Results-Oriented Cultures:

Office of Personnel Management Should Review Administrative Law Judge Program to Improve Hiring and Performance Management

GAO-10-14: Published: Jan 15, 2010. Publicly Released: Jan 15, 2010.

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The Administrative Procedure Act established unique conditions for administrative law judges' (ALJ) hiring and employment to protect their decisional independence. However, the potential for a wave of retirements and other events have focused attention on how ALJs are hired and managed. In response to the Consolidated Appropriations Act of 2008, this report examines, among other things, (1) the process for hiring ALJs and selected agencies' observations of the process; (2) ALJs' retirement eligibility and retirement issues; (3) and agency managers' reported ALJ performance management practices and stakeholders' views of these practices. To address these objectives GAO reviewed relevant statutes, regulations, Office of Personnel Management (OPM) retirement-related data, and other program-related documents, and interviewed officials from OPM, ALJ professional associations, and the two largest federal agencies employing ALJs--the Social Security Administration (SSA) and the Department of Health and Human Services (HHS).

SSA and HHS officials responsible for hiring new ALJs reported they were satisfied with the quality of the judges hired from OPM's ALJ register of qualified candidates in 2008. Despite their satisfaction with these ALJ candidates, agency officials raised several issues regarding ALJ hiring and offered suggestions to improve the process, including (1) opening the OPM registry to accept new candidates more frequently, (2) giving greater consideration to agency-specific knowledge and experience, and (3) providing additional agency flexibility in meeting the procedural requirements associated with selecting from the three best qualified candidates and awarding veterans' preference. OPM officials reported they are working to address these issues and develop new approaches, where appropriate. ALJ agencies could experience skill and competency gaps in the ALJ workforce in the near future. As of September 2008, the most currently available data, 51 percent of all ALJs were already eligible to retire. Moreover, by 2013, 78 percent of all ALJs employed as of September 2008 will be eligible to retire, while at 9 of the 25 ALJ agencies, all of the ALJs were eligible to retire. Retiring employees can leave gaps in institutional knowledge and technical skills due, in part, to the time required for new hires to become fully productive. To ensure agencies have talented staff to accomplish their missions, OPM requires agencies to make meaningful progress toward closing skills, knowledge, and competency gaps/deficiencies in all occupations in the agency. Despite the significant proportion of ALJs who were eligible to retire from 2008 to 2013, OPM officials reported that, as of October 2009, they had no record of any federal agency designation of ALJ skill gaps or competency issues. OPM, as ALJ program manager and lead agency in federal human capital management, could use its annual review of federal agencies' human capital accountability plans to assure that ALJ agencies appropriately identify and plan for future ALJ related skill and competency gaps. To safeguard the independence of ALJ decisionmaking, ALJ agencies are prohibited from rating or tying an ALJ's compensation to their performance. Nevertheless, SSA and HHS officials reported using numerous other practices to manage ALJ performance. ALJ association officials were concerned some SSA performance management practices could affect ALJs' decisional independence. The use of competencies in ALJ performance management might help OPM and ALJ agencies define needed ALJ skills and behaviors, ensure objective and balanced performance discussions between managers and ALJs, and enhance consistency in ALJ performance, while not influencing ALJ compensation. Given its role as ALJ program manager and its expertise in performance management, OPM is well-positioned to lead a review of all agencies' ALJ-related management practices.

Recommendations for Executive Action

  1. Status: Closed - Not Implemented

    Comments: In September 2014, the Office of Personnel Management (OPM) reported that there remains a pending claim agaist the previous ALJ examonation that has not yet been dismissed with prejudice. Even so, OPM does not believe any of the additional flexibilities mentioned in the GAO report are appropriate for the ALJ context, where OPM, has already undertaken the examining, rating, and ranking itself, pursuant to a statutory requirement. In addition, ALJ agencies would not be free to conduct its own "examination" to locate other qualified candidates, because, by law, only OPM may examine for ALJ candidates; that authority is non-delegable.

    Recommendation: Related to hiring and managing the performance of ALJs in order to (1) identify opportunities for continuous improvement of the ALJ hiring process, (2) identify and address potential competency gaps, and (3) identify opportunities for improved performance management practices while maintaining ALJs' decisional independence, and given OPM's statutory authority for administering the ALJ program, the Director of OPM should, after current hiring related litigation is resolved, solicit ALJ agencies' feedback on the new examination process and determine whether additional agency flexibilities are needed in the ALJ hiring process.

