MSPB focus

By Neil McPhie

Favortism: Do federal employees know it when they see it?

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.


“I know it when I see it.”

That was what U.S. Supreme Court Justice Potter Stewart said in the 1964 case of Jacobellis v. Ohio, when he declined to provide a definition for a type of sexually obscene film that is not constitutionally protected. Stewart’s justification underscores how certain materials or practices can seemingly escape adequate description and how their identification is largely a subjective matter.

A recently-released Merit Systems Protection Board (MSPB) report on perceptions of favoritism makes clear that many federal employees are applying Stewart’s I-know-it-when-I-see-it standard to this prohibited personnel practice (PPP).

The MSPB report shows just how widespread perceived favoritism is in the federal workplace. For example, 28 percent of employees surveyed said they believe their supervisors engage in favoritism and 30 percent of human resources management employees likewise reported a belief in supervisory favoritism.

As chairman of the MSPB, I frequently heard individual right of action appeals from whistleblowers who had made disclosures about their supervisors’ alleged engagement in favoritism and who later claimed to have been victims of reprisal. It became clear to me that cases involving allegations of favoritism present issues over definition and personal perception.

For starters, the section of statute that defines the merit system principles, which include the “protection against…personal favoritism,” does not define “favoritism.” In its report, the MSPB defined favoritism by borrowing from a subsequent section of law that prohibits the granting of “any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment…for the purpose of improving or injuring the prospects of any particular person for employment.”

I would add that favoritism can sometimes be treated as an abuse of authority, which in Pasley v. Department of the Treasury (2008) the Board defined as “an arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or results in personal gain or advantage to himself or preferred other persons.”

The perception issues may arise, as the new report suggests, from the fact that the “typical work environment features ambiguity that precludes full confidence in supervisors making merit-based decisions.” But as MSPB chairman, I found that supervisors can often hide in this ambiguous grey area between perceived favoritism and actual favoritism. While the MSPB’s report provides valuable insights on why employees believe this PPP is so prevalent in the federal workplace, I worry that this strong emphasis on perception takes away from the fact that favoritism is an actual problem. Painting the problem as something in the heads of employees could dissuade them from reporting instances of favoritism to the Office of Special Counsel or their agency’s inspector general.

Due to the subjective nature of many supervisory decisions, it is often difficult to pin their actions as definitive examples of favoritism. Rare are those cases when an adjudicating body can describe an agency supervisor’s actions as constituting an “old boy network in operation” involving “undiluted favoritism,” as the 1st U.S. Circuit Court of Appeals did in Foster v. Dalton (1995).

Nevertheless, federal employees should not refrain from blowing the whistle on a supervisor’s abuse of authority or engagement in favoritism because they lack black-and-white evidence of the PPP. As I noted in the decision I co-authored for Pasley, the Whistleblower Protection Act (WPA) does not establish a “de minimis [or minimum] standard for abuse of authority as a basis of a protected disclosure,” meaning the WPA should protect them against reprisal so long as they reasonably believe this alleged PPP occurred.

I agree with the MSPB in its report that improving transparency will decrease perceptions of favoritism. But I would encourage employees who encounter what reasonably appears to be favoritism, whether in the form of pre-selection or preferential treatment, to call it as they see it.

Comments

  1. Karl J Hagen Says:
    January 27th, 2014 at 11:45 am

    This is a bunch of Hogwash! Going on the perception of employees on the floor. Supervisors need to make some tough decisions and the peope they supervise are not always going to agree with those decisions. Every shop has a few bad apples that are going to recieve most of the disapline when they start to complain that they are being mistreated and that the supervisor is favoring those who follow the rules. Favoritism cannot be judged by perception but it has been being done that way to the detriment of our work force!!

  2. Mentallect Says:
    January 27th, 2014 at 12:01 pm

    Yes, but its human nature, and it cannot be legislated out. Very few people with the moral fortitude and strength of character are ever placed in positions to actually counter favoritism. Obviously, those in positions of power often attained that office/status thru being someone’s favorite rather than thru knowledge, skills, and/or leadership ability.

