UNITED STATES MERIT SYSTEMS PROTECTION BOARD

A Report to the President and the Congress of the United States 

by the U.S. Merit Systems Protection Board

AUGUST 2011

PROHIBITED PERSONNEL 

PRACTICES:

Employee Perceptions

U.S. MERIT SYSTEMS PROTECTION BOARD

1615 M Street, NW

Washington, DC 20419-0001

The President

President of the Senate

Speaker of the House of Representatives

Dear Sirs:

In accordance with the requirements of 5 U.S.C. § 1204(a)(3), it is my honor to submit 

this U.S. Merit Systems Protection Board report, Prohibited Personnel Practices: Employee 

Perceptions. This report describes the 12 prohibited personnel practices (PPPs), what they each 

mean, the frequency with which Federal employees perceive that these PPPs are occurring, and 

the deleterious effect that such perceptions can have on the Federal workforce. 

The PPPs are codified at 5 U.S.C. §  2302(b), which specifies that agency officials 

are not permitted to discriminate, consider improper recommendations, coerce political 

activity, obstruct competition or encourage a candidate to withdraw from competition, grant 

a preference not authorized by law, engage in nepotism, retaliate for whistleblowing or the 

exercise of a grievance or appeal right, knowingly violate the preference rights of a veteran, or 

engage in other actions that would violate a law, rule or regulation that implements the merit 

system principles. 

Data from a recent survey conducted by the Merit Systems Protection Board indicates 

that perceptions of occurrences of most PPPs are at an 18-year low. However, there is room 

for improvement. One of the most important lessons that we identified is the extent to 

which employees observe how others in the workplace are treated, and how perceptions of 

management’s improper treatment of others affects the observer. As our report explains, an 

employee’s perception that others in the workplace have been subjected to a PPP has a negative 

relationship to the observer’s level of engagement, even if the observer is not personally affected. 

Given that many employees may observe a single act, the perceived commission of any PPP can 

have substantial consequences for organizational effectiveness.

I believe you will find this report useful as you consider issues affecting the Federal 

Government’s ability to operate efficiently and effectively in these challenging times.

Respectfully,

Susan Tsui Grundmann 

 Enclosure

A Report to the President and the Congress of the United States 

by the U.S. Merit Systems Protection Board

Prohibited Personnel Practices:

Employee Perceptions

U.S. Merit Systems Protection Board

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mary M. Rose, Member

Office of Policy and Evaluation

Director

John Crum, Ph.D.

Deputy Director

Laura Shugrue

Project Manager

Sharon Roth

Survey Analysis Contributors

J. Peter Leeds, Ph.D.

James Tsugawa

A Report by the U.S. Merit Systems Protection Board

Table of Contents

Prohibited Personnel Practices – 5 U.S.C. § 2302(b) ............................................................................................... i

Executive Summary ................................................................................................................................................iii

Findings............................................................................................................................................................... iii

Recommendations................................................................................................................................................ iii

Introduction............................................................................................................................................................. 1

Purpose..................................................................................................................................................................1

PPPs and Board Authority .....................................................................................................................................1

2010 MPS Methodology ........................................................................................................................................3

What Are the PPPs?.................................................................................................................................................. 5

Discrimination—5 U.S.C. § 2302(b)(1).................................................................................................................7

Considering Recommendations—5 U.S.C. § 2302(b)(2).......................................................................................8

Coercing Political Activity—5 U.S.C. § 2302(b)(3)...............................................................................................9

Obstructing Competition—5 U.S.C. § 2302(b)(4)..............................................................................................10

Influencing a Withdrawal From Competition—5 U.S.C. § 2302(b)(5) ...............................................................11

Granting an Advantage—5 U.S.C. § 2302(b)(6) .................................................................................................12

Nepotism—5 U.S.C. § 2302(b)(7).......................................................................................................................15

Whistleblower Retaliation—5 U.S.C. § 2302(b)(8).............................................................................................16

Other Retaliation—5 U.S.C. § 2302(b)(9) ..........................................................................................................19

Other Discrimination—5 U.S.C. § 2302(b)(10)..................................................................................................20

Veterans’ Preference—5 U.S.C. § 2302(b)(11) .....................................................................................................21

Violating Rules That Implement a Merit System Principle—5 U.S.C. § 2302(b)(12)...........................................23

PPP Perceptions and Trends.................................................................................................................................. 25

Perceptions of Most PPPs Are Declining..............................................................................................................27

Discrimination............................................................................................................................................27

Coercing Political Activity ..........................................................................................................................29

Obstructing Competition ...........................................................................................................................30

Influencing a Withdrawal From Competition.............................................................................................30

Granting an Advantage...............................................................................................................................31

Nepotism ....................................................................................................................................................32

Whistleblower Retaliation...........................................................................................................................32

Other Retaliation........................................................................................................................................33

Perceptions Low for PPPs With No Longitudinal Data .......................................................................................33

Bystanders and the Business Case ......................................................................................................................... 35

Conclusion ............................................................................................................................................................. 39

Appendix A: Merit System Principles – 5 U.S.C. § 2301(b).................................................................................. 41

Appendix B: MSPB’s Engagement Scale Questions.............................................................................................. 43

A Report by the U.S. Merit Systems Protection Board i

Any employee who has authority to take, direct others to take, recommend, or approve any personnel 

action, shall not, with respect to such authority— 

(1) discriminate for or against any employee or applicant for employment— 

(A) on the basis of race, color, religion, sex, or national origin, as prohibited under 

section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16); 

(B) on the basis of age, as prohibited under sections 12 and 15 of the Age 

Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a); 

(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act 

of 1938 (29 U.S.C. 206 (d)); 

(D) on the basis of handicapping condition, as prohibited under section 501 of the 

Rehabilitation Act of 1973 (29 U.S.C. 791); or 

(E) on the basis of marital status or political affiliation, as prohibited under any law, 

rule, or regulation; 

(2) solicit or consider any recommendation or statement, oral or written, with respect to 

any individual who requests or is under consideration for any personnel action unless such 

recommendation or statement is based on the personal knowledge or records of the person 

furnishing it and consists of— 

(A) an evaluation of the work performance, ability, aptitude, or general qualifications of 

such individual; or 

(B) an evaluation of the character, loyalty, or suitability of such individual; 

(3) coerce the political activity of any person (including the providing of any political 

contribution or service), or take any action against any employee or applicant for employment as 

a reprisal for the refusal of any person to engage in such political activity; 

(4) deceive or willfully obstruct any person with respect to such person’s right to compete for 

employment; 

(5) influence any person to withdraw from competition for any position for the purpose of 

improving or injuring the prospects of any other person for employment; 

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee 

or applicant for employment (including defining the scope or manner of competition or the 

requirements for any position) for the purpose of improving or injuring the prospects of any 

particular person for employment; 

(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, 

or advancement, in or to a civilian position any individual who is a relative (as defined in section 

3110 (a)(3) of this title) of such employee if such position is in the agency in which such employee 

is serving as a public official (as defined in section 3110 (a)(2) of this title) or over which such 

employee exercises jurisdiction or control as such an official; 

Prohibited Personnel 

Practices – 5 U.S.C. § 2302(b)
ii Prohibited Personnel Practices: Employee Perceptions

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any 

employee or applicant for employment because of— 

(A) any disclosure of information by an employee or applicant which the employee or 

applicant reasonably believes evidences— 

(i) a violation of any law, rule, or regulation, or 

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, 

or a substantial and specific danger to public health or safety, if such 

disclosure is not specifically prohibited by law and if such information 

is not specifically required by Executive order to be kept secret in the 

interest of national defense or the conduct of foreign affairs; or 

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or 

another employee designated by the head of the agency to receive such disclosures, of 

information which the employee or applicant reasonably believes evidences— 

(i) a violation of any law, rule, or regulation, or 

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, 

or a substantial and specific danger to public health or safety; 

(9) take or fail to take, or threaten to take or fail to take, any personnel action against any 

employee or applicant for employment because of— 

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or 

regulation; 

(B) testifying for or otherwise lawfully assisting any individual in the exercise of any 

right referred to in subparagraph (A); 

(C) cooperating with or disclosing information to the Inspector General of an agency, 

or the Special Counsel, in accordance with applicable provisions of law; or 

(D) for refusing to obey an order that would require the individual to violate a law; 

(10) discriminate for or against any employee or applicant for employment on the basis of 

conduct which does not adversely affect the performance of the employee or applicant or the 

performance of others; except that nothing in this paragraph shall prohibit an agency from 

taking into account in determining suitability or fitness any conviction of the employee or 

applicant for any crime under the laws of any State, of the District of Columbia, or of the United 

States; 

(11)

(A) knowingly take, recommend, or approve any personnel action if the taking of such 

action would violate a veterans’ preference requirement; or 

(B) knowingly fail to take, recommend, or approve any personnel action if the failure 

to take such action would violate a veterans’ preference requirement; or 

(12) 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. 

This subsection shall not be construed to authorize the withholding of information from the Congress or 

the taking of any personnel action against an employee who discloses information to the Congress. 
A Report by the U.S. Merit Systems Protection Board iii

The U.S. Merit Systems Protection Board (“MSPB” or “the Board”) has a statutory 

responsibility to report to Congress and the President regarding “whether the public interest 

in a civil service free of prohibited personnel practices is being adequately protected.”1 The 

prohibited personnel practices (PPPs), codified at 5 U.S.C. § 2302, are a set of 12 activities 

that are proscribed by law. The purpose of this report is to discuss the extent to which 

Federal employees perceive that PPPs are occurring and to educate readers on the meaning 

and importance of the PPPs.2

Findings

Overall, perceptions of occurrences of PPPs have dramatically declined since 1992. The 

PPPs with diminished perceptions include discrimination, coercion of political activity, 

obstruction of competition, influencing a withdrawl from competition, granting an 

improper advantage, nepotism, retaliation for whistleblowing, and retaliation for exercising 

an appeal or grievance right. PPPs in the Federal Government are serious, but they also 

appear to be increasingly uncommon.

Our 2010 Merit Principles Survey (MPS) data also show that there is a business case for 

avoiding PPPs. Perceptions of a PPP, whether observed or personally experienced, have a 

strong relationship to an employee’s level of engagement at work. Thus, while avoiding 

PPPs is a legal requirement, it is also a good management practice.

Recommendations

We encourage agencies to educate their workforces, and in particular their executives, 

managers, supervisors, and human capital staff including equal employment opportunity 

advisors, about the PPPs.3 These management officials should be informed about the 

meaning of each PPP, what constitutes a violation, and the reasons why it is in their 

interest to comply with 5 U.S.C. § 2302(b). This holds particularly true for new political 

1 5 U.S.C. § 1204(a)(3). 

2 There may be many causes for a perception that a PPP has occurred, including misunderstandings regarding 

what the PPPs mean and what motives were behind a personnel action. However, perceptions can serve as important 

indicators of the potential that a PPP has occurred. 

3 5 U.S.C. § 2302(c) specifically states that “[t]he head of each agency shall be responsible for the prevention of 

prohibited personnel practices...” 

Executive Summary
iv Prohibited Personnel Practices: Employee Perceptions

appointees who may not be familiar with the civil service and may not have previously 

operated within a merit system. It would be beneficial if new officials received a standard 

memorandum from the head of the agency or cabinet department informing the official of 

the existence of the PPPs, expressing the leadership’s expectations that PPPs will not occur, 

and giving a source for further information about the PPPs. This report could be one such 

source of PPP information provided to officials, but agencies may benefit from creating 

their own, more brief summaries. At the very least, officials should be given a copy of the 

PPPs from 5 U.S.C. § 2302 along with an explanation of the practical significance of the 

PPPs.

Where agencies discover that a PPP may have potentially occurred, agencies should, of 

course, promptly investigate to discover if the PPP did in fact happen. If the agency 

finds that the PPP happened, it should correct any improper personnel action and, if 

appropriate, consider taking disciplinary action to address the misconduct of the official 

who committed the PPP. The agency should also consider what agency practices may have 

permitted the PPP to occur and take action to correct those root causes.

Where there are perceptions of PPPs, but the agency concludes that PPPs have not 

occurred, agencies should seek to do a better job of explaining to employees the reasons 

behind management decisions so that employees can better understand the merit-based 

reasons for a particular outcome and avoid misperceptions in the future.
A Report by the U.S. Merit Systems Protection Board 1

When Congress enacted the Civil Service Reform Act of 1978 (CSRA), the new law 

included two very important lists. One was a list of merit system principles that were to 

be encouraged, and the other was a list of personnel practices that were to be prohibited. 

This report discusses the prohibited personnel practices. The full text of the PPPs has been 

provided in the front of this report.

Purpose

The primary purpose of this report is to provide Congress and the President with important 

information about the health of the Federal merit systems—in this case, the declining rate 

of perceptions that a PPP has been committed in the Federal service.

However, it is also our hope that we can use this opportunity 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. 

Accordingly, the first major chapter of this report provides the reader with an explanation 

of how each PPP has been interpreted by the Board and the courts. This section can be 

used as a stand-alone primer on the PPPs, but it also can help the reader to understand the 

chapter that follows, which provides longitudinal data derived from our merit principles 

surveys regarding employee perceptions of each PPP.

