Office of Special Counsel Prosecutes HR Specialists for Allegedly Helping Agency Management Pre-select a Candidate: The Sequel

By on September 15, 2010 in Current Events with 18 Comments

I wasn’t planning on writing a follow-up this soon, if at all, to the article published in FedSmith.com on August 2, but it generated so many comments on the website, and caused enough other people to write to me directly, that I decided to pursue the subject of pre-selection a bit further. 

Many of the commenters – who represented virtually every major Federal agency and a number of smaller ones – were pleased at the Office of Special Counsel’s (OSC) action and quite a few reported witnessing pre-selection occur, sometimes routinely, in their current and/or former agencies. 

A number of them wanted to know what, if anything, had happened to the Coast Guard commander’s selectee, Senior Legal Instrument Examiner Eric Woodson, and to the candidates who competed unsuccessfully against him.

The Merit Systems Protection Board’s (MSPB/Board) case report indicates that “The administrative law judge found that the record does not show that Woodson sought any preferential treatment or otherwise behaved improperly…and the Special Counsel did not file a complaint against him.” Based on this footnote, it is clear to me that the OSC was only litigating the conduct of the two HR specialists and the commander – not the issue of non-selection, per se. Accordingly, my best guess is that Mr. Woodson remains in the position and that his selection could only have been challenged by one or more of the non-selected candidates.

I have raised this issue with the OSC, and if I learn that my supposition regarding the selectee and the non-selected candidates is in error, I will post the correct information. 

A wide variety of perspectives were expressed in response to the first article. I’ll start with one from an HR Specialist with the VA, who put pre-selection into the context of the unique dynamics of competing for positions.

“As evidenced here by many of the comments from readers…all employees feel they are the best qualified. But sometimes, even though you may have some better qualifications, you may not be the best fit for the position. Usually a promotion entails a different set of skills that you are not necessarily tapping into. The hiring officials may not see that potential or skill set in you and go with someone else. Remember there (may be) hundreds of applicants for a job; many are very highly qualified but not everyone can get the job.” 

Each time I was selected to fill a vacancy, I can remember admiring the perspicacity of the selecting official. But when I wasn’t selected, I was sure the selecting official had made a grievous, perhaps even indefensible, error in judgment. So much for my own objectivity! In my experience, an applicant often does feel that he/she is the best-qualified candidate, particularly when the open position seems to be right in their wheelhouse, and that the fix must have been in for the selected candidate. The non-selectees may even go through the typical stages of grief: denial, anger, bargaining, depression, and acceptance. I went through that cycle more than once, with acceptance sometimes coming well after the others, as I chose to wallow in my misery.

In addition to the blow to one’s ego of not being selected, there are often financial implications, both immediate, as we see the higher grade and/or pay associated with this vacancy having slipped away, and long-term, as we visualize a scenario in which getting this particular job would have put us in a good position to compete for progressively higher-graded jobs down the road – a negative domino theory, if you will.

My point is that I don’t think it is easy for most of us, when we are candidates, to view our own qualifications for a vacancy, or the selection process itself, with complete objectivity. How, then, does one recognize pre-selection? Occasionally, as readers pointed out in response to the first article, there may be overt signs, such as a selecting official talking or writing openly about the person he/she intends to select, before a vacancy announcement has been posted or has closed, or a candidate telling co-workers that she/he is going to be selected for the position which has just been announced or for the next vacancy at a particular grade (the person may have inside knowledge but could just as easily be engaging in wishful thinking or uninformed braggadocio).

As we learned from the OSC’s prosecution of Coast Guard HR specialists Richard Lee and Diane Beatrez, if a vacancy is announced multiple times within a short period, particularly if such factors as the grade at which the position is to be filled, the knowledge, skills & abilities (KSAs), or the area of consideration keep changing, it is possible that the selecting official is attempting to focus on a specific individual. Another sign of pre-selection may be a vacancy announcement which is open for the shortest possible time under an agency’s merit promotion plan (MPP) and/or its collective bargaining agreement (CBA) and within the narrowest allowable competitive area.

I can remember seeing vacancy announcements which appeared to effectively eliminate applicants from outside the agency, and sometimes the KSAs were even drawn so tightly that a suspicious mind could wonder if the agency had a specific candidate in mind.

A Risk Analyst with the IRS commented that such moves as narrowing the area of consideration and limiting the announcement period as much as possible were okay, in that they would serve as a “don’t apply flag,” warning potential applicants not to bother. 

I also think that a number of agencies have, by routinely choosing not to interview the best-qualified candidates, contributed to the perception that they were engaging in pre-selection. The typical pattern in some agencies is for an applicant to get a letter/e-mail, eventually, from Human Resources indicating that she/he has been rated eligible and qualified, followed, eventually, by another one congratulating the applicant for making the best-qualified list, and a third piece of correspondence, eventually, advising the applicant that someone else was selected and thanking him/her for applying. 

