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Prohibited Personnel Practice of the Month

PROHIBITED PERSONNEL PRACTICE OF THE MONTH

Number 7
Nepotism

(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative [father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half-brother, or half-sister] of such employee if such position is in the agency in which such employee is serving as a public official [an officer (including the President and a Member of Congress), a member of the uniformed service, an employee and any other individual, in whom is vested the authority by law, rule, or regulation, or to whom the authority has been delegated, to appoint, employ, promote, or advance individuals, or to recommend individuals for appointment, employment, promotion, or advancement in connection with employment in an agency] or over which such employee exercises jurisdiction or control as such an official;

 

Where can I find the provision on nepotism?
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 (PPP) discussed in this series, it is codified at 5 U.S.C. § 2302(b).  Nepotism is addressed at prohibited personnel practice number 7.  Specific restrictions on the employment of relatives are also set forth at 5 U.S.C. § 3110, which pre-dates the codification of prohibited personnel practices.

What is the purpose of this provision?
Nepotism comes from the Latin word for “nephew” and is defined as patronage bestowed or favoritism shown on the basis of family relationship.  The civil service system is based on the idea that employees should be selected through fair and open competition and promoted on the basis of their individual merit.  Since the passage of the Pendleton Act of 1883, to which the Merit Systems Protection Board (MSPB) traces its own roots, favoritism based on family relationship has been frowned upon; with the Civil Service Reform Act of 1978, it was specifically proscribed.  The proscription is not absolute.  Rather it tracks the general societal construct that, other than in family-run private businesses, favoritism towards relatives is fraught with potential conflicts that might impede any meritocratic enterprise.  In order to limit even the appearance of improper favoritism towards relatives, this provision assures that public officials cannot use their influence to advance their relatives in hiring or career advancement.  It does not prohibit family members from honorable public service, but simply proscribes improper influence by their relatives in derogation of the merit system. 

For prohibited nepotism to occur there must be the act of advocacy.  For example, in Wallace v. Department of Commerce, 106 M.S.P.R. 23, ¶ 2 (2007), Wallace was a high-ranking official who became aware that her sister was interested in a position that fell under Wallace’s authority.  Wallace notified senior management that her sister was interested in applying for the vacancy and that “she was recusing herself from any input or involvement in the hiring process for the position and further sought… guidance on how to ensure that a fair and impartial selection could occur.”  Wallace’s sister was ultimately selected for the position, but the Board held that the PPP of nepotism did not occur because the agency “failed to establish that Wallace’s mere presence in the chain of command” at the time of the selection constituted a violation of the nepotism statute.  Id. at 69.  In other words, the necessary advocacy or act to further the sister’s employment was missing from this case.  The Board made a similar finding in Alexander v. Department of the Navy, 24 M.S.P.R. 621, 625 (1984), where it found that the person to whom the appellant mentioned that his daughter was looking for a job was not his subordinate and there was no evidence that he “spoke in favor of, recommended, commended, or endorsed” his daughter’s employment.

It is, perhaps, interesting to note that the proscription against nepotism, for which the relevant relationships are so clearly defined, does not include some modern relationships which, though not spousal, are similarly close, e.g., cohabitating unmarried couples (regardless of sexual orientation).  Improper favoritism involving such relationships would be prohibited under some other PPP, e.g., PPP number 6.  Nor does PPP number 7 extend to the hiring of friends and acquaintances.  See Special Counsel v. Nichols, 36 M.S.P.R. 445, 455 (1988).

How does the issue of prohibited nepotism arise in MSPB cases?
It arises most frequently in one of two ways:  as a charge upon which an employee has been disciplined for violating the prohibition (or an agency’s internal disciplinary prohibition that is similar to the PPP), or as an affirmative defense that an action taken was taken in reprisal for the appellant having blown the whistle on someone for a nepotism violation.  An example of the latter is Hudson v. Department of Veterans Affairs, 104 M.S.P.R. 283 (2006), where the Board found that the appellant made a non-frivolous allegation that he made a protected disclosure because a reasonable person in his position could believe that his supervisor was violating 5 U.S.C. §§ 2302(b)(7) and 3110 by employing her son and/or assisting in the advancement of her son by giving him preferential treatment in training, assuming that those allegations are true.

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 that MSPB 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 raise this provision as an affirmative defense to an adverse action by an agency that is within MSPB’s jurisdiction, such as a removal.  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 prohibited personnel practices have been committed.  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 MSPB impose for violations of this provision?
The penalties MSPB 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)

Has MSPB studied this practice?
Yes.  For over 30 years MSPB has surveyed Federal employees to determine their perceptions of the incidence of prohibited personnel practices in the Federal civilian service.  Results of survey items pertaining to nepotism were most recently summarized in the 2011 report, Prohibited Personnel Practices: Employee Perceptions.  According to this report, perceived violations of this provision have decreased steadily in the last 15 years.  In 2010, only 1.7% of Federal employees who responded to MSPB’s survey reported that they had been personally affected by someone advocating for a relative.  Id. at 32.   This may explain the paucity of cases substantively addressing nepotism issues. 

Other MSPB reports that discuss nepotism and summarize survey data regarding employee perceptions of this practice include: Prohibited Personnel Practices—A Study Retrospective (2010) and The Federal Government: A Model Employer of a Work In Progress? (2008).  All MSPB study reports can be found at www.mspb.gov/studies.