PPPs and Board Authority

Because of statutory language, there are only a few ways that allegations of PPPs can be 

adjudicated by the Board. The first avenue involves the Office of Special Counsel (OSC).4

OSC has the power to file with the Board a complaint asserting that a PPP has been 

committed. OSC can ask the Board to order corrective action, meaning that if OSC 

proves its case, the Board will undo the personnel action that constituted the PPP. OSC 

can also ask for disciplinary action, meaning that OSC requests that the Board order a 

reprimand, suspension, demotion, or removal action to discipline an individual for having 

4 For more information on how to disclose a PPP to OSC, please visit OSC’s website at www.osc.gov.

Introduction
2 Prohibited Personnel Practices: Employee Perceptions

committed a PPP. OSC can also request that the Board debar an individual from Federal 

employment for a period of up to 5 years and/or assess a civil fine of up to $1,000.5 

The second way that a PPP may come before the Board is as an affirmative defense.6 This 

occurs when an employee has brought an otherwise appealable action before the Board 

(such as his or her removal) and the employee asserts that the agency’s action constituted 

the commission of a PPP. 7 If the Board finds by a preponderance of the evidence that the 

agency’s action was the commission of a PPP the Board must overturn the agency’s action.8

There is a third way that the commission of a PPP may be addressed by the Board, but 

because the authority is highly restricted, it has rarely been an issue. The Board may 

review an OPM rule or regulation on its own motion, and may declare the provision 

invalid, provided that the provision either: (1) requires an agency to commit a PPP, or 

(2) as implemented by an agency requires an employee to commit a PPP.9 The statutory 

requirement that the rule or regulation must require, not merely permit, the commission 

of a PPP, has limited the extent to which this authority has been exercised.10

For two PPPs, the law provides individuals with another means by which they can bring 

that PPP to the attention of the MSPB. The first is for whistleblowers (section 2302(b)

(8)), and the second is for veterans with preference (section 2302(b)(11)).

If an employee asserts that a personnel action, including an otherwise non-appealable 

action (such as a reprimand), is a result of whistleblower retaliation (the eighth PPP), the 

employee may bring an individual right of action to the Board. However, there is a series 

of steps that must occur for the Board to have jurisdiction over an individual right of 

action, as discussed in MSPB’s recent report Whistleblower Protections for Federal Employees. 

For veterans, another avenue exists to obtain redress for a violation of veterans’ preference. 

The Veterans Employment Opportunities Act of 1998 (VEOA) empowers the Board 

5 5 U.S.C. § 1215(a)(3).

6 See Leaton v. Department of the Interior, 65 M.S.P.R. 331, 341 (1994), aff’d, 64 F.3d 678, (Fed. Cir. 1995) 

(Table) (holding that the Board may adjudicate a claim that a PPP has occurred “when such a claim is interposed as 

an affirmative defense to an otherwise appealable action”). An affirmative defense occurs when an employee claims 

that an action should not be sustained because: (1) there was a harmful error in the agency’s procedures for taking 

the action; (2) the decision was based on a PPP; or (3) the decision was otherwise not in accordance with the law. 5 

U.S.C. § 7701(c)(2). While an agency has the burden to prove that its action is supported by a preponderance of 

the evidence, the appellant asserting an affirmative defense bears the burden to prove the affirmative defense by a 

preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2). 

7 A comprehensive list of appealable actions may be found at 5 C.F.R. § 1201.3.

8 5 U.S.C. § 7701(c)(2). But see 5 U.S.C. § 1221(e)(2) (stating that in a case involving retaliation for 

whistleblowing, the Board shall not order corrective action if the agency shows by clear and convincing evidence that 

the agency would have taken the same action in the absence of the whistleblowing).

9 The Special Counsel or “any interested person” may petition the Board to conduct such a review. See 5 

U.S.C. § 1204(f)(1). 

10 5 U.S.C. § 1204(f)(2).
A Report by the U.S. Merit Systems Protection Board 3

to adjudicate, under certain conditions, claims that there has been a violation of an 

“individual’s rights under any statute or regulation relating to veterans’ preference.”11 Thus, 

if a veteran with preference alleges that an agency has violated veterans’ preference, the 

VEOA can provide an avenue for Board adjudication of the claim.12

The Board does not have jurisdiction to adjudicate an allegation that a PPP has occurred 

unless the law has specifically granted the Board the authority to adjudicate the claim 

under the particular circumstances, given either the nature of the offence (“requiring” the 

commission of a PPP) or the unique rights of the party raising the claim before the Board.13

As a result, some PPPs have extensive case law to define them, while others have rarely been 

given the opportunity for elucidation.

2010 MPS Methodology

MSPB’s Office of Policy and Evaluation periodically surveys Federal employees to measure 

the health of the merit systems. The 2010 MPS was administered to 71,968 full-time, 

permanent Federal employees. We oversampled certain populations to ensure a sufficient 

amount of responses from some subagencies. The final results have therefore been weighted 

to ensure that the outcomes are representative of most of the Federal Government as a 

whole. Survey participation was voluntary. There was a 58 percent response rate overall.14

Our survey permitted respondents to provide responses of “Don’t Know/Not Applicable” 

to all of our PPP-related questions. For all of these questions, approximately 25 to 35 

11 Dean v. Office of Personnel Management, 115 M.S.P.R. 157, 163-64 (2010); see 5 U.S.C. § 3330a(a)(1)(A), (d).

12 Issues of discrimination because of military service and reinstatement following such service may also arise 

under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-

4333) (USERRA). However a petition for appeal filed under VEOA or USERRA is adjudicated under the applicable 

law, not as a PPP. 

13 “The Board’s jurisdiction is not plenary, but is limited to those matters over which it has been granted 

jurisdiction by law, rule, or regulation.” Stoyanov v. Department of the Navy, 474 F.3d 1377, 1379 (Fed. Cir. 2007).

14 The electronic version of the 2010 survey was offered to 70,675 employees, with 41,680 respondents, 

for a response rate of 59 percent. The paper version of the survey was mailed to 1,295 employees from the 

Federal Aviation Administration, with 340 respondents, for a response rate of 26 percent. In 2007, the MPS was 

administered to a sample of 68,789 employees and 41,577 employees responded (a 60 percent response rate). In 

2005, the MPS was administered to a sample of approximately 74,000 employees and 36,926 employees responded 

(a 50 percent response rate). In 2000, the MPS was administered to a sample of 17,250 employees and 6,958 

employees responded (a 43 percent response rate). In 1996, the MPS was administered to a sample of 18,163 

employees and 9,710 responded (a 53 percent response rate). In 1992, the MPS was administered to a sample of 

20,851 employees and 13,432 employees responded (a 64 percent response rate). See Managing for Engagement–

Communication, Connection, and Courage; Accomplishing Our Mission: Results of the Merit Principles Survey 2005; The 

Federal Workforce for the 21st Century: Results of the Merit Principles Survey 2000; The Changing Federal Workplace; 

Employee Perspectives; Working for America: An Update. While there is no agreed upon rule in the scientific 

community regarding a threshold for an acceptable response rate, these response rates are generally considered 

sufficient to perform data analyses. See The Gallup Europe Journal, “Response Rates as Quality Criteria for Survey 

Data,” 2007, available at http://www.gallup-europe.be/newsletter/articles/1207_18.htm. 
4 Prohibited Personnel Practices: Employee Perceptions

percent of respondents indicated that they either did not know the answer or considered 

the question not applicable. These responses have been removed from the data for all 

questions discussed in this report in order to provide a clearer picture of how an individual 

is affected by the perception that their agency does or does not have officials who commit 

various PPPs.
A Report by the U.S. Merit Systems Protection Board 5

Before discussing the details of how relatively rare perceptions of PPPs are, it may be helpful 

to know the content of the PPPs, and what the text of the statute actually means. This 

chapter provides a brief discussion of each PPP, and how the PPPs have been interpreted 

by the Board and Federal courts in case law. It is extremely important for readers to 

understand that this report is not an official decision of the U.S. Merit Systems Protection 

Board, and should not be considered an advisory opinion or cited as a source of law. Where 

this chapter cites actual cases, individuals should refer to the text of those decisions for legal 

guidance. Where this chapter provides hypothetical examples, those hypotheticals should 

not be used as legal guidance or interpreted as the position of the Board with respect to the 

adjudication of allegations that a PPP has been committed.

There are two important concepts to understand when looking at PPPs. The first is a 

“personnel action” and the second is the group of people who are in a position to commit 

a PPP. Understanding these terms is important because the statute specifies both the 

personnel actions, and the individuals’ roles in those actions, that can qualify for the 

commission of a PPP.

The definition of a personnel action with respect to the PPPs is very broad. A personnel 

action means an appointment, promotion, disciplinary action, detail, transfer, reassignment, 

reinstatement, restoration, reemployment, or performance evaluation. It also can include 

any other decision concerning pay, benefits, awards, training, psychiatric testing, or any 

other significant change in duties, responsibilities, or working conditions.15 Under the 

right circumstances, a failure to take a personnel action that would have otherwise been 

taken can constitute the commission of a PPP.

Many Federal employees are not in a position to influence any of these personnel actions. 

Thus, the PPPs apply only to “[a]ny employee who has authority to take, direct others to 

take, recommend, or approve any personnel action[.]”16 For the sake of simplicity, this 

report will refer to such a person as “an official.” People in a number of different roles 

may qualify as an official; it is not necessary for the individual to be in a supervisory 

position. For example, human resources (HR) advisors are in a particularly strong position 

to make recommendations on almost any conceivable personnel action, and their actions 

are covered by 5 U.S.C. § 2302 when they act in this role.17 

15 5 U.S.C. § 2302(a)(2)(A). 

16 5 U.S.C. § 2302(b).

17 See Special Counsel v. Lee, 114 M.S.P.R. 57, ¶ 21 (2010), rev’d in part, 413 F. App'x 298 (Fed. Cir. 2011); 

Special Counsel v. Byrd, 59 M.S.P.R. 561, 578 (1993).

What Are the PPPs?
6 Prohibited Personnel Practices: Employee Perceptions

What makes the PPPs special and distinct from the rest of title 5 is that the PPPs are not 

just about personnel actions. They are primarily about the motive behind the personnel 

actions.18 As the Senate report for the CSRA put it, “[a] prohibited personnel practice is a 

personnel action which is taken for a prohibited purpose.”19

Thus, most of the PPPs have two elements: (1) the action of the official, and (2) the 

official’s mental state.20 The act is the exterior event that others can perceive and often 

document; e.g., “here is the SF-50 produced when the agency hired John Doe.” The 

mental state is harder to prove. Why was John Doe selected? Was it because a selecting 

official discriminated against a different candidate for being over 40 years old?21 Was it 

because John Doe was the nephew of the selecting official?22 Was it because the selecting 

official deliberately skipped over a qualified preference-eligible veteran who was located 

above John Doe on the referral list without following the proper pass-over procedures?23

What was the motive of the official who made the personnel action happen? This is 

enormously important, because as explained below, for most (but not all) of the PPPs, why 

the personnel action happened is crucial.

This motive is one of the elements that distinguishes the PPPs from the merit system 

principles. The merit system principles (a copy of which can be found at Appendix A) are 

a series of good government principles with which Federal personnel activities are expected 

to comport. However, the merit system principles are outcome oriented. For example, it 

is an MSP that “[t]he Federal work force should be used efficiently and effectively.”24 It is 

possible for individuals to perceive that their agency’s personnel practices are inconsistent 

with this principle, without the individuals perceiving that any official is acting for a 

prohibited motive. Having policies that are inefficient and ineffective is obviously bad, 

but it is not necessarily illegal. For this reason, our questions related to the PPPs should 

not be interpreted as reflecting upon the extent to which the merit system principles are 

being followed. A separate report discussing employee perceptions regarding the extent to 

which agencies comply with the merit system principles is forthcoming.

18 See Humberson v. U.S. Attorney’s Office for District of Columbia, 236 F.Supp.2d 28, 32 (Dist. D.C. 2003), 

aff’d 2003 WL 21768064 (D.C. Cir. 2003) (holding that the purpose of the PPPs is to “forbid employers from 

imposing” personnel actions “out of particular illicit motivations”).

19 S. Rep. 95-969, 20 (1978 U.S.C.C.A.N. 2723, 2742) (emphasis added).

20 See Carducci v. Regan, 714 F.2d 171, 175 n. 3 (D.C. Cir. 1983) (noting that a “prohibited personnel practice 

is not established unless the basis or motivation for the action is one of those listed in § 2302(b)). As we discuss in 

the next chapter, some PPPs are more explicit than others as to the importance of the official’s motives when taking 

a personnel action. The 12th PPP, to “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[,]” 

is the only PPP for which there is a decision specifically stating that motive can be irrelevant to the commission of 

that PPP. See Special Counsel v. Byrd, 59 M.S.P.R. 561, 579 (1993). 

21 5 U.S.C. § 2302(b)(1)(A).

22 5 U.S.C. § 2302(b)(7).

23 5 U.S.C. § 2302(b)(11)(A).

24 5 U.S.C. § 2301(b)(5). 
A Report by the U.S. Merit Systems Protection Board 7

The PPPs are presented below, with our comments, in the order in which they appear in 

the statute at 5 U.S.C. § 2302(b). 

Discrimination—5 U.S.C. § 2302(b)(1)

There are various laws that specifically prohibit discrimination, and this PPP simply states 

that violating particular laws with respect to personnel decisions is prohibited. Thus, while 

discrimination complaints are typically either pursued through the Equal Employment 

Opportunity process, or raised as an affirmative defense in an otherwise appealable action, 

discrimination is also a PPP. 

