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

Human resources specialists may want to take particular note of this article. The Office of Special Counsel (OSC) has successfully prosecuted two human resources specialists accused of engaging in a prohibited personnel practice by attempting to help agency management pre-select a candidate for a vacancy.

My friend and Human Resources (HR) colleague Helen Jacobson recently alerted me to an article about the Office of Special Counsel’s (OSC) successful prosecution of two HR specialists who were accused of engaging in a prohibited personnel practice (PPP) by attempting to help agency management pre-select a candidate for a vacancy. My initial reaction after reading the article and the case report was “Yikes!”

As noted in a cyberFEDS Case Report 110 LRP 28583, Special Counsel v. Richard F. Lee and Diane L. Beatrez, the Office of Special Counsel charged the respondents with violating 5 USC 2302(b)(6) by granting a preference or advantage to an employee for the purpose of improving his chances of being promoted. 

According to Herb Levine, correspondent for cyberFEDS, the salient facts of the case are as follows:

Two “HR practitioners working in the U.S. Coast Guard civilian personnel system advised the uniformed commander of a USCG facility on the announcements to fill a vacancy for a GS-11 supervisor. The position was announced both competitively and as a merit promotion.” [Author’s Note: In case you find this last sentence a bit confusing, as I did, the Case Report clarifies that “The Coast Guard issued parallel vacancy announcements on January 20, 2004: a delegated examining unit (DEU) announcement that was open to all qualified U.S. citizens; and a merit promotion announcement open to ‘status eligibles.’ “

“After the commander declined to interview anyone on the resultant lists, the vacancy was re-advertised, but those announcements, largely identical to the first, were withdrawn as erroneous. The position was then announced a third time, only this time the position was advertised as GS-9/11, it was limited to the local commuting area, and the qualifications were recast to emphasize USCG experience in the field. The third announcement led to a successful hire.”

“…The successful hire was a GS-8 senior subordinate of the previous supervisor. The commander, in asking for a new competition, specifically wanted to know why that GS-8 had not made the first list (he had applied for merit promotion, but had insufficient time in his relatively low grade). The e-mails on record and later testimony showed the HR specialists involved responded by telling the commander what to request so that the desired candidate could be hired, and then jiggered the process to produce that result.”

According to the case report, the Merit Systems Protection Board (MSPB) administrative judge (AJ) “found that neither Beatrez nor Lee had committed any prohibited personnel practice in violation of 5 U.S.C. (Section) 2302(b)(6) and he dismissed the complaints against both respondents.”

The Special Counsel then filed a Petition for Review (PFR) with the MSPB. The full Board accepted the petition for review (PFR) and overruled its administrative judge (AJ) based on clear evidence of intent. 

That is, nothing the HR specialists did was itself illegal, but the intent to afford preference was. The MSPB acknowledged that no one involved thought they were doing anything wrong, or even unusual, and that this was confirmed by the testimony of the HR specialists’ supervisors. This was taken as one of several mitigating circumstances, but one HR specialist was ordered suspended for 45 days and the other for 10. The commander had retired by the time the case went forward. 

Recognizing that the Federal Government’s staffing programs are currently in a state of flux, and that some, perhaps most, staffing specialists don’t do comprehensive job analyses due to the fact that so many agencies now use staffing software programs, I am going to create a “hypothetical” situation and see if those who may be staffing specialists, or may have performed those functions in the past, can relate. 

A GS-12 Contract Specialist position has just been vacated, and the selecting official wants to fill the vacancy immediately. You work closely with that official, or with a subject matter expert designated by her/him, to identify the most important knowledge, skills and abilities (KSAs), and then use those KSAs to develop the job-related crediting plan. Then, you convene a promotion panel consisting of three people who are at or above the full performance level of the position. You, as the staffing specialist, chair the panel but do not serve as a voting member, and there is also an EEO observer present. There are so many qualified applicants that reviewing the applications takes three full days. Even though serving as a panelist is a great experience if you are looking to improve your own application – panelists see the good, the bad and the ugly among the applications they review – by the time one has looked through dozens, or even hundreds, of applications, the entertainment value tends to fall off a cliff, and panelists are often anxious to get back to their own jobs. But your panel works its way through the stack of applications and comes up with a best-qualified list for the selecting official. 

            You thank the panel profusely for their efforts and bound off to deliver the best-qualified list personally to the selecting official. A few weeks later, you are shocked to find that the certificate has been returned unused. It looked to you and to your panelists as if this was an excellent list of candidates. What could have gone wrong? 

In my experience, the principal reason for returning a promotion certificate unused was that the selecting official did not see the name of a particular candidate on that list. In this “hypothetical” situation, an enormous amount of time and effort were wasted, in addition to such hidden costs as good will and credibility. For example, how likely is it that your panelists will volunteer to serve in that capacity the next time around? The next most likely scenario: The selecting official did not review the position description (PD) for accuracy prior to announcing the vacancy, and, as a result, the wrong KSAs were identified, leading to an inappropriate crediting plan, and to a list of best-qualified candidates whose credentials don’t match up well with the current requirements of the job.

After being burned a few times in scenarios remarkably similar to the one I just created, I started going into the selecting official’s office, closing the door and asking him/her: “What are you hoping to do with this vacancy?” I figured if I could establish and maintain a high level of trust with selecting officials, they were more likely to tell me about any “hidden agendas” that they might have, like promoting a specific individual. 

If that was the objective, and could be done legally, such as via a legitimate accretion of duties promotion or a non-competitive promotion based on the fact that the employee had previously competed for a position at or above the full performance level of the position being filled, I would let the selecting official know that those options existed. 

