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Home
	  Prohibited Personnel Practices
      Frequently Asked Questions
      1- Non-Discrimination
         2 - Proper Considerations
         3 - Coercing  Political Activity
               4 -  Obstructing the Right to Compete for Employment
               5 - Influencing  Withdrawal from Competition
               6 - Granting  Any Preference or Advantage Not Authorized by Law
               7 - Nepotism
                   8 - Whistleblower Protection
                   9 - Protection Against Retaliation
                   10 - Conduct Not Adversely Affecting Performance
                   11 - Violating Veterans' Preference
                   12 - Violating Merit System Principles
                   13 - Nondisclosure Forms, Policies & Agreements
					14 - Accessing Medical RecordsSearch & Site Index Prohibited Personnel Practice 6: Granting  Any Preference or Advantage Not Authorized by Law
Prohibited Personnel Practice of the Month

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.***Where is this prohibition covered in the law?***
The sixth prohibited personnel practice (PPP) can be found  at section 2302(b)(6)  in title 5 of the United States Code.
  ***What is the  purpose of the sixth prohibited personnel practice?***
    This provision supports the first Merit System Principle  which asserts that recruitment, selection and advancement should be  merit-based.  *See*5  U.S.C. § 2301(b)(1).  This PPP is  designed to prevent an agency from giving an improper advantage in promoting an  employee or in selecting an applicant for a position in federal employment.  *See*5 U.S.C. § 2302(b)(6).  It complements and supports the same goal of  fair competition as do PPPs 4 and 5, which prohibit obstructing the right to  compete and influencing a person to withdraw from competition.
  It should be noted that some employment preferences are  authorized by law, so they would not be prohibited.  For example, there is a veterans’ preference  statute that gives eligible veterans preference in appointment over many other  applicants.  *See*5  U.S.C. § 2108. ****
  ***What  exactly is prohibited?***
    To establish a  violation of 5 U.S.C. §  2302(b)(6), Merit Systems Protection Board (MSPB or Board) case law  requires proof of an intentional or purposeful taking of a personnel action in  such a way as to give a preference to a particular individual for the purpose  of improving his or her prospects.  *See**Special Counsel v. Byrd,* 59  M.S.P.R. 561, 570 (1993), *aff’d*,  39 F.3d 1196 (Fed. Cir. 1994) (Table).  The preference must be given for the purpose  of providing an improper advantage.  In  other words, an improper motive must be shown.  *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).  However, it is not necessary  that the action actually have resulted in an advantage, only that its purpose  be to give an advantage.  *Special  Counsel v. DeFord*, 28  M.S.P.R. 98, 104 (1985).
  It is possible to  violate section 2302(b)(6) using legally permissible hiring actions if the  intent is to afford preferential treatment to an individual.  *See Lee,*114  M.S.P.R. 57, *¶* 21*.*   Conversely, hiring actions that have the unintentional effect of  favoring one applicant over another would not violate section 2302(b)(6).  *See id.*  The Board also has found, based on the  wording of the statute, that it does not prohibit actions improperly  advantaging a class of persons, only an individual.  *See Avery v. Office of Personnel  Management*, 94  M.S.P.R. 212, ¶ 5 (2003).
  ***What is MSPB’s  jurisdiction to review an alleged violation of 5 U.S.C. § 2302(b)(6)?***
    The MSPB will consider an alleged instance of this PPP as  an affirmative defense in connection with the filing of an appeal.****However,  MSPB cannot review a violation of section 2302(b)(6) unless it  is related to an otherwise appealable action.  *See Davis v. Department of  Defense,*105  M.S.P.R. 604, ¶ 16 (2007).
  Additionally, an individual may file a complaint  with the Office of Special Counsel (OSC),  which is a separate, independent executive agency with the authority to  investigate violations of section 2302(b)(6) and to seek  corrective action before the MSPB.  *See*5 U.S.C. §§ 1214(a)(1)(A),  (a)(5).  The instructions for filing a  complaint with OSC may be found at its website:  www.osc.gov.  ****
  ***What type of  penalty is imposed when a section 2302(b)(6)  violation is found******?***
    The Special Counsel may petition MSPB to discipline an employee for committing  this PPP.  *See*5 U.S.C. §1215(a)(1)(A).  The penalties assessed against the employee can  include disciplinary action consisting of a reprimand, a removal, a reduction  in grade, a suspension, debarment from Federal employment for up to five years,  or an assessment of a civil penalty not to exceed $1,000.  *See*5 U.S.C. § 1215(a)(3).
