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Prohibited Personnel Practice of the Month

PROHIBITED PERSONNEL PRACTICE OF THE MONTH

Number 4
Obstructing the Right to Compete for Employment

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority — deceive or willfully obstruct any person with respect to such person’s right to compete for employment.

Where is this prohibition covered in the law?
The fourth prohibited personnel practice (PPP) can be found at section 2302(b)(4) in title 5 of the United States Code.

What is the purpose of the fourth prohibited personnel practice?
The fourth PPP is designed to further the intent of The Pendleton Act of 1883 that an individual appointed to the civil service be the best-qualified applicant based on objective criteria.  The intent of the Act should not be thwarted by the personal agenda of anyone with the authority to influence the Government’s employment decisions.  Thus, a person with the authority to take, direct others to take, recommend, or approve a personnel action may not intentionally discourage a person from applying for a Federal position or engage in deception or otherwise raise obstacles to the appointment of a qualified individual.  Everyone should have a fair and equal opportunity to secure Federal employment for which they are qualified.

What exactly is prohibited?
The fourth PPP prohibits any person with the authority to take or influence a personnel action from intentionally taking an action or deceiving someone else in an effort to prevent or obstruct an applicant’s right to a fair and open competition for employment.  Examples of the type of actions that are prohibited may be gleaned from cases in which the fourth PPP is addressed by the U.S. Merit Systems Protection Board (MSPB). 

In Special Counsel v. Ross, 34 M.S.P.R. 197 (1987), the Office of Special Counsel (OSC) brought an action before MSPB, alleging that two respondents, employees in an agency’s personnel office, engaged in conduct designed to eliminate certain qualified candidates from competition in order to employ a person of their choice who was less qualified for the position.  The MSPB found that the respondents: (1) tailored a position description for the position so that their preferred candidate could qualify for the position; (2) intentionally failed to mail inquiries to four qualified candidates concerning their availability for the position; and (3) falsely reported to the Office of Personnel Management the status of certain candidates.  

Another complaint brought by OSC was explained in Special Counsel v. Hoban, 24 M.S.P.R. 154 (1984).  In that case, MSPB found a violation of § 2302(b)(4), when the respondent (1) gave an employee an undeserved lowered performance rating in order to make him a less desirable candidate for a new position; and (2) falsely reported that he had not interviewed another candidate before making a selection while misrepresenting that the candidate refused to return his calls, as a reason for not selecting the candidate.

What is the MSPB’s jurisdiction to review an alleged violation of § 2302(b)(4)?
As mentioned in the discussion of the third PPP, under 5 U.S.C. § 7701, MSPB may not sustain a personnel action “based on” a PPP.  A PPP may be raised as an affirmative defense in an appeal of an otherwise appealable action.  An otherwise appealable action is a personnel action which is subject to the MSPB’s jurisdiction under a law, rule, or regulation.  For example, a removal, suspension of 15 days or more, and a reduction in grade or pay are personnel actions that are directly appealable to MSPB.  The MSPB will review an allegation of a violation of § 2302(b)(4) only if it is related to the personnel action being appealed.  See Finston v. Health Care Financing Administration, 83 M.S.P.R. 100 ¶ 10 (1999) (the Board has no jurisdiction to review an alleged (b)(4) violation absent an action that is otherwise appealable to the Board).  A § 2302(b)(4) claim may not be raised in connection with an appeal filed under the Veterans Employment Opportunities Act of 1998 (violation of veterans’ preference rights); the Uniformed Services Employment and Reemployment Rights Act of 1994 (discrimination on the basis of military service); or the Whistleblower Protection Act (individual right of action appeals concerning retaliation for making protected disclosures) because such appeals are not filed under MSPB’s otherwise appealable action authority, but rather specific subject-matter statutory authorities.

If the violation is not related to an otherwise appealable action, an individual may file a complaint with OSC, which is a separate, independent executive agency.  The OSC has the authority to investigate alleged violations of §2302(b)(4) and seek corrective action before MSPB.  The instructions for filing a complaint with OSC may be found at its website:  www.osc.gov.  

What type of penalty is imposed when a §  2302(b)(4) violation is found by MSPB?
Pursuant to 5 U.S.C. § 1215(a)(3), MSPB has authority to impose disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.  In Special Counsel v. Hoban, MSPB adopted the method for selecting penalties in adverse action cases as described in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981).  The MSPB will consider those factors that are relevant in an individual case, such as the nature and seriousness of the offense, the employee’s job level; past disciplinary record; length of service; potential for rehabilitation; mitigating factors; and the adequacy of alternative sanctions.

In Special Counsel v. Ross, the selected penalty for the two respondents was a reduction in grade for a period of no less than one year.  In Hoban, the penalty imposed was also a reduction in grade.