Preselection Caveats

We have seen an increase in allegations and investigations involving preselection, and more often than not, managers and HR specialists are blindsided by such allegations.  As most of you know, preselection is the “grant of some illegal advantage, or an intentional and purposeful manipulation of the system to insure that one person is favored and another is disadvantaged” and it is a violation of civil service laws to engage in preselection (it is one of the infamous 12 prohibited personnel practices (PPP) in title 5 of the U.S. Code).  Allegations of preselection are typically investigated by the agency’s office of inspector general or the U.S. Office of Special Counsel (OSC).  OSC also has the authority to seek corrective action on behalf of individuals who are victims of PPP, and disciplinary action against agency officials who commit prohibited personnel practices or suborn it.  

If you are reading this thinking you would never intentionally violate a PPP, the keyword here is intentionally - and there are some caveats that you need be aware of as these are often the instances that result in investigations and allegations of preselection against managers and HR specialists.  First of all, understand that while there must be fair and open competition for government jobs, allegations and investigations of preselection highlight the counterintuitive nature of some of our civil service laws.  In the current climate of demonstration projects and concepts of pay for performance, we constantly hear echoes and demands that the government needs to be more like the private sector.  Yet, what would be considered preselection in the government would simply be good business or common sense in the private sector.    For example, if you worked for me at company A and I took a job with company B—and I needed to hire someone for company B that had your skills and expertise, it would be only natural for me to hire you or encourage you to apply because you are a known commodity.   In the government, this very well could be unlawful preselection.     

Now we understand that the rules preventing preselection are important to preserve the much celebrated merit principles of the Civil Service Reform Act.  We are using this example because it demonstrates how well intended and law abiding civil servants could be subjected to an investigation for preselection by hiring someone you believe to be the best person for the position simply because of your prior working relationship, because you know the successes of the person from a previous position, or because someone you trust recommended the person, notwithstanding that the individual was on the “cert” or made the best qualified list—and all other hiring rules were followed.  Any preexisting professional or personal relationship could create an inference of preselection if someone files a complaint.   Although this is not a guarantee that a complaint won't be filed by a disgruntled employee, it is imperative to do your best to avoid appearances of preselection, involve HR hiring experts, and possibly even consider divorcing yourself from the whole hiring process if there is any prior personal or professional relationship or connection.      

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FEDS Professional Liability Insurance gives you the freedom to manage.  For more information on your specific exposures now, how professional liability insurance protects, or how the FEDS program differs from other insurance programs, please visit the FEDS website and choose the Executives and Managers tab.

 

Posted in Manager Matters

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