Prohibited Personnel Practices (5 USC § 2302(b))

1. discriminate for or against any employee or applicant for employment—


1. on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16);


2. on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);


3. on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 (d));


4. on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or


5. on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;


2. solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—


1. an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or


2. an evaluation of the character, loyalty, or suitability of such individual;
3. coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity;


4. deceive or willfully obstruct any person with respect to such person's right to compete for employment;


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;


6. 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;


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 (as defined in section 3110 (a)(3) of this title) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110 (a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official;


8. take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of—


1. any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—


1. a violation of any law, rule, or regulation, or


2. gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or
2. any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—


1. a violation of any law, rule, or regulation, or


2. gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
   
9. take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—


1. the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;


2. testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A);


3. cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or


4. for refusing to obey an order that would require the individual to violate a law;
   
10. discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States;


11.  


1. knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans' preference requirement; or


2. knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans' preference requirement; or
   
12. take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.
    
    

During the first nine months of 2011, the Merit Systems Protection Board (MSPB) presented a series entitled the "Merit System Principle of the Month," discussing in turn each of the nine merit system principles, what they mean, and such issues as what role MSPB and other agencies play in their enforcement, and what our case law and studies have said about them. All nine merit system principles can now be read on MSPB's website. Before turning to a similar monthly discussion of each individual prohibited personnel practice (PPP), we provide an introduction that we hope puts them in a context that makes them more understandable and relevant.

What is the significance of the PPPs and where do they come from?
Since the 1883 Pendleton Act, Congress has attempted to assure good government by enacting laws that require or prohibit certain actions by Government agencies and employees. These reforms began with laws that limited political influence in employment and grew over the years to establish rules for what must or must not be done in many areas of Government employment. It was not until the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95 454, 92 Stat. 1111, however, that a comprehensive list of 11 PPPs, now expanded to 12, was enacted into law. 5 U.S.C. § 2302(b)(1)-(12). Unlike the merit system principles, Congress made the prohibition of these personnel practices enforceable, so that employees would know of them and could be disciplined for committing a PPP. H. Rep. No. 95-1403, 95th Cong, 2d Sess. at 4 (1978). When President Carter transmitted to Congress his recommendations for civil service reform, he spoke of the problems he wanted to remedy in doing so and what he hoped to achieve as a result, including the desire "[t]o strengthen the protection of legitimate employee rights;" to "guarantee independent and impartial protection to employees" by establishing the MSPB; and to "help safeguard the rights of Federal employees who 'blow the whistle' on violations of laws or regulations by other employees, including their supervisors." President's Message of March 2, 1978, reprinted in H. Rep. No. 95-1403 at 98-100. The PPPs and the mechanisms established to enforce them are intended to achieve those ends.

How does MSPB enforce the prohibition against these personnel practices?
There are several ways that PPPs may be vindicated. The Office of Special Counsel (OSC) has authority to investigate allegations of PPPs brought by an individual and may even conduct an investigation in the absence of such an allegation in order to determine if corrective action is warranted. 5 U.S.C. §§ 1214(a)(1)(A), (a)(5). If OSC is unable to obtain a satisfactory correction of the practice from the agency at which it occurred, it may ask MSPB to grant corrective action, and if OSC proves its claim, the Board may order the corrective action it deems appropriate. 5 U.S.C. §§ 1214(b)(2)(B), (C), (b)(4)(A). During its investigation, as well as during the period a petition for corrective action is pending before MSPB, OSC may ask MSPB to stay any personnel action to which an affected employee was subject. 5 U.S.C. § 1214(b)(1)(A)(i), (B). The OSC may also petition MSPB to discipline an employee for having committed a PPP. 5 U.S.C. § 1215(a)(1)(A). After a hearing, MSPB may impose disciplinary action ranging from reprimand to removal, debarment from Federal employment for up to five years, or an assessment of a civil penalty up to $1,000.

