The Office of Special Counsel (OSC) recently smacked down the Dept. of Treasury FinCEN operations for screwing around with the merit system. The agency wanted to hire an attorney into a supervisory spot, but Treasury would not let them classify it as an attorney job. As a result, it was decided to advertise it at the GS-1801 job it always was, but to do things behind the scenes so that only an attorney with federal sector experience could get the job. Here’s how they did it and how we suspect a few other appointing officers manipulate the merit system.

Although the vacancy announcement led applicants to believe they did not have to be attorneys or even have federal sector experience to be competitive for the job, the crediting plan was written so that only someone with a law degree and federal sector experience would score any significant points. That got the agency what it wanted all along.

Unfortunately for the agency, someone outside its inner leadership circle took a look at this and called it what is was, namely, illegal.

The Special Counsel’s office recently announced that Treasury officials had willfully obstructed applicants from fairly competing by doing this. More specifically it said that a federal job announcement must accurately state the qualification requirements for the position advertised. See 5 C.F.R. § 330.104. However, Treasury’s announcement did not reflect the actual qualifications that FinCEN used in assessing applicants. In fact, it was in direct conflict with the corresponding crediting plan, which controlled whether applicants were eligible for selection.

The OSC report went on to write that “federal regulations require that employment selection practices for federal positions be based on a job analysis that identifies (1) basic duties and responsibilities; (2) required knowledge, skills, and abilities; and (3) factors that are important in evaluating the candidates. See 5 C.F.R. § 300.103(a)(2). These practices include ‘the development and use of examinations, qualification standards, tests, and other measurement instruments,’ such as the crediting plans used here. 5 C.F.R. § 300.101.”

FinCEN placed undue weight on prior federal service and the specific job title that applicants previously held. For instance, the job analysis for one position called for “expert knowledge….in relation to the Bank Secrecy Act” and an “ability to develop and manage a sizeable staff of investigators and compliance and enforcement specialists,” among other competencies. None of the knowledge, skills, or abilities listed indicated any specific need for either prior federal service or attorney experience. Yet, these were absolute requirements for the position based on the crediting plans.

The OSC conclusion was that “FinCEN’s vacancy questions and crediting plans for the investigator positions improperly excluded qualified applicants and undermined the principle of fair and open competition by obscuring the true criteria for selection.”

Moreover, “All ostensibly qualified applicants with no prior federal service were likewise deceived about their status, as publicly available information indicated that they would be considered, when in reality, there was no chance of it. Similarly, the positions were identified as GS-1801 investigators and the questions listed several ways that the relevant knowledge, skills, and abilities might have been acquired, leading any reasonable applicant to conclude that non-attorneys could qualify. Behind the scenes, however, FinCEN leadership and HR staff ensured that this was not the case. Using the crediting plans, which applicants never see, they awarded points to answers in the vacancy questions in a manner that eliminated all non-attorneys from competition, making attorney experience a hidden requirement for the jobs. It was equivalent to throwing out every application that did not contain a writing sample when no writing sample was requested. Surely, this is the type of obstacle to competition section 2302(b)(4) was intended to prevent.”

This is as good an example one can find for why crediting plans should be brought out of the dark that keep them from union or third party scrutiny. These are the vehicles for getting around screwing with the merit system and the sooner there is a broad effort to force agencies to draft them responsibly the better.

If you want to read more about the case, check it out here.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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