As an applicant, I always felt that a job interview represented the best opportunity to make my case for selection. So, I was disappointed when I would make a best-qualified list but not get an interview. From talking to a large number of applicants over a long period of time, I think that is a pretty common feeling. Along those lines, I think that best-qualified applicants who do get a job interview are far more likely to apply to vacancies in that agency again, even if they do not get selected for a particular position, than best-qualified candidates who do not get a job interview. The interviewees often come away believing that the agency took the selection process seriously. 

For example, when I was doing a consulting assignment with the National Oceanic and Atmospheric Administration (NOAA) in Boulder several years ago, the HR office had been under a lengthy hiring freeze, and had finally been allowed to fill some of its vacancies. The HR Director, Shirley Purcell, and her two Branch Chiefs, Anita Rakestraw and Linda Wamboldt, and I developed an extensive set of job-related interview questions for each position. The four of us then jointly interviewed all of the candidates, taking turns asking questions. A number of candidates told us after the interviews that while the process had been arduous, the interviews demonstrated to them the agency’s interest in giving every best-qualified candidate a fair opportunity to compete. More than a few finalists said they would apply to NOAA va
cancy announcements again and would encourage their colleagues and friends to do so as well, which was another return on our investment of time.

As a selecting official for many years, I can’t remember a time when I did not interview best-qualified candidates in a competitive process. It was hardly an altruistic gesture on my part. Sometimes a candidate just blew me away in an interview, and often it was the best means of judging a finalist’s oral communications skills, a KSA which was an important part of virtually every crediting plan I ever developed for HR positions. And on a number of occasions, when my selection was a close call, I would offer candidate “1A” the position but would remember candidate “1B” when the next appropriate vacancy came along. There was one specific instance in which I selected the top candidate for a staffing specialist trainee vacancy and then was able to go back to the list and pick the next best candidate for a similar vacancy which suddenly materialized. 

A Federal HR Specialist/Consultant opined that the Coast Guard’s HR Director should have been disciplined as well, noting that “This is his culture and the team he leads.”

After re-reading the entire case file on the Board’s decision, it was hard for me to dispute the logic of the commenter’s conclusion. The Coast Guard’s headquarters HR office was heavily involved in the decisions which led Special Counsel to conclude that the agency had committed a PPP by engaging in pre-selection – only Mr. Lee was from a field office. And the MSPB administrative law judge, whose initial finding of no violation was overturned by the full Board, noted that he “gave particular credit to the Coast Guard’s official position that the respondents had done nothing improper,” as conveyed in testimony by the Chief of Civilian Personnel as well as by Ms. Beatrez’ second-line supervisor. 

An HR Specialist with OPM took issue with the Board’s finding that “… [N]othing the HR specialists did was itself illegal, but the intent to afford preference was,” saying “No. What they did, intentionally or not, was illegal. The Prohibited Personnel Practices are found in 5 USC 2302(b), and indeed commission of any such IS illegal.” I find myself in agreement with this reader’s perspective, as well. 

A Chief of Training and Development with Air Force agreed that a PPP was committed but felt that the HR specialists had been put in an untenable position and pointed out that “the average time to fill a vacancy is now approaching 145 days for my agency. The HR (Specialist) wants to meet the client’s needs.”

My colleague Helen Jacobson, to whom I am indebted for reviewing this article, made a similar point in the earlier one, observing that HR professionals “walk a fine line between providing good customer service…and committing a PPP by taking actions solely to accommodate that manager’s intent to hire a particular person.”

An HR Specialist with Air Force commented about the practice of making “name requests,” noting – sarcastically, I think – that, per OPM, a name request is not pre-selection. For those readers who may not be familiar with this process, back in the days when the Civil Service Commission (CSC), which morphed into OPM via the Civil Service Reform Act of 1978, was doing all of the competitive examining for non-status candidates and providing certificates of eligibles to agencies under the “Rule of Three,” the appropriate agency manager could name request a specific candidate. Upon finding that the candidate was within reach for appointment, CSC/OPM would refer her/him to the agency.

Most agencies now operate their own delegated examining units (DEUs), under the authority of OPM, but the practice of making name requests continues. A footnote in a Merit Systems Protection Board (MSPB) special study on prohibited personnel practices,published in June 2010, states that “OPM’s 1999 Delegated Examining Operations Handbook defined a name request as ‘a means by which Federal agencies can request that a particular individual(s) be considered for inclusion on a certificate of eligibles if within reach for certification.’ A name request is merely a tie-breaker that can prevent a candidate from being eliminated from consideration in a tied-score situation; it does not guarantee that the requested candidate will be referred, nor does it increase a candidate’s score or override veterans’preference.”  OPM’s Delegated Examining Operations Handbook: A Guide for Federal Agency Examining Offices, publishedin May 2007, continues to allow the use of name requests as tie-breakers.

