EX Appointment Guide for HR Professionals

(amended November 10, 2006 - changes indicated in blue text)

This Guide is provided by the Public Service Commission to help human resources (HR) advisors support deputy heads in developing organizational approaches to EX resourcing.

Table of Contents

1. Introduction
2. Context
3. EX Resourcing Strategies and Issues
4. Public Service Employment Regulations
5. Frequently Asked Questions

I. Introduction

This Guide is designed as a reference document to assist organizations in developing their resourcing framework for executive (EX) level appointments. It is also intended to provide HR professionals with information on the management of  EX level appointment processes in support of deputy head accountability for the delegation of EX appointment authority.

As EX appointment processes have been harmonized with all other appointment processes, this Guide by itself will not provide sufficient knowledge of all the changes created by the new Public Service Employment Act (PSEA) and the  Public Service Commission’s  (PSC) Appointment Framework.  You are encouraged to read all the other relevant guides. Links are provided throughout this Guide.

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II. Context

The new Public Service Employment Act

On December 31, 2005, the new Public Service Employment Act (PSEA) (incorporated within the Public Service Modernization Act) came into force. The preamble of the  Act  reflects the spirit and intent of the legislation, setting out  the Government's goals for the public service, and reiterating  specific values - fairness, access, and transparency - and a commitment to linguistic duality and diversity, as well as appointment decisions based on merit and non-partisanship.

A significant change under the new PSEA is that, for the first time, the legislation provides a definition of "merit." Merit has two components:

1. everyone who is appointed to a position in the public service will have to meet the essential qualifications for the work to be done; and
2. in assessing candidates, sub-delegated managers will be able to take into account qualifications that are considered an asset for the work, currently or in the future, as well as any current or future operational requirements and organizational needs. The sub-delegated manager may also consider the current and future needs of the public service, as determined by the Employer. (Please refer to the guide to Assessing Merit.)

The PSC Appointment Framework

The PSC has developed a new Appointment Framework to guide organizations in designing their staffing systems while ensuring respect for legislative requirements and the staffing values.

The new PSC Appointment Framework, which has three components (appointment policy, delegation and accountability), applies to appointments made to all groups and levels, including the Executive Group. Under the new PSEA, PSC policies are binding and deputy heads exercising delegated authority are accountable for meeting the specific requirements of each policy. While the PSC already delegates many of its appointment authorities, the new Act provides that these authorities will be delegated to deputy heads and, through them, to the lowest possible level in their organization. Deputy heads are accountable for the exercise of their delegated responsibilities.

The new PSEA and the Employer

Under the new PSEA, the employer is responsible for the following areas:

• defining deployments (paragraph 26(1)(a));
• defining promotions (paragraph 26(1)(b));
• determining periods of probation and notice periods (paragraph 26(1)(c)));
• determining rate of pay on appointment (section 60); and
• establishing qualification standards (subsection 31(1)).

Mobility under the new PSEA

Staff of separate agencies, as listed in Schedule V of the Financial Administration Act (FAA), have new mobility rights. The mobility provisions permit staff of these organizations to apply for appointment processes that are open to "all employees." In addition, the new PSEA permits inter-group deployments to the core public administration (Schedule I and Schedule IV) from separate agencies, if the PSC approves their staffing system. Inter-group deployments do not currently apply to the EX Group. 

Delegation of executive appointment authority

In the spirit of the preamble of the new PSEA, the PSC has  maximized the delegation of appointment authority. Deputy heads have the delegated authority to appoint employees of the EX Group (EX-01 to EX-05) to and within the public service. The sole exception is the appointment of ministers' staff Priorities to EX positions.

Once a deputy head decides to sub-delegate his or her EX appointment authority, consideration needs to be given to the following elements:

• to whom to sub-delegate (for example, identification by position title, substantive level, or particular individual(s); and
• for which EX level(s), EX-level equivalents or types of positions.

Deputy heads may only sub-delegate, in writing, EX appointment authority to employees within their organization. In certain situations, other arrangements can be made with the PSC. For example, Interchange Canada participants on assignment to a department are not employees of the department and, as such, a specific arrangement will need to be made with the PSC if the deputy head wants to sub-delegate EX-level appointment authority to this person. (Please refer to the PSC Appointment Framework - Delegation)

Not only should sub-delegated managers be fully informed of their appointment authority and responsibilities, but they must also have access to a human resources specialist whose expertise in appointments processes under the new PSEA has been validated by the PSC.

