Federal Manager's Daily Report: Friday, December 24, 2004 FEDweek is the largest information resource in the federal government with now over one million weekly readers. To Subscribe, Go to http://www.fedweek.com/subscribepopup.htm *********************************************************** Valued Added Service to Our Readers:
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OPM Audit Cautions NSF for Reliance on Temp Expertise The National Science Foundation's use of temporary term employees gives it the scientific and engineering expertise it needs, but the agency needs to link its hiring authority to both short and long term needs, according to an audit by the Office of Personnel Management. It said the use of "rotators," authorized under the intergovernmental personnel act, allows NSF to exchange personnel with non-federal entities such as academic institutions, state governments and other eligible organizations, and that NSF uses IPA assignees, "as conduits to the scientific and engineering research community and as competent employees that can manage NSF's workforce." Currently 20 percent of NSF's scientists and engineers are IPA assignees, and similarly, "a majority of NSF's top executive positions at the assistant director level are filled with IPA assignees," which OPM said "does not assure leadership continuity." The audit calls on NSF to submit an annual report on filling senior management positions, citing two cases where the agency illegally filled career reserved SES positions with IPA assignees to handle program and grants management and contract administration. 2. Additional Overtime Pay Denied to Criminal Investigators For Past Work The appeals court for the Federal Circuit has upheld a lower court's decision to deny additional overtime pay to thousands of criminal investigators employed in various federal agencies between 1984 and 1995. The court of federal claims initially granted the government's dismissal of the "takings complaint" issued by 14,302 former GS- 9-13 criminal investigators in the Bureau of Alcohol Tobacco and Firearms, the Drug Enforcement Agency, the Internal Revenue Service, the Customs Service, and the Secret Service, according to the appeals court decision, 04-5012. It said the appellants were seeking the difference in overtime compensation between what they got under federal employees pay law, and what they claim they are entitled to under the Fair Labor Standards Act, which establishes minimum overtime pay at time-and-a-half. The appellants had been found exempt from the FLSA as "executive, administrative, or professional" employees, so they filed an "action at law" against the government under the Tucker Act, according to the decision. It said they also filed at the same time an administrative claim before the Government Accountability Office -- the other course of action federal employees may take to recover unpaid overtime -- challenging the exemption ruling and seeking damages stemming from the "misclassification." Later, the appellants argued that the dismissal of their case was in effect a "taking of their private property without just compensation." However, the claims court found that the appellants failed "to state a claim upon which relief may be granted," and the appeals court affirmed, saying that the "appellants do not have a cognizable property interest in either the underpaid overtime compensation or in an administrative claim thereto within the meaning of the Takings Clause of the Fifth Amendment." 3. More Assistance Needed From DoE With NCLB School-Choice Provision The Department of Education needs to give schools more technical assistance as well as carry out implementation studies to help schools implement a provision of the No Child Left Behind Act giving students in underperforming schools the right to transfer to another school in their district, the Government Accountability Office has said. It said the provision applies to schools that get Title I funds and have failed to meet state performance goals for two years in a row, and that one in ten of America's 50,000 schools were up for choice in the first two years of the program -- with about one percent of eligible students, or about 31,000, acting on the option for the 2003 - 2004 school year. According to GAO, "little is known about the students who did and did not transfer or factors affecting parents' transfer decisions," but a DoE study should yield information and officials in the eight districts GAO visited cited tight time frames and limited capacity to appropriately handle all newcomers, though they expressed support for any emphasis on higher performance. DoE needs to address the complexities of the program with further guidance, "such as how to handle cases where schools receiving transfers later are identified for choice and how to expand capacity in the short-term within budgetary constraints," said GAO-05-7. 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