MSPB’S DIRTY LITTLE COVER-UP

That’s right, C-O-V-E-R—U-P!  Since the mid-90s, MSPB has been touting the cure-all benefits of category hiring over the rule of three or similar systems based on hiring from the top of a merit list first.  If you read over its multiple reports about category rating, you can almost feel the wind of the Board’s pom-poms on your face as it cheers on its favorite appointment process.  However, when asked the two questions used to distinguish scandals from mere screw-ups, the Board’s cover-up is undeniable, namely, 1-What did the Board know, and 2- When did it know it.

What Did the Board Know?  Here is what the Board knew about the flaws of the category rating system thanks to a published statistical study of the federal government’s use of category rating in comparison to the prior merit hiring rules:

• In general, category ratings decreased validity and utility/usefulness to an agency over the Rule of Three system;
• It also decreased merit within each category by reducing the number of top-performing applicants being selected;
• Its process for giving veterans’ preference is not equivalent to (or as good as) veterans’ preference under top-down selection processes such as the Rule of Three;
• Category ratings were not as effective as intended in promoting managerial choice; and
• The system appears to have serious rational as well as legal flaws.

When Did It Know It?  These research results were announced in 2011 at the International Personnel Assessment Council annual conference and published in the Applied HR Measurement Research journal in 2013 (Vol. 13, No. 1, p. 51).  Despite that just last month the Board issued a report not only once again touting the advantages of category rating over Rule of Three systems, but also omitting any reference to this study. A polite way of characterizing that would be to call it “academic dishonesty.” We prefer the grittier “cover-up.”

If you are asking why we are making such a big deal out of this, we are glad to answer.  One of the most valuable benefits a union can deliver to its members is a Promotion contract article which gives on-board unit employees an edge over outside candidates, particularly those who do not even work for the government or anyone else yet.  Typically, unions do this through a strong “first consideration” clause, or even a negotiated selection preference for insiders such as FLRA has upheld in the AFGE-SSA contract (See AFGE, 54 FLRA 1570 (1998)).

Those preferences were much more powerful for unit employees before category rating was introduced. Under the previous Rule of Three system managers knew that they would have to follow enforceable merit rules when considering outside candidates if they passed over current employees under a first consideration clause. But once that time-tested merit mechanism was tossed over the side based on the MSPB-endorsed category rating hype, passing over inside applicants appeared to become more attractive and far less risky. In short, the contract benefits were watered down.

Another reason for our deep concern about category rating systems is that neither OPM, GAO or MSPB has bothered to examine what agencies are actually using to distinguish among categories of applicants.  It boggles our mind to think of what garbage agencies may be using to compare the relative merit of various candidates. For example, one OPM document gave the following example for how an agency might categorize applicants for an accounting position on the element of Oral Communication Proficiency Level:

• Level 5- Communicates or explains complex ideas or information clearly.
• Level 3- Communicates or explains moderately complex ideas or information clearly.
• Level 1- Communicates or explains basic ideas or information clearly.

Who defines what is clear? Who decides whether an idea is a complex, moderately complex, or basic?  That would seem to depend largely on the readiness of the person hearing the explanation to understand the idea.

OPM demands that each category element and level be validated through the job analysis requirements of 5 CFR 300.103, but there is no evidence MSPB or OPM has bothered to check up on that either.

At the time category ratings were pushed upon agencies as the next great thing in hiring, unions promised to monitor the impact,  For example, NTEU told a Congressional committee, “We will be monitoring the changes advanced in the White House memorandum, particularly category hiring and the creation of new assessment tools, to make sure there is no abuse by agencies.”  However, neither NTEU nor any other union has reported any results of their monitoring.

Even a brief look around at case law shows that agencies appear to be playing games.  For example, one of the touted benefits of category hiring is that agencies would no longer have to use the slower and more expensive process of numerically rating applicants that often draws unnecessarily fine distinctions between candidates. However, the following is an excerpt from a recent decision:

OPM, which used category rating authorized by 5 U.S.C. § 3319 in lieu of a traditional examination, gave the appellant a score of 89 and placed him in the Well Qualified category of applicants, which included individuals with scores of 80-89. IAF, Tab 13 at 7, 22.2 Applicants with scores of 90-100 were placed in the Best Qualified category and applicants with scores of 70-79 were placed in the Qualified category. Id. at 22. OPM then referred 11 candidates deemed Best Qualified to the selecting official

In other words, the agencies are still drawing numerical distinctions, but then drawing arbitrary cut-off scores among them for the sole benefit of being able to put a lot more candidates in front of a selecting official than the Rule of Three would have allowed. Category rating is merely a scheme to avoid a more objective merit-based hiring process. Given that MSPB issued this decision, one wonders why it did not address this kind of abuse in its most recent report.

For all the reasons noted above, it is time that MSPB, GAO, and/or OPM digs into what has actually happened government-wide under category ratings by getting answers to these questions:

• How many applicants did Selecting Officials have to consider under category rating as opposed to what he/she could have examined under Rule of Three?  Was it three before and 33 now?
• How many category rating selectees were chosen who could not have even been considered under the Rule of Three approach?
• What percentage of all applicants wound up in each category used? Are the category definitions and underlying crediting plans meeting the requirements of 5 CFR 300.103?
• Did category rating increase the likelihood that current employees on the Best Qualified list were passed over in favor of outside applicants?