HOW TO HACK INTO THE FEDERAL PROMOTION PROCESS 

Ten of millions are spent each year to ensure that federal promotions are based on merit factors, e.g., professionally developed, job-related criteria rationally related to the position to be filled. Laws have been passed and regulations implemented listing specific actions that violate the merit concept, and computer systems have popped up all over government designed to increase objectivity.  But like any modern system, the federal promotion process has at least one flaw that any enterprising merit menace can use to hack through the alleged system firewalls to corrupt the merit process.  Here is how it works.

The Merit Code

To begin, let’s list the major statutory and regulatory provisions spelling out the federal merit promotion process merit rules.  Based on 5 USC 2302(b) managers cannot:

• Deceive or willfully obstruct a candidate for promotion,
• Influence any person to withdraw from a promotion competition,
• Grant and preference or advantage in the promotion process not authorized by law or regulation,
• Discriminate for or against any employee on the basis of conduct that does not adversely affect the performance of the employee or applicant, or
• Take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.

Based on the Title 5 Code of Federal Regulations provisions in part 300.101-103, managers must use promotion criteria that are–

• practical in character and as far as possible related to matters that fairly test the relative capacity and fitness of candidates for the jobs to be filled,
• based on a job analysis to identify the basic duties, responsibilities, knowledge, skills, and abilities required to perform the duties and responsibilities,
• important in evaluating candidates,
• demonstrate a rational relationship between performance in the position to be filled  and the criteria (employment practice) used, including a showing that it was professionally developed.

Two other regulations bolster the merit obligation, i.e., 5 CFR 335 requires that promotion processes insure a systematic means of selection for promotion according to merit as well as solely on job-related criteria and 5 CFR 7 demands that any appointing official base the selection decision solely on merit.

The Hackers’ Highway

Those are the rules.  Now let’s turn to the system flaw that reduces all those rules to a half-filled mug of meritless mastiff mucus.  It is not hidden; OPM wrote it right into the promotion system code (See 5 CFR 335.103).  After all, isn’t one of the best places to hide something is in plain sight?  The exploitable flaw is known as the Area of Consideration (AOC) which regulations define as follows:

Area of consideration: The area in which the agency makes a search for eligible candidates in a specific promotion action. The minimum area of consideration is the area designated by the promotion plan in which the agency should reasonably expect to locate enough high-quality candidates, as determined by the agency, to fill vacancies in the positions covered by the plan. (When the minimum area of consideration produces enough high-quality candidates and the agency does not find it necessary to make a broader search, the minimum area of consideration and the area of consideration are the same.)

Based on that very vague regulation, agency managers have concluded that they can refuse to consider applicants, no matter how outstanding, if they work outside the area as they define it.  For example, the US Geological Service manual allows HR staff to limit the area from which current employees can apply for a vacant job to “as small as a group of employees in a work unit in the local commuting area who report to the same immediate supervisor, or as large as government wide….”  Why worry about violating the prohibited personnel practice rule against willfully obstructing candidates or granting a preferred applicant a preference if a manager can dictate that the only people who can apply for a promotion opportunity in her group are those who already work for her?

While USGS may allow for the most absurdly small area from which candidates can apply, they are not the only ones using this back door to corrupt a system that is supposed to be “fair and open competition which assures all equal opportunity” (5 USC 2301(b)(1)) and ensure that “All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management.”  In recent USAJOBS announcements–

• Air Force limited the area of consideration to only those already working in the “financial management functional community.” (9L-CB-1238929-243703-JD)
• Natural Resources Conservation Service prohibited applicants from outside the NRCS, even if they work for another Department of Agriculture entity located in the same building. (MP-15-1258420-CB),
• Bureau of Land Management limited jobs to the local commuting area (WO Merit-2015-0015) while its parent entity,  the Department of Interior, considers any US citizen as well as residents of American Samoa and Swains Island, ( SEKI 1245754),and
• Department of Veteran Affairs allows HR to limit jobs only to applicants who already work in the “Central Arkansas Veterans Health Care System.” (RQ-15-AAP-1267207-BU)

In other words, if you want to select a certain person make the area of consideration very narrow, but if you want to avoid selecting a person make it very broad.

Don’t bother to look for any job analysis supporting these decisions or try to guess how where a prospective applicant works today meets the “solely job-related” criterion.  Neither exists, and in fact it appears that OPM itself is confused.  For example, look at the difference between the wording of the 5 CFR 335 rule and OPM Guidance.

• 5 CFR 335: The area in which the agency makes a search for eligible candidates in a specific promotion action.
• OPM AOC Guidance: The area of consideration describes the individuals from whom the agency will accept applications to compete for the position. It may be a broad or a limited group of individuals. The area of consideration may also be referred to as “Who May Apply” within the vacancy announcement.

The first addresses where the agency should “search” for candidates while the second totally omits the concept of an agency search and replaces it with the idea the agency can restrict where employees may apply from.  But then a third OPM document would seem to definitively bar the agency’s right to restrict  applicants based on where people live by pronouncing that a non-merit factor.