In my experience, the agency may not have selected the person it had name requested 100% of the time, but I think 99% wouldn’t be a bad guess. The practice of making name requests has obviously been endorsed by OPM for decades, and MSPB did not seem to be alarmed by it, but, if such a case went before the Office of Special Counsel, I’m not sure how the agency filling the vacancy could effectively distinguish between its name request and a pre-selection, or how OPM could demonstrate that it wasn’t aiding and abetting a prohibited action.

An HR Specialist offered a variation on the same theme, referring to the Department of Navy’s practice of using a “Management Identified Candidate (MIC) pool to narrow the certificate of eligibles to just the very one the manager wants to see.”

The aforementioned MSPB special study on prohibited personnel practices noted under the headingPerceptions of Unfair Competition” that “In 2007, although decreasing percentages of employees reported inappropriate manipulation of the hiring process, 11 percent of employees reported that they had been discouraged from competing for a job, and 15 percent believed that an unfair advantage had been given to another job applicant.”

The Special Counsel’s website, OSC.gov, asks and clearly answers the question “How does the OSC handle prohibited personnel practice complaints?” However, for those employees who believe they have observed and/or suffered from pre-selection, and are thinking about reporting it, MSPB’s special study on prohibited personnel practices is not likely to be of great comfort. The agency found that “The percentage of employees who reported retaliation in 2005 for engaging in a specific protected activity is quite close to the percentage of employees who reported engaging in that activity—suggesting that most employees who reported disclosing wrongdoing or filing a grievance believe that they experienced negative repercussions for doing so.”

Knowing that the OSC is likely to investigate prohibited personnel practice complaints may be sufficient to discourage those agency management officials and HR specialists who might otherwise be tempted to engage in pre-selection. However, another obvious possibility is that agencies will simply be more careful in how they go about pre-selecting candidates, such as having discussions behind closed doors, with no e-mail or voice mail messages which could later be used against them, and not announcing the same position multiple times within a short period. Or, a selecting official could decide to pre-select a candidate without discussing the matter with anyone. Even the CSI folks can’t really see what’s going on in a person’s mind – at least not yet.

An Air Force Engineer, addressing pre-selection, observed that “The real question behind this practice is why do managers wish to promote certain individuals? Of course there are always the charges of some sort of nefarious conduct, but most of the time it’s because the GS system doesn’t allow for us to
recognize and reward outstanding individuals. The job is graded based on duties, but there are many individuals who define the job by their actual contributions, not by the narrow limits of the classification system. When a boss has one of these individuals, they want to reward him or her with pay equal to the work. Yet the only way is to conduct a sham hire. If the GS system would allow for pay and promotion in person rather than position, perhaps there would be less of this.”

While pre-selection is clearly a prohibited personnel practice, I believe it is very logical for a selecting official to want to consider one or more of her/his staff members for a vacancy which has been announced competitively. If you are the selecting official, you presumably know all you need to about the performance, attitude and reliability of that staff member in his/her current position, so you can in many cases eliminate the uncertainty that often comes with selecting someone you don’t know, including the critical but often frustratingly difficult process of doing reference/background checks.

In another special study, “Reference Checking in Federal Hiring: Making the Call, September 01, 2005,” MSPB stated that “reference checking…relies on the behavioral consistency principle—that the most reliable predictor of future behavior, such as job performance, is past behavior. This principle has a long and productive history in employee selection. It can be a strong basis for hiring decisions when an applicant’s past work settings and responsibilities are similar to those expected in the future.” (emphasis in original)

From the perspective of a selecting official, the key to avoiding pre-selection, as I see it, is to remain open-minded when considering all of the candidates referred to you, since the best-qualified candidate may be someone from outside your unit, your agency, and perhaps even the Federal Government. That may sound naïve, and is clearly easier said than done, but I’m sure I’m by no means the only selecting official to have gone into a selection process thinking they were very likely to select a particular candidate, only to encounter a better-qualified candidate.

© 2016 Steve Oppermann. All rights reserved. This article may not be reproduced without express written consent from Steve Oppermann.

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About the Author

Steve Oppermann completed his Federal career on March 31, 1997, after more than 26 years of service, virtually all in human resources management. He served as Regional Director of Personnel for GSA and advised and represented management in six agencies during his federal career. Steve passed away after a battle with cancer on December 22, 2013.

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