Washington, DC
U.S. Office of Personnel Management
Classification Appeal Decision
Under section 5112 of title 5, United States Code
Veterans Affairs Medical Center
Veterans Health Administration
U.S. Department of Veterans Affairs
Wilkes-Barre, Pennsylvania
GS-306-9
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
01/03/2017
Date
As provided in section 511.612 of title 5, Code of Federal Regulations (CFR), this decision constitutes a certificate which is mandatory and binding on all administrative, certifying, payroll, disbursing, and accounting officials of the Government. The agency is responsible for reviewing its classification decisions for identical, similar, or related positions to ensure consistency with this decision. There is no right of further appeal. This decision is subject to discretionary review only under conditions and time limits specified in the Introduction to the Position Classification Standards (Introduction), appendix 4, section G (address provided in appendix 4, section H).
Since this decision lowers the grade of the appealed position, it is to be effective no later than the beginning of the sixth pay period after the date of this decision, as permitted by 5 CFR 511.702. The applicable provisions of parts 351, 432, 536, and 752 of title 5 CFR must be followed in implementing the decision. If the appellant is entitled to grade retention, the two-year retention period begins on the date this decision is implemented. The servicing human resources office must submit a compliance report containing the corrected position description (PD) reflecting the actual work assigned to and performed by the appellant as discussed in this decision and a Standard Form 50 showing the personnel action taken. The report must be submitted within 30 days from the effective date of the personnel action.
Introduction
On May 2, 2016, the U.S. Office of Personnel Management’s (OPM) Agency Compliance and Evaluation Philadelphia office accepted a classification appeal from Ms. Donna Boyer, who currently occupies a position classified as Government Information Specialist, GS-306-11, in the Office of the Associate Director, Wilkes-Barre Veterans Affairs Medical Center (VAMC), Veterans Health Administration (VHA), U.S Department of Veterans Affairs (VA), in Wilkes-Barre, Pennsylvania. The appellant believes her position should be classified as Government Information Specialist, GS-306-12. We received the initial agency administrative report (AAR) on July 7, 2016, and the complete AAR on October 7, 2016. We have accepted and decided this appeal under section 5112 of title 5, United States Code (U.S.C.).
To help decide the appeal, we conducted a telephone audit with the appellant on October 13, 2016, and a telephone interview with her immediate supervisor on October 20, 2016. We also conducted telephone interviews with the Records Manager, Wilkes Barre VAMC, on November 3, 2016, and the Deputy Chief Counsel, Office of the General Counsel (OGC), Veterans Integrated Service Network (VISN) 4, on November 28, 2016. (VISN 4 is a network of nine VA medical centers, including the Wilkes Barre VAMC, and 41 community-based outpatient clinics.) In reaching our decision, we carefully considered the audit and interview findings and all other information of record furnished to us by the appellant and the agency.
General issues
The appellant is assigned to position description (PD) number 4305.0. Both the appellant and her first-level supervisor agree to the accuracy of the appellant’s PD of record. A PD is the official record of the major duties and responsibilities assigned to a position by a responsible agency official; i.e., a person with authority to assign work to a position. A position is the work that makes up the duties and responsibilities performed by an employee. Classification appeal regulations permit OPM to investigate or audit a position and decide an appeal based on the duties assigned by management and performed by the employee. By law, a classification appeal decision is based on comparing the appellant’s current duties and responsibilities to OPM position classification standards (PCS) and guidelines (5 U.S.C. 5106, 5107, and 5112). We classify a real operating position and not simply the PD. Therefore, this decision is based on the actual work assigned to and performed by the appellant.
The appeal record, including the official PD, contains descriptive information about the major duties and responsibilities assigned to and performed by the appellant, and we incorporate it by reference into our decision. However, as discussed later in this decision, we find the PD overstates the difficulty and responsibility of the work performed by the appellant.
Position information
The Wilkes Barre VAMC provides healthcare services for veterans living in 18 counties in northeastern and central Pennsylvania and one in southern New York. Services include but are not limited to trauma recovery, home-based primary care, weight management, substance abuse residential rehabilitation treatment, psychological assessments, spinal cord injuries and disorders, suicide prevention, and tobacco cessation.
The appellant serves as the Privacy Act (PA) and Freedom of Information Act (FOIA) program officer. The primary purpose of the appellant’s position is to oversee the proper use and release of privacy and FOIA information. She is responsible for coordinating compliance reviews, disseminating information to facility employees, training new hires on rules and regulations, and investigating incidents of alleged improper disclosure. The appellant ensures the facility has complete policies and procedures in place to safeguard protected data. She is responsible for completing privacy impact assessments including physical walk-throughs of the facility to identify gaps in privacy protection. The appellant must ensure that facility personnel understand the importance of individually-identifiable information contained in VHA records and that it can only be used in the performance of their official duties for treatment, payment, or health care operations.
Our fact-finding revealed the appellant is not performing all of the duties identified in her PD of record, and the duties she performs do not entail the level of difficulty, complexity, and responsibility indicated in the PD. For example, the appellant’s PD states that she is responsible for planning and designing program policies and procedures for the facility; however, we find she modifies privacy policy templates already developed by the VHA to meet the needs of the facility and ensure compliance with VHA privacy Directives and Handbooks. She does not closely coordinate program implementation and management with higher organizational levels except to receive guidance on technical operations as needed. Additionally, the appellant’s work does not require knowledge of research protocols and procedures, regulations, court decisions, and Federal and agency policies to provide review and recommendations for a major research program. Rather, the appellant performs recurring duties in coordinating privacy requirements for a minor research program which does not require the extensive privacy program knowledge used by the subject-matter experts who conduct the research studies. Since PDs must meet the standard of adequacy in the Introduction, the appellant’s agency must revise her PD to meet that standard.
