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Prohibited Personnel Practice of the Month

PROHIBITED PERSONNEL PRACTICE OF THE MONTH

Number 5
Influencing Withdrawal from Competition

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—

(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment ...

Influencing Withdrawal from Competition - Where can I find this provision?
It was part of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111.  Like the other prohibited personnel practices discussed in this series, it is codified at 5 U.S.C. § 2302(b)

What is the purpose of this provision?
It eliminates one way that individuals might otherwise try to subvert the competitive process.  The civil service system is based on the idea that employees should be selected through fair and open competition.  5 U.S.C. § 2301(b)(1).  When filing vacancies in the competitive service through examination, selecting officials generally must select one of the top three ranked candidates on a certificate.  5 C.F.R. § 332.404.  If not for this prohibited personnel practice, they might try to ensure that their preferred candidates were among the top three, and thus eligible to be selected, by pressuring higher-ranked candidates to withdraw their applications.

What must be shown to establish a violation of this provision?
There are two elements that both must be present for a person to violate this provision.  First, the individual must have influenced or attempted to influence a person to withdraw from competition.  Attempting to influence is enough even if the attempt does not succeed.  Second, the person must have done so with the intent to improve or injure someone’s employment prospects.  Special Counsel v. Brown, 61 M.S.P.R. 559, 565 (1994). 

In what kinds of situations does this practice typically arise?
Violations often involve situations where an agency passed over applicants who were entitled to priority—for example, veterans—without following the proper procedures for doing so.  After the agency hired its preferred candidate, it realized that there were other applicants who had priority.  In an effort to avoid having to terminate the candidate who was hired, an individual may try to convince the applicants who have priority to withdraw their applications.  This is a prohibited personnel practice.  See, e.g., Filiberti v. Merit Systems Protection Board, 804 F.2d 1504 (9th Cir. 1986) (veterans preference); Brown, 61 M.S.P.R. at 563 (priority under displaced-employee program).

How do I pursue a claim that someone violated this provision?
The Office of Special Counsel (OSC) receives and investigates claims of prohibited personnel practices, including this provision.  5 U.S.C. § 1214(a)(1)(A).  If OSC concludes that there has been a violation, it may request the Merit Systems Protection Board (MSPB) to impose discipline against the violator.  Id. § 1215.  The case will be heard by an administrative law judge, who will make an initial decision that can be appealed to the Board.  5 C.F.R. § 1201.125.
An individual employee also could, in theory, raise this provision as an affirmative defense to an adverse action by an agency that is within MSPB’s jurisdiction, such as a removal, but it is difficult to imagine in practice how such a defense would arise.  5 U.S.C. § 7701(c)(2)(B).  Absent an otherwise appealable matter, MSPB does not have jurisdiction to hear a claim by an individual (as opposed to OSC) that this provision has been violated.  See Gaugh v. Social Security Administration, 87 M.S.P.R. 245, ¶ 7 (2000); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff'd, 681 F.2d 867, 871‑73 (D.C. Cir. 1982).

What penalties may the Board impose for violations of this provision?
The penalties the Board may impose include reprimanding, suspending, demoting, or removing the offender from Federal employment; prohibiting the offender from working for the Federal Government for up to 5 years; and imposing a fine of up to $1000.  5 U.S.C. § 1215(a)(3).  Most reported decisions have involved suspensions, fines, or both.  See, e.g., Filiberti, 804 F.2d at 1510-11 (60-day suspensions); Brown, 61 M.S.P.R. at 574 (90-day suspension for one offender and $1000 fine for the other); Special Counsel v. Judson, 43 M.S.P.R. 61 (1989) (30-day suspension); Special Counsel v. Heyel, 35 M.S.P.R. 402 (1987) ($1000 fine); Special Counsel v. Ross, 34 M.S.P.R. 197 (1987) (one- and two-grade demotions); Special Counsel v. Waddams, 34 M.S.P.R. 84 (1987) (debarment from Federal employment for three years plus fines of $750 and $500; for a third respondent, fine of $350); Special Counsel v. Evans-Hamilton, 29 M.S.P.R. 516 (1984) (30-day suspension); Special Counsel v. Verrot, 18 M.S.P.R. 714 (1984) (60-day suspension plus $1000 fine).  Note that some of these cases also involved other charges beyond influencing an applicant to withdraw.

Has MSPB studied this practice?
Yes.  In its report Prohibited Personnel Practices: Employee Perceptions, the Board reported that perceived violations of this provision have decreased steadily in the last 15 years.  In 2010, only 2.2% of Federal employees who responded to MSPB’s survey reported that they had been influenced to withdraw from competition in the preceding two years, less than half as often as such violations had been reported in 1996.  Id. at 30. 

Does this provision prohibit someone from honestly advising an applicant that a job might not be the best fit for her?
No.  The provision does not bar a person from counseling an applicant to withdraw for legitimate reasons, because that counseling is not intended to injure the applicant’s employment prospects (or improve another applicant’s prospects).  The provision is violated only when the person acts with the purpose of injuring the applicant’s prospects or improving another applicant’s prospects.  Filiberti, 804 F.2d at 1510.

Are individuals safe from discipline if they give only true information?
Not necessarily.  Even giving an applicant true information about the position may violate this provision if it is done with the intent to improve or injure someone’s employment prospects.  In Filiberti, for example, agency officials told the applicant that his moving expenses would not be paid, that the position required extensive travel at a moment’s notice, that his military retirement pay might be reduced if he accepted the position, that the cost of living in the San Francisco area was high, and that it was uncertain what effect a pending merger between the agency (a division of the Navy) and the Army might have on the position.  804 F.2d at 1507.  Even though all of this information may have been true, a prohibited personnel practice occurred because the officials gave information to the applicant for the purpose of dissuading him from continuing with his application so that they could hire someone else.  Id. at 1510.

Are there regulations on the same topic?
The Office of Personnel Management has promulgated similar but broader regulations that are codified at 5 C.F.R. §§ 4.3 and 330.1001The regulations apply to any employee or applicant, and cover not only inducing others to withdraw but also dissuading them from applying in the first place.  Applicants who violate the regulations will have their applications cancelled and may be subject to other penalties.  5 C.F.R. § 330.1001.