The Perils of Pre-Selection

The Perils of Pre-Selection


or longer than living memory, government managers have practiced the fine art of pre-selection. The hallmark of pre-selection is the use of a legitimate format, such as an excepted appointment authority, as a vehicle to hire the person desired by management. But in today's climate, when reporting superiors' misdeeds is widespread among government employees, the chances of pre-selection escaping official notice are slim. Furthermore, a manager cannot claim ignorance of the law or disassociate himself from the action by leaving the details up to the folks in personnel.

Most allegations of administrative misconduct by federal employees are investigated by inspectors general or by in-house entities known as offices of internal affairs, inspection, or professional responsibility. These organizations refer the results of their investigations to agency management for "appropriate action." Management then can ordinarily take whatever action it deems fitting, or none at all.

If, however, the misconduct involves a prohibited personnel practice, the Office of Special Counsel (OSC) enters the fray. The OSC is an independent organization charged by Congress with investigating prohibited personnel practices. Among the most well-known are whistleblower retaliation, Hatch Act violations, and actions or threats against employees pursuing appeals, complaints or grievances. OSC also can investigate allegations of discrimination but ordinarily defers to the Equal Employment Opportunity Commission on such cases. OSC is the 800-pound gorilla of investigative agencies because it hands down the administrative equivalent of criminal indictments against employees instead of merely referring cases back to the agencies for resolution. Middle managers, senior executives and even agency administrators have been fired, demoted or suspended as a result of OSC actions.

An employee "indicted" by the Office of Special Counsel is subjected to a hearing before a Merit Systems Protection Board (MSPB) judge. The board decides punishment based on the administrative judge's recommendation, while the employee's agency stands helplessly on the sidelines.

Whistleblower retaliation often gets media attention and sparks public interest, but another prohibited personnel practice, which is far more widespread, can bring down managers who would never even consider retaliating against a whistleblower-pre-selection.

Handpicked for the Job

In 1988, the district director of the U.S. Customs Service in Charleston, S.C., decided it would be advantageous to hire a White House political appointee who was engaged to the son of a South Carolina congressman. The director described the job candidate as a "two-fer." Customs happened to have openings after creating administrative officer positions in its 67 districts, including Charleston.

The district director's problem was that Customs was hiring for the new positions through normal merit staffing procedures, and his desired candidate had no competitive status. However, the human resources division told the district director the candidate could be hired on a limited temporary appointment. So, he used the different hiring method for the Charleston job. Although six people applied for the Charleston position under the temporary limited appointment announcement and three were qualified, no interviews were conducted and the congressman's future daughter-in-law was hired.

Complaints from Customs employees about the selection were forwarded to the OSC. After investigating, the OSC referred the case to the MSPB, which found that the limited temporary appointment was improperly used to fill a permanent slot. The board determined that the method, though legitimate in and of itself, was used solely to hire the desired candidate and that no one else had any real chance to get the job.

The MSPB decision cited Title 5 of the U.S. Code, Section 2302(b)(6) which states that no one should "grant 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." (Italics added.)

The fact that a temporary limited appointment can be a legitimate method of selection is irrelevant, according to the board. "Although a selecting official does not commit a prohibited personnel practice under this section merely by using a hiring method in good faith that later turns out to be illegal, it is clear that the same official would indeed violate this section if the purpose in employing that hiring method was to improve or injure a particular person's prospects for employment," the decision said.

The district director escaped serious punishment by retiring. He received only a $1,000 fine, but the personnel official who carried out the action was suspended for 60 days.

More Than Just Politics

Lest one mistakenly believes this can only happen when "politics" are involved, consider the case of a Senior Executive Service member at the Environmental Protection Agency. The
executive ordered his personnel officer to retroactively promote a program
analyst to protect her from being
downgraded in an impending reduction in force.

The senior executive said the personnel official didn't tell him the promotion was improper. The MSPB held the executive responsible, however, because he gave an order to the personnel official, who was his subordinate, instead of asking whether it was possible to lawfully promote the analyst. In addition, as a high official of his agency, the executive had an obligation to prevent prohibited personnel practices and to know the law. The fact that the RIF never occurred didn't save either culprit. Even though the unauthorized promotion did not result in an advantage to the analyst, its purpose was to give an advantage. Both the executive and the personnel official retired, escaping with only fines.

At the Veterans Affairs Department, two officials wanted to hire a certain candidate to fill a GS-4 secretary's position. Unfortunately, the person ranked fifth out of five candidates. On a second register requested from OPM, the candidate's name did not appear at all. After a third register ranked her third out of three, the candidate was hired anyway. OSC's investigation revealed that the two officials had acted contrary to OPM's instructions, had falsely recorded that two candidates had declined consideration, and had intentionally failed to mail applications to four of the candidates. The MSPB ordered the VA to demote both officials.

A case of pre-selection at the Immigration and Naturalization Service landed an associate regional commissioner and a resource manager in hot water as well. The MSPB found two violations. The first was that officials had encouraged a priority candidate for a public affairs specialist position to withdraw from competition and then delayed his appointment for months after OPM ordered his hiring. The foot-dragging in carrying out OPM's instructions was a failure to take a personnel action, according to the prohibited personnel practice statute, even though the victim was eventually hired.

In the second violation, the associate regional commissioner had improperly ordered the title and series of a position changed in order to hire his resource manager, who was unable to qualify for the original "personnel officer" opening. Creating a "resource manager" position is legitimate, but not when it's done to improve a candidate's prospects, the MSPB found. The resource manager escaped punishment by retiring, but the associate regional commissioner was suspended for 90 days.

Risky Business

The venerable "wink and nod" pre-selection process is now a high-risk activity. Even if a desired candidate truly walks on water, any manipulation of the system is a prohibited personnel practice when done to help or harm a particular candidate. And what of the personnel official who is ordered to "figure a way to hire Mr. Doe?" This poor soul is placed squarely between a rock and a hard place. If the personnel officer refuses, he risks the wrath of the managers whose will he has thwarted. If he acquiesces, he will go down with the ship.

Any manager or personnel official involved had better have the service time and age needed to beat a hasty retirement, for if the OSC finds out, a career-ending disaster may result.

William N. Rudman is an attorney specializing in defending federal employees. A retired federal investigator and manager, he conducts training for federal managers in employee discipline.

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