6.304.1  Expert and Consultant Appointments

6.304.1.1  (11-06-2009)
Overview

  1. The Department of the Treasury (Treasury) has the authority to approve the appointment of experts and consultants without the prior approval of the Office of Personnel Management (OPM). This authority has not been delegated to bureaus. IRS requests for authority to appoint experts and consultants are approved by the Treasury only after a determination that all pertinent requirements are met.

  2. References:

    • 5 USC § 3109

    • 18 USC § 207

    • 5 CFR Part 304

    • 5 CFR Part § 316.401

    • IRS Policy Statement P-0-7

6.304.1.2  (11-06-2009)
Establishment of Positions

  1. Before an expert or consultant position is established, a determination must be made that:

    1. The position is necessary;

    2. The work cannot effectively and more appropriately be performed by a current employee;

    3. The position requires the services of an expert or consultant;

    4. Consultants will be assigned to carry out advisory work, not to carry out operating functions;

    5. The position has properly been designated as temporary or intermittent; and that work which is really temporary in nature is not classified as intermittent to permit employment beyond one year, or to permit payment for travel expenses which could not be made to temporary appointees; and

    6. The proposed expert or consultant authority is not a substitute for more appropriate authorities (for example, to permit the employment of individuals not available competitively or at salaries not otherwise permitted).

  2. A full position description is not required, but a written statement should be sufficient to show that the type of work to be performed is consistent with the services of an expert or consultant and the nature of qualifications required.

  3. On an annual basis, bureaus within Treasury will report the number of days worked and total amount paid to each expert or consultant employed for compensation. (For experts and consultants paid on a per diem basis, any part of a day worked counts as one day).

  4. Experts and Consultants cannot be appointed to:

    1. Senior Executive Service positions; or

    2. Managerial or supervisory positions (although an expert may act as team leader or director of the specific project for which he/she is hired).

6.304.1.2.1  (11-06-2009)
Nature of Appointments

  1. An appointment under 5 USC § 3109 may only be made to an expert or consultant position as defined in 5 CFR § 304.102. Although these positions are not subject to the Classification Act of 1949, it is Treasury’s policy that appointments are only made to positions equivalent to GS-13 or above.

  2. Appointments may be intermittent (without a regularly scheduled tour of duty) or temporary (with a full-time, part-time, seasonal, or intermittent work schedule). If intermittent, the appointment may be without time limit or for a specified time period; if temporary, the appointment cannot exceed one year.

  3. An expert or consultant who works on a part-time or intermittent schedule may be reappointed to perform substantially the same duties with no limit on the number of reappointments, as long as the individual has worked less than 1,040 hours (or 6 months) within his or her current service year. The service year is the calendar year that begins on the date of the individual's initial appointment in the agency. See 5 CFR § 316.401.

  4. An expert or consultant who works full-time may be reappointed to perform substantially the same duties only once, for a maximum of two years of employment (one year initial appointment and one additional year).

  5. Unless specifically authorized by an appropriation or other statute, pay may be set at the equivalent of the base pay rate for any grade and step between GS-13/1 and GS-15/10. This is based on the level and difficulty of work performed; the qualifications of the individuals; pay rates for comparable work; and the availability of qualified candidates. Pay may be determined on an hourly or daily basis, but (1) aggregate pay for any one day cannot exceed the daily rate of base pay for a GS-15/10, and (2) aggregate pay for any biweekly period cannot exceed the biweekly rate of base pay for a GS-15/10.

  6. An expert or consultant may be employed without compensation provided the individual submits a written waiver in advance.

  7. An employee who undertakes service with two departments or agencies shall inform each department or agency about his/her arrangements with the other. Each department or agency should estimate the amount of employee service for the period of employment. The sum of the two estimates should be in accordance with 5 CFR § 304.105.

  8. Before an expert or consultant is recommended for appointment, a determination must be made that:

    1. The appointee clearly has the high level of expertise required to serve either as expert or consultant;

    2. Pay rates proposed are appropriate and justifiable in terms of the duties to be performed and the qualifications of the appointee;

    3. A tax check has been completed in accordance with IRM 6.304.1.2.4 below;

    4. Other employment and financial interests of the expert or consultant do not constitute a conflict of interest in relationship to the duties to be performed; and

    5. No preference was given to the proposed appointee based on any prior Federal service.

6.304.1.2.2  (11-06-2009)
Conflict of Interest

  1. Employees who separate from the Service must refrain from making unfair use of their prior positions and affiliations.

