5731359 Human Resources, Department of - Notice of Final Rulemaking - Amending Chapter 9, Excepted Service
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D.C. DEPARTMENT OF HUMAN RESOURCES
NOTICE OF FINAL RULEMAKING
The Director of the 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 the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code §§ 1-609.01, 1-609.02(c), and 1-609.03(a) et seq. (2014 Repl.)), hereby gives notice of amendments to Chapter 9 (Excepted Service) of Title 6 (Personnel), Subtitle B (Government Personnel) of the District of Columbia Municipal Regulations (DCMR).
These rules would: (1) amend § 902 (Excepted Service Qualifications and Other Appointment Requirements) to require that all persons appointed to the Excepted Service be subject to a credit check and criminal background check; (2) amend § 911 (Pre-Employment Travel, Relocation, and Temporary Housing Allowance) to limit the amount of pre-employment travel expenses, relocation expenses, and temporary housing allowance that can be provided to an Excepted Service employee in accordance with the section; and (3) add a new § 921 (Appointment to Inspector, Commander and Assistant Chief of Police in the Excepted Service) to the chapter. Additionally, further amendments are made to §§ 905, 908, and 999. In addition, as amendments to provisions in § 915 (Certificate of Good Standing Filing Requirement), require Council approval, these provisions are not being amended by way of this notice.
No comments were received and no changes were made to the Notice of Proposed Rulemaking published on August 7, 2015 at 62 DCR 010691. These rules were adopted as final on November 2, 2015 and will become effective upon publication of this notice in the D.C. Register.
D.C. PERSONNEL REGULATIONS
Chapter 9, EXCEPTED SERVICE, of Title 6-B DCMR, GOVERNMENT PERSONNEL, is amended as follows:
900 APPLICABILITY
900.1 This chapter applies to all appointments in the Excepted Service under the authority of Title IX 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 §§ 1-609.01 et seq. (2012 Repl.)).
900.2 All Excepted Service appointees shall serve at the pleasure of the appointing personnel authority, except those appointed under special appointments under the authority of § 904 of the CMPA (D.C. Official Code § 1-609.04 (2012 Repl.)).
901 EXCEPTED SERVICE CLASSIFICATION SYSTEM AND STANDARDS
901.1 Notwithstanding the provisions in § 903 of this chapter on the establishment of the new Excepted Service Pay Schedule, the classification system or systems in effect on December 31, 1979 shall remain in effect until the adoption of a new classification system or systems pursuant to § 1102 of the CMPA (D.C. Official Code § 1-611.02 (2012 Repl.)), and shall be the system utilized to classify Excepted Service positions.
901.2 Each Excepted Service position shall be classified as prescribed in Chapter 11 of these regulations, except that:
(a) Statutory positions shall be classified in a manner consistent with their governing statutes, as appropriate; and
(b) The personnel authority may adjust the grade, pay level, or salary, as applicable, of a position, to reflect the professional, scientific, or technical stature of an individual appointed as an expert or consultant.
902 EXCEPTED SERVICE QUALIFICATIONS AND OTHER APPOINTMENT REQUIREMENTS
902.1 Except for statutory office holders, as defined by D.C. Official Code § 1-609.08, an individual may only be appointed to an Excepted Service position if he or she is well qualified to fill that position.
902.2 All Excepted Service appointees shall be subject to credit and criminal background checks. Credit and criminal background checks shall be carried out in the manner prescribed by applicable sections in Chapter 4 of these regulations.
902.3 An appointee’s suitability shall be determined by the appointing personnel authority in accordance with Chapter 4 of these regulations.
902.4 Employment in the Excepted Service shall comply with the Immigration Reform and Control Act of 1986, approved November 6, 1986 (Pub.L. 99–603, 100 Stat. 3445), as amended, which requires that employers hire only citizens and nationals of the United States and aliens authorized to work, and verify the identity and employment eligibility of all employees hired after November 6, 1986
902.5 The minimum age for employment in the Excepted Service, unless a different age requirement is specifically provided by law for a particular appointment or position, is sixteen (16) years old.
902.6 Except as provided in § 902.5, the minimum age for any junior youth aide in the Department of Parks and Recreation and for summer employment is fourteen (14) years old for a person appointed to an Excepted Service transitional position.
903 PAY PLAN AND PAY-FOR-PERFORMANCE SYSTEM FOR THE EXCEPTED SERVICE
903.1 An Excepted Service Pay Schedule (“ES Schedule”) is the basic pay schedule for all Excepted Service positions. The ES Schedule, which was approved on July 6, 2005 by Council Resolution No. 16-219, is a merit-based pay plan that provides for market competitive open-salary ranges with progression based on performance, and replaced the salary schedule structure for Excepted Service positions consisting of pay levels and ten (10) steps.