    Legal remedies are ineffective due to the sheer volume of potential victims. When I was a manager in the private sector, favoritism was rampant, and it was well known cliche members were guaranteed fat bonuses. I ran my facility, but one of my regional managers promoted his former fling to be assistant manager, a position she was unqualified for to my objection, but…that is life.

  3. Charles Ricke Says:
    January 27th, 2014 at 7:51 pm

    “Good old boy network” To use the term in the article. IS very alive and well. Just a year ago the ugly evil raised its head. Hire someone AS a Supervisor mind you with no qualifications what so every in the field appointed to. I agree with both comments here. Yes when employees are neglect in their duties and a supervisor has to discipline, you get a response he/she plays favorites. On the other hand, legal remedies not only tie the system up but create another issue. It would have a far more reaching effect then just a review board. What needs to be done starts at the top?? Right, when pigs fly… But then of course the top is sometimes to blame as well.

  4. PDF Says:
    January 28th, 2014 at 4:12 pm

    This isn’t hogwash at all. For instance, some of my coworkers get to work at home 2-3 days a week, and then don’t even have to work the core hours (must be on the clock from 9 am -3 pm or a leave slip must be in), but the rest of us get 1 day of telework and can’t deviate from the core hours. One of the favorites even gets to take smoke breaks every hour and an hour lunch; so he gets 1 3/4 to 2 hours of break time besides an hour lunch. The rest of us don’t get that. The best part is, the quality of this guys work is horrid!

  5. the unfavored Says:
    January 30th, 2014 at 8:30 am

    I agree with PDF.
    Favortism in bonuses and privileges is rampant in my component. I am unfavored because I voice unpopular opinions and inquire about the inconsistent application of policy.
    I wish my HR would follow up. However, it seems when things are brought up, no one wants to deal with them. Unfortuantley, this is the government I have come to know.

  6. Jeff Says:
    January 31st, 2014 at 12:51 pm

    I am a civilian who works for a military organization and favoritism, cronyism and nepotism are the order of the day. I have watched military leaders influence the hiring of their spouses and create jobs for service members who are getting ready to separate from the military. I have seen E6/7/8 and retiring officers get jobs created for them or held open until they retire or separate. Even if it has an adverse effect on the mission, positions are kept vacant for a year or longer so that they can pre-select someone for that specific job. Job announcements on USAJOBS is nothing more than a formality on the way to a pre-determined selection of a spouse of the command group. I have thought about blowing the whistle, but to go to my IG’s office would backfire on me and there would be retaliation against me.

  7. Tom Says:
    February 2nd, 2014 at 3:51 am

    Favoritism, like all the rest of the noted “ism’s” erode moral and have a detrimental effect on an organizations cohesion. I suggest that if anyone thinks they should be getting their fair share of promotions, bonuses, etc…. and don’t to file an EEO complaint based upon age, gender or race discrimination.

  8. POA Says:
    February 6th, 2014 at 2:35 pm

    I think unfavord and Jeff work in my organization… Tom, you likely don’t work here because filing an EEO complaint or a grievence is career suicide.

    The the threshold is set too high for recourse, the GOBN knows how to get their way without breaking the law.

    The government is chock full of managers who look out for number one and their friends, and if you aren’t one of them you’re bound to be a victim of them in some shape or form.

  9. Clay Says:
    February 7th, 2014 at 10:08 am

    Tom, unless you have alot of money, are extremely patient and stress is not in your vocabulary then, and only then would i suggest filing an EEO complaint. I have a buddy that is 2.5 yrs and $17k in lawyer fees into his EEO complaint and the end is nowhere in sight. The process is broken… atleast under the DOD navy. My suggestion is to just go with the flow. If you cause waves they’ll just come back larger at you and drown you. I’ve tried fighting wrong doing both through EEO and through the UNION. The Human Resource office here will plain out just not follow the rules or the law because they know they can get away with it. I’ve attempted to sit down with HR once and showed them the law regarding Religious discrimination. The law was very clear and there is no way it could be misconstrued yet the HR rep simply stated, “we don’t interpret it that way.” Everyone management or HR is corrupt.

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