  In assessing  the penalty, MSPB takes into account the relevant factors enumerated in *Douglas v. Veterans Administration,* 5  M.S.P.R. 280 (1981).  The MSPB will consider, first and foremost, the  nature and seriousness of the misconduct and its relationship to the employee’s  position and responsibilities, including whether the offense was intentional or  was frequently repeated.  *See**Lee*, 114  M.S.P.R. 57, ¶ 36; *Byrd,* 59  M.S.P.R. 561, 582-83.
  ***Has the  Board recently issued any significant decisions addressing this PPP?***
    Yes.  In *Special Counsel v. Lee,* 114  M.S.P.R. 57 (2010), *rev’d in part*, 413 F. App’x. 298 (Fed. Cir. 2011),  OSC brought two complaints before the Board, alleging that Richard F. Lee and  Diane L. Beatrez, Human Resource (HR) Specialists for the Coast Guard, violated  section 2302(b)(6) when  they assisted in promoting a particular individual to a supervisory position.  The Board stated that Lee and Beatrez could  be held liable under the statute because there was “a pattern of cooperation”  between the HR specialists and the supervisor who sought to promote a  particular individual.  *Id.*, ¶  25.  The Board held that the HR  specialists were liable for this PPP under the theory that “conduct that aids  and abets another who is violating the statute” also violates section 2302(b)(6).  *Id.*, ¶ 32.  The Board noted that, by holding the HR  specialists liable, they were “mindful of [the Board’s] obligation to  faithfully uphold the merit system principles as set forth by Congress”.  *Id.*, ¶ 35.  As a consequence, the Board imposed a 45-day  suspension without pay on Lee and a 10-day suspension without pay on Beatrez.  *See id.*, ¶ 50.  The Court of Appeals for the Federal Circuit  later held on review that there was insufficient evidence to establish that  Beatrez had the requisite intent to aid in the commission of a PPP and reversed  the action against her.  *See Beatrez  v. Merit Systems Protection Board,* 413 F. App’x. 298 (Fed. Cir. 2011) (NP).  The court did not disagree with the Board’s  finding that any of the actions taken by the employees, if done with the  requisite intent, would properly constitute a PPP under § 2302(b)(6).
  ***Has MSPB studied this  practice?***
    Yes.  In its report “Prohibited  Personnel Practices:  Employee  Perceptions” (2011), the Board noted that Federal employees perceive this  PPP occurring more than any other PPP.   The Board also explained that an important lesson to be learned from the  case law is that an official can be held liable for violating section 2302(b)(6) if the  official commits a PPP or intentionally assists someone else to commit a PPP,  even when the employee’s superiors are aware of what is happening and view the  PPP as a solution to a problem.  In its  report, “Fair  and Equitable Treatment: Progress Made and Challenges Remaining” (2009),  the Board noted that Federal employee suspicions regarding blatant forms of  discrimination have been supplanted by a growing skepticism about managers  making their decisions in accord with the merit system principles.  In a recent MSPB Government-wide survey, over  70 percent of employees believed that some supervisors practice  favoritism.  In its report, “Prohibited  Personnel Practices:  A Study  Retrospective” (2010), the Board summarized a number of its prior studies  that examined perceptions of unfair competition and unfair advantage in hiring  and promotion in Federal employment and explained that such perceptions were a  longstanding problem.
  ***What other guidance is out  there concerning this PPP?***
    The Office of Personnel Management has issued  detailed rules governing hiring that are designed to ensure fair and open  competition.  These rules cover  recruitment and selection for initial appointment as well as promotion in  accordance with a merit-based system.  *See  e.g.,*5 C.F.R. parts 300A, 302, 330, 332.


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