i n s i g h t s & a n a l y s e s f o r F e d e r a l h u m a n c a p i t a l m a n a g e m e n t

I s s u e s of 

J a n u a r y 2 0 1 4 M e R I T

a publication of

the U.S. Merit Systems

Protection Board,

Office of Policy

and Evaluation

W h a  ’ 

I n s d 

Director’s Perspective

Page 2

Employees: What Makes 

You Engaged?

Page 4

Action Learning

Page 5

Supervisors’ Decisions:

Merit or Favoritism?

Page 6

Clean Record 

Settlements

Page 7

continued, page 3

The First Merit Principle:

Fair and Open Competition

Since the Pendleton Act in 1883, it has This discretion brings with it the 

been a basic rule that entry into the Federal responsibility to make informed and 

civil service should be grounded in fair and principled decisions when recruiting and 

open competition. The intent is to promote hiring. Federal agencies and managers 

efficient and effective Government by cannot assume that merely complying 

assuring that Federal employees are hired with the letter of the law will result in fair 

on the basis of their competence rather and open competition. Below, we outline 

than their connections. This precept is now three stages in hiring (“decision points”) 

codified as the first merit system principle at which Federal agencies and Federal 

and supported by other statutory provisions managers can make a job competition 

that prescribe certain measures to promote more fair and open—or intentionally or 

fair and open competition (such as public inadvertently “close” the competition.

notice of competitive examinations) and 1. The area of consideration. This 

proscribe certain practices that are harmful decision point concerns who the agency 

to it. will allow to compete for the position. 

Nevertheless, the law does not Important choices at this decision point 

precisely define what constitutes fair and include the extent of the applicant search 

open competition, nor does it specify (for example, will the agency recruit 

in detail how Federal agencies should solely from internal employees, or look 

use the many appointing authorities that for external candidates), the appointing 

are available to assure fair and open authorities to be used, and how the 

competition. Furthermore, fair and open position will be advertised (for example, 

competition is not the only consideration will the agency conduct active outreach 

that drives recruitment and hiring decisions. and recruitment, or rely solely on a 

Agencies must also comply with public USAJOBS vacancy announcement).

policies that can impose requirements— 2. The application period (“open 

and produce outcomes—that might appear window”). This decision point concerns 

inconsistent with fair and open competition. how much time agencies will give 

Agencies must also be attentive to the applicants to submit an application. As 

merit system principle calling for efficient discussed in an upcoming report, there is 

and effective use of the workforce. Much no point that clearly distinguishes an open 

discretion and judgment is left to agencies, window that is “too short” from one that 

HR staff, and hiring managers.
I s s u e s of

M  R I 

i n s i g h t s & a n a l y s e s f o r F e d e r a l 

h u m a n c a p i t a l m a n a g e m e n t

U.S. Merit Systems

Protection Board

CHAIRMAN

Susan Tsui Grundmann 

VICE CHAIRMAN

Anne M. Wagner

BOARD MEMBER

Mark A. Robbins

Office of Policy and Evaluation

DIRECTOR

James M. Read

DEPUTY

DIRECTOR

James J. Tsugawa

Our Mission

The MSPB Office of Policy and 

Evaluation conducts studies to 

assess the health of Federal merit 

systems and to ensure they are free 

from prohibited personnel practices.

Issues of Merit

We offer insights and analyses on 

topics related to Federal human 

capital management, particularly 

findings and recommendations 

from our independent research.

Reprint Permission

We invite you to reprint any of our 

articles. If you do, please include 

the following attribution: Reprinted 

from Issues of Merit, a publication 

of the Office of Policy and Evaluation, U.S. Merit Systems Protection 

Board.

For More Information

Contact us at:

www.mspb.gov/studies

STUDIES@mspb.gov

202-254-4802 x4802

1-800-209-8960

V/TDD: 202-653-8896

(TTY users may use the Federal 

Relay Service, 800-877-8339)

U.S. Merit Systems Protection Board

Office of Policy and Evaluation

1615 M Street, NW

Washington, DC 20419

House

D i r e c t o r ’ s P e r s p e c t i v e

Moving to the Other Side of the 

James M. Read joins the Office of Policy and Evaluation as its new 

Director and offers perspective on two of MSPB’s missions.