Series, standard, and title determination
The agency placed the position in the GS-306, Government Information Series, and titled it Government Information Specialist. The appellant does not disagree and we concur. Therefore, we find the position is allocated properly as Government Information Specialist, GS-306.
Grade determination
The appellant believes her position warrants a higher grade based on the misapplication of the classification standard used by the agency to grade her position, i.e. the Administrative Analysis Grade Evaluation Guide (AAGEG). Specifically, she believes Factor 7, Purpose of Contacts, warrants a higher level based on the language in the PD. After careful review, we concur with the agency on Factors 7, 8, and 9 and have so credited the position. However, we disagree with the agency’s evaluation of Factors 1, 2, 3, 4, 5, and 6.
The Government Information Series, 306, PCS does not provide occupation-specific grading criteria. It directs use of the AAGEG grading criteria to evaluate nonsupervisory positions at the GS-9 level or above and other PCSs, as appropriate, based on the nature of the work. In this regard, we also applied the Paralegal Specialist Series, GS-950, PCS to evaluate the appellant’s position. This PCS addresses a variety of legal assistance work, such as analyzing the legal impact of legislative developments and administrative and judicial decisions, opinions, determinations, and rulings on agency programs; conducting research for the preparation of legal opinions on matters of interest to the agency; performing substantive legal analysis of requests for information under provisions of various acts; and other similar support functions which require discretion and independent judgment in the application of a specialized knowledge of laws, precedent decisions, regulations, agency policies and practices, and judicial or administrative proceedings. Paralegal specialist positions ordinarily encompass a greater variety of legal assistance duties, and consequently require more extensive knowledge of laws, legal precedents, and judicial proceedings, than are contained in the appellant’s position. However, since this PCS specifically addresses work related to the release of agency records, it provides criteria to which the appellant’s duties can be directly compared.
Both the AAGEG and the 950 PCS are written in the Factor Evaluation System (FES) format, which employs nine factors. Under the FES, each factor level description in a PCS describes the minimum characteristics needed to receive credit for the described level. Therefore, if a position fails to meet the criteria in a factor level description in any significant aspect, it must be credited at a lower level. Conversely, the position may exceed those criteria in some aspects and still not be credited at a higher level. Our evaluation with respect to the nine FES factors follows.
Evaluation using the AAGEG
Factor 1, Knowledge required by the position
This factor measures the nature and extent of information or facts that a worker must understand to do acceptable work and the extent of the skills needed to apply this knowledge. To be used as a basis for selecting a level under this factor, knowledge must be required and applied.
At Level 1-6, work requires knowledge and skill in applying analytical and evaluative techniques to the identification, consideration, and resolution of issues or problems of a procedural or factual nature. The issues or problems deal with readily observable conditions, written guidelines covering work methods and procedures such as performance and production standards, and information of a factual nature. Included at this level is knowledge of the theory and principles of management and organization, including administrative practices and procedures common to organizations. Assignments typically involve using qualitative and quantitative analytical techniques. Assignments require skill in conducting interviews with supervisors and employees to obtain information about organizational missions, functions, and work procedures.
The appellant’s position fully meets Level 1-6. Like this level, the appellant performs work involving knowledge and skill in applying sections 5705 (confidentially of medical quality-assurance records) and 7332 (confidentiality of certain medical records) of title 38, U.S.C, the PA, FOIA, implementing regulations for these statutes, Federal and agency policies and procedures, case law, and precedent decisions related to information privacy and protection. She utilizes knowledge of the privacy aspects of the Health Insurance Portability and Accountability Act (HIPAA) to identify and resolve procedural and factual issues including reviewing facility processes and products for compliance with established VHA policies. The issues deal with readily observable conditions. For example, she conducts weekly physical inspections of the facility to identify, isolate, and mitigate potential violations in privacy procedures such as unlocked file cabinets, patient information on computer screens which may be visible to unauthorized persons, and inappropriately stored data in hard-copy log books. The appellant applies knowledge of VHA Directives to ensure employees comply with agency policies. In the event of potential or reported violations, such as the illegal disclosure of privacy information, she is responsible for applying skill in conducting fact-finding interviews with claimants and employees to determine their validity.
At Level 1-7, work requires knowledge and skill in applying analytical and evaluative methods and techniques to issues or studies concerning the efficiency and effectiveness of program operations carried out by administrative or professional personnel, or substantive administrative support functions (i.e., internal activities or functions such as supply, budget, procurement, or personnel which serve to facilitate line or program operations). This level includes knowledge of pertinent laws, regulations, policies and precedents which affect the use of program and related support resources (people, money, or equipment) in the area studied. Projects and studies typically require knowledge of the major issues, program goals and objectives, work processes, and administrative operations of the organization. Knowledge is applied in developing new or modified work methods, organizational structures, records and files, management processes, staffing patterns, procedures for administering program services, guidelines and procedures, and automating work processes for the conduct of administrative support functions or program operations.
