Opportunities Exist to Improve Data on Selected Groups of Special Government Employees
GAO-16-548: Published: Jul 15, 2016. Publicly Released: Aug 15, 2016.
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What GAO Found
Federal agencies made limited use of special government employees (SGE) not serving on federal boards. As of December 2014, approximately 3 percent of SGEs (1,138 of 40,424) were working as experts or consultants and not serving on federal boards, according to the Office of Government Ethics (OGE). Over a 10-year period (2005 to 2014), GAO found that agencies used an annual average of approximately 2,000 SGEs, with a peak of about 3,100 in 2009 and a low of about 500 in 2013.
Agencies are responsible for reporting on SGEs not serving on federal boards to OGE. The Office of Personnel Management (OPM) requires agencies to identify SGEs on an individual's personnel action. OGE's data reflected what agencies reported on SGEs not serving on federal boards. Three of the five agencies GAO reviewed had challenges reporting reliable data on SGEs not serving on federal boards. The Department of Health and Human Services (HHS) had difficulty distinguishing between SGEs not serving on federal boards and those who were, and HHS did not explain data discrepancies. GAO found instances of misidentified SGEs not serving on federal boards at the Nuclear Regulatory Commission (NRC) and the Department of State (State), but the agencies provided corrected data. Weak internal coordination and misunderstanding about the SGE designation contributed to the identification challenges. Stronger data would better position agencies to report on SGEs and provide the required ethics training. Moreover, accurate and complete data are important to allow OGE and Congress to provide informed oversight of agencies.
Three of the five selected agencies primarily used expert and consultant hiring authorities to appoint SGEs not serving on federal boards. The other two agencies generally used their agency-specific authorities. The agencies used these employees in specialized areas (see figure). Four of five agencies said supervisors are generally responsible for tracking SGEs' days of service. One agency permits SGEs to track their own days.
Special Government Employees Fill a Variety of Roles at Selected Agencies
OGE has not found any issues specific to SGEs not serving on federal boards. GAO's analysis of 23 OGE reviews at Chief Financial Officers Act agencies and the Consumer Financial Protection Board for fiscal years 1998 to 2014 showed no issues specific to SGEs not serving on federal boards. Further, OGE had no outstanding recommendations related to SGEs at the selected agencies.
Why GAO Did This Study
The SGE category was created by Congress in 1962 to make certain ethics rules less restrictive than for other federal employees to overcome obstacles in hiring outside experts and other temporary employees for occasional service. SGEs are employees appointed to serve for not more than 130 days during any one year period.
GAO was asked to examine agencies' use of SGEs not serving on federal boards. This report: (1) describes what is known about the total number of SGEs not serving on federal boards; (2) assesses the extent to which OGE, OPM, and selected agencies identify, collect, and report data; (3) assesses how selected agencies appoint, use, and track SGEs; and (4) examines how OGE oversees and ensures compliance with ethics requirements.
GAO analyzed OGE, OPM, and agency data; reviewed agency documentation; and interviewed agency officials. GAO selected five agencies—the Departments of Health and Human Services, Justice, State, Nuclear Regulatory Commission and National Science Foundation—based in part, on the number of SGEs and ratio of SGEs not serving on federal boards to total employees.
What GAO Recommends
GAO recommends HHS take steps to improve the reliability of data on SGEs not serving on federal boards and OGE should determine whether other agencies are experiencing data challenges similar to HHS, State, and NRC and take appropriate action. HHS concurred. OGE partially concurred. GAO maintains that OGE should undertake the actions as discussed further in the report.
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Recommendations for Executive Action
Comments: In October 2016, HHS submitted its action plan to address GAO's recommendations. At that time, HHS stated the agency was reviewing its internal policies and procedures related to the hiring of special government employees not serving on boards to identify policy options that might improve data reliability. In January 2017, the Office of Government Ethics issued its Ethics Program Review of HHS and commented on ongoing and planned efforts by HHS to address challenges associated with identifying Special Government Employees who do not serve on federal advisory committees. Ongoing efforts include internal coordination between the Office of General Counsel-Ethics Division and human resource officials to implement new requirements based on 5 CFR part 2638. We are following up with HHS to determine the status of actions on the new requirements. As of September 2019, HHS has not responded to our requests for an update on their actions to respond to this recommendation. In May 2020, HHS noted that its Office of Human Resources has been responding to the COVID-19 pandemic and therefore has not been able to provide an update on this recommendation. HHS expects to provide us with an update in July 2020. We contacted the agency for an update and are awaiting a response as of September 1, 2020.
Recommendation: To help ensure HHS has reliable data on SGEs not serving on federal boards, the Secretary of HHS should take steps to improve the reliability of data on SGEs not serving on boards. For example, the agency could reconcile human capital data with general counsel and ethics office data, or issue clarifying guidance to human capital staff on appropriately identifying SGEs in human capital databases.
Agency Affected: Department of Health and Human Services
Status: Closed - Implemented
Comments: In 2016 and 2017, OGE reported on action taken to address coordination and data challenges agencies face in fulfilling ethics program requirements for Special Government Employees. In 2016, OGE published a final rule amending its regulations that govern executive branch ethics programs found at 5 CFR Part 2638. OGE reported that this regulation will help agencies strengthen their data and address concerns raised by agencies with regard to human resource coordination. In February 2017, OGE reported on results of a survey of executive branch ethics officials and concluded that based on agency responses, OGE does not believe executive branch agencies are experiencing systematic challenges in connection with data regarding Expert/Consultant SGEs. OGE reported the survey results show that information regarding the hiring and designation of SGEs is primarily within the control of human resource officials and described steps taken by OGE to strengthen the relationship between human resources and agency ethics officials. In April 2019, OGE provided documentation that the agency had taken steps to determine if agencies were experiencing systemic challenges in connection with data regarding Expert/Consultant SGEs. The results of OGE's survey did not reveal any such issues across agencies.
Recommendation: To help ensure that agencies report consistent and reliable data, the Director of OGE should determine (e.g., through a survey of Designated Agency Ethics Officials and/or by analyzing agency data) whether other executive branch agencies are experiencing data challenges similar to HHS, State, and NRC. If they are, the Director should take steps to help the agencies strengthen their data.
Agency Affected: Office of Government Ethics