903.2 The structure and application of the ES Schedule provides flexibility in hiring and compensation for Excepted Service positions. Some of the features of a merit-based pay plan such as the ES Schedule are:
(a) Merit pay or pay for performance systems providing the flexibility to:
(1) Combine merit or performance-based increases with what is commonly known as “cost-of-living-adjustments” or “market adjustments;” or
(2) Base the total salary increase the employee receives solely on merit (performance);
(b) Base-pay increases vary in direct relationship to each employee’s performance level;
(c) The system differentiates between various levels of performance and rewards employees through additional compensation accordingly;
(d) Success of the system depends on accurate and realistic performance evaluations by supervisors; and
(e) The system provides flexibility for varying budget constraints and revenues.
903.3 The ES Schedule is divided into eleven (11) pay levels (ES 1 through ES 11). Each pay level has an open range with a “minimum,” “midpoint,” and “maximum” as reference points of the range.
903.4 Application of the ES Schedule shall ensure compliance with the principle of equal pay for substantially equal work contained in § 1103(a)(2) of the CMPA (D.C. Official § 1-611.03(a)(2) (2012 Repl.)).
903.5 As appropriate, the compensation provisions contained in Chapter 11 of these regulations shall apply to Excepted Service employees.
903.6 Eligible employees paid under the ES Schedule shall not receive more than one (1) salary increase in a calendar year (annual salary increase).
903.7 Except as otherwise determined by the Mayor (or designee), or personnel authority, an annual salary increase for an employee paid under the ES Schedule shall become effective on the last full biweekly pay period in the calendar year (pay period number twenty-six (26)), or pay period number twenty-seven (27), as may occur from time to time).
903.8 An employee paid under the ES Schedule shall be eligible for an annual salary increase if:
(a) The employee received a Performance Plan for the year; and
(b) The employee’s level of competence and job performance is determined to be acceptable or better, as evidenced by a performance rating of “Meets Expectations” (its equivalent) or higher, for Excepted Service employees whose performance is rated using the Performance Management Plan in Chapter 14 of these regulations.
903.9 Whether an employee who is eligible to receive an annual salary increase under
§ 903.8 is actually awarded an annual salary increase, and the type and size of an annual salary increase awarded, shall be determined in accordance with the provisions of Chapter 11 of these regulations.903.10 An annual salary increase may consist of:
(a) A market adjustment;
(b) A merit-pay increase based on performance as specified in § 903.7(a); or
(c) A market adjustment, plus a merit-pay increase based on performance as specified in §§ 903.8(a) and (b) combined.
903.11 Each personnel authority, in consultation with the Office of the Chief Financial Officer, shall:
(a) Plan for and determine the payroll cost of annual salary increases every year for agency Excepted Service employees who meet the requirements in § 903.7(a) and (b);
(b) Determine the total percentage of the annual salary increases for these employees; and
(c) Communicate the plan to agency heads every year.
903.12 An eligible Excepted Service employee whose salary is at the top of the range for the pay level of the position he or she occupies and who meets the requirements in §§ 903.8(a) and (b), shall receive a one-time (1-time) lump sum payment for the calendar year in question, the amount of which shall not exceed the total percentage afforded to other eligible agency employees with the same performance rating.
903.13 The Director, D.C. Department of Human Resources (Director of the DCHR), shall determine the salary levels for Capital City Fellows assigned to subordinate agencies.
903.14 The salary of an employee paid under the ES Schedule may be reduced in accordance with Chapter 11 of these regulations.
903.15 Nothing in this section shall prevent Excepted Service employees paid under the ES Schedule from receiving performance incentives and incentives awards in accordance with § 912 and Chapter 19 of this subtitle.
