Where is this prohibition covered in the law?
The sixth prohibited personnel practice (PPP) can be found at section 2302(b)(6) in title 5 of the United States Code.
What is the purpose of the sixth prohibited personnel practice?
This provision supports the first Merit System Principle which asserts that recruitment, selection and advancement should be merit-based. See 5 U.S.C. § 2301(b)(1). This PPP is designed to prevent an agency from giving an improper advantage in promoting an employee or in selecting an applicant for a position in federal employment. See 5 U.S.C. § 2302(b)(6). It complements and supports the same goal of fair competition as do PPPs 4 and 5, which prohibit obstructing the right to compete and influencing a person to withdraw from competition.
It should be noted that some employment preferences are authorized by law, so they would not be prohibited. For example, there is a veterans’ preference statute that gives eligible veterans preference in appointment over many other applicants. See 5 U.S.C. § 2108.
What exactly is prohibited?
To establish a violation of 5 U.S.C. § 2302(b)(6), Merit Systems Protection Board (MSPB or Board) case law requires proof of an intentional or purposeful taking of a personnel action in such a way as to give a preference to a particular individual for the purpose of improving his or her prospects. See Special Counsel v. Byrd, 59 M.S.P.R. 561, 570 (1993), aff’d, 39 F.3d 1196 (Fed. Cir. 1994) (Table). The preference must be given for the purpose of providing an improper advantage. In other words, an improper motive must be shown. See Special Counsel v. Lee, 114 M.S.P.R. 57, ¶ 21 (2010), rev’d in part, 413 F. App’x. 298 (Fed. Cir. 2011). However, it is not necessary that the action actually have resulted in an advantage, only that its purpose be to give an advantage. Special Counsel v. DeFord, 28 M.S.P.R. 98, 104 (1985).
It is possible to violate section 2302(b)(6) using legally permissible hiring actions if the intent is to afford preferential treatment to an individual. See Lee, 114 M.S.P.R. 57, ¶ 21. Conversely, hiring actions that have the unintentional effect of favoring one applicant over another would not violate section 2302(b)(6). See id. The Board also has found, based on the wording of the statute, that it does not prohibit actions improperly advantaging a class of persons, only an individual. See Avery v. Office of Personnel Management, 94 M.S.P.R. 212, ¶ 5 (2003).
What is MSPB’s jurisdiction to review an alleged violation of 5 U.S.C. § 2302(b)(6)?
The MSPB will consider an alleged instance of this PPP as an affirmative defense in connection with the filing of an appeal. However, MSPB cannot review a violation of section 2302(b)(6) unless it is related to an otherwise appealable action. See Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 16 (2007).
Additionally, an individual may file a complaint with the Office of Special Counsel (OSC), which is a separate, independent executive agency with the authority to investigate violations of section 2302(b)(6) and to seek corrective action before the MSPB. See 5 U.S.C. §§ 1214(a)(1)(A), (a)(5). 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 section 2302(b)(6) violation is found?
The Special Counsel may petition MSPB to discipline an employee for committing this PPP. See 5 U.S.C. §1215(a)(1)(A). The penalties assessed against the employee can include disciplinary action consisting of a reprimand, a removal, a reduction in grade, a suspension, debarment from Federal employment for up to five years, or an assessment of a civil penalty not to exceed $1,000. See 5 U.S.C. § 1215(a)(3).
In assessing the penalty, MSPB takes into account the relevant factors enumerated in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). The MSPB will consider, first and foremost, the nature and seriousness of the misconduct and its relationship to the employee’s position and responsibilities, including whether the offense was intentional or was frequently repeated. See Lee, 114 M.S.P.R. 57, ¶ 36; Byrd, 59 M.S.P.R. 561, 582-83.
Has the Board recently issued any significant decisions addressing this PPP?
Yes. In Special Counsel v. Lee, 114 M.S.P.R. 57 (2010), rev’d in part, 413 F. App’x. 298 (Fed. Cir. 2011), OSC brought two complaints before the Board, alleging that Richard F. Lee and Diane L. Beatrez, Human Resource (HR) Specialists for the Coast Guard, violated section 2302(b)(6) when they assisted in promoting a particular individual to a supervisory position. The Board stated that Lee and Beatrez could be held liable under the statute because there was “a pattern of cooperation” between the HR specialists and the supervisor who sought to promote a particular individual. Id., ¶ 25. The Board held that the HR specialists were liable for this PPP under the theory that “conduct that aids and abets another who is violating the statute” also violates section 2302(b)(6). Id., ¶ 32. The Board noted that, by holding the HR specialists liable, they were “mindful of [the Board’s] obligation to faithfully uphold the merit system principles as set forth by Congress”. Id., ¶ 35. As a consequence, the Board imposed a 45-day suspension without pay on Lee and a 10-day suspension without pay on Beatrez. See id., ¶ 50. The Court of Appeals for the Federal Circuit later held on review that there was insufficient evidence to establish that Beatrez had the requisite intent to aid in the commission of a PPP and reversed the action against her. See Beatrez v. Merit Systems Protection Board, 413 F. App’x. 298 (Fed. Cir. 2011) (NP). The court did not disagree with the Board’s finding that any of the actions taken by the employees, if done with the requisite intent, would properly constitute a PPP under § 2302(b)(6).
Has MSPB studied this practice?
Yes. In its report “Prohibited Personnel Practices: Employee Perceptions” (2011), the Board noted that Federal employees perceive this PPP occurring more than any other PPP. The Board also explained that an important lesson to be learned from the case law is that an official can be held liable for violating section 2302(b)(6) if the official commits a PPP or intentionally assists someone else to commit a PPP, even when the employee’s superiors are aware of what is happening and view the PPP as a solution to a problem. In its report, “Fair and Equitable Treatment: Progress Made and Challenges Remaining” (2009), the Board noted that Federal employee suspicions regarding blatant forms of discrimination have been supplanted by a growing skepticism about managers making their decisions in accord with the merit system principles. In a recent MSPB Government-wide survey, over 70 percent of employees believed that some supervisors practice favoritism. In its report, “Prohibited Personnel Practices: A Study Retrospective” (2010), the Board summarized a number of its prior studies that examined perceptions of unfair competition and unfair advantage in hiring and promotion in Federal employment and explained that such perceptions were a longstanding problem.
What other guidance is out there concerning this PPP?
The Office of Personnel Management has issued detailed rules governing hiring that are designed to ensure fair and open competition. These rules cover recruitment and selection for initial appointment as well as promotion in accordance with a merit-based system. See e.g., 5 C.F.R. parts 300A, 302, 330, 332.