The appellant’s position fails to meet Level 1-7. The appellant’s PD states she is responsible for implementing, managing, and evaluating the privacy and FOIA programs. However, we find this statement mischaracterizes the complexity of her duties. Instead, we find the appellant is responsible for monitoring the execution of the privacy and FOIA programs at the facility. The overall development, management and evaluation of the programs are conducted at higher organizational levels. Such work as the resolution of major issues or concerns, or those which are not covered by established procedures and checklists, are vested in the VHA and VA’s OGC to whom she elevates such matters. The appellant is not charged with regularly developing or modifying work methods, except to make recommendations to better adhere to VA program requirements. Therefore, Level 1-6 is credited for 950 points.
Factor 2, Supervisory controls
This factor covers the nature and extent of direct or indirect controls exercised by the supervisor, the employee’s level of independence and personal responsibility, and how the work is reviewed or controlled.
At Level 2-3, the supervisor assigns specific projects in terms of issues, organizations, functions, or work processes to be studied and sets deadlines for completing the work. The supervisor or higher-graded analyst provides assistance on controversial issues or on the application of qualitative or quantitative analytical methods to the study of subjects for which precedent studies are not available. The employee plans, coordinates, and carries out the successive steps in fact-finding and analysis of issues necessary to complete each phase of assigned projects. Work problems are normally resolved by the employee without reference to the supervisor, in accordance with the body of accepted office policies, applicable precedents, organizational concepts, management theory, and occupational training. Work is reviewed for conformance with overall requirements as well as contribution to the objectives of the study. Findings and recommendations developed by the employee are reviewed prior to release, publication, or discussion with management officials.
The appellant’s position fully meets Level 2-3. As at this level, the appellant is responsible for independently planning and conducting work assignments including the investigation and resolution of FOIA requests and privacy complaints. The appellant plans, coordinates, and carries out the successive steps in fact-finding and analysis of potential or reported privacy violations. Her supervisor or VA’s OGC provides assistance on controversial issues. Typical of Level 2-3, her supervisor also reviews her findings and recommendations prior to release of the information.
In contrast, at Level 2-4 the employee and supervisor develop a mutually acceptable project plan which typically includes identification of the work to be done, the scope of the project, and deadlines for its completion. Within the parameters of the approved project plan, the employee is responsible for planning and organizing the study, estimating costs, coordinating with staff and line management personnel, and conducting all phases of the project. This frequently involves the definitive interpretation of regulations and study procedures, and the initial application of new methods. The employee informs the supervisor of potentially controversial findings, issues, or problems with widespread impact. Completed projects, evaluations, reports, or recommendations are reviewed by the supervisor for compatibility with organizational goals, guidelines, and effectiveness in achieving intended objectives.
The appellant’s position fails to meet Level 2-4. The appellant’s work does not approach the degree of independence envisioned at this level. Her work is focused on gathering data for required program reports and conducting fact-finding in response to alleged and/or self-reported program violations and training employees on privacy procedures. Her work does not regularly involve conducting projects with the planning demands found at this level. These recurring duties do not require or permit the appellant to provide definitive interpretation of regulations as this responsibility is vested in VHA and VA’s OGC . Further, program procedures and the initial application of new methods are also developed by these higher organizational levels. Therefore, Level 2-3 is credited for 275 points.
Factor 3, Guidelines
This factor covers the nature of guidelines and the judgment needed to apply them.
At Level 3-3, guidelines consist of standard reference material, texts, and manuals covering the application of analytical methods and techniques. Analytical methods contained in the guidelines are not always directly applicable to specific work assignments. However, precedent studies of similar subjects are available for reference. The employee uses judgment in choosing, interpreting, or adapting available guidelines to specific issues or subjects studied. The employee analyzes the subject and the current guidelines which cover it. Included at this level are work assignments in which the subject studied is covered by a wide variety of administrative regulations and procedural guidelines. In such circumstances, the employee must use judgment in researching regulations and in determining the relationship between guidelines and organizational efficiency, program effectiveness, or employee productivity.
The appellant’s position fully meets Level 3-3. As at this level, guidelines consist of Federal laws, Executive Orders, regulations, and VHA policies and procedures including Handbook 1605.03. The criteria used to solve recurring issues are contained in these guidelines but are not completely applicable to all situations. The appellant must analyze, interpret, and adapt precedents to resolve work problems related to the protection of personal information. In the event that precedents are unavailable, the appellant contacts VA’s OGC for direction. For example, that office provides guidance on the release of information to State authorities on such controversial issues as elder abuse, child abuse, and motor vehicle violations as they may relate to a veteran’s health or medical condition.
At Level 3-4, guidelines consist of general administrative policies and management and organizational theories which quire considerable adaptation and/or interpretation for application to the issues and problems studied. At this level, administrative policies and precedent studies provide basic outlines of the results desired, but do not go into detail as to the methods used to accomplish the project. Administrative guidelines usually cover program goals and objectives of the employing organization. Within the context of broad regulatory guidelines, the employee may refine or develop more specific guidelines such as implementing regulations or methods for the measurement and improvement of effectiveness and productivity in the administration of operating programs.
The appellant’s position fails to meet Level 3-4. The work does not require the appellant to develop methods that measure and improve the effectiveness of the privacy and FOIA programs. For example, the PD states the position is responsible for completion of the Privacy Impact Assessment. While the appellant is responsible for assembling and submitting relevant facility level information, the criteria by which the program is assessed are developed at higher organizational levels. Additionally, guidance provided by the OGC in the resolution of controversial issues is always accepted and implemented. The appellant may not deviate from the direction provided, develop her own analysis, or determine the final corrective action. Therefore, Level 3-3 is credited for 275 points.
