We Gotta Have a Rule

By William Wiley

Questions, we get wonderful questions here at FELTG. This one is from a somewhat frustrated practitioner that doubts that MSPB knows what “abuse of authority” really is. And it involves an area commonly misunderstood, right at the heart of our merit system.

Dear FELTG-

Here is a brief summary of what occurred in a case that recently went bad. I could use a little help in understanding why MSPB did what it did:

Appellant was the selecting official for the positions filled by the two applicants.  The vacant positions were not announced on the USAJOBS web site or otherwise publicly posted.  Appellant did not check to see if there were any qualified preference-eligible veterans who might be noncompetitively hired for the positions.  Instead, Appellant contacted the two applicants – and, only the two applicants – and encouraged them to apply for these unannounced and unposted positions.

Appellant knew the two applicants when they worked together previously.  The two applicants are not veterans and, at the time of their hiring, they had no prior or current federal service.  When appellant contacted one of the applicants, he told appellant that his application for a previous police officer vacancy with the agency, which was announced on the USAJOBS web site, had been rejected.  Appellant testified that he assumed that the applicant’s application for this previous vacancy had been rejected because he is not a veteran.

Appellant advised the two applicants to apply for the unannounced police officer positions using Schedule A and sent them an example of a Schedule A letter.  Schedule A is a noncompetitive hiring authority and only severely disabled individuals qualify for a Schedule A appointment.  Office of Personnel Management regulations, found at 5 C.F.R. § 213.3102(u), state that Schedule A appointments are reserved for individuals “with intellectual disabilities, severe physical disabilities, or psychiatric disabilities.”  This section defines the term “intellectual disabilities” to mean “only those disabilities that would have been encompassed by the term ‘mental retardation’ in previous iterations of this regulation and the associated Executive order.”  5 C.F.R. § 213.3102(u)(2).

After sending the two applicants example letters to qualify them as noncompetitive Schedule A applicants, appellant gave them further advice on their noncompetitive applications for the positions.  In a series of e-mails referenced in the initial decision, appellant reviewed one applicant’s resume and told him to remove appellant as a reference because it “wouldn’t look good and could be looked on as per-selection [sic].”  The applicant also told appellant in another series of e-mails that he had asked his treating physician to complete a Schedule A letter, but that his physician “didn’t feel comfortable saying I was disabled because my lung issue is a mild one.”  After the applicant asked appellant to “Let me know if there is a way around this, or if there is something else I can do,” appellant responded “I would get another doctor then. The only way in is with that letter.”  (emphasis added).

Appellant testified that in stating that the “only way in” is with a Schedule A letter, he knew that he could not hire the applicant without the Schedule A letter.  Appellant further testified that he knew that the applicant was not otherwise eligible for this unannounced vacancy because he is not a veteran.  As appellant directed, the applicant obtained a Schedule A letter, which was completed not by his treating physician, but by a physician at an urgent care facility.  The two applicants then provided appellant their resumes and completed Schedule A letters, and Appellant hand-delivered the documents to the Human Resources Specialist handling the hiring for these positions.  Appellant admitted hand-delivering the applications to the HR Specialist.  The Specialist testified that in his experience no supervisor other than appellant had ever handed him a Schedule A letter on behalf of an applicant.

Appellant told the Specialist, at the time he handed him the documents, that he would like the two applicants to be considered for these vacant positions.  Because appellant had not announced the positions, the Specialist testified that he understood that appellant wanted a non-competitive referral for the vacant police officer positions.  Appellant selected the two applicants  the same day he received the certificate and without interviewing them.

The Board states in the final decision “On petition for review, the appellant argues that the agency failed to show that there was anything improper about the assistance that he provided to [the applicants] and that it therefore failed to show that he abused his authority. We agree.”

What else would an agency need to prove to show favoritism, pre-selection, and, ultimately, an abuse of authority as a selecting official??

And our FELTG response:

Thanks for your patience on this one. Here’s what you’ve run up against.

As we teach in our MSPB Law Week (and UnCivil Servant on-site seminar for supervisors), an agency needs to satisfy five requirements to be able to take an adverse action:

The Five Elements of Discipline are –

1. There is a rule (because we define misconduct as violation of a rule),
2. The employee knows the rule,
3. The employee broke the rule,
4. The penalty is reasonable, and
5. The agency provided the employee due process.

The agency got tripped up here at No. 1. There is no rule against favoritism or pre-selection in the civil service. I know, hard to believe. But this has been the context since I started in the 70s. In fact, the old Civil Service Commission even had a point paper it circulated back then that said that pre-selecting individuals who were especially trained and favored by the selecting official for the purpose of affirmative action was completely in line with the merit system AS LONG AS the eventual selectee was qualified on merit for the position.

That’s the danger of taking an adverse action without having a black-and-white rule we can point to. Without a rule, we have to fall back on what the employee should have known the rule to be, and then we get into this vague, undefined, never-never land of what the employee believes, what the Board believes, and what we as management believe.

So you and I might agree that pre-selection is bad. But this supervisor has never been told that. Separately, there’s no case law to support a presumption that pre-selection is bad, and especially important is that there are no federal laws or regulations that specifically outlaw preselection. Therefore, we’ve failed to satisfy Element One and we are doomed.

DVA could make a rule that prohibits preselection and favoritism. If it did, then it could hold employees accountable for violating that rule, and thereby abusing their federal authority. But it has not. Therefore, in part because it has always taken this position, MSPB held that preselection is not inherently a violation of a rule, and cannot be the basis for discipline.

Hope this helps for the next time. Wiley@FELTG.com