U.S. flagAn official website of the United States government
      Here's how you know **The .gov means it’s official.**
            
            Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.
 **The site is secure.**
            
            The **https://** ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.


U.S. Merit Systems Protection Board
 Menu


close HomeAbout
    About the MSPB	
			Contacts & Locations
			Equal Employment Opportunity
			Information Quality Standards
			No FEAR Act
			Open.Gov
			Organization
			Plans, Budget & Performance
			Privacy Program
           Merit System Principles
	Prohibited Personnel Practices
	 Site Index and SearchAppeals
    Appeal Process
						Appellant Q&A
    Electronic Filing
    Forms
    Hearing Sites
    Policy & Resources
    Regulations
    Whistleblower Q&A 
	Electronic Filing  
	Mediation Appeals ProgramDecisions
    Case Reports
Nonprecedential Decisions
		Precedential DecisionsStudies & Publications
       About & Contact Studies
		Latest Publications
		Newsletters
		Reports
          Research Briefs
		Search StudiesSurveys of Federal Employees Public & Information Services
    Accessibility
		   Contracting & Procurement
			  Federal Register Notices
		      FOIA Program
				 e-FOIA Reading Room
        Submit a FOIA Request
           FOIA Reports 
			Information Collections
			Jobs & Internships
	Press Releases & News
	Privacy Program
				Regulations
			    Technical Support Search small
Search




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 2: Proper Considerations in Making Personnel Decisions