If I believe that I have been the victim of a PPP, may I bring an appeal to the MSPB myself?
Under some circumstances, yes. The MSPB hears and decides appeals from many kinds of actions agencies may take against the employees who work for them. Among them are adverse actions (removal, demotion, suspension for more than 14 days, reductions in grade and pay, and furloughs for 30 days or less), reductions in force, certain performance-based actions, and a substantial number of others. You will find a complete list of those actions at 5 C.F.R. § 1201.3. With limited exceptions, if the agency takes any of these actions against you, known in this context as an "otherwise appealable action" (OAA), and if MSPB has jurisdiction to hear an appeal from a person with your tenure, preference eligible status, etc., it may also consider a claim that the action was taken for one of the reasons prohibited by 5 U.S.C. § 2302(b). Such a claim is called an "affirmative defense" to the agency's action, and MSPB will consider it because Congress specified in 5 U.S.C. § 7701(c)(2)(B) that even if the agency proves its action by the required standard of proof, its decision may not be sustained if you show "that the decision was based on any prohibited personnel practice described in section 2302(b) of" Title 5 of the U.S. Code. Thus, in such cases, the agency has the burden of proving the action that it took and you have the burden of proving by a preponderance of the evidence your claim of a PPP. A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the entire record, would accept as sufficient to find that your claim is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).

If my agency has not taken an appealable action against me, may I still bring an appeal to MSPB?
Generally, if you have not been subject to an OAA, you must rely on OSC to request corrective action on your behalf, but under limited circumstances, you may be able to seek relief from MSPB on your own. Specifically, you may file what is known as an individual right of action (IRA) appeal if you believe that an agency has taken, threatened to take, or failed to take a personnel action against you because you "blew the whistle," i.e., disclosed information that you reasonably believed evidences a violation of law, rule, or regulation, gross mismanagement or a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety. 5 U.S.C. §§ 1221(a), 2302(b)(8). Before bringing an IRA appeal, however, you must ask OSC to investigate the matter. In addition, if you believe that an agency violated a veterans preference requirement you may also ask MSPB to correct the violation. That is because such a violation is prohibited not just by 5 U.S.C. § 2302(b)(11), but also by the Veterans Employment Opportunities Act of 1998 (VEOA) (codified in various sections of 5 U.S.C. chapter 33). Under VEOA, there is no requirement that you first seek corrective action from OSC, but you must first raise your claim with the Secretary of Labor. Finally, both on its own motion and based on a petition filed by an organization or an individual, MSPB has the authority to review any rule or regulation issued by the Office of Personnel Management and to declare it either invalid on its face if its implementation would cause an employee to commit any PPP, or invalidly implemented if an agency's implementation of the rule or regulation has caused an employee to violate 5 U.S.C. § 2302 by committing a PPP. 5 U.S.C. § 1204(f).

What requirements apply to proving a PPP?
In addition to the specific kinds of evidence that must be presented to prove individual PPPs, which will be discussed in subsequent months, only agency actions that meet the tests set out in 5 U.S.C. § 2302 are prohibited by this law. First, not every employee may commit a PPP as that term is defined by the statute. Only "[a]ny employee who has authority to take, direct others to take, recommend, or approve any personnel action" is subject to being sanctioned for committing a PPP. 5 U.S.C. § 2302(b). Thus, managers and supervisors are likely to be subject to the prohibition, as are employees in jobs in fields such as human resources, who make recommendations on many personnel actions. Moreover, it was not the innocent mistake that Congress sought to remedy, but those practices that are done intentionally. As the CSRA's legislative history stated, "[a] prohibited personnel practice is a personnel action which is taken for a prohibited purpose." S. Rep. No. 95-969, 95th Cong., 2d Sess., 20 (1978). Additionally, as the quoted language from section 2302(b) states, in order to be actionable, a PPP must have led to a "personnel action," as enumerated in the eleven subsections of section 2302(a). While not every action an agency takes can constitute a PPP, even if done for a prohibited purpose, the list is quite comprehensive and covers a very broad range of agency actions that occur every day, from appointment, promotion, and decisions concerning pay, benefits, and awards to discipline and significant changes in duties, responsibilities, and working conditions. Finally, a PPP applies only to an employee in or applicant for a "covered position" in an "agency." 5 U.S.C. § 2302(a)(2)(A). The first of those terms is defined for purposes of PPP law at 5 U.S.C. § 2302(a)(2)(B), the second at section 2302(a)(2)(C).