Note: With the delegation of EX appointment authority to deputy heads, departments are no longer required to submit to the PSC the "Generic Departmental Attestation For Delegated (EX) Appointment Form" (PSC3429 05-2003) regarding EX-level flexibilities.

Service providers

While deputy heads are responsible and accountable for ensuring the integrity of appointment decisions within their organizations, they can choose to manage  the operational work supporting the EX appointment decision by:

• using the services of the PSC's Executive Resourcing Directorate, Staffing and Assessment Services Branch, for EX-01 to EX-03 levels and The Leadership Network of the Public Service Human Resources Management Agency of Canada for EX-04 and EX-05 levels;
• handling the EX appointment processes internally;
• obtaining services elsewhere; or
• using a combination of any of the above providers.

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III. EX resourcing strategies and issues

The following factors need to be considered in EX appointment processes.

Human resources planning

To take full advantage of the flexibility inherent in the new legislation, there is a much stronger emphasis on the need to undertake the HR planning that now underpins the appointment process. The new Appointment Framework involves more than just filling a vacant EX position. It also allows positions that have been identified as future vacancies to be filled more quickly than before, while meeting an organization's business needs. For example, one appointment process can be used to fill a number of similar vacancies, in accordance with the business plan of the organization.

The integrated HR and Business Planning Tool Kit, developed by the Interdepartmental HR Planning Working Group, can be found at the following Web site address: http://www.hrma-agrh.gc.ca/hr-rh/hrp-prh/toolkit/tc-tm_e.asp

Employment Equity

The new PSEA contains the following provisions that specifically help managers achieve their employment equity (EE) goals:

• areas of selection can be set up based on membership in an EE designated group; and
• the use of such areas of selection is no longer tied to an EE program approved by the PSC.

The PSC Policy on Area of Selection requires that the decision to limit the area of selection to one or more designated groups be supported by the organization's EE or HR plan. (Please review the Policy and Guide on Area of Selection).

In addition, the new approach to merit allows current and future needs of the organization or of the public service (as identified by the Employer) to be considered when making appointments. Consequently, if EE plans identify increased representation as an organizational need, membership in an EE group may be considered when choosing a qualified person for appointment. (Please refer to the Guide on Employment Equity).

Note: Due to the new PSEA coming into force, the PSC Employment Equity Program for Executives expired in December 2005. The new Act provides authorities for actions such as limiting the area of selection and using EE objectives as a merit criterion.

Official languages

Proficiency in one or both official languages is specifically defined in the new Act as an essential qualification and cannot be considered an asset qualification.

Bilingual proficiency at the "CBC" level or higher is necessary if executives are to carry out their duties and fulfil their obligation to create a work environment that is conducive to the effective use of both official languages in regions designated as bilingual for language-of-work purposes.
To this end, imperative staffing is required as follows:

• throughout Canada, for all positions or functions at the EX-03 level, the assistant deputy minister level, and other assistant deputy heads titles;
• in regions designated as bilingual for language-of-work purposes, for all other positions or functions at EX-05 to EX-02 levels; and
• in unilingual regions, for all positions or functions at levels EX-05 to EX-02 that include supervision of employees who are located in a bilingual region and occupy bilingual positions or positions with varying language requirements.

Implementation date of imperative staffing for the EX 02 level is April 1, 2007.
This obligation does not apply to indeterminate positions that are open to the public. Such positions may be staffed either imperatively or non-imperatively.
For executive positions, the use of non-imperative staffing must be approved by the deputy head.

(See the Directive on the Staffing of Bilingual Positions at: http://publiservice.tbs-sct.gc.ca/pubs_pol/hrpubs/OffLang/dsbp-ddpb_e.asp and refer to the Guide on Official Languages in the Appointment Process.)

Qualification standard

The EX Group Qualification Standard represents the minimum requirements for staffing an EX position and, therefore, applies to all appointments to and within the EX Group, at all levels, regardless of the appointment process.  The standard is based on the Key Leadership Competencies established by the Public Service Commission and the Public Service Human Resources Management Agency of Canada.  The Key Leadership Competencies for the federal public service are: Values and Ethics, Strategic Thinking, Engagement and Management Excellence (Action Management, People Management and Financial Management).

