PROHIBITED PERSONNEL PRACTICE OF THE MONTH
| AN OVERVIEW During the first nine months of 2011, the Merit Systems Protection Board (MSPB) presented a series entitled the "Merit System Principle of the Month," discussing in turn each of the nine merit system principles, what they mean, and such issues as what role MSPB and other agencies play in their enforcement, and what our case law and studies have said about them. All nine merit system principles can now be read on MSPB's website. Before turning to a similar monthly discussion of each individual prohibited personnel practice (PPP), we provide an introduction that we hope puts them in a context that makes them more understandable and relevant. |
What is the significance of the PPPs and where do they come from?
Since the 1883 Pendleton Act, Congress has attempted to assure good government by enacting laws that require or prohibit certain actions by Government agencies and employees. These reforms began with laws that limited political influence in employment and grew over the years to establish rules for what must or must not be done in many areas of Government employment. It was not until the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95 454, 92 Stat. 1111, however, that a comprehensive list of 11 PPPs, now expanded to 12, was enacted into law. 5 U.S.C. § 2302(b)(1)-(12). Unlike the merit system principles, Congress made the prohibition of these personnel practices enforceable, so that employees would know of them and could be disciplined for committing a PPP. H. Rep. No. 95-1403, 95th Cong, 2d Sess. at 4 (1978). When President Carter transmitted to Congress his recommendations for civil service reform, he spoke of the problems he wanted to remedy in doing so and what he hoped to achieve as a result, including the desire "[t]o strengthen the protection of legitimate employee rights;" to "guarantee independent and impartial protection to employees" by establishing the MSPB; and to "help safeguard the rights of Federal employees who 'blow the whistle' on violations of laws or regulations by other employees, including their supervisors." President's Message of March 2, 1978, reprinted in H. Rep. No. 95-1403 at 98-100. The PPPs and the mechanisms established to enforce them are intended to achieve those ends.
How does MSPB enforce the prohibition against these personnel practices?
There are several ways that PPPs may be vindicated. The Office of Special Counsel (OSC) has authority to investigate allegations of PPPs brought by an individual and may even conduct an investigation in the absence of such an allegation in order to determine if corrective action is warranted. 5 U.S.C. §§ 1214(a)(1)(A), (a)(5). If OSC is unable to obtain a satisfactory correction of the practice from the agency at which it occurred, it may ask MSPB to grant corrective action, and if OSC proves its claim, the Board may order the corrective action it deems appropriate. 5 U.S.C. §§ 1214(b)(2)(B), (C), (b)(4)(A). During its investigation, as well as during the period a petition for corrective action is pending before MSPB, OSC may ask MSPB to stay any personnel action to which an affected employee was subject. 5 U.S.C. § 1214(b)(1)(A)(i), (B). The OSC may also petition MSPB to discipline an employee for having committed a PPP. 5 U.S.C. § 1215(a)(1)(A). After a hearing, MSPB may impose disciplinary action ranging from reprimand to removal, debarment from Federal employment for up to five years, or an assessment of a civil penalty up to $1,000.
If I believe that I have been the victim of a PPP, may I bring an appeal to the MSPB myself?
Under some circumstances, yes. The MSPB hears and decides appeals from many kinds of actions agencies may take against the employees who work for them. Among them are adverse actions (removal, demotion, suspension for more than 14 days, reductions in grade and pay, and furloughs for 30 days or less), reductions in force, certain performance-based actions, and a substantial number of others. You will find a complete list of those actions at 5 C.F.R. § 1201.3. With limited exceptions, if the agency takes any of these actions against you, known in this context as an "otherwise appealable action" (OAA), and if MSPB has jurisdiction to hear an appeal from a person with your tenure, preference eligible status, etc., it may also consider a claim that the action was taken for one of the reasons prohibited by 5 U.S.C. § 2302(b). Such a claim is called an "affirmative defense" to the agency's action, and MSPB will consider it because Congress specified in 5 U.S.C. § 7701(c)(2)(B) that even if the agency proves its action by the required standard of proof, its decision may not be sustained if you show "that the decision was based on any prohibited personnel practice described in section 2302(b) of" Title 5 of the U.S. Code. Thus, in such cases, the agency has the burden of proving the action that it took and you have the burden of proving by a preponderance of the evidence your claim of a PPP. A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the entire record, would accept as sufficient to find that your claim is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
If my agency has not taken an appealable action against me, may I still bring an appeal to MSPB?