For example, in Special Counsel v. Zimmerman, 36 M.S.P.R. 274, 281  (1988), the 

Board held that the PPP of discrimination occurred when a supervisor “participated in 

[the conduct] and failed to restrain” his subordinate from openly referring to a Jewish 

co-worker with highly derogatory comments related to his religion. The official’s act of 

participation and failure to restrain the other offender “rendered [the victim’s] conditions 

of employment offensive, hostile, and intimidating on account of his religion, in violation 

of 42 U.S.C. §§ 2000e-16[.]”25 Because a significant change in working conditions is a 

personnel action, and 42 U.S.C. §§ 2000e-16 is addressed by section 2302(b)(1)(A), this 

conduct constituted the commission of the PPP of discrimination. For the commission of 

this PPP (as well as another PPP) the Board debarred the supervisor from Federal service 

for a period of five years—the maximum period allowed under the law.26

25 Special Counsel v. Zimmerman, 36 M.S.P.R. 274, 279 (1988).

26 Two years of debarment were for the discrimination, with an additional 3 years of debarment for retaliation 

against an employee for exercising a grievance or appeal right related to the discrimination. Special Counsel v. 

Zimmerman, 36 M.S.P.R. 274, 281, 294 (1988); see also 5 U.S.C. § 1215(a)(3).

Any employee who has authority to take, direct others to take, recommend, or approve any personnel 

action, shall not, with respect to such authority... discriminate for or against any employee or applicant for 

employment— 

(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil 

Rights Act of 1964 (42 U.S.C. 2000e–16); 

(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment 

Act of 1967 (29 U.S.C. 631, 633a); 

(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 

206 (d)); 

(D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 

1973 (29 U.S.C. 791); or 

(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation[.] 
8 Prohibited Personnel Practices: Employee Perceptions

Considering Recommendations—5 U.S.C. § 2302(b)(2)

The second PPP prohibits an official from considering recommendations regarding 

personnel actions unless the person providing the recommendation has personal knowledge 

or possesses records that form the basis for the recommendation.27 One potential example of 

this PPP in action would be if a hiring official (Supervisor X) considered a recommendation 

from a fellow supervisor (Supervisor Y) to select a particular candidate, but Supervisor Y 

knew the candidate solely from meeting the candidate at a fund-raising party held by “the 

Committee to Re-elect Senator John Doe” and had no actual knowledge of the candidate’s 

abilities related to the available position. 

The history of this PPP goes back to the spoils system of the 19th century. When the civil 

service was created by the Pendleton Act of 1883, one provision was that hiring officials 

were barred from considering any recommendation for selection if it came from a member 

of Congress, other than as it pertained to the individual’s character or residence.28 This 

prohibition is currently codified at 5 U.S.C. § 3303.29

However, while the prohibition on Congressional recommendations was the inspiration 

for the second PPP, found at 5 U.S.C. § 2302(b)(2), this PPP is different in several 

important respects from the rule for Congress at 5 U.S.C. § 3303.30 Unlike section 3303, 

section 2302(b)(2) does not specify that the recommendation must come from a member 

of Congress for the PPP to apply. Executive branch officials must also avoid making such 

recommendations. The PPP also, unlike the Congressional rule, makes an exception for 

recommendations “based on personal knowledge or personal records, where it consists of 

an evaluation of work performance, ability, aptitude, character, loyalty, or suitability.”31

27 5 U.S.C. § 2302(b)(2). 

28 Pendleton Act of 1883, § 10. 

29 See 89 S. Rep. 1380 at 59 (1966) (codifying section 10 of the Pendleton Act at 5 U.S.C. § 3303).

30 The second PPP “restates and expands” 5 U.S.C. § 3303. S. Rep. 95-969, 20 (1978 U.S.C.C.A.N. 2723, 

2742).

31 S. Rep. 95-969, 20 (1978 U.S.C.C.A.N. 2723, 2742).

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, 

shall not, with respect to such authority... solicit or consider any recommendation or statement, oral or written, 

with respect to any individual who requests or is under consideration for any personnel action unless such 

recommendation or statement is based on the personal knowledge or records of the person furnishing it and 

consists of— 

(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or 

(B) an evaluation of the character, loyalty, or suitability of such individual[.] 
A Report by the U.S. Merit Systems Protection Board 9

This exception is important, because it enables people to provide accurate references to 

assist hiring officials to make high-quality, merit-based selections.32 The Board has held 

that “the sparse legislative history of the statutory provision indicates that the [second PPP] 

was intended to prevent the use of improper influence to obtain a position or promotion.”33

Coercing Political Activity—5 U.S.C. § 2302(b)(3)

The third PPP prohibits an official from coercing anyone’s political activity or retaliating for 

someone’s refusal to engage in a political activity.34 The coercion does not have to be extreme 

to qualify for this PPP, and the employee need not be a supervisor. For example, in Special 

Counsel v. Ware, 114 M.S.P.R. 128 (2010), a Contract Officer Technical Representative was 

removed who used her Government computer to send fundraiser e-mails to 14 or more 

individuals, three of whom were not Federal employees, but who she nevertheless exercised 

some control over because of her influence over a contract. In its decision to remove the 

employee, the Board noted its holding in an earlier case, that “[t]he proscriptions of the 

Hatch Act fall equally on clerks and managers alike.”35 (The conduct in Ware was addressed 

solely under the Hatch Act, and was not prosecuted as a violation of section 2302(b)(3)). 

In another case, Special Counsel v. Acconcia, 107 M.S.P.R. 60, ¶ 2  (2007), the Board 

explained that “the coercion of political contributions, is one of ‘the most pernicious of 

the activities made unlawful by the Hatch Act’” and that a single occasion of soliciting 

funds from a subordinate for a political campaign warranted removal, even though the 

supervisor did not specifically attach any threats of consequences for nonparticipation to 

the solicitation.36

32 For more information on the use of reference checking to determine a candidate’s potential for success if 

hired, please see our 2005 report Reference Checking in Federal Hiring: Making the Call, available at www.mspb.gov/

studies.

33 Roane v. Department of Health and Human Services, 8 M.S.P.R. 339, 343 (1981). See also Wenzel v. 

Department of Interior, 33 M.S.P.R. 344, 351 (1987) (holding that “[t]he legislative history of this provision 

indicates that it was designed to preclude an agency’s reliance on statements or recommendations by outsiders and to 

specifically avoid partisan or political interference in effecting a personnel action.”)

34 5 U.S.C. § 2302(b)(3).

35 Special Counsel v. Ware, 114 M.S.P.R. 128, ¶ 35 (2010) (citing Special Counsel v. Purnell, 37 M.S.P.R. 184, 

203 (1988)).

36 Id. at ¶¶ 2, 5, 10. But see Special Counsel v. Mark, 114 M.S.P.R. 516, ¶¶ 2, 13 (2010) (holding that a 

120-day suspension, not removal, was appropriate for an employee who sent a single e-mail soliciting campaign 

contributions and did not solicit subordinates or other individuals subject to his control or authority).

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, 

shall not, with respect to such authority... coerce the political activity of any person (including the providing of 

any political contribution or service), or take any action against any employee or applicant for employment as 

a reprisal for the refusal of any person to engage in such political activity[.] 
10 Prohibited Personnel Practices: Employee Perceptions

This PPP’s prohibition against using coercion deliberately “summarizes the Hatch Act 

prohibitions.”37 The Hatch Act is a law that was created to ensure that Federal employees 

act impartially and “are not used to build a powerful, invincible, and perhaps corrupt 

political machine.”38 Because the conduct that constitutes the commission of this PPP is 

also conduct that violates the Hatch Act, this is perhaps the most powerful of all the PPPs. 

If a Federal employee violates the Hatch Act, the default is that the employee must be 

removed. Removal will occur unless the “Board finds by unanimous vote that the violation 

does not warrant removal, [in which case] a penalty of not less than 30 days suspension 

without pay shall be imposed by direction of the Board.”39

Obstructing Competition—5 U.S.C. § 2302(b)(4)

The fourth PPP prohibits an official from using deception or otherwise willfully acting 

to obstruct someone’s right to compete for employment.40 As with most of the PPPs, 

motive matters here. The Board has held that in common usage, the word ‘willful’ is 

considered synonymous with such words as ‘voluntary,’ ‘deliberate,’ and ‘intentional.’41

Similarly, the American Heritage Dictionary defines deceive as “to mislead by deliberate 

misrepresentation or lies[.]”42 The Board has held that the absence of a credible explanation 

for a misrepresentation can constitute circumstantial evidence of an individual’s intent to 

deceive.43 Thus, once again, the intent of the official may be the difference between a PPP 

occurring or not.

37 S. Rep. 95-969, 21 (1978 U.S.C.C.A.N. 2723, 2743). The Hatch Act is codified at 5 U.S.C. §§ 7321-26. 

38 U. S. Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 565 (1973) 

(discussing Congress’s intent when enacting the Hatch Act in 1939). 

39 5 U.S.C. § 7326. When determining the appropriate penalty, the Board considers: (1) the nature of 

the offense and the extent of the employee’s participation; (2) the employee’s motive and intent; (3) whether the 

employee had received advice of counsel regarding the activity at issue; (4) whether the employee ceased the 

activities; (5) the employee’s past employment record; and (6) the political coloring of the employee’s activities. 

Special Counsel v. Mark, 114 M.S.P.R. 516, ¶ 8 (2010).

40 5 U.S.C. § 2302(b)(4).

41 Weed v. Social Security Administration, 107 M.S.P.R. 142, ¶ 7(2007) (quoting McLaughlin v. Richland Shoe 

Co., 486 U.S. 128, 133 (1988)).

42 American Heritage Dictionary, Houghton Mifflin, available at http://education.yahoo.com/reference/

dictionary.

43 Crump v. Department of Veterans Affairs, 114 M.S.P.R. 224, ¶ 6 (2010).

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, 

shall not, with respect to such authority... deceive or willfully obstruct any person with respect to such person’s 

right to compete for employment[.]
A Report by the U.S. Merit Systems Protection Board 11

One example of this prohibited conduct can be found in the case of Special Counsel v. 

Hoban, 24 M.S.P.R. 154 (1984). In Hoban, the administrative law judge held that the 

evidence “led to the conclusion that respondent downgraded [his employee’s performance 

appraisal] to inhibit his chances to compete for promotion to a detective’s position.”44

Influencing a Withdrawal From Competition—5 U.S.C. 

§ 2302(b)(5)

The fifth PPP focuses on attempts to influence an individual to withdraw from 

competition.45 “Actual withdrawal of an applicant is not required to establish a violation 

[of this PPP]; an attempt to influence withdrawal is sufficient.”46 “[T]he statute requires a 

two-part showing: (1) that an employee influenced or attempted to influence a person to 

withdraw from competition and (2) that the influence was exerted to improve or injure the 

employment prospects of another.”47 Therefore, for this particular PPP to occur a specific 

motive must be present—the intent to affect the employment prospects of another.48

An example of this PPP can be found in Special Counsel v. Brown, 61 M.S.P.R. 559, 

565  (1994). In Brown, there were two vacant public affairs specialist positions. One 

applicant was a qualified priority referral under the displaced employee program—which 

meant that under a rule in place at the time the agency could not select other candidates 

without first selecting him.49 However, despite this rule, the agency selected two other 

candidates without even interviewing the priority candidate. When management was told 

that they could not select their candidates without first selecting the priority candidate, or 

getting permission from OPM for his nonselection, the agency interviewed the priority 

candidate, but then told him that they would prefer not to hire him and that they could 

44 Special Counsel v. Hoban, 24 M.S.P.R. 154, 160 (1984). The penalty in this particular case was a reduction 

in grade to a non-supervisory position. 

45 5 U.S.C. § 2302(b)(5). 

46 Special Counsel v. Brown, 61 M.S.P.R. 559, 563-64 (1994).

47 Id.

48 As the Senate report for the CSRA noted, the fourth and fifth PPPs are very similar. S. Rep. 95-969, 21 

(1978 U.S.C.C.A.N. 2723, 2743).

49 See 5 C.F.R. § 330.305(b)(1987) (“OPM or agencies with delegated examining authority will neither 

certify from a register of eligibles nor authorize appointment outside the register in the absence of eligibles to fill 

any position expected to last more than 1 year for which a displaced employee is eligible and available for priority 

referral.”)

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, 

shall not, with respect to such authority... influence any person to withdraw from competition for any position 

for the purpose of improving or injuring the prospects of any other person for employment[.]
12 Prohibited Personnel Practices: Employee Perceptions

ask him to waive his displaced employee priority. The displaced employee did not waive his 

priority, but the agency proceeded to appoint the other candidates and not the displaced 

employee.50 The Board held that the supervisor’s actions in suggesting to the candidate that 

he withdraw from consideration was a violation of 5 U.S.C. § 2302(b)(5), even though 

management’s attempt to persuade the candidate was unsuccessful.51 

Granting an Advantage—5 U.S.C. § 2302(b)(6)

The sixth PPP prohibits an official from providing any advantage to a candidate, unless 

there is a law, rule, or regulation that authorizes the advantage.52 However, as discussed 

previously, most of the PPPs explicitly target improper motives. In order for an action 

to qualify for the sixth PPP, the official must be acting “for the purpose of improving 

or injuring the prospects of any particular person for employment[.]”53 As the Board 

has explained, “[i]t is not the [personnel] action itself that violates the law, but, instead, 

the intent behind the action.”54 “It is possible to violate section 2302(b)(6) using hiring 

authority and recruitment vehicles that would be acceptable under other circumstances” if 

the purpose is to grant an advantage.55

Providing an unauthorized advantage includes “defining the scope or manner of competition 

or the requirements for any position” with this improper motive. As mentioned earlier, 

human resources staff are in a particularly good position to be aware of the commission 

of prohibited personnel practices, because personnel actions that involve hiring, firing, 

50 OPM then ordered the supervisors involved to appoint the displaced employee, and when the “respondents 

deliberately failed to take timely corrective action after OPM” gave the instruction, the delay was held to be an 

additional PPP under what is now 5 U.S.C. § 2302(b)(12)—a failure to take action where the inaction violates a law, 

rule or regulation concerning a merit principle. See Special Counsel v. Brown, 61 M.S.P.R. 559, 576-68 (1994).