  2. In accordance with 18 USC § 207, Ethics in Government Act, all new employees, including those selected from other agencies and those selected from outside the Government will receive a copy of Document 7106, "Summary of Post-Employment Restrictions," prior to or along with a final offer of employment.

6.304.1.2.3  (11-06-2009)
Criteria for Selection - Behavioral Science Consultant

  1. The industrial psychologist can be of considerable help in selecting and utilizing behavior science consultants. They can recommend competent, well-respected consultants, whose expertise is particularly relevant to given organizational needs. They are also available to evaluate would-be consultants’ proposals in terms of relevance, feasibility, and technical quality. At the same time, they can explore the possibility of using resources within the IRS to meet organizational needs.

  2. Suggested criteria for selection of a Behavioral Science Consultant, a Psychologist, or a Consultant Psychologist follows. These are only suggestions and should not be employed rigidly or without considering individual circumstances or consultant attributes. In general, a reputable consultant will:

    1. Be certified in the state in which he/she is practicing;

    2. Be affiliated with a reputable consulting firm, university, or research group;

    3. Be highly regarded by former and/or present clients who are familiar with his/her work; and

    4. Have a graduate level education (usually a MS or PhD) in his/her field of expertise or competence.

  3. The most important method of evaluation is in IRM 6.304.1.2.3(2)(c) above. A consultant who has proven himself/herself at other organizations can usually be expected to perform well for the IRS. However, in speaking with former clients of the consultant, care should be taken to determine what professional services were performed, when they were performed, and the actual involvement of the consultant in the company. Very often "in-company" personnel researchers who have observed the consultant at work will provide the most accurate evaluation.

6.304.1.2.4  (11-06-2009)
Tax and Fingerprint Checks

  1. Tax checks and fingerprint checks must be completed on experts and consultants. In some cases a Personal Identification Verification (PIV) check and/or background investigation may need to be completed. See IRM 10.23.2.1, Personnel Security and Investigations, and Department of the Treasury Interim Policy for HSPD-12.

    1. Tax checks for experts and consultants of Treasury/IRS Advisory Committees are sent by authorized individuals of the advisory committee to SB/SE Disclosure for processing. See IRM 6.304.1.3.2 and IRM 10.23.2, Personnel Security, Contractor Investigations. For experts and consultants hired to work under a Treasury/IRS contract, tax checks are processed by Personnel Security (PS). See IRM 10.23.2.2, Personnel Security, Contractor Investigations, General Investigative Requirements.

    2. Fingerprint checks for experts and consultants of Treasury/IRS Advisory Committees are sent by authorized individuals of the advisory committee to PS based on a Memorandum of Understanding between the Treasury/IRS Advisory Committee and PS for reimbursement of investigative services. See IRM 10.23.2.19. For experts and consultants hired to work under a Treasury/IRS contract, fingerprint checks are processed by PS. See IRM 10.23.2.2 and IRM 10.23.2.7, Personnel Security, Contractor Investigations, Fingerprinting Contractor Employees.

    3. For experts and consultants whose employment will be six months or more a PIV check is required.

6.304.1.2.5  (11-06-2009)
Required Documents

  1. SF-52, Request for Personnel Action (SF-52) - paper copy of the SF-52 must include:

    1. The type of appointment requested (expert or consultant);

    2. The time limit for the appointment (if temporary, may not exceed one year; if intermittent, may be without time limit or for a specified period);

    3. The work schedule (full-time, part-time, intermittent, or seasonal);

    4. The rate of pay and equivalency (e.g., equivalent of GS-15/10); and

    5. If reappointment, must also indicate the number of days worked in past service year.

  2. Form 12333, Consent for Fingerprint Check – must be completed, signed and dated by appointee.

  3. Tax Check Waiver Form – must be completed, signed and dated by appointee.

  4. Expert or Consultant Certification – A statement from the appointing authority or designee ( See Exhibit 6.304.1-3) certifying that:

    1. The position is necessary and is consistent with the definition and use of an expert or consultant appointment as described in 5 CFR Part 304;

    2. The proposed appointee is fully qualified to perform the services sought;

    3. The proposed pay rate is commensurate with the work to be performed and qualifications of the proposed appointee;

    4. The rate of pay and equivalency (e.g., equivalent of GS-15/10); and

    5. The official delegated authority to make the certification for IRS positions (except attorney positions) is the IRS Human Capital Officer.