904 EXCEPTED SERVICE POSITIONS
904.1 The following types of positions are considered Excepted Service positions:
(a) Excepted Service statutory positions include positions occupied by employees who, pursuant to § 908 of the CMPA (D.C. Official Code § 1-609.08 (2012 Repl.)), serve at the pleasure of the appointing authority; or who, as provided by other statute, serve for a term of years subject to removal for cause as may be provided in the appointing statute. Among the Excepted Service statutory positions listed in § 908 of the CMPA are the following:
(1) The City Administrator;
(2) The Director of Campaign Finance, District of Columbia Board of Elections;
(3) The Auditor of the District of Columbia;
(4) The Chairman and members of the Public Service Commission;
(5) The Chairman and members of the Board of Parole;
(6) The Executive Director of the Public Employee Relations Board;
(7) The Secretary to the Council of the District of Columbia;
(8) The Executive Director of the Office of Employee Appeals;
(9) The Executive Director and Deputy Director of the D.C. Lottery and Charitable Games Control Board;
(10) The Budget Director of the Council of the District of Columbia;
(11) The Chief Administrative Law Judge, Administrative Law Judges, and Executive Director of the Office of Administrative Hearings; and
(12) The Chief Tenant Advocate of the Office of the Tenant Advocate.
(b) Positions created under public employment programs established by law, pursuant to § 904(1) of the CMPA (D.C. Official Code § 1-609.04(1) (2012 Repl.)).
(c) Positions established under special employment programs of a transitional nature designed to provide training or job opportunities for rehabilitation purposes, including persons with disabilities, returning citizen or other disadvantaged groups, pursuant to § 904(2) of the CMPA (D.C. Official Code § 1-609.04(2) (2012 Repl.)).
(d) Special category positions established pursuant to § 904(3), (4), and (5) of the CMPA (D.C. Official Code § 1-609.04(3), (4), and (5) (2012 Repl.)), specifically:
(1) Positions filled by the appointment of a federal employee under the mobility provisions of the Intergovernmental Personnel Act of 1970, approved January 5, 1971 (Pub.L. 91-648; 84 Stat. 1909; 5 U.S.C. §§ 3301 et seq.);
(2) Positions established under federal grant-funded programs that have a limited or indefinite duration and are not subject to state merit requirements by personnel authorities; excluding employees of the State Board of Education or of the Trustees of the University of the District of Columbia; and
(3) Positions established to employ professional, scientific, or technical experts or consultants.
(e) Positions established under cooperative educational and study programs pursuant to § 904(6) of the CMPA (D.C. Official Code § 1-609.04(6) (2012 Repl.)), including but not limited to positions established under a pre-doctoral or post-doctoral training program under which employees receive a stipend; positions occupied by persons who are graduate students under temporary appointments when the work performed is the basis for completing certain academic requirements for advanced degrees; and positions established under the Capital City Fellows program administered by the D.C. Department of Human Resources.
(f) Excepted Service policy positions pursuant to § 903(a) of the CMPA (D.C. Official Code § 1-609.03(a) (2012 Repl.)) are positions reporting directly to the head of the agency or placed in the Executive Office of the Mayor or the Office of the City Administrator, in which the position holder’s primary duties are of a policy determining, confidential, or policy advocacy character. These positions shall consist of the following:
(1) No more than one hundred and sixty (160) positions appointed by the Mayor;
(2) Staff positions at the Council of the District of Columbia, the occupants of which are appointed by Members of the Council of the District of Columbia, provided that this does not include positions occupied by those permanent technical and clerical employees appointed by the Secretary or General Counsel, and those in the Legal Service;
(3) No more than fifteen (15) positions, the occupants of which shall be appointed by the Inspector General;
(4) No more than four (4) positions, the occupants of which shall be appointed by the District of Columbia Auditor;
(5) No more than twenty (20) positions, the occupants of which shall be appointed by the Board of Trustees of the University of the District of Columbia, to serve as officers of the University, persons who report directly to the President, persons who head major units of the University, academic administrators, and persons in a confidential relationship to the foregoing, exclusive of those listed in the definition of the Educational Service.
(6) No more than six (6) positions, the occupants of which shall be appointed by the Chief of Police;
(7) No more than six (6) positions, the occupants of which shall be appointed by the Chief of the Fire and Emergency Medical Services Department;
(8) No more than nine (9) positions, the occupants of which shall be appointed by the Criminal Justice Coordinating Council;
(9) No more than ten (10) positions, the occupants of which shall be appointed by the District of Columbia Sentencing and Criminal Code Revision Commission;
(10) The State Board of Education may appoint staff to serve an administrative role for the elected members of the Board; provided, that funding is available and that at least three (3) full-time equivalent employees are appointed to the Office of Ombudsman for Public Education; and
(11) Not more than two (2) positions in each other personnel authority not expressly designated in this subsection, provided that the occupants of each of these positions shall be appointed by the appropriate personnel authority.
