[Weekly Compilation of Presidential Documents Volume 45, Number 2 (Monday, January 19, 2009)]
[Pages 87-89]
[Online from the Government Publishing Office, www.gpo.gov]
<R04>
Executive Order 13488--Granting Reciprocity on Excepted Service and
Federal Contractor Employee Fitness and Reinvestigating Individuals in
Positions of Public Trust
January 16, 2009
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including sections 1104(a)(1),
3301, and 7301 of title 5, United States Code, and in order to simplify
and streamline the system of Federal Government personnel investigative
and adjudicative processes to make them more efficient and effective, it
is hereby ordered as follows:
Section 1. Policy. (a) When agencies determine the fitness of
individuals to perform work as employees in the excepted service or as
contractor employees, prior favorable fitness or suitability
determinations should be granted reciprocal recognition, to the extent
practicable.
(b) It is necessary to reinvestigate individuals in positions of
public trust in order to
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ensure that they remain suitable for continued employment.
Sec. 2. Definitions. For the purposes of this order:
(a) ``Agency'' means an executive agency as defined in section 105
of title 5, United States Code, but does not include the Government
Accountability Office.
(b) ``Contractor employee'' means an individual who performs work
for or on behalf of any agency under a contract and who, in order to
perform the work specified under the contract, will require access to
space, information, information technology systems, staff, or other
assets of the Federal Government. Such contracts, include, but are not
limited to:
(i) personal services contracts;
(ii) contracts between any non-Federal entity and any agency;
and
(iii) sub-contracts between any non-Federal entity and another
non-Federal entity to perform work related to the primary
contract with the agency.
(c) ``Excepted service'' has the meaning provided in section 2103 of
title 5, United States Code, but does not include those positions in any
element of the intelligence community as defined in the National
Security Act of 1947, as amended, to the extent they are not otherwise
subject to Office of Personnel Management appointing authorities.
(d) ``Fitness'' is the level of character and conduct determined
necessary for an individual to perform work for or on behalf of a
Federal agency as an employee in the excepted service (other than a
position subject to suitability) or as a contractor employee.
(e) ``Fitness determination'' means a decision by an agency that an
individual has or does not have the required level of character and
conduct necessary to perform work for or on behalf of a Federal agency
as an employee in the excepted service (other than a position subject to
suitability) or as a contractor employee. A favorable fitness
determination is not a decision to appoint or contract with an
individual.
(f) ``Position of Public Trust'' has the meaning provided in 5 CFR
Part 731.
(g) ``Suitability'' has the meaning and coverage provided in CFR
Part 731.
Sec. 3. Agency Authority to Set Fitness Criteria and Determine
Equivalency. The authority to establish criteria for making fitness
determinations remains within the discretion of the agency head. Agency
heads also have the discretion to determine whether their criteria are
equivalent to suitability standards established by the Office of
Personnel Management. Agency heads shall take into account Office of
Personnel Management guidance when exercising this discretion.
Sec. 4. Reciprocal Recognition of Fitness and Suitability
Determinations. (a) Except as provided by subsection (b) of this
section, agencies making fitness determinations shall grant reciprocal
recognition to a prior favorable fitness or suitability determination
when:
(i) the gaining agency uses criteria for making fitness
determinations equivalent to suitability standards
established by the Office of Personnel Management;
(ii) the prior favorable fitness or suitability determination
was based on criteria equivalent to suitability standards
established by the Office of Personnel Management; and
(iii) the individual has had no break in employment since the
favorable determination was made.
(b) Exceptions to Reciprocal Recognition. A gaining agency is not
required to grant reciprocal recognition to a prior favorable fitness or
suitability determination when:
(i) the new position requires a higher level of investigation
than previously conducted for that individual;
(ii) an agency obtains new information that calls into question
the individual's fitness based on character or conduct; or
(iii) the individual's investigative record shows conduct that is
incompatible with the core duties of the new position.
Sec. 5. Reinvestigation of Individuals in Positions of Public Trust.
Individuals in positions of public trust shall be subject to
reinvestigation under standards (including but not limited to the
frequency of such reinvestigation) as determined by the Director of
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the Office of Personnel Management, to ensure their suitability for
continued employment.
Sec. 6. Responsibilities. (a) An agency shall report to the Office
of Personnel Management the nature and results of the background
investigation and fitness determination (or later changes to that
determination) made on an individual, to the extent consistent with law.
(b) The Director of the Office of Personnel Management is delegated
authority to implement this order, including the authority to issue
regulations and guidance governing suitability, or guidance related to
fitness, as the Director determines appropriate.
Sec. 7. General Provisions. (a) Nothing in this order shall be
construed to impair or otherwise affect:
(i) authority granted by law to a department or agency, or the
head thereof; or
(ii) functions of the Director of the Office of Management and
Budget relating to budget, administrative, or legislative
proposals.
(b) This order shall be implemented consistent with applicable law
and subject to the availability of appropriations.
(c) This order shall not suspend, impede, or otherwise affect
Executive Order 10450 of April 27, 1953, as amended, or Executive Order
13467 of June 30, 2008;
(d) This order is intended only to improve the internal management
of the executive branch and is not intended to, and does not, create any
right or benefit, substantive or procedural, enforceable at law or in
equity by any party against the United States, its agencies,
instrumentalities, or entities, its officers, employees or agents, or
any other person.
Sec. 3. Effective Date and Applicability. This order is effective
upon issuance and is applicable to individuals newly appointed to
excepted service positions or hired as contractor employees beginning 90
days from the effective date of this order.
George W. Bush
The White House,
January 16, 2009.
[Filed with the Office of the Federal Register, 2:30 p.m., January 21,
2009]
Note: This Executive order will be published in the Federal Register on
January 22.