4872133 Human Resources, Department of - Notice of Proposed Rulemaking - To Amend Chapter 9, Excepted Service
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D.C. DEPARTMENT OF HUMAN RESOURCES
NOTICE OF PROPOSED 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 et seq.), the District of Columbia Government Comprehensive Merit Personnel Amendment Act of 2012, effective March 14, 2012 (D.C. Law 19-115; 59 DCR 461, January 27, 2012)), and Subtitle H of the Fiscal Year 2014 Budget Support Act of 2013, effective December 24, 2013 (D.C. Law 20-61; 60 DCR 12472 (September 6, 2013), hereby gives notice of the intent to adopt the following amendments to Chapter 9 (Excepted Service) of Subtitle B, Title 6 (Government Personnel) of the District of Columbia Municipal Regulations (DCMR), in not less than thirty (30) days from the publication of this notice in the D.C. Register.
The main purpose of the rulemaking notice is to (1) amend Section 904 (Excepted Service Positions) to address the reduction in the number of Excepted Service positions to the Office of the Mayor (from 220 to 160); (2) to amend Section 908 (Restrictions on Subsequent Appointments to the Career, Management Supervisory or Educational Services) to address restrictions relating to subsequent appointments of Excepted Service employees to positions in the Career, Management Supervisory, and Education Services during an election year; (3) to amend Section 913 (Separation Pay) to limit the amount of separation pay awarded to Excepted Service employees (up to a maximum of 10 weeks); and (4) to revise Subsection 904.1(f)(1) through (12) of the chapter based on amendments to provisions contained in D.C. Law 19-115 and D.C. Law 20-61.
Upon adoption, these rules will amend Chapter 9 (Excepted Service) of the DCMR, as published at 32 DCR 2271 (April 26, 1985) and amended at 36 DCR 7931 (November 17, 1989), 39 DCR 6171 (August 21, 1992), 47 DCR 8093 (October 6, 2000), 50 DCR 4743 (June 13, 2003), 50 DCR 11076 (December 26, 2003), 51 DCR 10416 (November 12, 2004), 51 DCR 10934 (November 26, 2004) – Errata Notice, 53 DCR 5495 (July 7, 2006), 55 DCR 7953 (July 25, 2008), and 56 DCR 2723 (April 10, 2009).
Section 904 (Excepted Service Positions) of Chapter 9 (Excepted Service), of Subtitle B of Title 6 (Government Personnel) of the District of Columbia Municipal Regulations is amended as follows:
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 section 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 section 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 section 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 section 904 (2) of the CMPA (D.C. Official Code § 1-609.04(2)) (2012 Repl.).
(d) Special category positions established pursuant to section 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 (P.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 section 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 section 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 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; and
(10) 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 subsection 904.1 (d) (3) of this section:
(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 section 999 of this chapter.
(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.
(d) Persons employed as experts and consultants shall be subject to the domicile requirements specified in section 909 of this chapter and Chapter 3 of this subtitle.
904.3 A statutory or policy position as described in subsection 904.1 (a) or subsection 904.1 (f)(1) through (10) of this section occupied by a person holding an appointment to an attorney position shall be treated solely as a statutory or policy position.
Section 908 (Restrictions on Subsequent Appointment to the Career, Management Supervisory, or Educational Services) of Chapter 9 (Excepted Service), of Subtitle B of Title 6 (Government Personnel) of the DCMR is amended as follows:
908 RESTRICTIONS ON SUBSEQUENT APPOINTMENT TO THE CAREER, MANAGEMENT SUPERVISORY OR EDUCATIONAL SERVICES
908.1 In accordance with section 902 of the CMPA (D.C. Official Code § 1-609.02(b) (2012 Repl.), and except as provided in subsection 908.2 of this section, 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 subsections 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 subsections 908.1 and 908.2 of this section shall not apply to employees of the Council of the District of Columbia.
Section 913 (Separation Pay) of Chapter 9 (Excepted Service), of Subtitle B of Title 6 (Government Personnel) of the DCMR is amended as follows:
913 SEPARATION PAY
913.1 In accordance with section 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 separation 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 separation 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 Separation 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, and social security taxes, if applicable.
913.4 Separation 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 section 2605 of the CMPA (D.C. Official Code § 1-626.05) (2012 Repl.).
913.5 An individual who receives separation 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 separation 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 separation pay, including all required deductions, and is payable to the General Fund of the District of Columbia.
Comments on these proposed regulations should be submitted, in writing, within thirty (30) days of the date of the publication of this notice to Mr. Justin Zimmerman, Interim Associate Director, Policy and Compliance Administration, D.C. Department of Human Resources, 441 4th Street, N.W., Suite 340 North, Washington, D.C. 20001, or via email at justin.zimmerman@dc.gov. Additional copies of these proposed rules are available from the above address.