51 Because the supervisor in question had since retired, the Board’s penalty was to impose a fine on the 

supervisor. See Special Counsel v. Brown, 61 M.S.P.R. 559, 574 (1994).

52 5 U.S.C. § 2302(b)(6). There are several preferences or advantages provided by law or regulation, such as 

veterans’ preference, reemployment priority lists, the Interagency Career Transition Assistance Program (ICTAP), 

and the Department of Defense Priority Placement Program.

53 5 U.S.C. § 2302(b)(6).

54 Special Counsel v. Lee, 114 M.S.P.R. 57, ¶ 21 (2010) (citing Special Counsel v. Byrd, 59 M.S.P.R. 561, 

570 (1993)), rev’d in part, 413 F. App'x 298 (Fed. Cir. 2011).

55 Id., ¶ 5.

Any employee who has authority to take, direct others to take, recommend, or approve any personnel 

action, shall not, with respect to such authority... grant any preference or advantage not authorized by law, 

rule, or regulation to any employee or applicant for employment (including defining the scope or manner of 

competition or the requirements for any position) for the purpose of improving or injuring the prospects of any 

particular person for employment[.]
A Report by the U.S. Merit Systems Protection Board 13

promoting, and financially rewarding employees tend to involve advice given by an HR 

specialist, and often require a request for personnel action (SF-52 or RPA), which is typically 

signed by an HR staffer who must “certify that the information entered on [the] form 

is accurate and that the proposed action is in compliance with statutory and regulatory 

requirements.”56 The notification of personnel action (SF-50 or NPA) that documents the 

personnel action is also usually signed by an HR employee.

The issue of the role of HR employees in a section 2302(b)(6) PPP has come before 

the Board more than once.57 The most recent case, Special Counsel v. Lee, is particularly 

illuminating, and is a strong warning to HR staff to be wary if there are obvious signs of 

a PPP.

The case of Special Counsel v. Lee involved two HR specialists, Mr. Lee and Ms. Beatrez. 

There was also a supervisor who apparently wanted to promote a particular person. This 

supervisor was a Coast Guard officer, not a civilian, and she later claimed that she was 

confused about how the civilian personnel system worked.58 She requested and received 

two certificates of eligible candidates for a GS-11 position; one was from the delegated 

examining unit (DEU) and the other was under the local merit promotion plan (MPP). 

Her preferred candidate only applied for the MPP vacancy, and he was not referred.59

The record indicates that the Coast Guard officer’s human resources advisor, Lee, asked the 

staffing specialist to reopen the DEU announcement because the desired candidate had 

only applied under MPP, and Lee (mistakenly) believed the candidate could be hired under 

DEU if only the candidate had applied for that announcement.60

When the candidate was found unqualified for the second DEU announcement, Lee 

advised the supervisor that in order to be able to consider the specific candidate she sought, 

his “recommendation” was to cancel the certificates and issue a new one, for a GS-09 with 

promotion potential to the GS-11.61 By this point, a new staffing specialist had been 

assigned to the action—Beatrez. Beatrez canceled the earlier referral lists and issued yet 

another announcement for the position, this time as a GS-09 with promotion potential to 

the GS-11 with the area of consideration limited to the local commuting area.62

While it was the supervisor who wanted to promote the particular person, Lee recommended 

to the supervisor how to accomplish this. The Board held that 5 U.S.C. § 2302(b)(6) 

56 Request for Personnel Action (SF-52) Part C. 

57 See Special Counsel v. Lee, 114 M.S.P.R. 57 (2010), rev’d in part, 413 F. App'x 298 (Fed. Cir. 2011); Special 

Counsel v. Byrd, 59 M.S.P.R. 561 (1993); Special Counsel v. Ross, 34 M.S.P.R. 197 (1987). 

58 Special Counsel v. Lee, 114 M.S.P.R. 57, ¶23 (2010), rev’d in part, 413 F. App'x 298 (Fed. Cir. 2011).

59 Id., ¶ 9.

60 Id.

61 Id., ¶11.

62 Id..
14 Prohibited Personnel Practices: Employee Perceptions

includes “conduct that aids and abets another who is violating the statute.”63 Lee thus ran 

afoul of section 2302(b)(6) because there was “a pattern of cooperation” between Lee and 

the supervisor who sought to promote a particular individual.64 

In contrast, Beatrez was less involved with the personnel action. She had no role in the 

first two announcements being issued, but canceled the second announcement and issued 

the third vacancy announcement. The administrative law judge (ALJ) that conducted the 

hearing for this case determined that OSC had failed to prove by preponderant evidence 

that Beatrez had the required intent to commit a PPP. On petition for review, the Board 

held that the ALJ erred and there was preponderant evidence of Beatrez’s intent to aid in 

the commission of a PPP, thereby making her liable as well. Upon reviewing the Board’s 

decision, the Federal Circuit held that there was insufficient evidence for the Board to 

overrule the ALJ with respect to Beatrez’s intent, given the deference that is normally 

given to the credibility determinations of a hearing judge and the fact that the third 

announcement could have appeared proper to Beatrez, if viewed in isolation from the 

events that preceded Beatrez’s involvement. Because an improper motive was not found 

by the court, the action against Beatrez was reversed.65

In addition to demonstrating how 5 U.S.C. § 2302(b)(6) may be violated, the case 

involving Lee also conveys an important message about committing a PPP, even if the 

agency supports the employee’s actions. High ranking HR officials testified on behalf of 

Lee and Beatrez at the hearing. One stated that Lee and Beatrez had simply done what 

others in the agency had done “frequently” and another claimed that the charges had hit all 

of them “out of left field” and that they did not know the agency was committing a PPP.66

While this was relevant to the penalty, it did not negate the fact that a PPP occurred, and 

Lee knowingly helped it to occur. In contrast, Beatrez was held to lack the requisite intent, 

and therefore was not liable for the acts of others.

Similarly, in Special Counsel v. Byrd, 59 M.S.P.R. 561, 577 (1993), two HR officials were 

found to have committed a violation of section 2302(b)(6) in a situation where their 

superiors knew what the officials were doing and were perceived as viewing the PPP as 

a solution to a problem. One important lesson from all of this for any official is that a 

supervisor or even a high-ranking manager may be unable to protect an official if the official 

violates the law and commits a PPP, or intentionally helps someone else to commit a PPP.

63 Id., ¶32.

64 Id., ¶25.

65 See Beatrez v. Merit Systems Protection Board, 413 F. App’x 298 (Fed. Cir. 2011) (NP). The Board will 

defer to the credibility determinations of an administrative judge when they are based, explicitly or implicitly, upon 

the observation of the demeanor of witnesses testifying at a hearing because the administrative judge is in the best 

position to observe the demeanor of the witnesses and determine which witnesses were testifying credibly. Haebe v. 

Department of Justice, 288 F.3d 1288, 1299-1301 (Fed. Cir. 2002).

66 Special Counsel v. Lee, 114 M.S.P.R. 57, ¶44 (2010) rev’d in part, 413 F. App'x 298 (Fed. Cir. 2011). The 

official specifically referred to it as the agency’s conduct, rather than that of either individual, perhaps in the hopes of 

passing the responsibility on to the agency.
A Report by the U.S. Merit Systems Protection Board 15

Nepotism—5 U.S.C. § 2302(b)(7)

The seventh PPP prohibits an official from acting to appoint, employ, promote, or advance 

a relative, or to advocate such an act.67 “Relative” is specifically defined in the law, which 

can help eliminate confusion about where to draw the line. A “relative” means “an 

individual who is related to the public official as father, mother, son, daughter, brother, 

sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-inlaw, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, 

stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.”68 One example 

of nepotism can be found in Welch v. Department of Agriculture, 37 M.S.P.R. 18 (1988), 

where a manager directed a subordinate supervisor to “prepare a written justification for 

the temporary appointment of” the manager’s son. 

However, for nepotism to occur, there must be the act of advocacy. For example, in 

Wallace v. Department of Commerce, 106 M.S.P.R. 23, ¶ 2 (2007), Wallace was a highranking official who became aware that her sister was interested in a position that fell under 

Wallace’s authority. Wallace notified senior management that her sister was interested in 

applying for the vacancy and that “she was recusing herself from any input or involvement 

in the hiring process for the position and further sought... guidance on how to ensure 

that a fair and impartial selection could occur.” Wallace’s sister was ultimately selected 

for the position, but the Board held that the PPP of nepotism did not occur because the 

agency “failed to establish that Wallace’s mere presence in the chain of command” at the 

time of the selection constituted a violation of the nepotism statute.69 In other words, the 

necessary advocacy or act to further the sister’s employment was missing from this case.

In addition to the act of advocacy, nepotism requires the involvement of a relative. Personal 

favoritism, in which an official may seek the advancement of someone who is not the 

best choice merely because the person is a friend or is otherwise well-liked by the official 

can be a problem, and is counter to the merit system principles.70 However, unlike the 

67 5 U.S.C. § 2302(b)(7).

68 5 U.S.C. § 3110(a)(3). 

69 Wallace v. Department of Commerce, 106 M.S.P.R. 23, ¶ 11 (2007).

70 5 U.S.C. § 2301(b)(8)(A) specifically states that employees should be protected against personal favoritism. 

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, 

shall not, with respect to such authority... appoint, employ, promote, advance, or advocate for appointment, 

employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined 

in section 3110 (a)(3) of this title) of such employee if such position is in the agency in which such employee is 

serving as a public official (as defined in section 3110 (a)(2) of this title) or over which such employee exercises 

jurisdiction or control as such an official[.]
16 Prohibited Personnel Practices: Employee Perceptions

merit system principle that condemns personal favoritism, the seventh PPP is limited to 

relatives as defined in the law.71 (Personal favoritism, and how it differs from rewarding 

competence, is the subject of a planned future report.) 

Whistleblower Retaliation—5 U.S.C. § 2302(b)(8)

The eighth PPP prohibits an official from taking or failing to take, or threatening to take or 

fail to take a personnel action because of an individual’s whistleblowing activity. A failure 

to take an action is also covered by this PPP. However, determining who is considered a 

protected whistleblower under the law is complicated. To be protected against an act of 

whistleblower retaliation, a Federal employee must:

1. Disclose conduct that meets a specific category of wrongdoing set forth in the 

law.

2. Make the disclosure to the “right” type of party. Depending on the nature of the 

disclosure, the employee may be limited regarding to whom the report can be 

made. 

3. Make a report that is either: (a) outside of the employee’s course of duties; or (b) 

communicated outside of normal channels. 

71 5 U.S.C. §§ 2302(b)(7), 3110(a)(3).

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, 

shall not, with respect to such authority... take or fail to take, or threaten to take or fail to take, a personnel 

action with respect to any employee or applicant for employment because of— 

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably 

believes evidences— 

(i) a violation of any law, rule, or regulation, or 

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific 

danger to public health or safety, if such disclosure is not specifically prohibited by law and if such 

information is not specifically required by Executive order to be kept secret in the interest of national 

defense or the conduct of foreign affairs; or 

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee 

designated by the head of the agency to receive such disclosures, of information which the employee or 

applicant reasonably believes evidences— 

(i) a violation of any law, rule, or regulation, or 

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific 

danger to public health or safety[.]
A Report by the U.S. Merit Systems Protection Board 17

4. Make the report to someone other than the wrongdoer. 

5. Have a reasonable belief of wrongdoing. The employee does not have to be 

correct, but the belief must be reasonable to a disinterested observer. 

6. Suffer a personnel action, the agency’s failure to take a personnel action, or 

the threat to take or not take a personnel action. An intangible effect, such 

as having co-workers no longer be as friendly towards the employee is not a 

personnel action. Certain other types of actions—particularly the revocation of 

a security clearance—are also not personnel actions, even though the loss of a 

security clearance could lead to the loss of Federal employment.

7. Seek redress through the proper channels. Unless the personnel action is 

one for which MSPB has a separate jurisdictional authority, the employee 

must seek redress through the Office of the Special Counsel (OSC). Failure 

to present OSC with a detailed complaint and to wait for OSC to conclude 

its investigation (or wait 120 days if the investigation is not concluded), will 

prevent MSPB from obtaining jurisdiction to hear the claim. 

However, even if a whistleblower establishes all of the above, the law states that the 

relief sought by the individual will not be ordered if the agency can establish by clear 

and convincing evidence that it would have taken the same action in the absence of the 

whistleblowing.72

We strongly urge readers not to generalize from a single whistleblowing case because the 

outcome in a whistleblowing case can rest upon any one of the factors listed above. Any 

allegation of retaliation for whistleblowing must be assessed on the specific facts of that 

case. However, two examples of recent cases where an agency was found to have committed 

whistleblowing retaliation are offered below.

