By Debra Roth
November 10th, 2013 | Uncategorized
If you are a manager or supervisor and have a role in a merit selection process, be careful. Over the past several years, I’ve seen an increase in the scrutiny of the manager’s role in the merit selection process — specifically into whether a manager has influenced the process to steer a selection.
Many of these cases involve an allegation that the manager engaged in the prohibited personnel practice (PPP) of granting an unauthorized preference or advantage in hiring an applicant or promoting an employee.
Since I began practicing law, I’ve heard federal employees complain about not being selected for a promotion because someone else was “pre-selected” by the boss and everyone knew it. The selected employee was frequently believed to be favored by the manager, even though he or she was not the best qualified person for the position. Those times have changed. In the past five years or so, the merit promotion hiring process has been transformed by two new factors. First, there has been a substantial increase in the number of individuals who apply for a position and who are eligible for veterans’ preference, which places them at the top of the eligibility list. Second, the recession and growth in unemployment created a vast new pool of applicants looking for work. With that increase in the size of the qualified applicant pool and applicants with veterans’ preference, pre-selection got much more difficult to achieve.
However, there are examples of the hiring selection process being manipulated to favor the person management supposedly wanted to select but who was not high enough on the certificate of eligibles. To the watchdogs over the merit selection process, there are several indicators of improper manipulation of the process: canceling the announcement and reannouncing with changed criteria allegedly to favor the person management wants selected; using a short announcement period over a holiday weekend to reduce the number of applicants; changing the grade or duty station of the position, reannouncing and then assigning different HR specialists to rate and rank applicants.
Who are the watchdogs, and how is anyone held accountable? It can start with a complaint to the agency’s inspector general, found when the Office of Personnel Management conducts its regular audits of an agency’s merit hirings, or reported to the Office of Special Counsel, which has responsibility and jurisdiction for investigating PPPs.
For a manager acting as a selecting official, the allegation that he or she engaged in the unlawful grant of preference can start with rumors that the manager said he “wanted,” “preferred” or “liked” a certain person for the job. An allegation can arise when a manager who is not the selecting official asks the selecting official to “consider” the person for the job. And, of course, the allegation of wrongdoing can occur when a manager directs HR to find a way to hire a particular person.
When allegations of favoritism arise, managers often claim they did not realize that expressing an opinion about a person’s qualifications for a job might be translated into action by the HR staff to make it happen. And the HR staff often explain that they believed the manager’s opinion was meant to directtheir action. In sum, finger-pointing.
OSC takes PPP allegations seriously. HR staff found to have manipulated the merit process to favor one applicant over another can face disciplinary charges. Either the employing agency brings the charge or OSC can independently bring such a charge. The penalty is severe and can range from a 60-day suspension to removal. For managers or supervisors charged with participating in this type of PPP, the penalty also can be severe. It is not uncommon for managers to be suspended or demoted.
You can protect yourself as a manager from being accused of a PPP. Don’t offer an opinion about a particular candidate’s qualifications until you are engaged in making the selection. Don’t recommend or ask someone else to consider a candidate. Don’t get in the way of HR doing its job. Don’t look to bend the rules. Always verbalize a desire that HR abide by all the rules when running a merit selection process. And mostly, believe in the value of the merit system, not favoritism.
Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is acting general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to email@example.com and view her blog at blogs.federaltimes.com/federal-law.
November 10th, 2013 at 1:53 pm
Thank you for this article!! I work for the U.S. Army Medical Command and this is a common practice. Positions are often created for specific individuals or held until someone retires so that they can get hired without having to complete. Merit principles are non-existent, with all the “ISM’s” well represented…… favoritism, nepotism and cronyism.
mary smith Says:
November 12th, 2013 at 2:12 pm
two other things: one is that if a person is well liked by a manager with a vacancy to fill, that person may do the better job, over a person who is working against a management undercurrent, and not be happy or as productive as might be.
the other is the fact of promotion in place, via the phoney vac ann. only the incumbent stands to be selected. another management practice that rankles the ranks
November 13th, 2013 at 8:20 am
It seems that you are suggest that some allowable and lawful hiring authorities are other than lawful. As a Hiring Manager, I do have the option to determine that someone is a fit for my organization, recommend that person to my subordinate manager, select them for a job, and have HR transfer that employee non-competitively to my organization (After clearing CTAP). All of those items are allowable and lawful.
November 13th, 2013 at 10:30 am
Well, as I look to the retirement exit door, after 30+ years in several agencies, most tenure with DoD (DFAS/Navy) I can positively say the whole system is rigged on a majority of upper-level position selections. GS-13 and above. I’ve personally had numerous cases which I witnessed nepotisn, favotism and purely selecting someone (a GS-14) who did not hold the proper TIG 52 weeks in the 0510 series but was selected over me, a veteran (which means nothing to HR in merit promotions in the Navy, 25 plus professional experience in the 0510 series. I complained to HR and they shot back numerous generic email replies until they finally stop responded. Couldn’t do EEO since there was no EEO. Like my 4th case issue to OSC, they took months to assign to an attorney, who always turn around and dismissed the case for lack of Personnel evidence even tho I had in possession (thru FOIA) the cert, the resume of the applicants. I don’t care what anyone says… the system is fixed and it always favors management! Most of these military commands outside the beltway have good-ole-boy clubs.. which they will lie, cheat and ruin your career if you blink wrong at them. In this command we have husband and wife teams filling upper management positions who work together to keep their power and club! If they dislike someone… their careers are shot! I sit close to several GS-14′s and one 15 who were interns just a few years ago! Now tell me again how much better the internal hiring process is going in most agencies? And I will tell you, like this article… not were I have worked!
Michael N. Alexander Says:
November 16th, 2013 at 7:11 pm
Notwithstanding the reasonable remarks by the previous Commenters, let me point out that Ms. Roth’s article — and perhaps Federal HR laws & regs — presumes that managers will behave unprofessionally, and that they have no expertise to contribute to personnel actions. Also, that HR *generalists* can make superior judgments simply by looking at pieces of paper (or electronic equivalents). Isn’t it ever possible that the “favoritism” of some managers is rooted in knowledgable, professional assessments of the candidates’ qualifications, abilities, and suitability for the job?
November 19th, 2013 at 9:29 am
Management and the Inspector General are guilty of this… Even though I have complained of such practices for years, I am told that this is a “special installation” and because of our “unique situation”… blah blah blah Nepotism? ‘does not exist’ Advacating for an employee? not against the law… yea right! IG is afraid to enforce the laws that protect people from unfair practices.
So the boss gets to hire their kid who is freash out of high school over a disabled veteran with multiple degrees… all ok because managers and IG wont take action in our unique situation… fair enough right?