Generally, if you have not been subject to an OAA, you must rely on OSC to request corrective action on your behalf, but under limited circumstances, you may be able to seek relief from MSPB on your own. Specifically, you may file what is known as an individual right of action (IRA) appeal if you believe that an agency has taken, threatened to take, or failed to take a personnel action against you because you "blew the whistle," i.e., disclosed information that you reasonably believed evidences a violation of law, rule, or regulation, gross mismanagement or a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety. 5 U.S.C. §§ 1221(a), 2302(b)(8). Before bringing an IRA appeal, however, you must ask OSC to investigate the matter. In addition, if you believe that an agency violated a veterans preference requirement you may also ask MSPB to correct the violation. That is because such a violation is prohibited not just by 5 U.S.C. § 2302(b)(11), but also by the Veterans Employment Opportunities Act of 1998 (VEOA) (codified in various sections of 5 U.S.C. chapter 33). Under VEOA, there is no requirement that you first seek corrective action from OSC, but you must first raise your claim with the Secretary of Labor. Finally, both on its own motion and based on a petition filed by an organization or an individual, MSPB has the authority to review any rule or regulation issued by the Office of Personnel Management and to declare it either invalid on its face if its implementation would cause an employee to commit any PPP, or invalidly implemented if an agency's implementation of the rule or regulation has caused an employee to violate 5 U.S.C. § 2302 by committing a PPP. 5 U.S.C. § 1204(f).
What requirements apply to proving a PPP?
In addition to the specific kinds of evidence that must be presented to prove individual PPPs, which will be discussed in subsequent months, only agency actions that meet the tests set out in 5 U.S.C. § 2302 are prohibited by this law. First, not every employee may commit a PPP as that term is defined by the statute. Only "[a]ny employee who has authority to take, direct others to take, recommend, or approve any personnel action" is subject to being sanctioned for committing a PPP. 5 U.S.C. § 2302(b). Thus, managers and supervisors are likely to be subject to the prohibition, as are employees in jobs in fields such as human resources, who make recommendations on many personnel actions. Moreover, it was not the innocent mistake that Congress sought to remedy, but those practices that are done intentionally. As the CSRA's legislative history stated, "[a] prohibited personnel practice is a personnel action which is taken for a prohibited purpose." S. Rep. No. 95-969, 95th Cong., 2d Sess., 20 (1978). Additionally, as the quoted language from section 2302(b) states, in order to be actionable, a PPP must have led to a "personnel action," as enumerated in the eleven subsections of section 2302(a). While not every action an agency takes can constitute a PPP, even if done for a prohibited purpose, the list is quite comprehensive and covers a very broad range of agency actions that occur every day, from appointment, promotion, and decisions concerning pay, benefits, and awards to discipline and significant changes in duties, responsibilities, and working conditions. Finally, a PPP applies only to an employee in or applicant for a "covered position" in an "agency." 5 U.S.C. § 2302(a)(2)(A). The first of those terms is defined for purposes of PPP law at 5 U.S.C. § 2302(a)(2)(B), the second at section 2302(a)(2)(C).
How can I find out more about PPPs?
"Prohibited Personnel Practices: Employee Perceptions." This report examines the frequency with which employees experience or witness what they perceive to be PPPs, but among its purposes is "to better educate the Federal workforce, and supervisors in particular, about the existence of the PPPs, how they can be avoided, and why avoiding the PPPs is not simply the law, but also a good management practice that can help create a more engaged workforce." Report at 4. The MSPB also published a June 2010 report on PPPs, as well as several reports dealing with specific PPPs, all of which are available on our website at www.mspb.gov/studies/index.htm. Similarly, Board decisions on appeals arising in each of the ways discussed above are also available on our website.