904.2 The following shall apply to professional, scientific, or technical expert and consultant positions listed in § 904.1(d)(3):
(a) Persons serving in expert or consultant positions may be offered paid or unpaid employment; shall be qualified to perform the duties of the position and the positions shall be bona-fide expert or consultant positions, as these terms are defined in § 999;
(b) Experts and consultants may be employed under intermittent or temporary appointments not-to-exceed one (1) year; except that appointments may be renewed from year to year without limit on the number of reappointments, provided there is continued need for the services;
(c) Hiring an expert or consultant to do a job that can be performed as well by regular employees, to avoid competitive employment procedures or District Service pay limits, shall be considered improper uses of experts and consultants; and
(d) Persons employed as experts and consultants shall be subject to the domicile requirements specified in § 909 and Chapter 3 of this subtitle.
904.3 A statutory or policy position as described in §§ 904.1(a) or 904.1(f)(1) through (10 occupied by a person holding an appointment to an attorney position shall be treated solely as a statutory or policy position.
905 METHOD OF MAKING EXCEPTED SERVICE APPOINTMENTS
905.1 A person may be appointed to any position in the Excepted Service by the appropriate personnel authority non-competitively, provided that the individual appointed is well qualified for the position.
905.2 An appointment to a statutory position will be made as specified in the law authorizing the position.
905.3 An appointment to a special category position under a federal grant-funded program shall be either for an indefinite period, or a time-limited appointment reflecting the duration of the grant.
905.4 An appointment to a policy position is subject to the following provisions:
(a) Each person appointed to a policy position shall perform duties that include policy determination, or that are of a confidential or policy advisory character;
(b) Each personnel authority authorized to make appointments to policy positions shall designate policy positions and shall cause such designations, together with the position qualifications, standards, and salary range, to be published in the D.C. Register;
(c) The position shall become a policy position in the Excepted Service automatically upon being filled by a policy appointment, and shall remain an Excepted Service position only for so long as filled by a policy appointment. If a Career or Educational Service employee holds a position converted to an Excepted Service position, and the employee is not afforded or does not accept a policy appointment to that position, the employee shall have all rights and remedies available under Chapter 24 of these regulations;
(d) When a position ceases to be authorized as a policy position, by reason of a notice to that effect in the D.C. Register, the existing Excepted Service position shall be effectively abolished thirty (30) days later. If the incumbent is to be separated as a result of the abolishment, he or she shall be afforded the rights outlined in § 907.
(e) An appointment to a policy position may be either for an indefinite or time-limited period;
(f) Each personnel authority, shall within forty-five (45) days of the actual appointment and within forty-five (45) days of any change in such appointment, publish in the D.C. Register and post online for public access the names, position titles, and agency placements of all persons appointed to Excepted Service positions; and
(g) The authority to make policy appointments may be delegated or redelegated in whole or in part by the Mayor or designated personnel authority.
906 EXCEPTED SERVICE APPOINTMENTS OF CAREER SERVICE OR
EDUCATIONAL SERVICE EMPLOYEES
906.1 Any person holding a position in the Career or Educational Services may be detailed, temporarily promoted, temporarily transferred, or temporarily reassigned, without a break in service, to a position that would otherwise be in the Excepted Service without losing his or her existing status in the Career or Educational Service.
906.2 Before making an appointment to a position in the Excepted Service as specified in § 906.1, the appointing personnel authority shall first inform the appointee, in writing, of the conditions of employment under the appointment, and that the appointee will not lose his or her existing status in the Career Service or Educational Service, as applicable. The appointee must accept or decline the appointment in writing.
906.3 Any person tendered (offered) an appointment to a position in the Excepted Service under this section who declines or refuses to accept such appointment shall continue to be subject to the rules applicable to the service in which he or she has existing status as provided in § 906.1.
906.4 The temporary nature of an appointment under this section shall be clearly stated and recorded on the appointing personnel action or actions. This requirement may be met by specifying the anticipated duration of the appointment by including a not-to-exceed (NTE) date in the appointing personnel action(s). Additionally, the appointing personnel action(s) shall include remarks specifying all of the following:
(a) The temporary nature of the appointment to the Excepted Service position;
(b) That the appointee was informed in writing of the conditions of employment under the new appointment, and accepted the appointment;
(c) That the appointee will not lose his or her existing status in the Career or Educational Service by accepting the temporary appointment to the Excepted Service position; and
(d) That, upon termination of the temporary appointment to the Excepted Service position, the appointee is entitled to be returned to the Career or Educational Service position he or she occupied prior to the temporary assignment, or to an equivalent position.