  5. Statement of Duties – A description of the duties to be performed in sufficient detail to show that the position actually requires the services of an expert or consultant.

  6. Resume or OF-612, Application for Federal Employment – This should be current (within one year) and include sufficient information to demonstrate that the individual is qualified to carry out the described duties. In addition, it should include (or be annotated to reflect) the individual’s current salary.

  7. Financial Disclosure Report – OGE 450, Confidential Financial Disclosure Report, is the minimum requirement, but in those instances where the proposed appointee is ultimately being considered for appointment to a position that requires an SF-278, Public Financial Disclosure Report, (e.g., a PAS or SES appointee) the SF-278 is also acceptable.

6.304.1.2.6  (11-06-2009)
Approvals

  1. Appointments of experts and consultants must be approved by Treasury, specifically the Director, Office of Human Capital Strategic Management; Office of the Deputy Assistant Secretary for Human Resources. Treasury consults with the Office of the Assistant General Counsel (General Law and Ethics).

    1. The Director, Executive Services Division forwards the request and forms (outlined in IRM 6.304.1.2.4) to appoint an expert or consultant who will serve in an executive capacity to Treasury for approval; and

    2. The Human Capital Office (HCO), Employment, Talent and Security Division (ETS), Policy and Programs Office forwards the request and forms (outlined in IRM 6.304.1.2.5) to appoint an expert or consultant who will serve in a non-executive capacity to Treasury for approval.

6.304.1.3  (11-06-2009)
Appointment of Experts for the Art Advisory Panel of the Commissioner

  1. The procedures for appointing experts for the Art Advisory Panel of the Commissioner are outlined in this section to ensure timely submission of approval requests to Treasury; and to ensure adherence to regulations, policies, and procedures governing the appointment of Experts and Consultants.

  2. The Art Advisory Panel of the Commissioner is an IRS Advisory Committee that reviews and evaluates appraisals submitted by taxpayers in support of the fair market value claimed on work of art for income, estate and gift tax purposes. Members are appointed without compensation.

  3. The Art Advisory Panel meets three to four times per year as follows:

    1. Section 1, Painting and Sculpture – Spring (March/April) and Fall (September/October); and

    2. Section 2, Decorative Arts and Antiques – Once or twice a year (May/June and/or November/December).

6.304.1.3.1  (11-06-2009)
Director, Art Appraisal Services, Appeals

  1. The Director, Art Appraisal Services (AAS), Appeals makes the initial contact with art experts and initiates the appointee’s paperwork as follows:

    1. Initiates the appointee’s package ten to twelve weeks prior to the Art Advisory Panel meeting;

    2. Ensures the appointee completed and signed all required forms described in paragraph (2) below; and

    3. Advises the appointee to bring a valid ID (valid state or federal government issued picture ID) to the Art Advisory Panel meeting as part of the fingerprint check process.

  2. The Director, AAS forwards the following paperwork to the Director, Management and Administration (M&A), Appeals:

    • Form 12333, Consent for Fingerprint Check – must be completed, signed and dated by appointee;

    • Form 12339-A ,Tax Check Waiver – must be completed, signed and dated by appointee;

    • Resume must be signed and dated by appointee;

    • Waiver of Claims – must be signed and dated by appointee ( See Exhibit 6.304.1-1.);

    • Description of duties for Art Advisory Panel (Outlined in the Charter for the Art Advisory Panel); and

    • Office of Government Ethics, Form 450, Confidential Disclosure Report - must be completed, signed and dated by the appointee, Director, AAS, and Deputy Chief of Appeals.

6.304.1.3.2  (11-06-2009)
Director, Management and Administration, Appeals

  1. The Director, Management and Administration (M&A), Appeals reviews and processes the appointee's paperwork as follows:

    1. Reviews the appointee’s package to ensure all required documents are completed, signed and dated; ensures required action is taken to initiate the Fingerprint Check and Tax Check as indicated below; and allows eight to ten weeks for the processing and approval of the appointment;

    2. Notifies the designated HCO, ETS, Employment Office (EO) for fingerprinting of the Art Advisory Panel meeting at least two weeks in advance and provides a copy of the appointee’s completed Form 12333, Consent for Fingerprint Check, for fingerprinting on the day of the meeting;