Back in the days when the Office of Personnel Management (OPM) had a full-blown, and much-feared, personnel management evaluation (PME) program, agencies were routinely, often intensely, scrutinized by OPM to be sure that their personnel programs were being administered consistent with relevant law and regulations.

I can remember when the Denver regional office of a major Federal agency was found to have violated Title V in a number of ways. The violations were so numerous and so significant that I’m sure the regional office lost its classification authority and I think it lost staffing authority as well. The operating officials, up to and including the regional director, who had directed the actions that had been identified by OPM as improper, were long gone by the time the PME was completed. As in the new Coast Guard case, that left HR holding the bag. The regional director of personnel was a good guy and very knowledgeable; I don’t recall if he was disciplined, but I do remember that his reputation was trashed. 

I think the Coast Guard case is an important one and that there are many interesting aspects to it. Since Helen worked as a staffing specialist much more recently than I did, I asked her to offer some thoughts about the lessons that can be learned from it. 

“It is not uncommon for a manager to have someone in mind when announcing a position, often because the individual has worked for them in some capacity or another (be it a term employee, merit promotion eligible, contractor, etc.). As HR professionals, we walk a fine line between providing good customer service by working with the manager to make sure the best-qualified applicants are referred (in the manager’s mind, this should include their potential selectee) and committing a PPP by taking actions solely to accommodate that manager’s intent to hire a particular person. If a manager expresses a desire to hire a specific person at the beginning of a recruitment, we are best served to remind them of the requirements of open competition and the importance of accurate PDs, job analyses and KSAs in the recruitment process.

Of interest is the fact that the given reason for reannouncing the position was to widen the area of consideration, but the new announcement did exactly the opposite. It is easy to infer prextext with facts like those. The case is a sobering reminder that the reasons for announcing a position must not be mere lip service, and should be designed to achieve the goals they are purported to achieve.

The MSPB judge made a point that the commander in this case was not in the HR Specialist’s chain of command and therefore, they cannot claim that they were following orders such that refusal would have been tantamount to an act of insubordination. What the decision does not recognize is the authority and power that highly-ranked officials have – over an HR Specialist’s reputation, authority, credibility and even performance ratings – regardless of whether they are in the chain of command. The degree to which these players see you as a strategic partner and ally can define your career.”

In closing, I will spin off from Helen’s excellent analysis, starting with her observation about HR professionals walking a fine line between providing good customer service and abetting management’s efforts to commit a PPP. As she points out, it is hard to fault a manager for wanting to consider an employee who has done an excellent job for her/him. 

And sometimes there is a pretty fine line between wanting to consider a particular employee and attempting to pre-select one, which the Special Counsel and the Board found had happened in the Coast Guard case. 

I thought the Special Counsel did a terrific job of presenting its case against the two HR specialists and, to its credit, not only acknowledged that “the strongest evidence of intent points not to the respondents, but to CMDR O’Hare,” but also requested that the Department of Homeland Security (DHS) impose disciplinary action on the commander. 

It probably won’t surprise too many readers to learn that in the six months between the OSC recommendation and the commander’s retirement, the DHS wasn’t able to take a disciplinary action against her. 

I also thought the Board’s decision was exceptionally well-reasoned and well-written. I have been critical of some Board decisions, particularly when it comes to the rights of veterans, but in this case I thought its analysis and conclusions were completely consistent with the facts. The AJ who conducted the hearing gave more credence to the testimony of the respondents and other principals than to the “paper trail.” The full Board, while noting that it seldom exercises the prerogative to “substitute its own determinations for those of an administrative judge, even where his credibility findings are based in part on demeanor evidence,” went on to state that “we could not ignore in the case before us the serious inconsistencies between the appellant’s account and the documentary evidence…”

Board member Anne M. Wagner filed a concurring opinion in which she noted that she fully agreed with the Board’s opinion but, in “balancing the mitigating factors with the aggravating factors in this case,” she would have imposed suspensions of shorter duration on Mr. Lee and Ms. Beatriz than the ones ordered by the Board. I tend to agree with Ms. Wagner’s rationale and conclusion.

Helen also noted the glaring discrepancy between the commander’s stated objective of “expanding the pool of qualified applicants with specific licensing experience” and her desire to limit the solicitation to the Los Angeles/Long Beach local area and to advertise it for the minimum amount of time. 

I think the paper trail itself is worth a brief comment. Back when I was doing this kind of work, we didn’t have e-mail, which meant this kind of information would likely have been exchanged via personal visits and/or phone calls. Did we engage in such discussions? You bet we, or at least some of us, did but, lacking today’s technology, we seldom left a paper trail. That was probably fortunate for us, in that employee relations specialists often have another name for e-mails: “evidence.” Of course, the larger point is not to engage in prohibited personnel practices or to help agency management do so. 

The latter is sometimes easier said than done. I would beg to disagree with anyone who thinks it is easy to say no to the top manager in your chain of command, one who may have major influence over how your career does or does not progress. And even where, as in the Coast Guard case, the official directing the actions is not in your direct chain of command, Helen pointed out that she/he may well be in a position to affect your reputation, authority, credibility and even performance ratings – in short, your career prospects. That was certainly my experience and observation over a 26+-year career.

I think it’s safe to say that the current Special Counsel’s office will be taking very seriously allegations that agencies have failed to comply with merit systems principles and/or have engaged in prohibited personnel practices. The overwhelming majority of HR specialists I worked with tried to do the right thing every day – balancing their responsibilities as the day-to-day “gate-keepers” of Title V with their role as management consultants, helping agency officials accomplish their mission and manage the workforce. 

For anyone who still needed added “incentive” to do the right thing, I think the OSC has just provided it – to HR and to managers and supervisors throughout the agencies. 


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.