907 EMPLOYEE RIGHTS
907.1 Appointment to the Excepted Service does not create a permanent career status.
907.2 Except as otherwise provide in this section, a person appointed to the Excepted Service shall serve at the pleasure of the appointing personnel authority; may be terminated at any time, with or without a stated reason; and does not have any right to appeal the termination.
907.3 A person serving in an Excepted Service statutory position who is appointed in accordance with a statute that provides for a term of years and is subject to removal for cause may be removed only as provided for in the applicable statute.
907.4 If the statute that provides for a term of years does not specify the removal procedure of the incumbent, the appointing authority shall satisfy the incumbent’s minimal due process rights by affording the incumbent an opportunity to present objections to the proposed action to a fair, neutral decision-maker.
907.5 Except as provided in § 907.3, when contemplating termination, the appointing personnel authority shall give the incumbent at least fifteen (15) days advance written notice of the proposed action. Though not required, the notice may explain the reason for the termination.
907.6 The fifteen (15) day (15‑day) notice is not required for termination on the date previously anticipated for termination, such as in the case of an employee serving under an Excepted Service appointment with a not-to-exceed (NTE) date or other date of anticipated termination included on the appointing personnel action.
908 RESTRICTIONS ON SUBSEQUENT APPOINTMENT TO THE CAREER, MANAGEMENT SUPERVISORY OR EDUCATIONAL SERVICES
908.1 In accordance with § 902 of the CMPA (D.C. Official Code § 1-609.02(b) (2012 Repl.)), and except as provided in § 908.2, an employee appointed to the Excepted Service may not be appointed to a position in the Career, Management Supervisory, or Educational Services during the period that begins six (6) months prior to a Mayoral primary election and ends three (3) months after the Mayoral general election. An Excepted Service appointee may compete for a position in the Career, Management Supervisory, or Educational Services during this time period.
908.2 Upon termination, a person holding an Excepted Service appointment pursuant to §§ 904.1(a) or 904.1(f)(1) through (10) of this chapter who has Career Service or Educational Service status may retreat, at the discretion of the terminating personnel authority, within three (3) months of the effective date of the termination, to a vacant position in such service for which he or she is qualified.
908.3 The provisions of §§ 908.1 and 908.2 shall not apply to employees of the Council of the District of Columbia.
909 RESIDENCY AND DOMICILE REQUIREMENTS
909.1 The statutory residency and domicile requirements for the Excepted Service, and the provisions of Chapter 3 of these regulations, are applicable to all persons appointed to positions in the Excepted Service
910 SPECIAL CONSIDERATION FOR PLACEMENT AND ADVANCEMENT
910.1 The following employees shall be referred to selecting officials in subordinate agencies for interview by management and special consideration for placement and advancement for Excepted Service positions they apply for:
(a) Graduates of the District government’s Certified Public Manager Program; and
(b) Persons appointed as Capital City Fellows.
910.2 As applicable, if appointed, any employee as described in § 910.1 above shall be required to comply with the residency and domicile requirements for the Excepted Service pursuant to § 906 of the CMPA (D.C. Official Code § 1-609.06 (2012 Repl.)).
911 PRE-EMPLOYMENT TRAVEL, RELOCATION, AND TEMPORARY HOUSING ALLOWANCE
911.1 In accordance with § 903(g)(1)(A), (B), and (C) of the CMPA (D.C. Official Code §§ 1-609.03(g)(1)(A), (B), (C) (2012 Repl.)), an agency may pay to an individual being interviewed for, or an appointee to, a hard-to-fill Excepted Service position reasonable pre-employment travel expenses, relocation expenses, and a temporary housing allowance at grade level 11 or pay level ES-5, as applicable, or above. In no event shall the maximum pre-employment travel expenses, relocation expenses, and temporary housing allowance exceed $10,000 or ten percent (10%) of the individual’s or appointee’s salary, whichever is less.
911.2 In accordance with § 903(g)(1)(B) of the CMPA (D.C. Official Code § 1-609.03 (g)(1)(B)), an agency may pay reasonable relocation expenses for an individual and his or her immediate family when that individual is selected for or appointed to a hard-to-fill policy position in the Excepted Service at grade level 11 or pay level ES-5, as applicable, or above, if relocation is to the District of Columbia from outside the Greater Washington Metropolitan Area, as defined in § 999.
911.3 In the case of an individual eligible for relocation expenses pursuant to § 911.2, an agency may pay a reasonable temporary housing allowance for a period not to exceed sixty (60) days for the individual and his or her immediate family.