    3. Mails original Form 12333 to Personnel Security (PS), Attention: Contractor Investigations Program Manager, after fingerprints are taken (See IRM 6.304.1.3.2(3));

    4. Initiates a paper Request for Personnel Action (SF-52) and includes appointee’s SSN, name, birth date, effective date, approving official’s signature; type of appointment (expert); time limit of appointment (intermittent without time limit); work schedule (intermittent); and rate of pay or equivalency (appointed without compensation);

    5. Completes, signs and dates the Certification for Appointment of Expert or Consultant ( See Exhibit 6.304.1-2.);

    6. Completes Document 18 USC § 208(b)(3) Waiver, IRS Art Advisory Panel ( See Exhibit 6.304.1-3.). Required only if the new panel member has a particular conflict and after the Office of Chief Counsel, General Legal Services has reviewed the facts and consulted with the Office of Government Ethics. See 5 CFR § 2640.302, 303, and 304; and

    7. Forwards (after tax check is cleared) all the above documents to the servicing HCO, ETS, EO six to eight weeks prior to the meeting to ensure Treasury’s approval prior to the Art Advisory Panel meeting.

  2. Only authorized individuals from Appeals may request tax checks and receive the results.

    1. Authorized individuals are the Director, AAS; Director, Strategy & Finance; and Director, M&A;

    2. In order to be authorized, a memorandum must be submitted to the manager of the Tax Check Unit from the Deputy Chief of Appeals or Director, Strategy & Finance. The memorandum must identify the agency name and address; and names, titles, telephone and fax numbers of those authorized to request tax checks and receive results;

    3. When authorized individuals change, an updated memorandum must be submitted with the required information for the new individuals; and

    4. Disclosure provides the results of the tax check within 30 days.

      Disclosure Specialist
      Tax Check Unit
      Government Liaison and Disclosure
      Communications Liaison and Disclosure
      Small Business and Self Employed
      Washington, D.C.

  3. Based on a Memorandum of Understanding between PS and the Art Advisory Panel, PS will provide investigative services for screening Art Advisory Panel applicants for the FBI criminal history fingerprint check and the FBI subversive name check. PS will notify Appeals if the appointee is acceptable or needs further investigation. If acceptable, fingerprint results are received within five to seven days.

6.304.1.3.3  (11-06-2009)
Servicing Employment Office

  1. The servicing HCO, ETS, EO for Appeals is responsible for the following:

    1. Ensures the appointment(s) meet the criteria as outlined in 5 CFR § 304.102;

    2. Reviews the paper SF-52 for each appointee, ensuring the required information is included;

    3. Reviews and verifies that all required documents are completed, signed and dated. Verifies that the tax check has been cleared. The package should include: The SF-52; resume; Waiver of Claims; description of duties for the Art Advisory Panel; Office of Government Ethics, Form 450; Document 18 USC § 208(b)(3) Waiver; and Certification for Appointment of Expert or Consultant; and

    4. Forwards the original and two copies of each appointee’s package along with Form 12339-A Tax Check Waiver and Form 12333, Consent for Fingerprint Check (overnight delivery to the Policy and Programs Office six weeks prior to the Art Advisory Panel meeting) to:

      Internal Revenue Service
      HCO:ETS: Policy and Programs Office
      Washington, D.C.

6.304.1.3.4  (11-06-2009)
HCO, ETS, Policy and Programs Office

  1. The HCO, ETS, Policy and Programs Office is responsible for the final review to ensure accuracy and completeness of the package as follows:

    1. Reviews the package for completeness and accuracy;

    2. Forwards memorandum from the Director ETS, HCO to the Department of the Treasury, Director, Office of Human Capital Strategic Management, and Office of the Deputy Assistant Secretary for Human Resources and Chief Human Capital Officer for approval, along with the original and one copy of the documents listed under IRM 6.304.1.2.5 ( with the exception of the Form 12339-A, Tax Check Waiver and Form 12333, Consent for Fingerprint Check) for each appointee three to four weeks prior to the Art Advisory Panel meeting;

    3. Follows-up with the Treasury point of contact on the status of request. The Treasury approval and review process can take up to four weeks;

    4. Notifies the servicing HCO, ETS, EO and Director, AAS when the approval is granted; and

    5. Retains a copy of the Treasury approval memorandum and one copy of the appointee’s paperwork, Form 12399-A and Form 12333, in the HCO, ETS, Policy and Programs Office files.