How can I find out more about PPPs?
In addition to following our monthly explanations of the individual PPPs, you may wish to read MSPB's August 2011 report entitled "Prohibited Personnel Practices: Employee Perceptions." This report examines the frequency with which employees experience or witness what they perceive to be PPPs, but among its purposes is "to better educate the Federal workforce, and supervisors in particular, about the existence of the PPPs, how they can be avoided, and why avoiding the PPPs is not simply the law, but also a good management practice that can help create a more engaged workforce." Report at 4. The MSPB also published a June 2010 report on PPPs, as well as several reports dealing with specific PPPs, all of which are available on our website at www.mspb.gov/studies/index.htm. Similarly, Board decisions on appeals arising in each of the ways discussed above are also available on our website.

Proper considerations in making personnel decisions - what does this provision address?
This provision is found at 5 U.S.C. § 2302(b).  Along with all of the other prohibited personnel practices, except number 11, this provision came from the Civil Service Reform Act of 1978, Pub. L. No. 95‑454, 92 Stat. 1111.  The legislative history concerning section 2302(b)(2) indicates that the section was intended to prevent the use of political influence to obtain a position or promotion in the federal government.  The pertinent Senate Report explains that this provision: “restates and expands 5 U.S.C. § 3303, which currently prohibits consideration of recommendations submitted by senators and representatives, except as to character or residence.  The paragraph adds a prohibition against soliciting any such recommendation.  An exception is made for recommendations based on personal knowledge or personal records, where it consists of an evaluation of work performance, ability, aptitude, character, loyalty, or suitability.”  S. Rep. No. 969, 95th Cong.; 2d Sess. 20 (1978), U.S.Code Cong. & Admin.News 1978, 2723, 2743. 

Will the Merit Systems Protection Board (MSPB or the Board) hear a claim that the agency violated this provision?
Under 5 U.S.C. § 7701(c)(2)(B), MSPB may not sustain a personnel action “based on” a prohibited personnel practice.  Generally, a prohibited personnel practice may be raised as an affirmative defense in an otherwise appealable action in an appeal filed with MSPB.  An otherwise appealable action is a personnel action that can be appealed to MSPB on its own, which means that MSPB has jurisdiction in the case.

As with the other prohibited personnel practices, if you file a claim with MSPB in connection with an otherwise appealable action, we will hear your claim that you believe this provision was violated, but only if it is related to your claims about the underlying personnel action being appealed.  Such claims will not be heard if your appeal is 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 based on military service), or the Whistleblower Protection Act (individual right of action appeals based on retaliation for making protected disclosures), as such appeals are not filed under MSPB’s otherwise appealable action authority, but rather specific subject-matter based statutory authorities. 

Who has the burden of proving a claim under this section?
If raised in an otherwise appealable action appeal, it is raised as an affirmative defense.  Under MSPB’s regulations, the appellant bears the burden of proving all affirmative defenses.  That burden is by preponderant evidence which means that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.  The MSPB’s regulations can be found in section 1201 of title 5 of the Code of Federal Regulations, which can be accessed through our website under “Rules and Regulations.”

Does this provision mean that an agency cannot interview employees who witness or are involved in an incident leading to discipline?
The MSPB and the U.S. Court of Appeals for the Federal Circuit, which is authorized to review all Board decisions not involving issues of discrimination, have held that this provision does not apply to situations where an agency takes statements from persons who are somehow involved in the incident giving rise to the disciplinary proceeding, but rather relates to statements or recommendations by outsiders, such as senators or congressmen.  The court noted that the legislative objective was to forestall political or partisan interference in personnel actions.  Depte v. United States, 715 F.2d 1481 (Fed.Cir.1983), overruled on other grounds by Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, n.4 (Fed. Cir. 1999).  The Board has also held that a deciding official did not violate section 2302(b)(2) where he was not an eyewitness to the charged events and relied upon the statements of others in making the decision to remove an employee.  Giltner v. Department of Air Force, 50 M.S.P.R. 209, n.1 (1986).

