Closing Loopholes

Two exceptions to the burdensome federal hiring process could disappear.

Before Sago, W. Va., became synonymous with disaster when a coal mine exploded, the industry already had a problem. In September 2003, auditors at the Government Accountability Office found that 44 percent of federal mine inspectors were eligible to retire in the coming five years. What's more, the Mine Safety and Health Administration had no plan to replace them.

At MSHA, half of all employees retire within one year of eligibility. Training new inspectors-who conduct surprise inspections four times a year in underground coal mines-takes 18 months. On top of training time, "it takes the agency several months from the date an individual retires to advertise and fill each position," GAO said in its report. Who would keep mines safe in the meantime?

In 2004, MSHA officials announced a solution. Agency representatives would travel to sites nationwide for six months to test and interview a cadre of potential mine inspectors. Successful applicants would quickly be hired through the Federal Career Intern Program.

The program is not really an internship. It's a hiring loophole, created by a July 2000 executive order under President Clinton that allows agencies to circumvent the federal government's traditional, and cumbersome, hiring process. Agencies can pick and choose where to advertise, and applicants are easily scooped up without standard competition into a two-year internship. Then agencies can convert the interns' status to regular employment.

In the race to replace retiring federal employees, the approach grew in popularity. In its first year, 400 employees were hired governmentwide. In fiscal 2005, more than 11,000 were hired through the program. That was the year the Office of Personnel Management issued regulations making the hiring provision permanent.

The intern program came into vogue just as another hiring loophole closed. This one was associated with the Outstanding Scholar Program, created in 1981 to settle a class action lawsuit that alleged the old civil service exam discriminated against minorities. The parties agreed that while the government worked out a new exam, agencies could hire college graduates with at least a 3.5 grade-point average into specified jobs without the rigmarole of regular competition. But the government never rewrote the exam and 25 years later people started to notice.

Last fall, the Merit Systems Protection Board ruled in cases against the Agriculture and Veterans Affairs departments that their use of the Outstanding Scholar Program violated veterans preference. In government, veterans are supposed to be given a leg up in competing for jobs. OPM no longer uses the Outstanding Scholar Program, and it's advising agencies to consult their general counsel's office before they do.

With Outstanding Scholar on its way out, the Federal Career Intern Program became even more important for hiring everyone from mine inspectors to budget analysts. Many thought the intern program was fairer than its predecessor. It applies veterans preference, for example. But the National Treasury Employees Union begged to differ. On Jan. 24, NTEU filed a lawsuit in the U.S. District Court for the District of Columbia contending that agencies are using the intern program beyond its intent.

"Within the last few years, the FCIP has really become the hiring method of choice for an awful lot of federal jobs," says Colleen Kelley, president of NTEU. As a result, union members are being kept out of competition for these jobs, she says.

"If you're really a believer in the merit system, you hire the best person no matter where you find them," says John Palguta, vice president at the nonprofit Partnership for Public Service in Washington. "Unions would prefer you look to union members."

Many agencies that were contacted for this article declined to comment because of the lawsuit, including OPM. But shortly after NTEU filed the case, OPM Director Linda Springer issued a short but telling statement: "We believe the NTEU suit is unfortunate. In light of the pending departure of hundreds of thousands of employees to retirement, the federal government needs every available tool to ensure we have an effective workforce, including the Federal Career Intern Program."

The loophole hasn't closed just yet.

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