In Chambers v. Department of the Interior, 116 M.S.P.R. 17 (2011), the appellant was 

the Chief of Police for the National Park Service, a sub-agency of the Department of the 

Interior. In a 2003 interview, Chambers told the Washington Post that traffic accidents had 

increased along the Baltimore-Washington Parkway because there were only two officers 

on patrol, when four officers were needed. Her agency fired her in 2004 for making public 

remarks regarding security on the Parkway, as well as other charges.73 

72 5 U.S.C. § 1221(e)(2). Clear and convincing evidence is that measure or degree of proof that produces in 

the mind of the trier of fact a firm belief as to the allegations sought to be established. It is a higher standard than 

preponderance of the evidence. 5 C.F.R. § 1209.4 (d).

73 Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶¶ 2-4 (2011).
18 Prohibited Personnel Practices: Employee Perceptions

Chambers filed a timely appeal of her removal with the Board, and after extensive litigation, 

the Federal Circuit held that when Chambers informed the media that traffic accidents 

had increased on the Parkway as a result of staffing shortages, the discussion qualified as 

a protected disclosure of a substantial and specific danger to public safety. Chamber’s 

disclosure qualified because: (1) the disclosure was specific about the source of the problem 

(only 2 officers instead of the recommended 4 were patrolling); (2) a specific consequence 

of the shortage was described (accidents); (3) motor vehicle accidents are a significant 

and serious danger to public safety; and (4) it was not a vague or speculative outcome—

accidents had already happened as a result of the shortage.74

The question then became, was she removed “because of” her protected disclosure, or 

would she still have been removed in the absence of her protected disclosure? The Board 

concluded that “the agency failed to establish by clear and convincing evidence that it would 

have taken any action against the appellant in the absence of her protected disclosures.” The 

agency was therefore required to reinstate Chambers with back pay, including interest.75

Similarly, in Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197 (2011), a physician 

disclosed patient medical records to various members of Congress as well as others, outside 

of the Government, in order to draw attention to what he perceived as poor medical 

treatment for veterans. The agency removed the appellant for his “unauthorized release 

and disclosure of private and protected information.” Parikh filed a timely appeal, and the 

Board held that because Parikh’s perceptions of poor medical treatment were reasonable, 

it was not necessary that he prove that his perceptions were correct. Additionally, Parikh’s 

disclosures to some individuals in their capacities as members of congressional committees 

on veterans’ affairs fell within a narrow exception within the Privacy Act and thus the 

disclosures were not prohibited by law. However, the Board found that the appellant 

did violate the Privacy Act when he disclosed patient information to others outside the 

Government, and that those disclosures could not be protected by the Whistleblower 

Protection Act because the disclosures were prohibited by law.76

The question then became whether the agency would have removed the appellant for his 

unprotected disclosures in the absence of his protected disclosures. In other words, if he 

had released the information to the outsiders, but not to Congress, would he have still been 

removed? The Board held that while some of the evidence suggested that the agency would 

still have taken the removal action because the agency took seriously the need to keep 

patient records confidential, the evidence did not rise to the level of clear and convincing. 

As a result, the agency’s personnel action could not be affirmed and the agency was ordered 

to reinstate the appellant with back pay and interest.77

74 Chambers v. Department of Interior, 602 F.3d 1370, 1379 (Fed. Cir. 2010).

75 Id., ¶ 74.

76 Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197 (2011).

77 Id., ¶¶ 37-40.
A Report by the U.S. Merit Systems Protection Board 19

For descriptions of more cases involving allegations of whistleblower retaliation, please see 

our recent report, Whistleblower Protections for Federal Employees, available at www.mspb.

gov. The Board also publishes its decisions on its website and offers a search tool to help 

individuals locate potentially pertinent cases. Because whistleblowing cases depend so 

heavily on the particular circumstances of the case, individuals are encouraged to read the 

full text of any case they find of particular interest.

Other Retaliation—5 U.S.C. § 2302(b)(9)

Originally, this PPP contained only part (A) applying to appeals and grievances. The 

other provisions were added by the Whistleblower Protection Act of 1989.78 The CSRA 

Senate report discussing the ninth PPP noted that “the prohibited action is the reprisal itself; 

the mere fact that an employee, who is otherwise incompetent or guilty of misconduct, 

exercises an appeal right, does not automatically protect the employee against appropriate 

disciplinary action.”79 Thus, once again, the reason why the agency official has engaged in 

the personnel action is the key question.

One example of the commission of this PPP can be found in Marshall v. Department of 

Veterans Affairs, 111 M.S.P.R. 5 (2008). In Marshall, the appellant claimed that the agency 

removed her because she had filed EEO complaints against the agency. The removal action 

before the Board was the fourth disciplinary action that the agency had taken against this 

employee (who was the union president) in less than 1 year, and all three of the earlier 

actions had been overturned, two on the basis of reprisal for protected activities. For the 

action before the Board, the deciding official gave “ambiguous testimony concerning the 

nature of the appellant’s offense” which led the Board to conclude that “the harsh penalty 

of removal” took place because of the appellant’s prior, protected activities—a violation of 

5 U.S.C. § 2302(b)(9).80 

78 P.L. 101-12, § 4, 103 Stat. 16, 32.

79 S. Rep. 95-969, 22 (1978 U.S.C.C.A.N. 2723, 2744).

80 Marshall v. Department of Veterans Affairs, 111 M.S.P.R. 5, ¶¶ 23-25 (2008).

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, 

shall not, with respect to such authority... take or fail to take, or threaten to take or fail to take, any personnel 

action against any employee or applicant for employment because of— 

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation; 

(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in 

subparagraph (A); 

(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special 

Counsel, in accordance with applicable provisions of law; or 

(D) for refusing to obey an order that would require the individual to violate a law[.]
20 Prohibited Personnel Practices: Employee Perceptions

However, the penalty involved need not be so harsh for the PPP to be committed. In 

Matter of Frazier, 1 M.S.P.R. 163 (1979), a supervisor “suggested to [his employee] that 

he could expect to encounter less difficulty in his work if he dropped his union and EEO 

responsibilities” and “offered to drop [a] proposed letter of reprimand... in return for” 

the employee resigning from his collateral duties as an EEO counselor. 81 A week after the 

employee resigned from those duties, the proposed letter of reprimand was rescinded. The 

Board held that the supervisor’s conduct was because of the appellant’s protected activities 

and constituted the commission of a PPP.82

Other Discrimination—5 U.S.C. § 2302(b)(10)

The Board has held that the legislative history of 5 U.S.C. § 2302(b)(10) and the “judicial 

interpretation of that provision” indicate that this PPP was “intended to apply to off-duty 

non-job related conduct.”83 However, off-duty conduct may be a source of discipline if 

there is a “nexus” to the efficiency of the service.84

In Special Counsel v. Lynn, 29 M.S.P.R. 666, 668-69 (1986), the Office of Special Counsel 

filed a complaint for disciplinary action, requesting that the Board discipline two supervisors 

for removing a temporary employee from his position because of a letter the employee 

wrote to the editor of a local newspaper. In the letter to the editor, the employee criticized 

certain personnel practices followed by the Forest Service. According to OSC, the letter 

did not adversely affect the performance of the employee in question, or other employees, 

and therefore the removal constituted a prohibited personnel practice in “violation of 5 

U.S.C. § 2302(b)(10), which prohibits discrimination based on conduct which does not 

adversely affect performance.” Ultimately, this case was dismissed at the request of the 

81 Matter of Frazier, 1 M.S.P.R. 163, 174-75, 196 (1979). (At the time of this case, only section (b)(9)(A) was 

in the statute, sections (B)-(D) were added later in the Whistleblower Protection Act.)

82 Unlike section 2302(b)(8), the statute does not permit an individual right of action for a section (b)(9) 

violation. In Frazier, OSC filed a complaint with the Board, while in Marshall, there was an otherwise appealable 

action.

83 Thompson v. Farm Credit Administration, 51 M.S.P.R. 569, 585 (1991).

84 See Allred v. Department of Health and Human Services, 23 M.S.P.R. 478, 479 (1984); Vilt v. U.S. Marshals 

Service, Dept. of Justice, 16 M.S.P.R. 192, 197 (1983); Gordon v. Government Printing Office, 9 M.S.P.R. 354, 

356 (1982).

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, 

shall not, with respect to such authority... discriminate for or against any employee or applicant for employment 

on the basis of conduct which does not adversely affect the performance of the employee or applicant or the 

performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account 

in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws 

of any State, of the District of Columbia, or of the United States[.]
A Report by the U.S. Merit Systems Protection Board 21

Special Counsel—before the Board could rule if a PPP occurred—because the agency 

addressed the misconduct and disciplined the supervisors for their conduct. Because “the 

merit system principles were preserved” by the agency’s actions, any action by the Board 

would have been duplicative.85

Other private conduct is likewise protected if it does not affect the performance of the 

employee or others in the workplace. For example, both the Office of Special Counsel 

and Office of Personnel Management have interpreted section 2302(b)(10) as prohibiting 

discrimination based upon sexual orientation.86

Veterans’ Preference—5 U.S.C. § 2302(b)(11)

The 11th PPP emphasizes the Government’s commitment to protecting the right that 

certain veterans have to a preference in competitive examinations and reductions in force.87

Veterans’ preference is provided to honorably discharged veterans who are disabled as a 

result of their service or who served on active duty in the Armed Forces during specified 

time periods or in particular military campaigns.88

This PPP was added to section 2302(b) by the Veterans Employment Opportunities Act 

of 1998 (VEOA).89 That statute also created a separate authority under which the Board is 

authorized to act for the protection of veterans’ rights. Under 5 U.S.C. 3330a, a preference 

85 Special Counsel v. Lynn, 29 M.S.P.R. 666, 668 (1986). As discussed later, a case such as this could also 

implicate 5 U.S.C. § 2302(b)(12) because of constitutional provisions involving free speech.

86 See http://www.opm.gov/er/address2/Guide04.asp; http://www.osc.gov/ppppolicies1.htm. See also Norton 

v. Macy, 417 F.2d 1161, 1167-68 (D.C. Cir. 1969) (holding that the Government could not remove an employee for 

homosexual conduct because it had failed to demonstrate how his conduct harmed the efficiency of the service). But 

see Brown v. Department of the Navy, 229 F.3d 1356 (Fed. Cir. 2000) (holding that an off-duty affair with a marine’s 

wife interfered with the efficiency of the service because the employee was the program manager of the Morale, 

Welfare, and Recreation Department on the base). 

87 5 U.S.C. §§ 3309, 3319, 3501, 3502. For more information on when preference is given and how it is 

applied, see U.S. Office of Personnel Management, VetGuide, available at www.opm.gov. 

88 Under certain circumstances, a spouse, widow/widower, or mother of a veteran may qualify to receive the 

preference. 5 U.S.C. § 2108(3), see U.S. Office of Personnel Management, VetGuide, available at www.opm.gov.

89 Veterans Employment Opportunities Act of 1998, P.L. 105-339 § 6. 

Any employee who has authority to take, direct others to take, recommend, or approve any personnel 

action, shall not, with respect to such authority... 

(A) knowingly take, recommend, or approve any personnel action if the taking of such action would 

violate a veterans’ preference requirement; or 

(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such 

action would violate a veterans’ preference requirement[.]
22 Prohibited Personnel Practices: Employee Perceptions

eligible who alleges that a Federal agency has violated his rights under any statute or 

regulation relating to veterans’ preference may file an appeal with the Board, provided that 

he has satisfied the statutory requirements for first filing a complaint with the Secretary of 

Labor and allowing the Secretary at least 60 days to attempt to resolve the complaint. This 

is known as a VEOA appeal, named after the authorizing statute.90 

VEOA appeals have two notable advantages for veterans over the use of 5 U.S.C. § 2302(b)

(11). First, individuals may file a petition for appeal with the Board under VEOA without 

the necessity for action by the Office of Special Counsel. Secondly, VEOA does not require 

that the violation of a veteran’s rights be made knowingly. The statute even has different 

provisions for an award as a result of “willful” violations as opposed to violations that are 

not “willful.”91

For example, in Graves v. Department of Veterans Affairs, 114 M.S.P.R. 245, ¶¶ 20, 31 

(2010), the agency admitted that it did not comply with veterans’ preference provisions 

after it erroneously concluded that it did not have to comply with title 5 competitive 

service veterans’ preference requirements for a particular position.  While the Board held 

that this error constituted a violation of the appellant’s veterans’ preference rights requiring 

a reconstruction of the selection process, the case was not raised as a PPP, and thus the 

violation did not have to be done knowingly for redress to be awarded.

In contrast, the PPP requires an otherwise appealable action or the intervention of the 

Office of Special Counsel. The text of 5 U.S.C. § 2302(b)(11) also states that the violation 

must be done “knowingly.”92 The Board has not yet been presented with a case in which 

it was necessary to reach the question of whether or not a violation of veterans’ rights was 

done knowingly under 5 U.S.C. § 2302(b)(11). The absence of such cases is likely a result 

of the more broad VEOA appeal option. 

However, the fact that a violation of section 2302(b)(11) has not yet been brought to 

the Board by the Office of Special Counsel for adjudication does not take away from 

its importance. A victim whose rights have been violated may obtain redress through a 

VEOA appeal. However, that alone does not address the question of what is to be done 

with an official who was responsible for the violation if the violation occurred knowingly. 

The goal of the PPPs is not only to correct violations, but to protect the merit systems by 

preventing them from occurring in the first place. Section 2302(b)(11) grants the Board its 

90 5 C.F.R. § 1208.2.

91 5 U.S.C. § 3330c(a). 