911.4 The personnel authority may designate a position as a hard-to-fill position on the basis of demonstrated recruitment and retention problems inherent in the position due to the uniqueness of the duties and responsibilities and the unusual combination of highly specialized qualification requirements for the position.
911.5 Payment of expenses under §§ 911.2 and 911.3 of this section may only be made after the selectee or appointee signs a notarized agreement to remain in the District government service for twelve (12) months after his or her appointment unless separated for reasons beyond his or her control which are acceptable to the agency head concerned.
911.6 Any expense incurred for which reimbursement is sought pursuant to this section must be supported by valid receipts or invoices, the originals of which must be submitted to the Director of the DCHR or the personnel authority with the request for reimbursement.
911.7 If an individual violates an agreement under § 911.5, the money paid by the District government for expenses will become a debt due to the District government and will be recovered by set-off against accrued pay or any other amount due the individual, in accordance with Chapter 29 of this subtitle, and by other lawful collection actions.
912 PERFORMANCE INCENTIVES AND INCENTIVE AWARDS FOR EXCEPTED SERVICE EMPLOYEES
912.1 In accordance with § 903(e) of the CMPA (D.C. Official Code § 1‑609.03(e) (2012 Repl.)), a personnel authority may authorize performance incentives for exceptional service by an employee appointed to an Excepted Service policy position under § 903(a) of the CMPA (D.C. Official Code § 1‑609.03(a) (2012 Repl.)).
912.2 Any performance incentive awarded under this section will be paid only once in a fiscal year, and only when the employee is subject to an annual performance contract that clearly identifies measurable goals and outcomes and the employee has exceeded contractual expectations in the year for which the incentive is to be paid.
912.3 For Excepted Service employees in agencies under the personnel authority of the Mayor, when there is no annual performance contract as described in § 912.2, the employee’s annual individual performance plan pursuant to Chapter 14 of these regulations will be considered the annual performance contract.
912.4 A performance incentive shall not exceed ten percent (10%) of the employee’s rate of basic pay. For the purposes of determining the percentage of a performance incentive, the amount of the incentive will be calculated based on the employee’s scheduled rate of basic pay during the performance rating period in which the exceptional service occurred, pursuant to Chapter 19 of these regulations. The percentage scale provided in Chapter 19, and the documentation required therein, will also apply to performance incentives pursuant to this section.
912.5 In addition to performance incentives, Excepted Service employees are eligible for incentive awards pursuant to Chapter 19 of these regulations, including Retirement Awards, but excluding the other categories of monetary awards in that chapter.
912.6 Performance incentives for Excepted Service employees shall be submitted, processed, and approved in accordance with Chapter 19 of these regulations.
912.7 A performance incentive awarded under this section will not be considered base pay for any purpose, and will be subject to the withholding of federal, District of Columbia and state income taxes, and social security taxes, if applicable. The amount of a performance incentive cannot be adjusted upward to cover these taxes.
913 SEVERANCE PAY
913.1 In accordance with § 903(f) of the CMPA (D.C. Official Code § 1-609.03(f) (2012 Repl.)), and subject to the provisions of this section, the appointing personnel authority may, in his or her discretion, provide an individual appointed to an Excepted Service policy position or an Excepted Service statutory position up to ten (10) weeks of severance pay at his or her rate of basic pay upon separation for non-disciplinary reasons, as follows:
Length of Employment Maximum Severance
Up to 6 months 2 weeks of the employee’s basic pay
6 months to 1 year 4 weeks of the employee’s basic pay
1 to 3 years 8 weeks of the employee’s basic pay
More than 3 years 10 weeks of the employee’s basic pay
913.2 The number of weeks of severance pay authorized pursuant to this section shall not exceed the number of weeks between the individual’s separation and the individual’s appointment to another position in the District government.
913.3 Severance pay shall be provided at the time of separation as a lump-sum, one-time payment, subject only to the withholdings of federal, District of Columbia and State income taxes, social security taxes, and other lawful deductions, if applicable.
913.4 Severance pay is not payable to any individual who either:
(a) Has accepted an appointment to another position in the District government without a break in service; or
(b) Is eligible to receive an annuity under any retirement program for employees of the District government, excluding the District retirement benefit program under § 2605 of the CMPA (D.C. Official Code § 1-626.05 (2012 Repl.)).
913.5 An individual who receives severance pay pursuant to this section, but who is subsequently appointed to any position in the District government during the period of weeks represented by that payment, will be required to repay the amount of severance pay attributable to the period covered by such appointment. The pro-rated amount to be repaid will be based on the entire amount of the severance pay, including all required deductions, and is payable to the General Fund of the District of Columbia.
