Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
My department has an active duty military employee occupying a position. He is about to retire from the military, but we are interested in retaining his service as a GS-11. Is it legal for us to “hire” the current military employee for the GS-11 position before he retires?
While you do not denote your department, it seems highly likely that you work within the Department of Defense. Thus, I would like for you to note that the Department of Defense has agency-specific policies which govern the conversion of a position from a military billet to a civilian billet. Those regulations vary considerably based on the type of position at issue. Please review those policies first to determine whether a civilian may even encumber the position.
If the billet can be converted, please know that the situation you describe sounds as though it might be a pre-selection held without allowing competition for the position. Such a move would likely be unlawful for a position within the competitive service.
I believe you must allow an open competition for the new position. However, it seems plausible that if this position were subject to open competition, the individual who currently occupies the position would stand a good chance of being selected lawfully; his experience will obviously be well-suited to the position for which he is applying, and he may be eligible for veteran’s preference.
I believe you should hold an open competition for the position and hire the best applicant, who may very well be the individual who currently encumbers the position. I am unsure whether the position you are discussing can be occupied by a civilian, and am doubtful that you can avoid the competitive process.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
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