OPM cracks down on 'burrowing in' at the Labor Department

Labor Department officials violated veterans preference laws when they gave a career job to a Clinton-era political appointee in 1999, the Office of Personnel Management announced Tuesday.

Two veterans and four other applicants OPM said were unfairly passed over for a position at the Labor Department must now be given priority consideration for future jobs at the agency.

In 1998, a political appointee dispatched to the Office of Small Business Programs converted to a management analyst position in the federal career service. According to OPM, Labor Department officials canceled an earlier job posting for the same position and tailored the position description to the appointee's skills. Generally, political appointees must resign when an administration changes, but they sometimes convert to career jobs, or "burrow in," a practice that circumvents the government's merit-based hiring system.

Agencies currently use the "rule of three" to select a job candidate. The rule requires human resources officials to pick a new hire from among the three most qualified applicants. Qualified veterans are given extra points in the hiring process, meaning that they can rank higher on a list of candidates than an equally qualified nonveteran.

OPM said the posting was canceled because a disabled veteran with a 10-point veterans preference and another with a 5-point veterans preference would have kept the appointee from getting the job.

"When you have a list of candidates for a job and you've done your best at pre-assessment and in the final assessment you figure out they aren't really suited to your needs, you don't have to hire someone," said John Palguta, former director of the Office of Policy and Evaluation at the Merit Systems Protection Board. "That's legitimate, every agency has that right."

However, Palguta said, managers should never turn away applicants or refuse to fill a position because the person they want to hire doesn't make the cut.

"That's not a legitimate reason to cancel a posting. That is contrary to principle and it certainly sounds like that is what OPM has told Labor," said Palguta, who is now vice president for policy and research at the Partnership for Public Service.

The personnel office reviewed the incident at the request of Assistant Labor Secretary Patrick Pizzella, who became aware of the shift when a recent General Accounting Office report identified 17 potential "burrowing in" appointments out of 111 career conversions at the end of the Clinton administration.

In a letter to Labor Secretary Elaine Chao, OPM also directed the agency to modify its human resources accountability system to make sure this type of conversion didn't occur again. A Labor Department spokeswoman said the letter is under review.

"This action should send an unequivocal message that if these regulations are ignored, there will be swift and decisive action taken to correct the injustice," OPM Director Kay Coles James said in a written statement. "We will uphold the principles of merit and veterans preference."

OPM referred the case to the Office of Special Counsel for further investigation.