914 PERFORMANCE EVALUATION SYSTEM FOR EXCEPTED SERVICE EMPLOYEES
914.1 The performance of employees in the Excepted Service shall be evaluated utilizing the performance management system found in Chapter 14 of these regulations.
Sections 916 – 919 are RESERVED.
920 PROMOTION TO BATTALION FIRE CHIEF AND DEPUTY FIRE CHIEF POSITIONS – FIRE AND EMERGENCY MEDICAL SERVICES DEPARTMENT
920.1 Section 2 (b) of the Omnibus Public Safety Agency Reform Amendment Act of 2004, effective September 30, 2004 (D.C. Law 15-194; D.C. Official Code § 5-402(b) (2012 Repl.)), provides that the Fire Chief shall recommend criteria for Excepted Service appointments to Battalion Fire Chief and Deputy Fire Chief that addresses the areas of education, experience, physical fitness, and psychological fitness. The criteria established, which became effective on October 1, 2007, are specified in §§ 920.2 through 920.4.
921.1 D.C. Official Code § 5-105.01(b)(1)(2) (2012 Repl.), provides that the Chief of Police is vested with the authority to assign to duty and to appoint all officers and members of the Metropolitan Police Department (Department) in accordance with the following.
(a) Consistent with the duty to maintain a force of the highest possible quality, the Chief of Police may appoint qualified candidates from within the Department, as well as seek and appoint qualified candidates from outside the Department, to the positions of Inspector, Commander and Assistant Chief of Police.
(b) The Chief of Police must consider a candidate's broad knowledge of law enforcement techniques and principles, including his or her knowledge of management principles and employee development in a law enforcement setting.
(c) The Chief of Police shall consider the disciplinary record of all candidates for appointment under this section.
921.2 Appointment to Inspector shall be in accordance with the following:
(a) Whenever one or more appointments are to be made to the rank of Inspector, the Chief of Police may make such selection(s) from a register containing the names of all eligible candidates.
(b) Prior to appointment to the position of Inspector, each candidate shall be required to pass a medical examination, including a psychological examination in accordance with the procedures outlined in the pre-promotional physical examination in Department General Orders (GO) 100.21, Physical Examinations.
921.3 Appointment to Commander shall be in accordance with the following:
(a) The position of Commander connotes a candidate who meets the qualifications outlined in § 921.1 (b).
(b) A Commander is vested with authority to establish a command system which most effectively utilizes the human and material resources available to him or her and best fulfills the mission of the Department.
(c) Prior to appointment to the position of Commander, each candidate shall be required to pass a medical examination, including a psychological examination in accordance with the procedures outlined in the pre-promotional physical examination in Department General Orders (GO) 100.21, Physical Examinations.
921.4 Appointment to Assistant Chief of Police shall be in accordance with the following:
(a) Whenever one or more appointments are to be made to the rank of Assistant Chief, the Chief of Police may make selection(s) from a register containing the names of all eligible candidates.
(b) Prior to appointment to the position of Assistant Chief, each candidate shall be required to pass a medical examination, including a psychological examination in accordance with the procedures outlined in the pre-promotional physical examination in Department General Orders (GO) 100.21, Physical Examinations.
921.5 Inspectors, Commanders, and Assistant Chiefs of Police, appointed by the Chief of Police pursuant to D.C. Official Code § 1-609.03 are Excepted Service employees. Inspectors, Commanders, and Assistant Chiefs of Police, selected by the Chief of Police from the force pursuant to D.C. Official Code §§ 5-105.01 and 1-608.01 are Career Service employees, who serve in such positions at the pleasure of the Chief of Police, and may be returned to their previous rank/position at the discretion of the Chief of Police.
999 DEFINITIONS
999.1 The following definitions apply to this chapter:
Administrative hearing officer – A person whose duties, in whole or substantial part, consist of conducting or presiding over hearings in contested matters pursuant to law or regulation, or who is engaged in adjudicatory functions, including, but not limited to any person who bears the title Hearing Officer, Hearing Examiner, Attorney Examiner, Administrative Law Judge, Administrative Judge, or Adjudication Specialist.
Administrative law judge – A person whose duties, in whole or substantial part, consist of conducting or presiding over hearings in contested matters pursuant to law or regulation, or who is engaged primarily in adjudicatory functions on behalf of an agency, rather than investigative, prosecutory or advisory functions, including, but not limited to any person who bears the title Hearing Officer, Hearing Examiner, Attorney Examiner, Administrative Law Judge, Administrative Judge, or Adjudication Specialist.