 Prohibited Personnel Practice of the Month - October 2011
		
              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.***Proper considerations in making  personnel decisions - What does this provision address?***
    This provision is found at 5 U.S.C. § 2302(b).  Along with all of the other prohibited  personnel practices, except number 11, this provision came from the Civil  Service Reform Act of 1978, Pub.  L. No. 95‐454, 92 Stat. 1111.  The  legislative history concerning section 2302(b)(2) indicates that the section  was intended to prevent the use of political influence to obtain a position or  promotion in the federal government.  The  pertinent Senate Report explains that this provision: “restates and expands 5 U.S.C. § 3303, which  currently prohibits consideration of recommendations submitted by senators and  representatives, except as to character or residence.  The paragraph adds a prohibition against  soliciting any such recommendation.  An  exception is made for recommendations based on personal knowledge or personal  records, where it consists of an evaluation of work performance, ability,  aptitude, character, loyalty, or suitability.”  S. Rep. No. 969, 95th Cong.; 2d Sess. 20  (1978), U.S.Code Cong. & Admin.News 1978, 2723, 2743.
  ***Will the Merit Systems Protection Board (MSPB or the Board) hear a claim  that the agency violated this provision?***
          Under 5 U.S.C. §  7701(c)(2)(B), MSPB may not sustain a personnel action “based on” a  prohibited personnel practice.  Generally, a prohibited personnel practice may be raised as an affirmative  defense in an otherwise appealable action in an appeal filed with MSPB.  An otherwise appealable action is a personnel  action that can be appealed to MSPB on its own, which means that MSPB has  jurisdiction in the case.  
    As with the other  prohibited personnel practices, if you file a claim with MSPB in connection  with an otherwise appealable action, we will hear your claim that you believe this  provision was violated, but only if it is related to your claims about the  underlying personnel action being appealed.  Such claims will not be heard if your appeal  is filed under the Veterans Employment Opportunities Act of 1998 (violation of veterans’ preference rights), the Uniformed Services Employment and Reemployment Rights  Act of 1994 (discrimination based on military service), or the  Whistleblower Protection Act (individual right of action appeals based on  retaliation for making protected disclosures), as such appeals are not filed under  MSPB’s otherwise appealable action authority, but rather specific subject-matter  based statutory authorities.  
          ***Who has the burden of proving a claim under this section?***
          If raised in an otherwise appealable action  appeal, it is raised as an affirmative defense.   Under MSPB’s regulations, the appellant bears the burden of proving all  affirmative defenses.  That burden is by  preponderant evidence which means that degree of relevant evidence that a  reasonable person, considering the record as a whole, would accept as  sufficient to find that a contested fact is more likely to be true than  untrue.  The MSPB’s regulations can be  found in section 1201 of title 5 of the Code of Federal Regulations, which can  be accessed through our website under “Rules and Regulations.”
          ***Does this provision mean that an agency cannot interview employees who  witness or are involved in an incident leading to discipline?***
          The MSPB and the U.S.  Court of Appeals for the Federal Circuit, which is authorized to review all  Board decisions not involving issues of discrimination, have held that this  provision does not apply to situations where an agency takes statements from  persons who are somehow involved in the incident giving rise to the disciplinary  proceeding, but rather relates to statements or recommendations by outsiders, such  as senators or congressmen.  The court  noted that the legislative objective was to forestall political or partisan  interference in personnel actions.  Depte  v. United States, 715  F.2d 1481 (Fed.Cir.1983), overruled on other grounds by Stone v. Federal  Deposit Insurance Corporation, 179  F.3d 1368, n.4 (Fed. Cir. 1999).  The  Board has also held that a deciding official did not violate section 2302(b)(2)  where he was not an eyewitness to the charged events and relied upon the  statements of others in making the decision to remove an employee.  Giltner v. Department of Air Force, 50  M.S.P.R. 209, n.1 (1986).
          ***Does this mean that a management official cannot ask a  labor relations specialist for advice in taking a disciplinary action against  an employee?***
          In Gonzales v. Defense Logistics Agency, 772  F.2d 887, 892 (Fed. Cir. 1985), the court stated that “[t]here is no  prohibition against a decision-maker calling for advice from those who are not  in an adversarial position with the offending employee.”  See also Boudreau v. Department of  Agriculture, 883 F.2d 1023 (Fed. Cir. 1987)(Table)(Nonprecedential).  In Boudreau, the court held the agency did  not violate 5 U.S.C. § 2302(b)(2) by seeking advice from an employee  relations specialist in the taking of a personnel action, where that individual  was not in an adversarial position with the employee being disciplined.  These  cases were issued prior to the court’s decision in Stone, cited above, dealing  with the issue of ex parte communications by a deciding official.  Any such discussions would have to comply  with the dictates of due process, as required by Stone, that no disciplinary  action be taken based on new and material evidence that is not provided to the employee  so that the employee has an opportunity to respond.
          ***Can an agency ask  for recommendations from a prior supervisor when an applicant applies for a  position or a promotion?***
          Yes.  Section 2302(b)(2) prohibits  solicitation or consideration of recommendations based on political  considerations, and was intended to prevent the use of improper influence to obtain a position or promotion; recommendations for competitive positions must be based upon personal  knowledge and an evaluation of the performance, ability, character and  suitability of the individual involved.   Acting Special Counsel v. Sullivan, 6  M.S.P.R. 526 (1981).
          ***How does this  provision relate to the prohibition against ex parte communications?***
          Section 2302(b)(2) should not be confused with the  prohibition against ex parte communications in disciplinary personnel actions;  they are distinctly different.  An ex  parte communication to a deciding official is a communication, without the  knowledge of, and opportunity to respond by, the employee being disciplined and  it has the effect of denying him the due process to which he is entitled under  the Constitution. Sullivan v. Department of the Navy, 720  F.2d 1266, 107-74 (Fed. Cir. 1983).
          In contrast, Section 2302(b)(2) allows for certain  communications that relate to an evaluation  of  work performance, ability, aptitude,  or general qualifications of an individual or an evaluation of the character,  loyalty, or suitability of an individual when the employee is under  consideration for a personnel action.  In  disciplinary action cases, the prohibition against ex parte communications  would prevent these communications in most instances, where the information is  not otherwise known, or made known, to the employee prior to making a decision  to effect a disciplinary action.
          ***If an employee discloses what  he believes is a violation of 5 U.S.C. § 2302(b)(2), can it form the basis  of a protected whistleblowing disclosure?***
          Yes.  The Board has held that  allegations of violations of 5 U.S.C. § 2302(b)(2) and related provisions of  law can sometimes constitute whistleblowing.  See McDonnell v. Department of Agriculture, 108  M.S.P.R. 443, ¶¶ 9-13 (2008); see also Baldwin  v. Department of Veterans Affairs, 113  M.S.P.R. 469 (2010).


Return to top


About MSPB
			  Accessibility
           Budget and Performance
          FOIA
          Info Quality Standards
          No FEAR Act
    
          Office of the Inspector General
          Privacy Program   
           Technical Support       USA.gov
		OSC.gov
				 Vote.gov


U.S. Merit Systems Protection Board
 Agency Contact Center (202) 653-7200
          mspb@mspb.gov