6.304.1.3.5  (11-06-2009)
Designated Employment Office - Fingerprinting

  1. The designated HCO, ETS, EO for fingerprinting is responsible for the following:

    1. Fingerprints the appointee(s) on the day of the Art Advisory Panel meeting (exception to the fingerprint policy was approved by Treasury) at the following location:

      Internal Revenue Service/Appeals
      Director, Management and Administration
      Washington, D.C.

    2. Obtains a copy of appointee’s Form 12333, Fingerprint Consent form from M&A Appeals and verifies the appointee’s identification prior to taking fingerprints;

    3. Live Scan: Sets live scan to Submitting Office Number (SON) and Submitting Office Identifier (SOI) 554J/TR34 for Appeal Art Advisory Panel; and

    4. Manual Fingerprint: Ensures the appointee completes and signs the FD-258, Fingerprint Card on the date of the Art Advisory Panel meeting. Notes SON/SOI 554J/TR34 on the FD 258, Fingerprint Card and scans information into the live scan located at the designated HCO, ETS, EO.

  2. The Personal Identity Verification (PIV) process is not required for Art Advisory Panel appointees because their employment is less than 6 months.

Exhibit 6.304.1-1  (11-06-2009)
Waiver of Claims - Commissioner's Art Advisory Panel

Waiver of Claims - Commissioner's Art Advisory Panel

If requested, I will accept employment as an expert of the Commissioner's Art Advisory Panel and expect to serve without compensation. I agree in advance to waive any and all claims against the Government on account of such services.
  ___________________
  Signature of Appointee
   
  ___________________
  Print Name
   
  ___________________
  Date

Exhibit 6.304.1-2  (11-06-2009)
Certificate for Appointment of Expert or Consultant

Certificate for Appointment of Expert or Consultant

Proposed Appointee: ____________
In proposing this appointment, I have carefully considered the requirements of 5 USC § 3109 and 5 CFR Part 304 and certify the following:
For Consultant Appointments Only:
__ The position is necessary and consistent with the definition and use of a consultant appointment as described in 5 CFR Part 304 and requires providing advice, views, opinions, alternatives or recommendations on a temporary and/or intermittent basis on issues, problems, or questions presented by a Federal official.
For Expert Appointments Only:
__ The position is necessary and consistent with the definition and use of an expert appointment as described in 5 CFR Part 304 and requires the services of a specialist with skills superior to those of others in the same profession, occupation, or activity to perform work on a temporary and/or intermittent basis assigned by a Federal official.
For Expert and Consultant Appointments:
__ The proposed appointee is fully qualified to perform the services described in the statement of duties.
__ The proposed pay rate is commensurate with the work to be performed and qualifications of the proposed appointee. (Not applicable for appointee to IRS Art Advisory Panel).
__ Review of the financial disclosure report indicates no apparent conflict of interest between the duties to be performed and financial interests and/or other employment of the proposed appointee.
   
_______________________________ ___________
Signature of Appointment Authority (or designee) Date
Print Name: _____________________  
Title and Grade: __________________  
   

Exhibit 6.304.1-3  (11-06-2009)
18 USC § 208(b)(3) Waiver IRS Art Advisory Panel

18 USC § 208(b)(3) Waiver IRS Art Advisory Panel

As the appointing authority for members of the Internal Revenue Service’s Art Advisory Committee I have determined that the need for the services of ____________ [Appointee] outweighs the potential conflict of interest created by the Appointee’s financial interest in the field of art.
The Art Advisory Committee assists the IRS in making determinations of value for tax purposes of works of art. Given the highly specialized nature of this work, it is necessary to draw the membership of the committee from recognized authorities in the art world. The Appointee is such an authority. With this expertise comes a potential conflict of interest. The appointee is employed as a professional in the field of art, and the appointee or the appointee’s employer may, from time to time, have art work similar to that which is being evaluated. The valuation of this similar art might be affected by the valuation given to the art being reviewed by the committee.

This potential actual or apparent conflict of interest is not sufficient to outweigh the government’s need for the appointee’s services. Moreover, the structure of the advisory committee, consisting of twelve print publishers, distributors, retailers and curators, and its operation as a committee significantly reduce the risk to the Government which any potential conflict poses.

Date: ______________

________________________________
Signature of Appeals Appointing Authority
   
Print Name: ______________
Position Title:_____________

More Internal Revenue Manual