Factor 4, Complexity
This factor covers the nature, number, variety, and intricacy of tasks, steps, processes, or methods in the work performed; the difficulty in identifying what needs to be done; and the difficulty and originality involved in performing the work.
At Level 4-3, the work principally involves dealing with problems and relationships of a procedural nature rather than the substance of work operations, issues, or other subjects studied. At this level, the employee analyses the issues in the assignment, then selects and applies accepted analytical techniques.
The appellant’s position fully meets Level 4-3. The work involves the identification and resolution of privacy-related issues. The appellant is responsible for completing investigations by interviewing claimants and witnesses. Pre-developed interview guides contain lists of questions which fit most scenarios. She is also responsible for preparing a report of findings and recommending options for procedural changes. Findings and recommendations from investigations conducted are based on analysis of the information gathered, research of precedent situations, and application of standard VHA guidelines.
At Level 4-4, the work involves gathering information, identifying and analyzing issues, and developing recommendations to resolve substantive problems of effectiveness and efficiency of work operations in a program or support setting. Subjects and projects assigned at this level usually consist of issues, problems, or concepts that are not always susceptible to direct observation and analysis. Information about the subject is often conflicting or incomplete, cannot readily be obtained by direct means, or is otherwise difficult to document. Characteristic of this level is originality in refining existing work methods and techniques for application to the analysis of specific issues or resolution of problems.
The appellant’s position fails to meet Level 4-4. The work does not involve developing recommendations to resolve substantive problems of effectiveness and efficiency in program operations or refining existing work methods for the analysis of specific issues or resolution of problems. For example, the PD states the position requires the appellant to assist departments in the development of monitoring and auditing processes that mirror the goals of the facility; however, this mischaracterizes her duties. Rather, the appellant is responsible for sending emails to alert service chiefs of information disclosure report due dates. The reports must include the name of the individual to whom the information pertains, the date of each disclosure, the description of the disclosed information, a brief statement of the purpose of each disclosure, and the name and address of the person or agency to which the disclosure was made. Therefore, Level 4-3 is credited for 150 points.
Factor 5, Scope and effect
This factor covers the relationship between the nature of the work, i.e., the purpose, breadth, and depth of the assignment, and the effect of work products or services both within and outside the organization.
At Level 5-3, the purpose of the work is to plan and carry out projects to improve the efficiency and productivity of organizations and employees in administrative support activities. Employees at this level identify, analyze, and make recommendations to resolve conventional problems and situations in work flow, work distribution, staffing, performance appraisal, organizational structure, and/or administration. Employees may be assigned portions of broader studies of largely administrative organizations or participate in the evaluation of program effectiveness at the operating level. Work may also involve developing detailed procedures and guidelines to supplement established administrative regulations or program guidance. Completed reports and recommendations influence decisions by managers concerning the internal administrative operations of the organizations and activities studied. The work may involve identifying problems, studying, analyzing and making recommendations concerning the efficiency and productivity of administrative operations in different components of an organization.
The appellant’s position fully meets Level 5-3. The purpose of the appellant’s work is to improve the efficiency and effectiveness of the VAMC privacy and FOIA programs. She is responsible for providing process improvement recommendations to management which identify potential risks. Her work products affect the integrity of facility operations in complying with Federal laws, rules and regulations related to privacy and release of information.
At Level 5-4, the purpose of the work is to assess the productivity, effectiveness, and efficiency of program operations or to analyze and resolve problems in the staffing, effectiveness and efficiency of administrative support and staff activities. Work involves establishing criteria to measure and/or predict the attainment of program or organizational goals and objectives. Work contributes to the improvement of productivity, effectiveness, and efficiency in program operations and/or administrative support activities at different echelons and/or geographical locations within the organization. Work affects the plans, goals, and effectiveness of missions and programs at these various echelons or locations. Work may affect the nature of administrative work done in components of other agencies (e.g., in preparation and submission of reports, in gathering and evaluating workload statistics, or in routing and storing official correspondence or files).
The appellant’s position fails to meet Level 5-4. She is not responsible for assessing the efficiency and effectiveness of the privacy program as that is vested in VHA headquarters. While she monitors the facility’s privacy and FOIA programs to ensure they meet VHA requirements, her work does not require or permit her to establish criteria to measure or predict the attainment of program goals and objectives. Her work does not affect the efficiency and effectiveness of program operations or administrative support activities at different echelons or geographical locations such as privacy programs at other medical centers. Her work also does not affect administrative work done in other agencies. Therefore, Level 5-3 is credited for 150 points.
Factor 6, Personal contacts and Factor 7, Purpose of Contacts
Personal contacts include face-to-face and telephone contacts with persons not in the supervisory chain. Levels described under this factor are based on what is required to make the initial contact, the difficulty of communicating with those contacted, and the setting in which the contact takes place. These factors are interdependent. The same contacts selected for crediting Factor 6 must be used to evaluate Factor 7. The appropriate level for personal contacts and the corresponding level for purpose of contacts are determined by applying the point assignment chart for Factors 6 and 7.
Personal contacts
At Level 6-2, personal contacts are with employees, supervisors, and managers of the same agency, but outside the immediate office, or employees and representatives of private concerns in a moderately structured setting.