Appointment process options

The choice of advertised or non-advertised, and internal or external, appointment processes is to be consistent with the organization's HR plan and the appointment values (fairness, access and transparency). The choice of a non-advertised process must be based on pre-established appointment criteria set out by the deputy head. In the case of a non-advertised process, a written rationale is required to demonstrate how the process meets the established criteria and the appointment values.

Whichever option is chosen, organizations may consider establishing internal mechanisms for a challenge function within their management accountability framework. This function will help ensure that the appointment option selected is supportive of the HR (including EE) and business plans of the organization, as well as consistent with the policies of the PSC and the organization. (Please refer to the Guide on Choice of Appointment Process and the Guide on Advertising).

Priority clearance

Organizations must obtain a priority clearance number before proceeding with an EX appointment process. Anytime a person with a priority entitlement is identified, he or she must be considered in the appointment process. (Please refer to the Guide on Priority Administration).

In order to use the Public Service Employment Regulations (PSER) to limit priority referrals to members of designated groups, organizations need to demonstrate that not only is limiting the area of selection consistent with the departmental EE or HR plan, but it is also part of an organizational EE program. PSC approval is not required for an organizational EE program.

Area of selection

PSC policy requires each organization to develop its own area of selection policy to provide reasonable access to internal and external appointments and a reasonable area of recourse for internal non-advertised processes. A national area of selection is required for all advertised external appointment processes for all EX and executive equivalent positions, as well as EX minus 1 and EX minus 2 positions. To ensure consistency, the area of selection for internal EX-level appointment processes should be incorporated into the organization's area of selection policy. (Please refer to Guide on Area of Selection).

Assessment

A variety of assessment tools and techniques must be used to measure qualifications for executive positions. The information gathered from various assessment tools offers a more complete picture of the person's competencies as measured against the requirements of the position.

Assessment processes and methods are to be objective and identify persons who meet the qualifications identified. The “Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service”, as well as the “PSC Guidelines for Assessing Persons with Disabilities and Guidelines for Fair Assessment in a Diverse Workplace: Removing Barriers to Members of Visible Minorities and Aboriginal Peoples” are to be respected. (Please refer to the Guide on Assessment, Selection and Appointment).

To ensure consistent assessment for appointment to or within EX group, the following requirements exist:

• assess qualifications for appointment to or within the EX group:
• with a structured interview and a structured reference check, and;
• with any additional assessment tools necessary to provide clear evidence for appointment decisions (such as SELEX)
• establish EX assessment boards comprised of members at, or equivalent to, a level above the position being staffed.

Persons responsible for assessment:

Deputy heads are responsible for establishing their own criteria in the selection of persons responsible for the assessment. Preferably, a minimum of three assessors should be responsible for the assessment. All assessors must be at a higher level than the position being staffed. In addition to ensuring that candidates are assessed in the official language of their choice, the following considerations will also contribute to fair and objective assessment:

• executive(s) from outside the hiring department;
• executive(s) from EE designated groups (even if the candidates being interviewed may not have self-identified as members of EE groups);
• a mix of male/female representation;
• assessors who have received training in bias-free selection and diversity; and
• a representative from the functional community (when applicable);

Note: A member of the Committee of Senior Officials (COSO) should be an assessor for EX-05 level positions.

Informal discussion

Informal discussion applies to all EX internal advertised and non-advertised appointment processes and can occur at any point in the process where a person is eliminated. It provides an opportunity for that person to discuss the decision with the hiring manager as soon as possible after the decision is made. (Please refer to Informal Discussion - A Guide for Human Resources Managers).

Appointments

With the exception of ministers' staff priorities and the office of the Governor General's Secretary, appointments to an EX position are approved by the deputy head or by a sub-delegated manager. The deputy head retains  the overall accountability for all appointments approved within the organization, even if the deputy head sub-delegates his or her EX appointment authority. Letters of offer are made from within the department. (Please refer to PSC Appointment Policy and Guide on Assessment, Selection and Appointment).

Notification

In all internal advertised and non-advertised EX appointment processes, persons entitled to notification must be advised in writing of the names of the persons being considered for each appointment. A waiting period of at least five (5) calendar days must be established during which no appointment can be made or proposed.

