Recently, the Merit Systems Protection Board (MSPB) issued its annual report to the President, entitled The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs. (“Report”). In its Report, the MSPB summarized how federal agencies’ use of various hiring practices, such as Competitive Examination versus Merit Promotion, special hiring authorities (such as the Veterans’ Preference), and pre-selection preferences, affect the composition of the federal workforce. The MSPB conducted its study from June through August 2011 by surveying all federal human resource specialists and assistants (10,000 of whom surveyed provided responses), analyzing information from the Central Personnel Data File, and reviewing vacancy announcement information from the Office of Personnel Management. The results–while startling–are not surprising.
The backdrop of the MSPB’s study is the “basic precept that entry into the Federal civil service should be based on merit after fair and open competition.” (Report at i). In 1978, Congress passed the Civil Service Reform Act (CSRA), 5 U.S.C. § 2301 et seq., which codifies basic merit system principles. The primary merit system principle is that “‘recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.’” (Report at 3, quoting 5 U.S.C. § 2301(b)(1)). Violations of this merit system principle constitute “prohibited personnel practices,” which include:
- Discriminating against an employee or applicant on the basis of race, color, religion, sex, national origin, age, handicapping condition, marital status or political affiliation (5 U.S.C. § 2302 (b)(1)(A),(B),(D), and (E));
- Deceiving or willfully obstructing any person with respect to such person’s right to compete for employment (5 U.S.C. § 2302(b)(4));
- Influencing any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment (5 U.S.C. § 2302(b)(5));
- Granting any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment (5 U.S.C. § 2302(b)(6)).
Managers of federal agencies, in conjunction with their human resources staff, are given a great deal of discretion and tools to create applicant pools which they believe will satisfy their agencies’ needs. After performing a job analysis to determine the core duties of a job, and the knowledge, skills, and abilities necessary to perform those duties, managers and HR staff decide how wide–or restricted–to open the area of consideration for applicants. (Report at 11). The use of special hiring authorities by federal agencies restricts the applicant pool. For example, the increased use of veterans’ preferences has resulted in a six percent drop since 2000 in the number of female new-hires (43 percent versus 37 percent) (Report at 19). Undoubtedly, granting veterans hiring preferences results in some significant societal benefits–such as veterans having gainful employment, which helps compensate them for their service to the country. (See my previous blog article, “The Veterans’ Preference: It’s Greek to Me,” dated October 2, 2014). However, because men comprise more than 80 percent of the active duty military, over-relying on the veterans’ preference has resulted in an undesirable imbalance in the male/female ratio comprising the federal workforce. (Report at 20)
“[H]ow agencies announce their vacancies affects every part of the recruitment process.” (Report at 15). The broadest option is to open the job opportunity to all United States citizens through Competitive Examination (CE), which “increases the diversity of the applicant pool.” (Report at 15). The more narrow option is to use Merit Promotion hiring, whereby an Agency may restrict the pool of applicants to those who possess a particular “status,” such as belonging to a particular work unit, geographically to those who reside in a particular city, or those persons who have current or former federal government work experience. (Report at 14). 48 percent of HR staff reported that vacancies in their agencies were advertised through CE most or all of the time, while 66 percent of HR staff reported that most or all of their vacancies were advertised through MP. When asked why agencies did not announce positions using CE procedures, the primary reason given was that there were plenty of internal candidates. (Report at 15).
The second-most stated reason offered by HR staff was because agency managers already had a particular person in mind to fill the vacancy. “While it is not illegal for a manager to be impressed by the quality of employees that he or she has personally observed, hiring managers need to ensure they are not tailoring the job, announcement, assessment, or any other part of the hiring process to favor a particular candidate.” (Report at 16). Courts and the MSPB are not reluctant to find that agencies violate the first merit system principle of open and fair competition:
- Beatrez v. Merit Systems Protection Board, 413 Fed. Appx. 298 (Fed. Cir. Ct. App. 2011): When the agency manager was informed by the human resources specialist that the particular person desired to fill a position was not qualified at the higher advertised grade, the position was readvertised at a lower grade, and the desired candidate was hired. This action violated 5 U.S.C. § 2302(b)(6) Id. at 300. While “‘it would have been a legitimate and appropriate act to re-announce the position if it was for the purpose of ensuring that management was able to consider the widest field of eligible candidates with the greatest potential to have the skills and knowledge relevant to the position being advertised,’” id. at 301 (quoting the administrative judge), targeting position announcements for particular candidates violates the first merit system principle and is a prohibited personnel practice.