92 The Senate report that accompanied the VEOA statute briefly described a few of the PPPs already codified 

and explained that “[p]ersons found by the MSPB to have knowingly committed such practices may be removed 

or suspended from Federal employment, or fined. Section 5 of the Committee bill would amend 5 U.S.C. § 2302 

to add violations of veterans’ preference laws to the listing of prohibited personnel practices. Thus, persons who 

knowingly fail to comply with veterans’ preference requirements could be disciplined in accordance with standards 

applicable to prohibited personnel practices.” S. Rep. No. 105-340 at 17 (1998) (internal citations omitted).
A Report by the U.S. Merit Systems Protection Board 23

authority to determine the fate of a knowing violator of a veteran’s preference rights. The 

mere presence of this threat is an important tool for the Office of Special Counsel when 

it negotiates with agencies and individuals that it suspects may have knowingly violated a 

veteran’s rights. It may also be helpful to agencies that seek to educate their workforces on 

the need to comply with veterans’ preference. 

Violating Rules That Implement a Merit System Principle—5 

U.S.C. § 2302(b)(12)

Unlike many of the other PPPs, there is no mention of motive in the plain text of the 

statute for this PPP. In Special Counsel v. Byrd, the Board held that the commission of 

this PPP does not require an improper motive. “The statute simply does not contain that 

requirement, and the plain words of the statute show that only three elements must be 

proved by the preponderance of the evidence in order to find a violation” of 5 U.S.C. § 

2302(b)(12).93 “These elements are: (1) a personnel action was taken; (2) the taking of 

this action violated a civil service law, rule or regulation; and (3) the law, rule or regulation 

violated implements or directly concerns a merit system principle.”94 

In the Senate report to accompany the CSRA, an example was provided of conduct that 

could qualify as the 12th PPP. If a supervisor were to “take action against an employee 

or applicant, without having proper regard for the individual’s privacy or constitutional 

rights,” such an action would be the commission of the 12th PPP.95 

The commission of this PPP can overlap with any of the other PPPs because the PPPs 

as a whole tend to mirror the merit system principles, and this PPP covers violations of 

laws, rules, and regulations implementing merit system principles. Thus, it would be 

difficult to violate a different PPP without violating an MSP, which in turn violates the 

12th PPP if there is a law, rule, or regulation involved. It is hard to picture a situation in 

which a personnel action could occur without touching upon some law, rule, or regulation 

involving the merit principles.

93 Special Counsel v. Byrd, 59 M.S.P.R. 561, 579 (1993). The PPP currently codified at 5 U.S.C. § 2302(b)(12) 

was numbered (b)(11) at the time of this case.

94 Id. An excerpt of the merit system principles is in Appendix A. 

95 S. Rep. 95-969, 23 (1978 U.S.C.C.A.N. 2723, 2745); see also H.R. Conf. Rep. 95-1717, 131 (1978 

U.S.C.C.A.N. 2860, 2865) (containing almost exactly the same language). 

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, 

shall not, with respect to such authority...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. 
24 Prohibited Personnel Practices: Employee Perceptions

For example, in Special Counsel v. Lynn, discussed earlier in conjunction with 5 U.S.C. 

§  2302(b)(10), the Office of Special Counsel filed a complaint for disciplinary action, 

requesting that the Board discipline two supervisors for allegedly infringing upon an 

employee’s First Amendment rights in violation of 5 U.S.C. § 2302(b)(12) as well as (b)

(10).96 The supervisors allegedly removed a temporary employee from his position because 

of a letter the employee wrote to the editor of a local newspaper.97 As mentioned earlier, 

this case was never fully adjudicated because the employing agency sought and received 

permission from the Office of Special Counsel for the agency to implement discipline, 

rendering any Board involvement duplicative. However, it is an example of a case in which 

the Office of Special Counsel determined that a violation of 5 U.S.C. § 2302(b)(12) might 

have occurred.98 

It is also an example of the important role that agencies, the Office of Special Counsel, 

and the Board all play in preventing and addressing potential PPPs. The Office of Special 

Counsel performed its duty by investigating the situation and bringing the case before 

the Board once it concluded that a PPP likely occurred. However, the agency also took 

responsibility for its employees and, after obtaining consent from the Office of Special 

Counsel, addressed the situation without the necessity for the Board to reach its own 

determination. This is important, because when the agency takes the disciplinary action, it 

sends a message to its workforce that the agency does not tolerate within its own culture the 

commission of PPPs. The Board’s authority to adjudicate allegations of PPPs is important 

for the protection of the merit systems, but the goal is for agencies to create a culture that 

supports the merit systems and proscribes conduct that can constitute the commission of 

a PPP in order to reduce the potential that a PPP will occur. 

96 The PPP currently codified at 5 U.S.C. § 2302(b)(12) was numbered (b)(11) at the time of this case. 

97 A public employee’s first amendment rights can be a complicated legal issue. See, e.g., Garcetti v. Ceballos,

547 U.S. 410, 418 (2006) (holding that the Government “has broader discretion to restrict speech when it acts in 

its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the 

entity’s operations”); Connick v. Myers, 461 U.S. 138, 154 (1983) (holding that a supervisor was “not required to 

tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close 

working relationships”); Kohl v. U.S. Postal Service, 115 F. App’x 49, 52 (Fed. Cir. 2004) (NP) (holding that the 

“First Amendment does not require an agency to tolerate letters that disrupt a government workplace and intimidate 

other employees”).

98 However, a constitutional right does not need to be implicated for the 12th PPP to apply. For example, in 

Special Counsel v. Byrd, 59 M.S.P.R. 561, 581 (1993), the Board held that this PPP was committed when employees 

violated hiring rules contained in the Code of Federal Regulations.
A Report by the U.S. Merit Systems Protection Board 25

This chapter provides information collected through various administrations of the Merit 

Principles Survey about the frequency with which Federal employees perceive that they 

have been personally affected by the commission of a PPP. 99 When examining this data it 

is important to recognize that the survey respondents did not have the benefit of receiving 

a primer on the PPPs, such as was provided in the preceding chapter of this report. Thus, 

the responses we received to our survey questions were subject to the respondents’ own 

interpretations with respect to certain terms, such as what constitutes nepotism or what 

veterans’ preference means. The extent to which respondents are educated about such 

matters likely varies greatly, but we do not have data indicating how accurately these terms 

were understood. However, as will be discussed further in our next chapter, perceptions 

that PPP has occurred matters. It is not enough just to avoid the commission of PPPs, an 

effective civil service also requires avoiding the appearance that PPPs are occurring. 

Furthermore, because we recognize how valuable our survey respondents’ time is and how 

complex some PPPs are, and because there is so much for the MSPB to study regarding 

how the Government can promote a healthier civil service, we have not asked questions 

about every PPP on every MPS survey. However, for at least some elements of eight of the 

PPPs, we can track general perceptions over time.100

When looking at this data, it is important to bear in mind that the exact wording of the 

questions and the response options that were provided to survey respondents were not the 

same in all administrations of the MPS, and that this can account for some differences in 

the reports of perceptions that we received. In the 2010 MPS, we altered the wording of 

several questions from that used in prior administrations of the survey in order to make the 

questions more closely reflect the language used in 5 U.S.C. § 2302(b).

Another consideration when comparing data is that opportunities to perceive that a PPP 

occurred may vary over time. Because a personnel action, or the lack of a personnel action, 

is a necessary element in the commission of a PPP, opportunities to perceive a PPP will vary 

based upon the extent to which personnel actions are occurring or being withheld. For 

example, our survey asked if an official had tried to influence someone to withdraw from 

competition for a position for the purpose of helping or injuring someone else’s chances. If 

99 The Merit Principles Surveys do not all address the same topics, and when a topic is revisited, the question 

may or may not be phrased in the exact same way as in a prior administration of the survey.

100 Longitudinal data in this report are from the Board’s 2008 report The Federal Government: A Model 

Employer or a Work In Progress?, available at www.mspb.gov/studies. 

PPP Perceptions and Trends
26 Prohibited Personnel Practices: Employee Perceptions

a work unit had 10 competitions in the preceding 2 years, there would be 10 opportunities 

for the respondent to perceive that this PPP did or did not happen. But, if the work unit 

had only one competition, there would be only one-tenth as many opportunities to form 

this perception.

For these reasons, we strongly caution readers against broad generalizations based on data 

from any single survey administration, and recommend instead an examination of trends 

over time. 

Overall, perceptions of PPPs occurring are relatively rare. In 2010, for 10 of the 12 PPPs, 

we asked respondents one question per PPP, but for the discrimination PPP, we asked a 

separate question for 8 different protected classes, creating a total of 18 possible PPPs for 

respondents to report upon.101 Only 8 percent of respondents reported that they were 

personally affected by even one PPP, and only 1.3 percent of all respondents reported being 

affected by more than three PPPs.102 However, even though perceptions of PPPs occurring 

have declined over the past 18 years, and were almost uniformly less common in 2010 

compared to earlier years, we still encourage agencies to make every attempt to further 

reduce occurrences—and perceptions of occurrences—of PPPs. As will be discussed in the 

next chapter, these perceptions have consequences. Thus, while progress has clearly been 

made, there is still more that can be done.

101 The 12th PPP pertains to “any law, rule, or regulation implementing, or directly concerning, the merit 

system principles” and therefore could not be presented as a single survey question in a manner that would provide 

intelligible results. However, we did ask respondents questions pertaining to several merit system principles, which 

will be the focus of an upcoming study.

102 For the calculations discussed in this paragraph, each form of discrimination against a protected class 

constitutes a different PPP. Thus, a report of discrimination based on age, race, and sex would be considered three 

separate PPPs for purposes of this data. 
A Report by the U.S. Merit Systems Protection Board 27

Perceptions of Most PPPs Are Declining

Of those PPPs for which we have longitudinal data, almost all were perceived less frequently 

in 2010 than in previous administrations of the MPS. These declining perceptions include 

several forms of discrimination, coercion of political activity, obstruction of competition, 

influencing a withdrawal from competition, granting an improper advantage, nepotism, 

retaliation for whistleblowing, and retaliation for exercising an appeal or grievance right. 

When comparing survey data, it is important to recognize that the workforce in 2010 looks 

different from the workforce of 1992. In 1992, the average age of the Federal workforce 

was 43 years; by 2010 it was 47 years. In 1992, 27 percent of the workforce identified 

themselves as belonging to a minority group; by 2010, this had increased to 34 percent. In 

1992, 55 percent of the workforce had a high school education or less; by 2010, 45 percent 

of the workforce had a high school education or less. In 1992, 49 percent of the workforce 

was in professional or administrative positions; by 2010 this had increased to 63 percent. 

All of these factors have the potential to influence employees’ perceptions. 

Discrimination

As can be seen in Table 1, overall perceptions of most forms of discrimination have been 

increasingly less common over the past decade or more. Discrimination based upon race/

national origin, sex, age, religion, disability, marital status, and political affiliation have all 

declined compared to 1992, and none of these categories had a rate of perception above 5 

percent in 2010. Additional data show that in 2010, overall, only 5.2 percent of respondents 

reported perceiving that they had experienced one or more acts of discrimination (as 

defined in 5 U.S.C. § 2302(b)(1)) in the preceding two years.103 

103 For more information on declining perceptions of discrimination in the Federal workplace, see our recent 

report, Fair and Equitable Treatment: Progress Made and Challenges Remaining, available at www.mspb.gov/studies.
28 Prohibited Personnel Practices: Employee Perceptions

Table 1: Percentage of respondents who reported experiencing the particular form of 

discrimination within the preceding two years

Discrimination 1992 1996 2000 2005 2007 2010

Race/national origin-based 13.4% 14.5% 11.7% 7.1% 4.7% 5.0%

Sex-based 12.2% 13.1% 10.4% 7.0% 4.3% 3.9%

Age-based 9.8% 10.8% 10.7% 8.7% 5.3% 4.8%

Disability-based 2.8% 2.2% 2.5% 2.3% 2.2% 2.7%

Religion-based 1.7% 1.6% 1.5% 1.1% 1.4% 1.2%

Marital status-based 3.0% 2.6% 2.0% 1.4% 1.5% 1.7%

Political affiliation-based 1.6% 2.5% 1.3% 1.4% 1.4% 1.1%

*In previous administrations of the MPS, race/national-origin based discrimination was asked as a single question. In the 2010 MPS, race and 

national origin were two separate questions. The data from those two questions in 2010 have been combined in this table for the purpose of allowing 

comparisons to the prior MPS data.

As the table above shows, perceptions of disability-based discrimination increased slightly 

between 2007 and 2010. Not surprisingly, our data indicate that the severity of the 

disability had a strong relationship to employees’ perceptions that discrimination had 

occurred. Of those respondents who reported that they had an impairment that affected 

one or more major life activities, 26 percent perceived discrimination, while of those who 

reported an impairment that did not affect a major life activity, only eight percent perceived 

discrimination. The nature of the impairment (sensory, neurological, physical movement, 

psychological, developmental or learning, or chronic health condition) did not have a 

notable relationship to perceptions of disability-based discrimination. (After categorizing 

respondents with a disability by the nature of their disability, the range was from 11.3 

to 19.6 percent perceiving this discrimination.)

Minor fluctuations due to the margin of error on surveys, or differences in how the question 

was phrased in different years, are potential explanations for the increased reporting of 

perceptions of disability-based discrimination. Another possible explanation for the 

increase may be the aging of the workforce. While 8.4 percent of respondents under 

age 40 reported that they had a disability, 14.7 percent of respondents aged 40 or more 

reported a disability. The average age of the Federal workforce has increased since 1992, 

and as the workforce ages, the percentage of the workforce that has some form of disability 

is likely to increase, creating more opportunities for perceptions of discrimination on that 

basis to occur.
A Report by the U.S. Merit Systems Protection Board 29

Agencies should do all that they can to prevent any form of discrimination, particularly 

disability-based discrimination, which in 2010 showed the greatest increase in perceptions. 