Thereafter, these same persons must be advised in writing of the names of the persons proposed for appointment or appointed to an EX position.

In an internal advertised process, everyone who is in the area of selection and who was part of the process must be notified.

In a non-advertised process, everyone in the area of selection must be notified. (Please refer to Guide on Notification).

Note: Under the new PSEA, organizations will need to manage the results of the appointment process and the basis on which the appointments are to be made.

Oath or Solemn Affirmation

The new PSEA requires persons being appointed from outside that part of the public service over which the PSC has exclusive authority to make appointments to take the oath or solemn affirmation in person on or before the effective date of appointment (section 54).

Resourcing files

For PSC audit and monitoring purposes, organizations are responsible for maintaining resourcing files on all EX appointments, even those files managed by a service provider outside the department or agency. Documents on file should fully reflect how the process was managed and the basis on which the appointments were made. EX appointment files need to be accessible for a minimum of five years from the date of the last appointment or for the duration of an ongoing audit.

Recourse

Under the new PSEA, the Public Service Staffing Tribunal (PSST) will be involved in recourse. Recourse will be available to all persons in EX appointment processes, including executives.

In an internal advertised EX appointment process, any person who participated in the process and who is in the area of selection can make a complaint to the PSST, whereas, in an internal non-advertised EX appointment process, any person in the area of selection can make a complaint to the PSST.

Grounds for complaint to the PSST are limited to:

• abuse of authority in setting or applying the merit criteria;
• abuse of authority in choosing between an advertised and non-advertised internal appointment process; or
• failure to assess the complainant in the official language of his or her choice.

Corrective action and revocation

The new PSEA specifies that the delegation to a deputy head of the authority to make internal appointments also includes the authority to revoke appointments and to take corrective action. In order to revoke or take corrective action, the deputy head must be satisfied, following an investigation, that an error, omission or improper conduct affected the selection for appointment.

The deputy head may not sub-delegate the authority to revoke. However, the deputy head may sub-delegate the authority to implement the corrective action. PSC policy requires each organization to develop its own policy on corrective action and revocation.

Under the new Act, the PSC has the authority to investigate and revoke external appointments, non-delegated internal appointments, appointments involving fraud and appointments affected by political influence. (Please refer to the Guide on Corrective Action and Revocation).

Monitoring, review and reporting

Deputy heads are responsible for establishing monitoring and review mechanisms for acting appointments of more than twelve (12) months, appointments of casual workers to term or indeterminate status through a non-advertised process and appointments to the EX group through non-advertised processes. In addition, deputy heads are to report on their management of delegated staffing in accordance with the Staffing Management Accountability Framework. (Please refer to PSC Appointment Policy).

Audit

In the first year of implementation of the new PSEA, the PSC's Audit Branch will audit all appointments made at the EX-04 and EX-05 levels and 50% of all appointments at the EX-01 to EX-03 levels. The future level of audit activities will be based on the results of PSC oversight activities and findings.

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IV. Public Service Employment Regulations

The following regulations are specifically related to EX appointment processes.

Acting appointments

This regulation excludes from the merit, notification and recourse processes all acting appointments, including EX appointments, initially established for less than four (4) months. All acting appointments are excluded from the consideration of priorities for the duration of the acting appointment.

EE and priorities

The regulation exempts EE appointments from consideration of priorities, unless the priority person is a member of the EE group.

Underfill and overfill

The regulation for underfill and overfill situations is unchanged from the previous regulation. A person in the EX Group may be appointed at a level that is lower than the classified level of the position, or at a higher level, provided that the Employer has made provision for compensation at the higher level.
When appointing an employee in an underfill situation to the full level of the position, the effective date of the appointment should not be backdated prior to the date when the employee has been found qualified by the persons responsible for his/her assessment.

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V. Frequently Asked Questions

1. Why should a member of the Committee of Senior Officials (COSO) be included on EX-05 assessment committees?
   
   COSO decided that a COSO deputy should serve as an assessment board member on ADM boards at the EX 05 level in order to provide corporate oversight.
2. A special authorization was required from The Leadership Network for actions beyond 12 months. Will this authority be delegated to deputy heads?
   
   There are no plans at present to delegate the authority to deputy heads by Public Service Human Resources Management Agency of Canada. The requirement was a recommendation of the Advisory Committee on Senior Level Retention and Compensation (Stephenson Committee).