Applicability of Senior Executive Service Provisions to Panama Canal Commission Employees

The Administrator of the Panama Canal Commission requested a decision as to whether the employees of the Commission are subject to the provisions of of the Civil Service Reform Act (CSRA) which established a governmentwide Senior Executive Service (SES). The Commission also sought an opinon on the matter from the Office of Personnel Management (OPM), the agency responsible for administering the SES program. The Commission believes that its positions are not subject to the provisions of CSRA. Under the Panama Canal Act of 1979, which established the Commission, positions in the Commission have been statutorily excepted from the competitive service and have been placed outside the appointment, classification, and pay provisions of SES. The Commission points out that several provisions of the Panama Canal Act and the Panama Canal Treaty which required the establishment of the Commission would be inconsistent with the statutory requirements of SES, if SES were to be interpreted as applying to the Commission. Sections of the act appear to permit the establishment of an employment system that conforms to the Treaty but to which provisions of the law relating to appointments in federal agencies in the United States do not apply of their own force. OPM concluded that SES is not applicable to the Commission. It believed that under the act, Commission employees would be excluded from the civil service generally and subject to its own personnel system. OPM found that the act does not make provision for placing Commission positions in SES. It pointed out that, since the act is the more specific statute applying only to Commission employees, whereas the CSRA applies to employees in the Executive branch generally, the two statutes can coexist by considering the conflicting provisions of the act as specific exceptions to the SES reach of CSRA. OPM concluded that CSRA cannot be found to impliedly repeal the Panama Canal Treaty. Since the Treaty and SES are basically incompatible, the Treaty and its implementing statute cannot be disturbed by a CSRA provision with which it happens to conflict. GAO agreed with the conclusions reached by both the Commission and OPM. It believed that the statutory independence of the Commission mandates the conclusion that Congress did not intend the SES provisions to apply to the Commission. Therefore, it was held that the Panama Canal Commission employees are not covered by SES.