Agencies should be careful to ensure that they have measures in place to provide reasonable 

accommodations where required by law, and also that they provide accommodations under 

other circumstances where such assistance may not be mandated by statute or regulation 

but can help the workforce to function as effectively and efficiently as possible.104

The slight increase in perceptions of discrimination based on marital status is harder 

to explain, and therefore may be more difficult for agencies to address. It may be that 

married employees are more sensitive to work/life balance issues than they were in 2005 

and 2007, or it may be that unmarried employees more often perceive pressure to “cover” 

for employees who are unavailable due to personal commitments. While the increase in 

perceptions of this PPP is very slight, and the perception rate remains low, there has been 

a trend towards greater perceptions of this PPP since 2005. We again caution against 

reading too much into small differences in results between administrations of the MPS, 

but if this trend continues in the future, further examination may be needed—particularly 

if its growth becomes more pronounced.

Coercing Political Activity

As can be seen in Table 2, perceptions that an individual has experienced coercion related 

to political activity are consistently rare, and were less common among survey respondents 

in 2010 than in 2007. Because these perceptions are so rare, a small increase or decrease 

in the number of respondents with this perception can cause the survey data to show that 

perceptions within the Government have doubled (1992-1996), or been cut by more than 

half (2007-2010). However, these fluctuations should not be given too much emphasis. 

Rather, the key message is that perceptions of coercion are consistently rare but present, 

and should be taken seriously given the importance of this PPP.105

Table 2: Perceptions Regarding Political Coercion

1992 1996 2000 2005 2007 2010

Percentage of respondents who reported a 

perception that they experienced coercion related 

to political activity in the preceding 2 years.

0.5% 1.0% 0.6% * 1.9% 0.7%

* This question did not appear on the 2005 MPS.

104 See 5 U.S.C. § 2301(b)(5) (stating that the “Federal work force should be used efficiently and effectively”).

105 As noted in the previous chapter, most behavior that would qualify for this PPP would also constitute a 

violation of the Hatch Act, which means that removal would be mandatory unless the entire Board agreed that a 

lesser penalty would be appropriate. 5 U.S.C. § 7326. 
30 Prohibited Personnel Practices: Employee Perceptions

Obstructing Competition

As can be seen in Table 3, perceptions of interference with the right to compete have steadily 

dropped since 1996, and in 2010 such interference was perceived by less than 5 percent 

of survey respondents. In previous administrations of the MPS, our survey asked whether 

the respondent had been discouraged from competing for a vacancy, while the 2010 MPS 

phrased the question to reflect the PPP more closely by asking if an official obstructed the 

right to compete because the statute uses the term “obstruct.”106 The difference in phrasing 

may account for the fact that the percentage of respondents perceiving this behavior 

dropped by more than half between 2007 and 2010—the most dramatic fluctuation that 

perceptions of this PPP have experienced since 1992. However, regardless of how the 

question was phrased, there was a steady decline in this perception after 1996. 

Table 3: Perceptions Regarding Obstruction of Competition

1992 1996 2000 2005 2007 2010

Percentage of respondents who reported a 

perception that they were discouraged from 

competing or encountered an obstruction to 

competing for employment in the preceding 2 years.

15.7% 17.6% 13.6% 12.3% 10.6% 4.8%

Influencing a Withdrawal From Competition

As Table 4 demonstrates, perceptions that a respondent was influenced to withdraw from 

competition have also steadily decreased since 1996. Such perceptions occurred in 2010 

less than half as often as they did in 1992 and 1996. 

Table 4: Perceptions of Influence to Withdraw From Competition

1992 1996 2000 2005 2007 2010

Percentage of respondents who reported a 

perception that they were influenced to withdraw 

from competition in the preceding 2 years.

4.8% 4.8% 4.2% 3.3% 3.0% 2.2%

106 The question on the 2005 MPS asked: “In the past 2 years, do you feel you have been deliberately misled 

by an agency official about your right to compete for a job or promotion?” In 2007, the question was: “In the past 2 

years, have you been discouraged from competing for a job or promotion by an agency official?” On the 2010 MPS, 

we asked if the individual had been personally affected by a management official who “obstructed someone’s right to 

compete for employment.” 
A Report by the U.S. Merit Systems Protection Board 31

Granting an Advantage

As shown in Table 5, perceptions that a management official has granted an unauthorized 

advantage to an individual in a recruitment action have also dropped dramatically, from a 

quarter of respondents in 1996 to 7 percent in 2010. Questions asked about this perception 

are another example of where differences in how the question was phrased in 2010 may 

account for some of the difference in the survey results.107 However, regardless of the 

precise words used, there was a steady decline in this perception in 2000, 2005, and 2007. 

As with most of the other PPPs, perceptions of this PPP appear to be on a downward trend. 

However, with 6.9 percent of respondents perceiving this PPP, it was perceived more often 

than any other PPP. 

One potential explanation for why perceptions of this PPP occurred with greater frequency 

than perceptions of other PPPs is the scope of opportunities for subjective management 

decisions to come into play. When a position is being filled, there are a series of decisions 

that must be made when deciding how to recruit for a position and whom to select. 

Because often there will not be a single right course of action, differences of opinion may 

arise as to how the personnel action should have been done. This creates an opportunity 

for individuals who do not approve of the outcome to assume that an improper advantage 

was granted. Furthermore, because this PPP includes non-selection as a personnel action, 

a single selection action can have an effect on many employees, increasing the likelihood 

that an employee in the sample perceived that this PPP directly affected him or her.108 

Table 5: Perceptions of Granting an Advantage

1992 1996 2000 2005 2007 2010

Percentage of respondents who reported a 

perception that an improper or unfair advantage 

was given by a management official in a 

competition for a job or promotion.

19.1% 25.3% 22.1% 18.6% 14.5% 6.9%

107 For example, the question on the 2007 MPS asked: “In the past 2 years, have you been denied a job or 

promotion because one of the selecting or recommending officials gave an unfair advantage to another person?” 

However, on the 2010 MPS we asked a more focused question, asking if the individual had been personally affected 

by a management official who had “tried to define the scope or manner of a recruitment action, or the qualifications 

required, for the purpose of improving the chances of a particular person.” 

108 As discussed in our recent report Fair and Equitable Treatment: Progress Made and Challenges Remaining, 

available at www.mspb.gov/studies, perceptions of personal favoritism are a problem in the workplace. MSPB is 

currently conducting a study to explore in greater depth the problem of personal favoritism in the civil service.
32 Prohibited Personnel Practices: Employee Perceptions

Nepotism

As can be seen in Table 6, perceptions of nepotism have also declined steadily since 

1996. What is noteworthy about the 2010 responses is that, in order to more closely 

mirror the statute, the question in 2010 was broader than it had been in previous survey 

administrations. While the 2005 and 2007 surveys asked if a job had gone to a relative 

of the official, the 2010 question asked if an official had advocated for a relative, without 

restricting the result to successful placement of the relative. Despite this change in the 

question to reflect the PPP more closely, perceptions of nepotism declined.109

Table 6: Perceptions of Nepotism

1992 1996 2000 2005 2007 2010

Percentage of respondents who reported a 

perception of nepotism 4.2% 4.7% 3.5% 3.2% 3.0% 1.7%

Whistleblower Retaliation

Perceptions of this particular PPP have generally declined, but showed a slight increase in 

2007 before dropping once more in 2010. As can be seen in Table 7, the percentage of 

respondents who perceived such retaliation in 2010 was less than half of the comparable 

percentage in 1992. A number of factors may be responsible for this result, including the 

fact that in 2010, a smaller percentage of respondents reported observing wrongdoing 

compared to 1992 (11.1 versus 17.7 percent).110 Furthermore, in 2010, fewer respondents 

who made a report of wrongdoing believed that they had been identified as the source of 

the report compared to 1992 (42.5 percent versus 53.1 percent). This would leave fewer 

respondents in a position to interpret a management action as retaliation for whistleblowing 

activities. However, overall, perceptions of whistleblower retaliation have dropped much 

more sharply than opportunities for retaliation, indicating a perception that agency officials 

are less likely to retaliate now than they were in 1992. This is not to say that instances of 

retaliation against whistleblowers (or any other PPP) are any less serious than they used to 

be, only that perceptions of it occurring are less prevalent.111

109 One possible explanation for some of the decline in nepotism perceptions is that in 2010 we also asked a 

question regarding management officials advocating for personal friends. Providing a distinction between relatives 

and friends may have resulted in respondents recognizing that the category of “relatives” was narrow. 

110 Other than the data presented in Table 7, all questions about whistleblowing in 1992 precisely match the 

questions used in 2010. This was done in order to ensure that comparisons could be more easily made between 

those two years. For more on our comparisons of whistleblowing data from 1992 and 2010, please see our upcoming 

report, Blowing the Whistle: Barriers to Federal Employees Making Disclosures.

111 MSPB is currently conducting a study to explore employee perceptions related to whistleblowing in 

greater depth, including how agencies react to disclosures of wrongdoing and what can be done to encourage more 

employees to come forward with important information about a violation of any law, rule, or regulation, or gross 

mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health 

or safety.
A Report by the U.S. Merit Systems Protection Board 33

Table 7: Perceptions of Whistleblower Retaliation

1992 1996 2000 2005 2007 2010

Percentage of respondents who reported a 

perception of reprisal for whistleblowing activity. 8.3% 7.3% 7.1% 5.0% 5.5% 3.2%

Other Retaliation

As was the case with perceptions of whistleblower retaliation, perceptions of retaliation for 

exercising a grievance or appeal right increased slightly in 2007, but by 2010 had declined 

to less than half of the 1992 rate of perception, as shown in Table 8. As noted earlier in 

this report, section 2302(b)(9)(A) prohibits a personnel action from being taken where the 

reason for the action is because the employee exercised any appeal, complaint, or grievance 

right. Our survey question did not include “complaint” rights.

Table 8: Perceptions of Grievance or Appeal Retaliation

1992 1996 2000 2005 2007 2010

Percentage of respondents who reported a 

perception of reprisal for exercising a grievance 

or appeal right.

11.3% 12.2% 8.6% 6.1% 8.4% 3.9%

Perceptions Low for PPPs With No Longitudinal Data

Historically, we have not gathered data for the following PPPs:

•	Soliciting or considering improper employment recommendations;

•	Discriminating in favor or against someone in a personnel action on the basis of 

off-duty conduct which was entirely unrelated to the job;

•	Knowingly violating a lawful form of veterans’ preference; and

•	Violating any law, rule, or regulation implementing, or directly concerning, the 

merit system principles.

The reason we have not asked about these PPPs as consistently as the other PPPs is because 

these practices are particularly challenging for respondents to identify. An individual who is 

not selected may not know if there were improper employment recommendations involved 

with that outcome; off-duty conduct is a broad category and the individual may not agree 

with management as to whether the conduct was related to the job; it is difficult in many 

situations to discern if someone else knowingly violated veteran’s preference because the 
34 Prohibited Personnel Practices: Employee Perceptions

respondent would have to be acquainted with how well the official knew the rules; and 

there are so many laws, rules, and regulations concerning the merit principles that it would 

be wholly unrealistic to expect a typical Federal employee to know them all—particularly 

in an environment where many people have little or no knowledge of precisely what the 

merit principles are.112

Despite these challenges, for the 2010 MPS, we attempted to capture perceptions related 

to soliciting or considering improper employment recommendations; discriminating in 

favor or against someone in a personnel action on the basis of off-duty conduct which was 

entirely unrelated to the job; and knowingly violating a lawful form of veteran’s preference 

or veteran’s protection laws.113 The results were as follows:

•	3.7 percent of respondents perceived that they were personally affected by a 

management official considering improper employment recommendations.

•	2.0 percent of respondents perceived that they were personally affected by 

discrimination in favor or against someone in a personnel action on the basis of offduty conduct which was entirely unrelated to the job. (We also asked respondents 

specifically about discrimination based on sexual orientation and 1.1 percent 

reported that they felt that they had been personally affected by this.) 

•	1.4 percent of respondents perceived that they were personally affected by a 

management official knowingly violating a lawful form of veterans’ preference or 

veterans’ protection laws.114

While we do not have historical data to which we might compare these results, perceptions 

of these PPPs appear to be in the “middle of the pack,” meaning they are perceived more 

frequently than some PPPs, but less frequently than others. It is likely (but cannot be 

proven) that if perceptions regarding these PPPs had also been recorded over the last 18 

years, that they would show the same downward trend as the others, given that perceptions 

of all PPPs have declined when compared to the data from 1992. 

112 MSPB recently engaged in an effort to provide greater education about the merit system principles, 

including highlighting a “merit system principle of the month” on our website. See www.mspb.gov. 

113 The 2010 MPS also asked a series of questions to capture perceptions related to the merit principles, which 

will be the subject of a future study. 

114 In FY 2009, MSPB received a combined total of 1,072 cases, compared to 533 cases in FY 2008, under 

two related veterans’ rights laws, the Uniformed Services Employment and Reemployment Rights Act (USERRA) 

and the Veterans Employment Opportunities Act (VEOA). See Merit Systems Protection Board, Fiscal Year 2009 

Annual Report at 1 available at www.mspb.gov. While we do not have survey data for prior years to conduct a 

comparison, it is possible that perceptions that preference rights are being denied have experienced a similar increase.
A Report by the U.S. Merit Systems Protection Board 35

Perceptions that a prohibited personnel practice occurred are relatively rare, but, when a 

personnel action occurs under circumstances that cause the perception of a PPP, the impact 

is not limited to the individuals who are personally affected. Others in the work unit see 

what happens, and they judge it. For this reason, we asked respondents to the 2010 MPS 

not only if they had been personally affected by a PPP, but also if they had perceived a PPP 

in their work unit without being personally affected. The results are presented in Table 9, 

below. For every PPP, more people reported perceiving it without being personally affected 

than reported that they were personally affected by it. 