After 20 years working as an 

attorney in support of the Board’s 

adjudication activities, I have moved 

to the studies side of the house. In 

this, my debut column as Director of 

Policy and Evaluation, I want to reflect 

on the relationship between these two 

functions.

The Civil Service Reform 

Act of 1978 empowers the Board 

to “adjudicate” matters within its 

jurisdiction and to “conduct . . . special 

studies relating to the civil service.”1 

In performing the first function, the 

Board resolves employment-related 

legal disputes under its jurisdiction 

between individuals and agencies 

via decisions that are binding on the 

parties; when the Board’s decision is 

precedential, any interpretation of the 

law contained therein represents the 

law of the workplace throughout the 

executive branch.2

 In performing the 

second function, the Board typically 

sets out policy prescriptions or options 

for improving how existing policy 

is implemented for consideration by 

Congress and the President. When 

adjudicating a dispute, the Board limits 

its deliberations to the evidence that 

the litigants submit. By contrast, when 

conducting a study, the Board makes 

“such inquiries as may be necessary” 

and, unless otherwise prohibited by law, 

1

 Pub. L. No. 95454, 92 Stat. 1111; see

5 U.S.C. § 1204(a)(1), (3). The studies 

function includes the responsibility to 

report on the adequacy of protections 

against prohibited personnel practices.

2

 See Cornelius v. Nutt, 472 U.S. 648 (1985); 

5 C.F.R. § 1201.117(c).

“shall have access to personnel records 

or information collected by the Office of 

Personnel Management and may require 

additional reports from other agencies as 

needed.”3 In other words, the findings and 

conclusions in a study are derived from 

Board-initiated empirical research.

It is tempting to view adjudication 

as a hard-edged and precise undertaking 

and to view studies as a pliable and 

expansive project. On a practical level, 

this perception is accurate. The Board 

must decide each specific, live controversy 

that is within its adjudicatory jurisdiction 

and either grant or deny relief under the 

applicable law, whereas the Board has 

great discretion in determining the timing 

and content of studies.

Conceptually, however, the distinction 

between the subject matter of adjudication 

and of studies—law and policy, 

respectively—is not so sharp. Indeed, 

laws are nothing more than operational 

expressions of policy. For example, the 

Pendleton Act of 1883 reordered the 

civil service system by introducing the 

policy that positions in the Executive 

Branch should be filled on the basis of 

merit rather than political affiliation. The 

Act carried out this policy by dictating 

procedures to be followed before an 

individual may be appointed in the civil 

service.4

 While the legislative process 

often involves translating broad ideas into 

concrete rules, this does not mean that a 

policy goal is by its nature ambiguous if it 

3

 5 U.S.C. § 1204(e)(3). 4

 Ch. 27, 22 Stat. 403; see generally 5 U.S.C. 

ch. 33.

2 Issues of Merit January 2014

continued, page 3 
Issues of Merit January 2014 3

(continued from page 2)

Director’s Perspective

has not been enacted into law. For example, leaving aside 

the particular means adopted for achieving the policy 

goal underlying the Pendleton Act, there was nothing 

fuzzy about the goal itself, namely, replacing a patronagebased hiring system with a merit-based one. The 

Board, for its part, has issued studies containing specific 

recommendations or options for changes in policy or how 

a policy is carried out.5

Through adjudication, the Board interprets and 

applies rules found in the Constitution, statute, and 

regulation. Through studies, the Board analyzes 

facets of the Federal personnel system and identifies 

possible improvements. Perhaps the key difference 

5

 See, e.g., U.S. Merit Systems Protection Board, Restoring Merit 

to Federal Hiring: Why Two Special Hiring Programs Should be 

Ended, January 2000; U.S. Merit Systems Protection Board, The 

Rule of Three in Federal Hiring: Boon or Bane, December 1995.

between adjudication and studies activities is in their 

effect. A decision creates immediate, enforceable legal 

obligations,6 while a study may or may not result in a 

change in policy—or a change in the way an existing 

policy is implemented—depending on its persuasiveness, 

prevailing political considerations, and other factors. In 

the end, though, the Board’s adjudication and studies 

activities are complementary; both are aimed at fostering 

an optimally-functioning civil service system under which 

employment decisions are based on merit and free from 

prohibited personnel practices. 