Does this mean that a management official cannot ask a labor relations specialist for advice in taking a disciplinary action against an employee?
In Gonzales v. Defense Logistics Agency, 772 F.2d 887, 892 (Fed. Cir. 1985), the court stated that “[t]here is no prohibition against a decision-maker calling for advice from those who are not in an adversarial position with the offending employee.”  See also Boudreau v. Department of Agriculture, 883 F.2d 1023 (Fed. Cir. 1987)(Table)(non-precedential).  In Boudreau, the court held the agency did not violate 5 U.S.C. § 2302(b)(2) by seeking advice from an employee relations specialist in the taking of a personnel action, where that individual was not in an adversarial position with the employee being disciplined.  These cases were issued prior to the court’s decision in Stone, cited above, dealing with the issue of ex parte communications by a deciding official.  Any such discussions would have to comply with the dictates of due process, as required by Stone, that no disciplinary action be taken based on new and material evidence that is not provided to the employee so that the employee has an opportunity to respond.

Can an agency ask for recommendations from a prior supervisor when an applicant applies for a position or a promotion?
Yes.  Section 2302(b)(2) prohibits solicitation or consideration of recommendations based on political considerations, and was intended to prevent the use of improper influence to obtain a position or promotion; recommendations for competitive positions must be based upon personal knowledge and an evaluation of the performance, ability, character and suitability of the individual involved.  Acting Special Counsel v. Sullivan, 6 M.S.P.R. 526 (1981). 

How does this provision relate to the prohibition against ex parte communications?
Section 2302(b)(2) should not be confused with the prohibition against ex parte communications in disciplinary personnel actions; they are distinctly different.  An ex parte communication to a deciding official is a communication, without the knowledge of, and opportunity to respond by, the employee being disciplined and it has the effect of denying him the due process to which he is entitled under the Constitution. Sullivan v. Department of the Navy, 720 F.2d 1266, 107-74 (Fed. Cir. 1983).
In contrast, Section 2302(b)(2) allows for certain communications that relate to an evaluation of  work performance, ability, aptitude, or general qualifications of an individual or an evaluation of the character, loyalty, or suitability of an individual when the employee is under consideration for a personnel action.  In disciplinary action cases, the prohibition against ex parte communications would prevent these communications in most instances, where the information is not otherwise known, or made known, to the employee prior to making a decision to effect a disciplinary action.

If an employee discloses what he believes is a violation of 5 U.S.C. § 2302(b)(2), can it form the basis of a protected whistleblowing disclosure?
Yes.  The Board has held that allegations of violations of 5 U.S.C. § 2302(b)(2) and related provisions of law can sometimes constitute whistleblowing.  See McDonnell v. Department of Agriculture, 108 M.S.P.R. 443, ¶¶ 9-13 (2008); see also Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469 (2010).

Number 3 - Coercing political activity: Where can I find this prohibition covered in the law?
This prohibited personnel practice (PPP) is listed at section 2302(b)(3) in title 5 of the United States Code.

Where did this provision come from?
While this provision was codified in 1978 within the Civil Service Reform Act of 1978, Pub. L. No. 95‑454, 92 Stat. 1111, it has an interesting history dating back nearly 100 years earlier.  From the earliest days of our Nation until 1883, it was common practice for the incoming President’s administration to reward members of his political party with Federal Government appointments within every level of the Executive Branch.  It was likewise expected of such Federal employees to make generous political donations back to their political patron.  Such practices led to public perceptions of widespread corruption and incompetence within the Federal Government. Michael Bogdanow and Hon. Thomas Lanphear, History of the Merit Systems Protection Board, Journal of the Federal Circuit Historical Society, Vol. 4, 109 (2010).