The appellant’s position fully meets Level 6-2. The appellant’s personal contacts primarily include managers and employees throughout the medical facility, specifically those involved with security and privacy issues. Her contacts with VHA and VA’s OGC are well structured and the roles and responsibilities of the parties are well understood.
At Level 6-3, personal contacts are with persons outside the agency which may include consultants, contractors, or business executives in a moderately unstructured setting. This level may also include contacts with the head of the employing agency or program officials several managerial levels removed from the employee when such contacts occur on an ad-hoc basis.
The appellant’s position fails to meet Level 6-3. Rarely do her contacts include individuals outside the agency involving moderately unstructured situations. Rather, established protocols guide the appellant’s interaction with those involved in the investigation of privacy violation complaints.
Purpose of contacts
At Level 7-b, the purpose of contacts is to provide advice to managers on noncontroversial organization or program-related issues and concerns. Contacts typically involve such matters as: identification of decision-making alternatives; appraisals of success in meeting goals; or recommendations for resolving administrative problems.
The appellant’s position fully meets Level 7-b. The purpose of the appellant’s personal contacts is to coordinate work efforts with security personnel, address privacy complaints, and respond to FOIA inquiries. She advises facility employees, management, and interested third parties on privacy and FOIA program policies and procedures.
At Level 7-c, the purpose of contacts is to influence managers or other officials to accept and implement findings and recommendations on organizational improvement or program effectiveness. The employee may encounter resistance due to such issues as organizational conflicts, competing objectives, or resource problems.
The appellant’s position fails to meet Level 7-c. Her contacts do not often require influencing others to accept recommendations as security personnel, facility employees, and management are mutually responsible for and have vested interest in maintaining patient privacy. The appellant is not continuously tasked with overcoming organizational conflicts, competing objectives, or resource problems.
These factors are evaluated at Level 2-b and 75 points are assigned.
Factor 8, Physical demands
This factor covers the requirements and physical demands placed upon the employee by the work assignment. This includes physical characteristics and abilities and the physical exertion involved in the work.
At Level 8-1, the work is sedentary, although some slight physical effort may be required.
At Level 8-2, assignments regularly involve long periods of standing, bending, and stooping to observe and study work operations in an industrial, storage, or comparable work area.
Level 8-1 is met. The appellant’s work is primarily sedentary and there are no unusual physical demands. Therefore, Level 8-1 is credited for 5 points.
Factor 9, Work environment
This factor considers the risks and discomforts in the employee’s physical surroundings and the safety precautions required.
At Level 9-1, work is typically performed in an adequately lighted and climate controlled office. Occasional travel may be required.
At Level, 9-2 assignments regularly require visits to manufacturing, storage, or other industrial areas, and involve moderate risks or discomforts. Protective clothing and gear and observance of safety precautions are required.
Level 9-1 is met because the appellant works in a common office setting. She is not required to follow any special precautions and does not wear protective clothing or gear in the performance of her assigned duties. Therefore, Level 9-1 is credited for 5 points.
Summary
| Factor | Level | Points |
| 1. Knowledge required by the position | 1-6 | 950 |
| 2. Supervisory controls | 2-3 | 275 |
| 3. Guidelines | 3-3 | 275 |
| 4. Complexity | 4-3 | 150 |
| 5. Scope and effect | 5-3 | 150 |
| 6. Personal contacts | 6-2 | |
| 7. Purpose of contacts | 7-b | 75 |
| 8. Physical demands | 8-1 | 5 |
| 9. Work environment | 9-1 | 5 |
| Total | 1885 |
The total points fall within the GS-9 point range (1855-2100) in the AAGEG.
Evaluation using the GS-950 PCS
Factor 1, Knowledge required by the position
This factor measures the nature and extent of information or facts that a worker must understand to do acceptable work and extent of the skills needed to apply this knowledge. To be used as a basis for selecting a level under this factor, knowledge must be required and applied.
At Level 1-6, work requires skill in applying basic legal principles and concepts, legal research methods, and data analysis techniques to perform independently recurring assignments which are typically covered by established precedents. Level 1-6 describes assignments in which employees apply a practical knowledge of basic legal principles and concepts to interpret and apply, or explain to others the application of, a body of law, regulations, precedents, and practices covering one or more recurring types of legal actions encountered in the agency. The employee applies knowledge of the principles, concepts, and methods of legal research and reference sources such as agency manuals, directives, issuances, court reports, appellate records, or commercial legal publications sufficient to locate appropriate data such as applicable precedents, legislative history, and commentaries which bear on particular legal issues. They apply knowledge of legal techniques and skills necessary to analyze both issues of fact and issues of law in order to prepare digests of case decisions, evaluate the applicability of precedents, or to draft briefs, other litigation papers, advisory opinions, or findings.
The appellant’s position fully meets Level 1-6. Like this level, the appellant performs work involving knowledge and skill in applying sections 5705 and 7332 of title 38, U.S.C, the PA, FOIA, agency policies and procedures, case law, and precedent decisions related to information privacy and protection. She utilizes this knowledge to investigate and resolve suspected illegal or improper disclosures of information. For example, if a patient submits a privacy complaint, the appellant enters the information into the Privacy Violation Tracking System (PVTS) and conducts a thorough investigation with the patient and the employee who allegedly disclosed the information to determine if the complaint is valid. She gathers information from the patient such as what information was disclosed, why he or she believes the information was disclosed, and to whom and how it was disclosed. Then she contacts the facility employee(s) involved in the incident to evaluate what information was disclosed, where the employee(s) work, if their job duties allow for the disclosure, to whom and how the information was disclosed, whether the correct authorization was received, and any other pertinent information. Once she gathers and evaluates all the relevant documentation, she must apply her knowledge of privacy laws and VHA policies to determine if in fact the disclosure was improper. If improper, she provides appropriate recommendations to the employee’s supervisor to prevent further errors, including supplemental training if needed. The appellant then closes the case after drafting and sending a written statement to the patient which outlines the results of the investigation.