In the competitive examining process, qualified and available applicants should be considered for employment referral regardless of their place of residence. It is clear that in almost all cases, residency is a non-merit factor and violates the merit principles of open competition and job relatedness. As a non-merit factor, residency as an examination requirement is prohibited in 5 CFR Part 300.103(c).

Even MSPB seems confused. A recent Board document focuses on the AOC as a concept permitting agencies to exclude some applicants while and an earlier one explains it refers to where the agency searches. Given OPM’s and MSPB’s schizophrenia on the issue, it is no surprise that some agencies use the AOC code one way while others continue to use the traditional interpretation focused one where an agency searches, not whom it restricts.  For example, HHS/IHS employees from outside the area of consideration may apply and be considered under a vacancy announcement “even though candidates have not been sought from outside the minimum area of consideration.”  And a Department of Army document orders that “any ‘outside’ applicant who applies, whether external to the Division, Activity, or the Installation, must be given the opportunity to compete equally for referral with those in the intended AOC/work force.”

The Hack Patch

Agency confusion and the disparate treatment of applicants are reasons enough to fix this—not to mention the almost un-American notion that the government can bar applicants from competing no matter how many times it has committed in writing to a merit selection policy aimed at getting the best available selectee for a job.  Our preference is that some union petitions the Office of the Special Counsel alleging a prohibited personnel practice when an agency announces a job whose AOC restricts who may apply.  If the SC declines to pursue the matter, the union could put it before MSPB and ultimately a court.  A grievance would also create a path to challenge an AOC barring certain applicants, but we would not be surprised if a single arbitrator lacked the courage to take down a widespread practice supported by OPM.  Moreover,  even if the arbitrator did, when exceptions were filed at FLRA it would likely only ask OPM what it thinks the rule should be—a classic fox guarding the chicken coop error. Two recent MSPB decisions addressing the area of consideration concept, albeit it under a different statute, suggest that the Board might be ready to stop the misuse of the AOC.  The agency refused to consider applications from persons outside the stated AOC only to have the Board reject that restriction as unrelated to merit.

As the facts in Jolley that are outlined above indicate, the “area of consideration” that the Board found could not be used to exclude applicants under 5 U.S.C. § 3304(f)(1) was not based on qualifications for the position to be filled. That is, it was not based on the skills, experience, education, or other qualifications that would be required of an individual appointed to the position in question. Instead, the decision to accept applicants only from “on-site” employees was a matter of agency discretion. While agencies are generally free to impose discretionary limits such as these in advertising their vacancies, the Board held in Jolley that such limits could not be used to defeat a preference eligible’s right to compete under section 3304(f)(1). See id. ¶¶ 14-15 & n.2.

The union would be able to ask a court to review an FLRA rejection of such an arbitrator order.  OPM could initiate a return to the historical “search” emphasis, ending the “restrictive” application, but, frankly, we cannot recall the last time OPM did anything to promote or enforce merit.

We are not advocating that that an agency must consider applications no many how many are filed or where they come from. After all, in the age of USAJOBS.gov an agency vacancy announcement is available to the entire world and could generate thousands of applicants for a single job.  (Of course, USAJOBS also provides for the automated exclusion of those who do not meet the minimum qualifications or score high enough to be in a Best Qualified list.)  We accept an agency’s concern that the selection process proceed in a tad more systematic and cost-effective manner than might be required to consider applicants from any source, e.g., internal reassignment applicants, internal promotion applicants, applicants from elsewhere in the parent department, applicants from anywhere in government, applicants from anywhere in the world who do not and never have worked for government.  Congress, and whichever Carter Administration employee who drafted the Civil Service Reform Act it passed into law, gave agencies the way to efficiently process applicants when it provided agencies with the statutory right in 5 USC 7106(C), “with respect to filling positions, to make selections for appointments from (i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source.” OPM gave some definition to what a “source” is when it wrote, “…such as reemployment priority lists, reinstatement, transfer, handicapped, or Veteran Recruitment Act eligibles, or those within reach on an appropriate OPM certificate.” (5 CFR 335.103(b)(4)). Consequently, it seems to us that the way to cut of the hacking potential of the AOC concept and still maintain HR efficiency is to spell out the order of the sources from which the agency will consider applicants.  For example, if an agency has a promotion opportunity in New York City it would limit consideration first to those internal promotion applicants who could compete using the same documents so that the agency can compare the proverbial apples with other apples. The first source might be those applicants evaluated under the specific agency’s appraisal system/form, e.g., those from the same bargaining unit.  A second source could be those within the agency who have reassignment eligibility, a third those with promotion or reassignment eligibility from elsewhere in government, a fourth reinstatement eligibles, a fifth those on an OPM certificate, etc.  Proceeding in that manner to fill a NYC job would enable the agency to minimize the chance of an untenable flood of applicants, although we doubt that is a problem in the automated application age.  It would also give it the advantage of comparing similarly situated employees, e.g., those who work in the agency and are evaluated using the same 4301 appraisal system.