In 1883, Congress began to reign in such practices by passing the Civil Service Act, also known as “The Pendleton Act of 1883.”  This statute required for the first time that a sizeable portion of Federal appointments be made solely based upon the relative merits of the applicants, without regard to their political loyalties.  Over time, this principle was expanded and strengthened to protect all competitive and excepted service positions.  Today, it is a PPP under this statute for a Federal official to coerce any applicant or employee to engage in political activity, or to retaliate against such individuals based on partisan politics.  The Hatch Act of 1939 contains many similar prohibitions, and carries severe penalties.  See 5 U.S.C. § 7321 – 7326.  

If I file an appeal with the Merit Systems Protection Board (MSPB) and claim that the agency violated this provision, will the MSPB hear my claim?
Under 5 U.S.C. Section 7701(c)(2)(B), the MSPB may not sustain a personnel action “based on” a PPP.  Generally, a PPP may be raised as an affirmative defense in an otherwise appealable action in an appeal filed with MSPB.  An otherwise appealable action is a personnel action that can be appealed to MSPB on its own, which would include, for example, a removal or suspension of 15 days or more, and means that MSPB has jurisdiction in the case.  

As with the other PPPs, if your claim is filed with MSPB in connection with an otherwise appealable action, we will hear your PPP claim, but only if it is related to the underlying personnel action being appealed.  Such PPP claims will not be heard if your appeal is 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 based on military service), or the Whistleblower Protection Act (individual right of action appeals based on retaliation for making protected disclosures), as such appeals are not filed under MSPB’s otherwise appealable action authority, but rather specific subject-matter based statutory authorities.

If your PPP claim is not within the MSPB’s jurisdiction as explained above, you may still be able to file such a PPP claim with the Office of Special Counsel (OSC), which is a separate and independent executive agency.  As noted above, many of the prohibitions contained in this PPP on political coercion are also covered by the Hatch Act of 1939.  The OSC has authority to investigate potential Hatch Act violations, and to present such claims to MSPB for consideration.  Instructions for filing a PPP or a Hatch Act claim with OSC are provided at http://www.osc.gov. 

In addition, although probationary employees have no statutory right of appeal to MSPB, under 5 C.F.R. §315.806(b) they may appeal the termination of their appointment if they allege that the action was based on partisan political reasons.

Who has the burden of proving a claim under this section?
If raised in an otherwise appealable action appeal, a PPP claim is an affirmative defense.  An appellant bears the burden of proving such affirmative defenses by preponderant evidence.  Preponderant evidence is defined in Section 1201 of the MSPB’s regulations as the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.  The MSPB’s regulations can be accessed through our website at http://www.mspb.gov/appeals/appeals.htm. 

Does political coercion have to be extreme or perpetrated by a supervisor?
The answer to both questions is no.  The coercion does not have to be extreme to qualify for this PPP, and the employee need not be a supervisor. For example, in Special Counsel v. Ware, 114 M.S.P.R. 128 (2010), a Contracting Officer Technical Representative was removed for using her Government computer to send fundraiser emails to 14 or more individuals, three of whom were not Federal employees, but who she nevertheless exercised some control over because of her influence over a contract.  In its decision to remove the employee, the Board noted its holding in an earlier case, that “[t]he proscriptions of the Hatch Act fall equally on clerks and managers alike.” (The improper political activity in Ware was addressed solely under the Hatch Act, and was not prosecuted as a PPP violation of 5 U.S.C. §  2302(b)(3)).

In another case, Special Counsel v. Acconcia, 107 M.S.P.R. 60, ¶ 5 (2007), the Board explained that “the coercion of political contributions[] is one of ‘the most pernicious of the activities made unlawful by the Hatch Act’” and that a single occasion of soliciting funds from a subordinate for a political campaign warranted removal, even though the supervisor did not specifically attach any threats of consequences for failing to make the requested political contributions.

What penalties are possible for an employee who commits this prohibited personnel practice?
Violation of this PPP carries potentially devastating consequences for the offending employee.  This is because when such conduct also violates the Hatch Act, it carries a presumptive statutory penalty of removal.  Under the Hatch Act, the penalty of removal may be mitigated to no less than a 30 day suspension by a unanimous vote of the Board Members.  See 5 U.S.C. §§ 7324(a)(1) and 7326.