At Level 1-7, work requires an in-depth knowledge of the application of various laws, court and/or administrative decisions and interpretations, rules, regulations, policies, and procedures which pertain to the administration of particular legal programs in substantive areas of law (e.g., communications, antitrust), or to particular types of legal cases and actions (e.g., the civil or criminal cases investigated and prosecuted by a U.S. Attorney's Office) and highly developed, specialized legal skills and proficiency. Employees at this level analyze and evaluate the relevance of particular technical evidence or questions which arise in the conduct of specialized legal programs; perform extensive and thorough legal research into the legislative history, precedent cases, decisions, and opinions that may be applicable to particular legal matters; or investigate and become thoroughly familiar with subject matter details involved in a case or legal matter.
The PCS includes a benchmark description for a GS-11 paralegal specialist. The described position includes the following duties:
Examines and evaluates requests for information under the Freedom of Information and Privacy Acts; researches relevant legislation, regulations, and precedents; and determines if documents or segregable portions of them can be released. Substantiates rationale for position taken in case of appeal.
Reviews changes in regulations of the Freedom of Information and Privacy Acts and updates and advises other legal personnel and field staff of changes. Consults and assists in formulation of agency regulations regarding the release of information.
The appellant’s position fails to fully meet Level 1-7. Although she applies knowledge of privacy laws and FOIA, the position does not require knowledge of substantive areas of law beyond protection and disclosure of information. All functions related to the overall management of patient health care information, including the extensive and thorough legal research found at this level, are vested in VHA headquarters, which is responsible for the interpretation of laws, rules and regulations as well as the development of VHA policies and procedures, and VA’s OGC. In contrast, at the local level, the appellant is responsible for the execution and monitoring of these pre-developed programs to ensure compliance with VHA policies. Therefore, Level 1-6 is credited for 950 points.
Factor 2, Supervisory controls
This factor covers the nature and extent of direct or indirect controls exercised by the supervisor, the employee’s level of independence and personal responsibility, and how the work is reviewed or controlled.
At Level 2-3, the supervisor makes assignments by defining objectives, priorities, and deadlines, and assists the employee with unusual situations which do not have clear precedents. At this level, the employee independently conducts legal research, selects evidence from subpoenaed documents, and prepares drafts of briefs, other litigation papers, or advisory opinions. The employee carries out assignments and resolves problems and deviations in line with previous training and agency policies, precedents, directives, and practices. The supervisor reviews work for technical soundness and conformity to requirements.
This position fully meets Level 2-3. The appellant is responsible for independently planning and conducting work assignments including the investigation and resolution of FOIA requests and privacy complaints. The appellant performs tasks which do not require significant deviation from established VHA policies and procedures. Events involving unusual situations without clear precedents are uncommon and are discussed with VA’s VISN OGC, which provides definitive legal assistance. The supervisor reviews work for technical soundness in meeting program requirements. For example, the appellant drafts final letters of compliance which are submitted to the Director for review, approval, and signature.
In contrast, at Level 2-4 the supervisor interprets objectives, sets necessary resources, and defines the scope of the employee's duty assignment. The employee and the supervisor together develop deadlines and priorities for work to be done. Within this framework, the employee independently plans and carries out assignments and coordinates activities with professional legal staff of the agency and with staff of other Federal or non-Federal activities. Employees at this level must use considerable ingenuity to anticipate program or case requirements, develop legal arguments and supporting evidence, resolve conflicting statements, or search for corroborating or contravening precedents. In some assignments, the employee also determines the approach to be taken and methodology to be used. The supervisor is kept informed of actions involving potentially controversial issues or issues with far-reaching implications. Completed work is reviewed only in terms of productivity and effectiveness in meeting requirements or accomplishing objectives.
The appellant’s position fails to meet Level 2-4. The appellant does not mutually develop deadlines and priorities with her supervisor as the work cycle is determined by the volume at which FOIA requests and privacy complaints are submitted to the Director’s Office. She does not independently determine methodologies to be used in completing work assignments as these are developed at higher organizational levels as discussed previously. Therefore, Level 2-3 is credited for 275 points.
Factor 3, Guidelines
This factor covers the nature of guidelines and the judgment needed to apply them.
At Level 3-3, guidelines are generally available but do not appear to be completely applicable. Many factual situations or issues may be encountered that do not appear to be the same as earlier situations to which the guidelines could be specifically applied, or the connection between the factual situation and the cause of action or legal question is not clear.
The appellant’s position fully meets Level 3-3. The appellant must search for appropriate guidelines from numerous sources including Federal laws, Executive Orders, regulations, and VHA policies and procedures including Handbook 1605.03. The appellant must use judgment regarding the depth and thoroughness of the search. Typically, there are many related precedents that must be carefully analyzed to determine which most nearly fit the situation. For example, the guidelines used to resolve a FOIA request for police reports and its patient privacy implications differ from the guidelines used to investigate a patient’s privacy complaint regarding the inappropriate release of personally identifiable information to a third party. She must use considerable judgment in interpreting and adapting guidelines to specific issues.