James M. Read

Director, Policy and Evaluation

6

 See 5 U.S.C. § 1204(a)(2).

is “sufficient.” The question is whether a qualified citizen 

without an “inside track” has a reasonable opportunity 

to learn of the job and submit a viable application—and 

the answer depends on factors such as the availability of 

qualified applicants, the extent of recruitment efforts, and 

the application requirements.

3. Assessment methods. This decision point 

involves both what an agency is seeking (the job-related 

attributes on which applicants will compete) and how an 

agency will evaluate job applicants (the assessment tools 

to be used, such as evaluations of training and experience, 

educational requirements, and structured interviews). 

Previous MSPB reports have emphasized how assessment 

tools differ in their ability to predict job performance; our 

upcoming report on fair and open competition will focus 

on how assessment methods can affect the fairness and 

openness of a job competition.

The report on fair and open competition will 

examine these decision points in depth and discuss 

the balancing act that agencies and managers must 

perform when recruiting. Additionally, the report will 

make recommendations to help agencies and managers 

better understand their obligations and options in 

recruitment and hiring, navigate often-complex Federal 

hiring processes, and honor the Federal Government’s 

commitment to fair and open competition. 

Fair and Open...

(continued from page 1)

! Three New MSPB Reports !

 MSPB invites Issues of Merit readers to look 

at our three new reports:

Clean Record Settlement Agreements and 

the Law discusses the prevalence of clean record 

settlement agreements and the importance of 

parties making careful decisions about what an 

agreement will cover and choosing words that 

accurately express their intentions.

Preserving the Integrity of the Federal 

Merit Systems: Understanding and Addressing 

Perceptions of Favoritism presents results 

from the Federal Merit Systems Survey and 

recommendations regarding how to encourage 

merit-based decisions and avoid favoritism.

Evaluating Job Applicants: The Role of 

Training and Experience in Hiring examines 

the relative advantages of occupational 

questionnaires, resumes, accomplishment 

records, and other training and experience 

assessments used by Federal agencies.

These reports are available on MSPB’s web 

site at www.mspb.gov/studies.
4 Issues of Merit January 2014

Federal Employees:

What Makes You Engaged?

The New Year and the early months of the Federal the performance cycle, or even on an on-going basis. 

performance cycle bring opportunities for new goals, Yet, regardless of frequency, it is critical that employees 

projects, and initiatives directed towards agency mission take the lead in determining what is important for 

accomplishment. In a complementary fashion, the New their engagement. This is because there is unlikely to 

Year also brings fresh opportunities for fueling employee be a “one-size-fits-all” recipe for fueling engagement 

engagement. An article in the previous issue1 and past as each employee has different capabilities, interests, 

MSPB research2 emphasize the importance of quality and goals with respect to work, as well as different 

employee-supervisor relationships for building and perceptions about what they want to contribute to and 

sustaining engagement. Internal agency policies and receive from their jobs.4 Sure, supervisors (and Federal 

practices can also affect employee engagement as can agencies at large) can establish job conditions and 

external events such as sequestration, pay freezes, and work environments that are more or less conducive for 

furloughs. While employees cannot control these forces, encouraging employee engagement, such as ensuring 

nor always insulate themselves from any adverse effects fairness, a positive workplace culture, opportunities for 

that they may bring, employees can still take action to growth and development, and appropriate recognition.5

 

help shape their own engagement. Further, supervisors can take the initiative in building 

quality working relationships with their employees. 