- Special Counsel v. Brown, 61 M.S.P.R. 559 (1994): The MSPB found that Jennifer Nelson unlawfully reclassified a personnel officer position from the 201 series to a resource manager position in the 301 series, so that James Brown would qualify for the position. Nelson wanted Brown in this position because she had been his supervisor, and was familiar with Brown’s performance. Nevertheless, the Board found that Nelson violated 5 U.S.C. § 2302(b)(6). Id. at 570-71. Once in his position, Brown also engaged in a prohibited personnel practice when he asked a candidate to waive his displaced employee priority, so that another desired candidate would be selected. Id. at *565. By acting to provide an advantage to one employee, Brown injured the prospects of another, in violation of 5 U.S.C. § 2302(b)(5).
- Special Counsel v. Byrd, 59 M.S.P.R. 561 (1993): The Board found “that the facts in this case present one of the clearest possible examples of abuse of the merit system.” The agency manager William Byrd was so impressed with the White House connections of a candidate, that he and the Branch Chief, Joel Rubenstein, went out of their way to make sure she was hired. Although twelve qualified candidates had applied under a merit staffing announcement for the position, none were ranked or considered, because Ward-Ravenel had already been “selected.” She could not qualify, though, under this announcement, so Rubenstein suggested that they use the TLA (Temporary Limited Appointment) authority. Rubenstein then prepared the public notice announcement for the TLA position. Byrd, 59 M.S.P.R. at 565-66. Rubenstein directed Clark Woodson, a personnel staffing specialist, to handle the distribution and staffing. Woodson received six applications in response to the TLA public notice, and determined that three were qualified. Even though he was required to do so, Woodson failed to distribute the public notice to OPM to enhance competition, and he failed to consider the application of a 30-percent disabled veteran, claiming his application was received after the deadline, though the application was date-stamped prior to the closing date of the announcement. Woodson then forwarded the names of the three qualifying candidates to Byrd. Without interviewing any of these candidates, one of whom had a Masters Degree and was arguably more qualified than Ward-Ravenel, id. at 571, Byrd selected Ward-Ravenel for the position. Id. at 567. The MSPB found that both Byrd and Rubenstein violated 5 U.S.C. § 2302(b)(6).
In its 2011 study, the MSPB asked HR specialists “how often they had been asked to re-advertise a vacancy because the selecting official wanted to hire someone who was not on the referral list…40 percent reported that this happened always, most of the time, or some of the time.” (Report at 34). Can HR specialists be held liable for going along with the improper and unlawful hiring requests of agency managers? Yes. There is “case law that holds HR specialists can be held accountable for ‘aiding and abetting’ managers trying to manipulate the system.” Id. “When a customer [such as an agency manager] requests assistance with an HR action that appears to constitute a [prohibited personnel practice], the HR specialist is prohibited from intentionally assisting that customer to achieve the improper goal. Instead, the specialist is expected to exercise his or her ‘independent judgment and challenge local management’s fairly obvious efforts to grant a ‘preference’ not authorized by law.” Id. What about retaliation? The MSPB asked HR specialists whether their supervisors would support them if they refused to help a customer commit a prohibited personnel practice. An astonishing 26 percent responded their supervisors would not support them. (Report at 34).
The MSPB offers various solutions to these unlawful hiring practices, such as: “Create a culture that values fair and open competition,” “Examine the results of agency hiring practices in the aggregate to identify and eliminate…barriers to fair and open competition,” and “Prevent the commission of prohibited personnel practices,” (Report at 39-40). These solutions–while admirable in objective–seem rather ineffective. Federal agencies have been required since 1978, with the passage of the Civil Service Reform Act, to hire “a diverse segment of applicants who are representative of society.” (Report at 32). Contrary to this primary merit system principle, it seems that some federal agencies are using the very tools which were meant to achieve a diverse workforce in order to customize the composition of their workforce to suit the personal preferences of management.
Written by Valerie Chastain