At Level 3-4, the highest level described in the PCS, guidelines applied in many assignments may be limited to basic legislation, implementing regulations, and agency policies which must be carefully analyzed for general application. The more specific guidelines may be of limited use as the legislative histories or precedent decisions may be ambiguous or apparently in conflict.
The appellant’s position fails to meet Level 3-4. While the appellant’s work requires a good deal of judgment, its nature is not such that it involves resolving cases where conflicting legal precedents exist. Rather, judgment is used in determining, for example, exactly what information should be redacted because it falls under one of the various exemption criteria. The extent of redaction required is based on considering whether prohibited information could be discerned or inferred from the release of certain other information. However, it is generally clear which of the exemption criteria may or may not apply in a given instance (e.g., relating to individual privacy under the PA or medical records privacy under 38 U.S.C 5701 and/or 7332). Thus, the difficulty lies primarily in applying the guidelines, which is more indicative of Level 3-3, rather than in actually interpreting them or in determining which of several ambiguous or conflicting precedents are governing in a particular case. Further, in the event of an unusual or uniquely ambiguous situation, the appellant contacts the OGC to obtain definitive legal guidance. The work does not permit or require the appellant to use initiative and resourcefulness in interpreting and applying guidelines and precedents in non-routine situations without referring questions to others. Therefore, level 3-3 is credited for 275 points.
Factor 4, Complexity
This factor covers the nature, number, variety, and intricacy of tasks, steps, processes, or methods in the work performed; the difficulty in identifying what needs to be done; and the difficulty and originality involved in performing the work.
At Level 4-3, the employee performs various duties involving different and unrelated processes and methods, such as case or issue analysis; legal research; interviewing claimants or potential witnesses; summarizing and explaining case files, depositions, or interrogatories; and preparing exhibits. The employee must analyze the information, identify missing information that requires additional research or investigation, identify the appropriate reference source, and develop plans necessary to support a legal conclusion.
The appellant’s position fully meets Level 4-3. The work involves a variety of different and unrelated processes and methods to investigate, evaluate, and resolve issues concerning the protection and release of privacy data. She must interview privacy complainants or potential witnesses, summarize events, and prepare conclusions for further action following well-developed protocols applicable to the situation at hand. To complete FOIA requests she must identify and research reference sources and draw conclusions for higher level review and approval.
At Level 4-4, employees perform varied duties encompassing diverse and complex technical issues or problems. Factual situations vary significantly from assignment to assignment and are difficult to ascertain because there is a large body of interrelated facts to be analyzed, information from different sources is sometimes in conflict, only indirect evidence is available on some issues, and the interpretation of such evidence is disputed. The employee must reconcile conflicting policies and facts, identify and elicit additional information, and make a number of decisions at various stages such as identifying issues; defining the problem in terms compatible with the laws, policies, or regulations; interpreting considerable data; and weighing facts in order to formulate a legally and factually supportable position. The work is further complicated by multiple assignments or the need to combine case development with other functions, such as digesting current legal proceedings on a daily basis.
The appellant’s position fails to fully meet Level 4-4. This level requires a degree of analysis and evaluation that is not present in the appellant’s position. The nature of the work is not such that it involves interpreting evidence, determining additional information needed, and formulating a legal position on the matter. Although she is responsible for executing and maintaining privacy and FOIA policies and procedures throughout the facility, in situations where evidence is disputed or policies are in conflict, she contacts the VA’s OGC for clarifying information and guidance. Therefore, Level 4-3 is credited for 150 points.
Factor 5, Scope and effect
This factor covers the relationship between the nature of the work; i.e., purpose, breadth, and depth of the assignment, and the effect of work products or services both within and outside the organization.
At Level 5-3, the purpose of the work is to resolve problems or questions through application of established criteria and methods, such as reviewing matters to determine agency position in similar cases, deciding on and carrying out the necessary procedural steps, and recommending and justifying the need to pursue any further actions such as litigation. The work product directly affects the unit's ability to meet production goals and to provide service to the public. Actions and recommendations affect the outcome of cases and the well-being of the individuals involved.
The appellant’s position fully meets Level 5-3. The purpose of the appellant’s work is to prevent the improper release and disclosure of patient privacy information. Her work products affect the integrity of the facility’s compliance with Federal laws, rules and regulations related to privacy and release of information.
At Level 5-4, the purpose of the work is to advise other paralegal specialists or professional staff on highly specialized problems, monitor the consistency of case decisions throughout the agency, or research unsettled issues and develop proposed agency positions. The work provides the foundation for precedents that have a broad impact (e.g., affect aspects of agency-wide programs).
The appellant’s position fails to meet Level 5-4. Her work does not entail the advisory, demanding research, development of agency positions, or broad agency-wide impact described at that level. In instances where serious harm to a patient could result, such as the release of highly sensitive personal information to State authorities, the ultimate decision-making authority rests with the VA’s OGC and is beyond the scope of this position. Therefore, Level 5-3 is credited for 150 points.
Factor 6, Personal contacts
This factor includes face-to-face contacts and telephone dialogue with persons not in the supervisory chain. Levels described under this factor are based on what is required to make the initial contact, the difficulty of communicating with those contacted, and the setting in which the contact takes place.