    Agency Affected: Office of Personnel Management

  2. Status: Closed - Implemented

    Comments: OPM has continued to issue guidance, tools, and training on competency-based workforce planning and succession management. OPM also provides technical assistance on a reimbursable basis for agencies that would like help with their human capital management activities related to their ALJ program. Moreover, in the past 18 months, OPM hosted seven training events on the subjects of Workforce Planning and Succession Planning. These included instruction on specific regulatory guidance, best practices, and tools related to addressing workforce knowledge and skill gaps, competency modeling and gap analysis, retention, and succession risk management. These sessions included: Three 1-day Succession Planning Workshops, One 2-hour Succession Planning Overview, and Two 1-day Workforce Planning Workshops. OPM sent notice about these opportunities directly to the Chief ALJs and agency ALJ points of contact, along with their CHCOs, and a few ALJs and their administrative staff did in fact attend. For newly hired ALJs, OPM periodically updates the ALJ examination, which is a competency based assessment. Incumbent and retired ALJs serve as subject matter experts during the development of new assessments, so this ensures the competencies needed to succeed as an ALJ remain up to date.

    Recommendation: Related to hiring and managing the performance of ALJs in order to (1) identify opportunities for continuous improvement of the ALJ hiring process, (2) identify and address potential competency gaps, and (3) identify opportunities for improved performance management practices while maintaining ALJs' decisional independence, and given OPM's statutory authority for administering the ALJ program, the Director of OPM should assure ALJ agencies have identified the extent to which their ALJ workforce is vulnerable to knowledge and skill gaps and addressed these gaps in their annual human capital plans, if appropriate. OPM should assist agencies by providing guidance, tools and technical assistance to enable agencies to identify and address any skill or competency gaps in its ALJ workforce.

    Agency Affected: Office of Personnel Management

  3. Status: Closed - Not Implemented

    Comments: In May 2013, OPM reiterated its continuing position that 5 U.S.C. 4301(2)(D), the statute that defines performance management, specifically excludes administrative law judges from its scope. Further, as a policy matter, permitting agency-specific performance standards, performance appraisal systems, and incentive awards for ALJs, could harm public confidence in ALJs impartiality and decisional independence, and would be in tension with the separation of functions principles established for formal APA proceedings. Therefore, OPM remains firm in its position that this is a legal and policy matter and does not intend to take action on the recommendation.

    Recommendation: Related to hiring and managing the performance of ALJs in order to (1) identify opportunities for continuous improvement of the ALJ hiring process, (2) identify and address potential competency gaps, and (3) identify opportunities for improved performance management practices while maintaining ALJs' decisional independence, and given OPM's statutory authority for administering the ALJ program, consistent with the need for ALJ decisional independence, the Director of OPM should lead a program-wide review with ALJ stakeholders of ALJ performance management options. This review should determine the degree to which current practices are meeting the goals of the ALJ agencies and ensuring ALJs' decisional independence.

    Agency Affected: Office of Personnel Management

  4. Status: Closed - Not Implemented

    Comments: In May 2013, OPM reiterated its continuing position that 5 U.S.C. 4301(2)(D), the statute that defines performance management, specifically excludes administrative law judges from its scope. Further, as a policy matter, permitting agency-specific performance standards, performance appraisal systems, and incentive awards for ALJs, could harm public confidence in ALJs impartiality and decisional independence, and would be in tension with the separation of functions principles established for formal APA proceedings. Therefore, OPM remains firm in its position that this is a legal and policy matter and does not intend to take action on the recommendation.

    Recommendation: Related to hiring and managing the performance of ALJs in order to (1) identify opportunities for continuous improvement of the ALJ hiring process, (2) identify and address potential competency gaps, and (3) identify opportunities for improved performance management practices while maintaining ALJs' decisional independence, and given OPM's statutory authority for administering the ALJ program, consistent with the need for ALJ decisional independence, the Director of OPM should lead a program-wide review with ALJ stakeholders of ALJ performance management options. This review should consider the use of competencies in ALJ performance management while not influencing ALJ compensation.

    Agency Affected: Office of Personnel Management

  5. Status: Closed - Not Implemented

    Comments: In May 2013, OPM reiterated its continuing position that 5 U.S.C. 4301(2)(D), the statute that defines performance management, specifically excludes administrative law judges from its scope. Further, as a policy matter, permitting agency-specific performance standards, performance appraisal systems, and incentive awards for ALJs, could harm public confidence in ALJs impartiality and decisional independence, and would be in tension with the separation of functions principles established for formal APA proceedings. Therefore, OPM remains firm in its position that this is a legal and policy matter and does not intend to take action on the recommendation.

    Recommendation: Related to hiring and managing the performance of ALJs in order to (1) identify opportunities for continuous improvement of the ALJ hiring process, (2) identify and address potential competency gaps, and (3) identify opportunities for improved performance management practices while maintaining ALJs' decisional independence, and given OPM's statutory authority for administering the ALJ program, consistent with the need for ALJ decisional independence, the Director of OPM should lead a program-wide review with ALJ stakeholders of ALJ performance management options. This review should Consider the development and distribution of programwide guidance for ALJ performance management and the involvement of ALJs and stakeholders in the development of such guidance in order to gain employee and management ownership of performance management systems.

    Agency Affected: Office of Personnel Management

 

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