807.2 (b) is amended to read as follows:
(b) An indefinite reassignment or transfer to a position of the same grade with no known promotion potential or with no greater promotion potential than the position previously held;
(c) A temporary reassignment for a period of one hundred twenty (120) days or less;
(d) A reassignment or demotion pursuant to section 3809 of this chapter;
(e) Consideration of a candidate not given proper consideration in a competitive promotion action; or promotion of an employee who was denied promotion as a result of other error, on order of the D.C. Department of Human Resources or independent personnel authority;
(f) A detail of two hundred forty (240) days or less to a position at a higher grade or to a position with known promotion potential; and
(g) Temporary Appointments Pending the Establishment of Registers (TAPER).
Subsection 3807.3 (a) is renumbered as section 3807.3 and non-substantive changes are made to the text:
3807.3 While this chapter does not include time-in-grade requirements or restrictions for promotion to or within the Management Supervisory Service (MSS) that would prevent a MSS employee from advancing to a higher grade position before serving at the lower grade for at least one (1) year, agencies must exercise discretion concerning any such promotions, and consider establishing internal controls and procedures to handle such promotions, with regard to equity and reasonableness.
Subsection 3807.3 (b) is renumbered as section 3807.4 and non-substantive changes are made to the text:
3807.4 The following criteria shall be followed when considering promoting an employee to or within the Management Supervisory Service when the employee meets the qualifications requirements for the higher grade position but has served at the lower grade level for less than one (1) year. Under such circumstances, consideration shall be given to the following:
(a) The employee’s total work history;
(b) The employee’s education, superior academic credentials, or superior academic achievements;
(c) Any work performed by the employee that is related to the higher grade position and at a level at least commensurate (equivalent) to the higher grade position;
(d) Any negative impact that an action to advance an employee who has not served at the lower grade level for at least one (1) year may have on other agency Management Supervisory Service employees;
(e) The impact that an action to advance an employee who has not served at the lower grade level for at least one (1) year may have on the agency’s salary structure; or
(f) Hardship, inequity, or especially meritorious cases.
Sections 3807.4 and 3807.5 are renumbered as 3807.5 and 3807.6, respectively:
3807.5 An employee’s salary history (i.e., previous higher salary) shall not automatically be considered as the determining factor in the employee’s promotion under the circumstances and criteria described in section 3807.4 of this section; however, it may be considered along with the criteria listed in that section.
3807.6 An employee promoted under the circumstances described in section 3807.4 of this section may be advanced more than two (2) grade levels at a time.
A non-substantive change is made to section 3808.3:
3808.3 The following employees shall be referred to selecting officials in subordinate agencies along with other qualified candidates, for interview by management and special consideration for placement and advancement for Management Supervisory Service positions they apply for; provided that no person referred for such special consideration shall be selected ahead of a candidate claiming the residency preference pursuant to section 957 of the CMPA (D.C. Official Code § 1-609.57), if any:
(a) Graduates of the District government’s Certified Public Manager Program; and
(b) Persons appointed as Capital City Fellows.
Section 3809 is amended as follows:
3809 PLACEMENT BY REASSIGNMENT OR DEMOTION
Sections 3809.1 through 3809.3 are amended to read as follows:
3809.1 A personnel authority may fill a vacancy within the Management Supervisory Service by reassignment of a Management Supervisory Service employee to another position of the same grade and salary, either competitively or non-competitively, as provided in this section.
3809.2 When, as a result of attrition, reductions in force, reorganizations, or approved realignments within an agency, a Management Supervisory Service employee ceases to perform managerial or supervisory functions or duties, the employing agency may reassign or demote the employee to a vacant Management Supervisory Service position within the agency for which he or she qualifies; provided that there is no reduction in the benefits of the employee, and the position has no greater promotion potential than the position previously held.
3809.3 An agency may determine that it is necessary to reassign or demote a Management Supervisory Service employee to a vacant Management Supervisory Service position within the agency for which he or she qualifies, for reasons other than those listed in section 3809.2 of this section. In such cases the reassignment or demotion may be effected; provided that the position has no greater promotion potential than the position previously held.
3809.4 A time-limited reassignment may be made for a period not to exceed one (1) year.
3809.5 A time-limited reassignment exceeding one hundred twenty (120) days to a position with established promotion potential higher than the currently held position will be effected competitively.
3809.6 Any reassignment or demotion under the circumstances described in sections 3809.2 and 3809.3 of this section shall be effected non-competitively.
3809.7 An employee may voluntarily accept a reassignment or demotion pursuant to sections 3809.2 or 3809.3 of this section, or be terminated as specified in section 3813 of this chapter.
A new section 3809.8 is added to read as follows:
3809.8 In addition to a reassignment or demotion within the employing agency as specified in sections 3809.2 and 3809.3 of this section, a Management Supervisory Service employee may be reassigned or demoted non-competitively to a vacant Management Supervisory Service position from one subordinate agency to another subordinate agency; provided that all of the following criteria are met:
(a) The two (2) subordinate agencies involved mutually agree with the reassignment or demotion action;
(b) There is no reduction in the benefits of the employee;
(c) The position being reassigned or demoted to has no greater promotion potential than the position previously held; and
(d) The Management Supervisory Service employee qualifies for the position being reassigned or demoted to.
A non-substantive change is made to section 3810.1:
3810.1 In accordance with section 955 of the CMPA (D.C. Official Code § 1-609.55), each employee appointed to the Management Supervisory Service will be required to maintain and enhance his or her management and supervisory skills through mandatory training courses every year, as prescribed by the personnel authority.
A non-substantive change is made to section 3812.1:
3812.1 The residency preference provisions of section 801(e) (1), (2), (3), (5), (6), and (7) of the CMPA (D.C. Official Code § 1-608.01(e) (1), (2), (3), (5), (6), and (7)), as amended, and Chapter 3 of these regulations, shall apply to employment in the Management Supervisory Service.
A non-substantive change is made to section 3813.3:
3813.3 In accordance with section 954 of the CMPA (D.C. Official Code § 1-609.54 (b)), an employee in the Management Supervisory Service shall be entitled to severance pay upon termination for non-disciplinary reasons.
Section 1199 is amended to add the definition of the term “demotion;” make a non-substantive change to the definition of the terms “personnel authority” and “reassignment;” and add the definition of the term “transfer:”
Demotion – the change of an employee to a lower grade, or to a position with a lower rate of pay, when both the old and new positions are under the same pay schedule or in different pay schedules.
Personnel authority – an individual or entity with the authority to administer all or part of a personnel management program as provided in section 401 of the CMPA (D.C. Official Code § 1-604.01 et seq.).
Reassignment – the change of an employee from one position to another position with the same (exact) representative rate without promotion or demotion.
Transfer – a change, without a break in service of a full workday, of a Management Supervisory Service (MSS) employee to another MSS position without promotion or demotion, and under a different personnel authority.
Comments on these proposed regulations should be submitted, in writing, to Ms. Brender L. Gregory, Director, D.C. Department of Human Resources, 441 4th Street, NW, Suite 300 South, Washington, D.C. 20001, within thirty (30) days of the date of the publication of this notice. Additional copies of these proposed rules are available from the above address.