At Level 6-2, personal contacts are with employees in other parts of the agency such as agency program specialists and with people outside the agency in a moderately structured setting.
The appellant’s position fully meets Level 6-2. Personal contacts primarily include managers and employees throughout the medical center, specifically those involved with security and privacy issues and higher level agency staff in a moderately structured setting as described previously.
At Level 6-3, the highest level described in the PCS, personal contacts are generally with claimants, appellants, their attorneys, potential witnesses, and industry representatives in moderately unstructured situations where each contact is different and the employee must define the purpose of the meeting and clarify the roles of the various participants. Contacts may be initiated by the employee, the person requesting information or assistance, or another party and frequently involve unstructured face-to-face meetings.
The appellant’s position fails to fully meet Level 6-3. Rarely do contacts include individuals outside the agency involving unstructured situations. Rather, as discussed previously, established protocols guide the appellant’s interaction with those involved in the investigation of privacy violation complaints. Therefore, Level 6-2 is credited for 25 points.
Factor 7, Purpose of Contacts
The purpose of personal contacts ranges from factual exchanges of information to situations involving significant or controversial issues and differing viewpoints, goals, or objectives. The personal contacts which serve as the basis for the level selected for this factor must be the same as the contacts which are the basis for the level for Factor 6.
At Level 7-2, the purpose of contacts is to is to meet with potential witnesses to prepare them for, and provide information about, court appearances or to explain current agency practices in regard to litigating cases or reopening appeals; to plan and coordinate assignments requiring the cooperation of employees in several agency offices, such as assembling data from different sources to prepare exhibits or to respond to interrogatories, subpoenas, depositions, or other activities; or to persuade other agency personnel with different viewpoints on the merits of releasing or withholding portions of documents requested under provisions of various acts.
The appellant’s position fully meets Level 7-2. The purpose of the appellant’s personal contacts is to coordinate work efforts with security personnel, address privacy complaints, and respond to FOIA inquiries. She advises facility employees, management, and interested third parties on privacy and FOIA program policies and procedures.
At Level 7-3, the highest level described in the PCS, the purpose of contacts is to motivate persons who may be fearful or uncooperative to testify at hearings or in court appearances or to provide critical information, such as that needed to develop aspects of a case or to locate missing witnesses or defendants; to gain voluntary compliance or agreement with persons or groups who have divergent allegiances, interests, or objectives; to convince persons of the correctness of factual, technical, procedural, or other interpretations despite the existence of other differing interpretations and legal positions. Contacts are skeptical or uncooperative persons who require the use of tact, persuasiveness, and diplomacy in controversial legal situations.
The appellant’s position fails to meet Level 7-3. Contacts including security personnel, facility employees, and management are not often uncooperative as they have a vested interest in maintaining patient privacy. The appellant is not tasked with gaining voluntary compliance or agreement with persons or groups who have divergent allegiances, interests, or objectives, convincing persons of the correctness of factual, technical, procedural, or other interpretations despite the existence of other differing interpretations and legal positions, or dealing with controversial legal situations. Such matters fall under the purview of VA’s OGC. Therefore, level 7-2 is credited for 50 points.
Factor 8, Physical demands
This factor covers the requirements and physical demands placed upon the employee by the work assignment. This includes physical characteristics and abilities and the physical exertion involved in the work.
At Level 8-1, the work is sedentary. Typically, the employee may sit comfortably to do the work. However, there may be some physical activity such as walking, standing, bending, carrying of light items such as papers and books, and driving an automobile. No special physical demands are required to perform work.
The appellant’s position fully meets Level 8-1. The work is primarily sedentary.
At Level 8-2, there is a recurring requirement for lifting moderately heavy items such as typewriters or boxes of records.
The appellant’s position fails to meet Level 8-2. There are no unusual physical demands. Therefore, Level 8-1 is credited for 5 points.
Factor 9, Work environment
This factor considers the risks and discomforts in the employee’s physical surroundings and the safety precautions required.
At Level 9-1, the work environment involves everyday risks or discomforts which require normal safety precautions typical of offices and meeting rooms. The work area is adequately lighted, heated, and ventilated.
The appellant’s position fully meets Level 9-1. The appellant works in a common office setting.
At Level 9-2, there is a regular and recurring requirement during investigation and factfinding phases to visit industrial worksites where employees are engaged in manufacturing or other processes. There is exposure to high noise levels, heat, and fumes, and a need to use safety helmets, goggles, coveralls, or similar protective gear.
The appellant’s position fails to meet Level 9-2. She is not required to follow any special safety precautions, nor does she wear protective clothing or gear in the performance of her assigned duties. Therefore, Level 9-1 is credited for 5 points.
Summary
| Factor | Level | Pointa |
| 1. Knowledge required by the position | 1-6 | 950 |
| 2. Supervisory controls | 2-3 | 275 |
| 3. Guidelines | 3-3 | 275 |
| 4. Complexity | 4-3 | 150 |
| 5. Scope and effect | 5-3 | 150 |
| 6. Personal contacts | 6-2 | 25 |
| 7. Purpose of contacts | 7-2 | 50 |
| 8. Physical demands | 8-1 | 5 |
| 9. Work environment | 9-1 | 5 |
| Total | 1885 |
The total points fall within the GS-9 point range (1855-2100) in the GS-950 PCS.
Decision
The appellant’s position is properly classified as a Government Information Specialist, GS-306-9.