Table 9: Perceptions of PPPs in the Work Unit 115

In the past 2 years, an agency official (e.g., supervisor, 

manager, senior leader, etc.) in my work unit has...

I was personally affected by this 

This has occurred in my work unit, but I was not personally affected by this 

This has NOT occurred in my work unit  

...discriminated in favor or against someone in a 

personnel action based upon race 86.3% 9.1% 4.6%

...discriminated in favor or against someone in a 

personnel action based upon age 88.5% 6.8% 4.8%

...discriminated in favor or against someone in a 

personnel action based upon religion 96.7% 2.1% 1.2%

...discriminated in favor or against someone in a 

personnel action based upon sex 88.3% 7.8% 3.9%

...discriminated in favor or against someone in a 

personnel action based upon national origin 94.5% 3.4% 2.1%

...discriminated in favor or against someone in a 

personnel action based upon disabling condition 92.9% 4.5% 2.7%

115 As explained previously, our survey permitted respondents to provide responses of “Don’t Know/Not 

Applicable” to all of our PPP-related questions. For all of these questions, approximately 25 to 35 percent of 

respondents indicated that they either did not know the answer or considered the question not applicable. These 

responses are not included in this data.

Bystanders and 

the Business Case 
36 Prohibited Personnel Practices: Employee Perceptions

Table 9 Continued: Perceptions of PPPs in the Work Unit

In the past 2 years, an agency official (e.g., supervisor, 

manager, senior leader, etc.) in my work unit has...

I was personally affected by this 

This has occurred in my work unit, but I was not personally affected by this 

This has NOT occurred in my work unit 

...discriminated in favor or against someone in a personnel 

action based upon marital status 95.8% 2.5% 1.7%

...discriminated in favor or against someone in a personnel 

action based upon political affiliation 96.8% 2.1% 1.1%

... solicited or considered improper employment 

recommendations 86.8% 9.5% 3.7%

...tried to pressure someone to support or oppose a particular 

candidate or party for elected office 97.7% 1.7% 0.7%

...obstructed someone’s right to compete for employment 86.4% 8.8% 4.8%

...tried to influence someone to withdraw from competition 

for a position for the purpose of helping or injuring someone 

else’s chances

93.0% 4.9% 2.2%

...tried to define the scope or manner of a recruitment action, 

or the qualifications required, for the purpose of improving the 

chances of a particular person

78.0% 15.1% 6.9%

...advocated for the appointment, employment, promotion, or 

advancement of a relative 87.8% 10.5% 1.7%

...took or threatened to take a personnel action against an 

employee because the employee disclosed a violation of law, 

rules, or regulations or reported fraud, waste, or abuse

91.9% 5.0% 3.2%

... took or threatened to take a personnel action against an 

employee because the employee filed an appeal or grievance 88.9% 7.2% 3.9%

...discriminated in favor or against someone in a personnel 

action on the basis of off-duty conduct which was entirely 

unrelated to the job

92.4% 5.6% 2.0%

...knowingly violated a lawful form of veteran’s preference or 

veteran’s protection laws 95.5% 3.1% 1.4%
A Report by the U.S. Merit Systems Protection Board 37

The commission of a PPP is a violation of the law no matter how many or how few people 

realize that it happened, so why does it matter if others in the work unit perceive a PPP? 

Perceptions that a PPP has occurred in the work unit appear to have a relationship with 

the extent to which an employee reports being engaged and motivated. As can be seen in 

Figure 1, below, the more PPPs that a respondent indicated that he or she had experienced 

or observed, the less engaged the respondent was.116 Engagement is important because, as 

we demonstrated in our 2008 report, The Power of Federal Employee Engagement, engaged 

employees produce better results for their agencies.117

What is particularly noteworthy in our 2010 MPS data is the difference in engagement 

levels between those respondents who reported that they had observed two PPPs without 

being personally affected, and those who reported being personally affected just once. 

While 31 percent of employees who believed that they had experienced one PPP were 

engaged, only 25 percent of those who believed that they had observed two PPPs (without 

being personally affected by any PPPs) were engaged. In other words, seeing two PPPs may 

be worse for engagement than experiencing one. Many employees may observe a single act. 

Therefore, acts that are perceived as the commission of a PPP against just one employee can 

have a relationship to the engagement of an entire office.

Figure 1: Experience or Observation of PPPs and Scores on the MSPB Employee 

 Engagement Index

116 These engagement scores are based on MSPB’s employee engagement scale, which consists of 16 questions 

about the employee’s attitude on a variety of issues. A list of the questions is in Appendix B. For more information 

on the reliability and validity of the engagement scale, see The Power of Federal Employee Engagement, Appendix A, 

available at www.mpsb.gov/studies.

117 The Power of Federal Employee Engagement, available at www.mpsb.gov/studies.

%

10%

20%

30%

40%

50%

60%

70%

Engaged Somewhat Engaged Not Engaged

65%

32%

3%

46% 44%

10%

25%

51%

24%

31%

45%

24%

15%

42% 42%

None observed or experienced Observed 1, but not affected Observed 2+, but not affected

Affected by 1 Affected by 2+
38 Prohibited Personnel Practices: Employee Perceptions

The more PPPs that an employee sees or experiences, the greater the tendency that 

the employee will not agree with the following statements related to engagement and 

motivation:118

•	Overall, I am satisfied with my supervisor;

•	Overall, I am satisfied with managers above my immediate supervisor;

•	Recognition and rewards are based on performance in my work unit;

•	I am given a real opportunity to improve my skills in my organization;

•	I am treated with respect at work;

•	My opinions count at work;

•	A spirit of cooperation and teamwork exists in my work unit;

•	I have the opportunity to perform well at challenging work;

•	At my job, I am inspired to do my best work;

•	The harder I try, the more I am able to achieve my work goals and objectives;

•	The better I perform on the job, the more I feel appreciated; and

•	I feel highly motivated in my work.

Thus, while PPPs are to be avoided because the commission of a PPP violates the law, and 

can cause the offender to be subjected to an adverse action up to and including removal 

from the Federal service, there is also a business case for avoiding the perception of PPPs 

throughout a work unit. Work units that avoid these perceptions have a more engaged 

and motivated workforce, factors that are key contributors to an effective and efficient civil 

service. 

118 Several of the items in this list come from the engagement scale, while others come from MSPB’s research 

regarding motivation in the Federal workforce, which is not precisely the same thing. An MSPB report on 

motivation in the Federal workforce is planned for next year.
A Report by the U.S. Merit Systems Protection Board 39

Perceptions of occurrences of most PPPs are at the lowest point in 18 years. For the 

PPPs where we do not have longitudinal data for comparison, only a small percentage of 

respondents reported perceptions that they were personally affected by the commission of 

those PPPs. However, while perceptions of most PPPs are relatively rare, reducing PPPs—

and perceptions of PPPs—remains important. 

As discussed earlier in this report, personnel actions that involve subjective decisions are 

particularly vulnerable to perceptions of a PPP. Take for instance the areas of recruitment 

and selection. Managers must make a number of determinations based on their own 

judgment when hiring, such as the grade level at which to fill the position, the area of 

consideration for the recruitment action, the competencies necessary to best perform the 

job duties, and the assessment tools that will be used to measure applicant ability. People 

can hold very different opinions on how any one of these determinations should be made. 

Therefore, the potential is high for the final outcome to be different from what some 

individuals might believe it should have been. The more an employee has at stake in the 

outcome, the harder it may be for that employee to consider dispassionately the possible 

reasons for management’s decisions. 

Because of these factors, perceptions that a PPP has occurred may never be fully eradicated. 

However, agencies can take steps to reduce them. Agencies should make an effort to 

ensure that decisions are based on the best information available and are grounded in 

merit-based reasons. Being as transparent as is practical about the process, both in advance 

and following the decision, can help dispel suspicions that improper motives played a 

role in the decision-making process. Awareness that this transparency will occur may also 

dissuade officials from knowingly attempting to take an improper action. Sunlight is the 

merit systems’ best ally. 

We encourage agencies to educate their workforces, and in particular their executives, 

managers, supervisors, and human capital staff including equal employment opportunity 

advisors, about the PPPs.119 These management officials should be well-informed about the 

meaning of each PPP, what constitutes a violation, and the reasons why it is in their interest 

to comply with 5 U.S.C. § 2302(b), including fostering a more engaged and motivated 

workforce. This recommendation is particularly important for new political appointees 

119 5 U.S.C. § 2302(c) specifically states that “[t]he head of each agency shall be responsible for the prevention 

of prohibited personnel practices...” 

Conclusion
40 Prohibited Personnel Practices: Employee Perceptions

and other new officials who may not be familiar with the Federal civil service and may 

not have previously operated within a merit system. It would be beneficial if new officials 

were given a standard memorandum from the head of the agency or cabinet department 

drawing the official’s attention to the existence of the PPPs, the leadership’s expectations 

that PPPs will not occur, and a source for further information about the PPPs (such as 

what each PPP means, how to avoid committing a PPP, and how to prevent erroneous 

perceptions).120 Other officials could benefit from a regular reminder. This MSPB report 

could be one source provided to officials, but agencies may benefit from creating their own, 

more brief summaries as well, given the realities of asking a new employee to read a report 

of this length. At the very least, officials should be given a copy of the PPPs from 5 U.S.C. 

§ 2302. 

120 For example, on March 10, 2008, the Attorney General issued a memorandum for all Department of 

Justice political appointees instructing them to review a short fact sheet about the PPPs that included some examples 

of conduct that could constitute a violation of 5 U.S.C. § 2302. The appointees were instructed to provide an 

acknowledgement that they had read the fact sheet and understood its content. See http://www.justice.gov/ag/

readingroom/ag-031008.pdf. 
A Report by the U.S. Merit Systems Protection Board 41

Federal personnel management should be implemented consistent with the following 

merit system principles:

(1) Recruitment should be from qualified individuals from appropriate sources in 

an endeavor to achieve a work force from all segments of society, and selection and 

advancement should be determined solely on the basis of relative ability, knowledge, and 

skills, after fair and open competition which assures that all receive equal opportunity. 

(2) All employees and applicants for employment should receive fair and equitable 

treatment in all aspects of personnel management without regard to political affiliation, 

race, color, religion, national origin, sex, marital status, age, or handicapping condition, 

and with proper regard for their privacy and constitutional rights. 

(3) Equal pay should be provided for work of equal value, with appropriate consideration 

of both national and local rates paid by employers in the private sector, and appropriate 

incentives and recognition should be provided for excellence in performance. 

(4) All employees should maintain high standards of integrity, conduct, and concern 

for the public interest. 

(5) The Federal work force should be used efficiently and effectively. 

(6) Employees should be retained on the basis of the adequacy of their performance, 

inadequate performance should be corrected, and employees should be separated who 

cannot or will not improve their performance to meet required standards. 

(7) Employees should be provided effective education and training in cases in which 

such education and training would result in better organizational and individual 

performance. 

(8) Employees should be— 

(A) protected against arbitrary action, personal favoritism, or coercion for partisan 

political purposes, and 

Appendix A: Merit System 

Principles – 5 U.S.C. § 2301(b)
42 Prohibited Personnel Practices: Employee Perceptions

(B) prohibited from using their official authority or influence for the purpose of 

interfering with or affecting the result of an election or a nomination for election. 

(9) Employees should be protected against reprisal for the lawful disclosure of 

information which the employees reasonably believe evidences— 

(A) a violation of any law, rule, or regulation, or 

(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial 

and specific danger to public health or safety. 
A Report by the U.S. Merit Systems Protection Board 43

The engagement scale measures levels of agreement with the following 16 items:

Pride in one’s work or workplace

1. My agency is successful at accomplishing its mission.

2. My work unit produces high-quality products and services.

3. The work I do is meaningful to me.

4. I would recommend my agency as a place to work.

Satisfaction with leadership

5. Overall, I am satisfied with my supervisor.

6. Overall, I am satisfied with managers above my immediate supervisor.

Opportunity to perform well at work

7. I know what is expected of me on the job.

8. My job makes good use of my skills and abilities.

9. I have the resources to do my job well.

10. I have sufficient opportunities (such as challenging assignments or projects) to 

earn a high performance rating.

Satisfaction with the recognition received

11. Recognition and rewards are based on performance in my work unit.

12. I am satisfied with the recognition and rewards I receive for my work.

Prospect for future personal and professional growth

13. I am given a real opportunity to improve my skill in my organization.

Positive work environment with some focus on teamwork.

14. I am treated with respect at work.

15. My opinions count at work.

16. A spirit of cooperation and teamwork exists in my work unit.

Appendix B: MSPB’s 

Engagement Scale Questions


U.S. Merit Systems Protection Board

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Washington, DC 20419

Official Business

Penalty For Private Use $300

PRSRT STD

U.S. POSTAGE PAID

WASHINGTON DC

PERMIT NO. G-113

PROHIBITED PERSONNEL 

PRACTICES:

Employee Perceptions

UNITED STATES MERIT SYSTEMS PROTECTION BOARD