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 firstname.lastname@example.org and view her blog at blogs.federaltimes.com/federal-law.