Attorney – a position that is classified as part of Series 905, except for a position in the Legal Service.
Biweekly pay period – the two-week (2-week) period for which an employee is scheduled to perform work.
Break in service – a period of one (1) workday or more between separation and reemployment.
Consultant – for the purposes of § 904.2, the term “consultant” means a person who serves as an advisor to an officer or instrumentality of the District government, as distinguished from an officer or employee who carries out the agency’s duties and responsibilities. A consultant gives views or opinions on problems or questions presented by the agency, but neither performs nor supervises performance of operating functions. The person is an expert in the field in which he or she advises, but need not be a specialist. A person’s expertness may consist of a high order of broad administrative, professional, or technical experience indicating that his or her ability and knowledge make his or her advice distinctively valuable to the agency.
Consultant position – for the purposes of § 904.2, the term “consultant position” means a position requiring the performance of purely advisory or consultant services, not including performance of operating functions.
Days – calendar days, unless otherwise specified.
Excepted Service – positions identified as being statutory, transitional, public employment, special category, training, or policy positions, and authorized by §§ 901 through 908 of the CMPA (D.C. Official Code §§ 1-609.01 through 1-609.08 (2012 Repl.)). These positions are not in the Career, Educational, Management Supervisory, Legal or Executive Service.
Expert – for the purposes of § 904.2 of this chapter, the term “expert” means a person who performs or supervises regular duties and operating functions and shall include the following:
(a) A person with excellent qualifications and a high degree of attainment in a professional, scientific, technical, or other field; and
(b) Certain members of boards or commissions.
Expert position – for the purposes of § 904.4(c), the term “expert position” means: (a) a position that, for satisfactory performance, requires the services of an expert in the particular field, as defined above, and with duties that cannot be performed satisfactorily by someone not an expert in that field; or (b) a position that is occupied by members of certain boards and commissions.
Greater Washington Metropolitan Area – the Consolidated Metropolitan Statistical Area, which includes Washington, D.C. (the “Washington-Baltimore, DC-MD-VA-WV CMSA”), as defined by the Office of Management and Budget June 30, 1998 (revised November 3, 1998), and which consists of the following:
(a) The Baltimore, MD Primary Metropolitan Statistical Area (PMSA), consisting of Anne Arundel County, Baltimore County, Carroll County, Harford County, Howard County, Queen Anne’s County, and Baltimore City;
(b) The Hagerstown, MD PMSA, consisting of Washington County; and
(c) The Washington, DC-MD-VA-WV PMSA, consisting of the District of Columbia; Calvert County, MD; Charles County, MD; Frederick County, MD; Montgomery County, MD; Prince George’s County, MD; Arlington County, VA; Clarke County, VA; Culpeper County, VA; Fairfax County, VA; Fauquier County, VA; King George County, VA; Loudoun County, VA; Prince William County, VA; Spotsylvania County, VA; Stafford County, VA; Warren County, VA; Alexandria City, VA; Fairfax City VA; Falls Church City, VA; Fredericksburg City, VA; Manassas City, VA; Manassas Park City, VA; Berkeley County, WV; and Jefferson County, WV.
Hard-to-fill position – a position designated as a hard-to-fill position pursuant to§ 911.4 of this chapter on the basis of demonstrated recruitment and retention problems inherent in the position due to the uniqueness of the duties and responsibilities and the unusual combination of highly specialized qualification requirements for the position.
Intermittent employment – for the purposes of § 904.2, the term “intermittent employment” means occasional or irregular employment on programs, projects, problems, or phases thereof, requiring intermittent services. If at any time it is determined that the employee’s work is no longer intermittent in nature, the person’s employment must be changed immediately.
Performance contract – an agreement between an employee in an Excepted Service policy position under § 903(a) of the CMPA (D.C. Official Code § 1-609.03(a) (2012 Repl.)) and the personnel authority that may be entered into and that clearly identifies measurable goals and outcomes.
Personnel authority – an individual or entity with the authority to administer all or part of a personnel management program as provided in § 401 of the CMPA (D.C. Official Code §§ 1‑604.01 et seq. (2012 Repl.)).
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Rate of basic pay – except as otherwise provided, the pay rate fixed by law, Wage Order, or Mayor's Order for the position held by an employee before any deductions and exclusive of additional pay of any kind, except as otherwise provided.
Time-limited appointment – an appointment with a specific time limitation consistent with the anticipated duration of the programs, projects, problems, or phases thereof, requires such service.