Specifically, employees can identify and discuss with But only employees can identify what factors are most 

their supervisors what engages them at work; how these important for them as individuals to be fully absorbed and 

factors compare with agency needs; and strategies for invested in—and passionate about—their work. And only 

addressing any misalignment.3 For example, employees employees can determine what stirs them emotionally, 

could determine and discuss: cognitively, and behaviorally6 to apply their talents and 

give their all at their jobs or in service of their coworkers, 

• The goals they have for their work and the impact that bosses, or agencies.

they desire to have;

• The talents and contributions they desire to bring to the Overall, while employees have little (or no) control 

table; over the internal agency and external forces that can 

• What excites and energizes them about their jobs; impact engagement, employees can still help to shape 

• What drives them to take the initiative and go the extra their own engagement. Step 1 is for employees to identify 

mile; their personal engagement factors; step 2 is to discuss 

• What keeps them focused on their work amidst the such factors with their supervisors—on an as-needed 

many distractions, obstacles, and even derailments that basis—paying particular attention to any misalignment 

characterize the work day; and with job, work unit, or agency characteristics. Such 

• What fuels their perseverance in the face of adversities conversations provide ongoing opportunities for 

such as pay freezes, training cuts, furloughs, and attacks employees and supervisors to jointly understand what is 

on the “essentiality” of their work. necessary for employees to give their all in their current 

jobs, and to best support mission accomplishment. But 

Such a process of identifying and discussing the process begins with employees; only they can identify 

engagement factors could occur several times throughout their personal “engagement fuel.” 

1

 U.S. MSPB. Employee-Supervisor relationships: A key to 4 See Rice, Marlow, and Masarech. The Engagement capitalizing on employees’ talents. Issues of Merit, pp. 4 Equation, John Wiley & Sons, Inc., 2012.

& 7, September 2013. 5

 U.S. MSPB, The Power of Federal Employee Engagement, 2

 U.S. MSPB. Managing for Engagement—Communication, September 2008.

Connection, Courage, July 2009. 6 See Kahn (1990). Psychological conditions of personal 3 See Rice, Marlow, and Masarech. The Engagement engagement and disengagement at work. Academy of 

Equation, John Wiley & Sons, Inc., 2012. Management Journal, 33, 692-724.
5

T O O L S

 O F T H E

T R A D E

In 1982, Reginald Revans coined the term “action 

learning” (AL) to refer to an educational approach that 

combines the application of formal knowledge with 

insightful questioning to solve real world problems. 

Formal knowledge is gained through traditional 

instructional methods such as classroom lectures 

and reading of text books or case studies. Insightful 

questioning consists of asking thought-provoking 

questions that encourage viewing an issue from multiple 

perspectives. In an agency setting, AL can be used to 

achieve a solution to a real-world issue while providing an 

opportunity for participant hands-on learning. 

For many years, private sector organizations have 

successfully used AL techniques to develop their leaders. 

However, the Federal sector has been considerably slower 

to adopt AL. Only 21 percent of career senior executives 

have participated in an AL project even though a majority 

of those participants characterized the experience as being 

either very effective or mostly effective for continuing 

their development.1

 Given the range and complexity of 

Federal missions and work—and the ongoing need for 

effective leaders and good training—it seems prudent 

for Federal agencies to consider the developmental 

opportunities that AL approaches can offer.

Although AL approaches can vary based on agency 

or participant needs and goals, key elements include:

Problem: Select a problem that is important to the 

agency, does not have a readily apparent solution, and 

could benefit from input from multiple work units.

Team or set: Assign individuals who have a stake 

in the outcome. This group typically consists of four to 

eight people who possess diverse knowledge and skills. 

There may also be a senior leader connected to the team. 

The senior leader does not participate in the problem 

solving process but supports the team by providing 

1

 U.S. Office of Personnel Management (2012). Senior 

Executive Service Survey Results for Fiscal Year 2011.

Action Learning

organizational resources. 

Process: For each problem, encourage participants 

to carefully and consistently ask questions, use reflective 

listening, identify possible solutions, and weigh 

alternatives before selecting a course of action. 

Coach: Have a coach present during team meetings 

and discussions to provide ongoing guidance and 

feedback. The coach’s role is to help the team understand 

strengths and weaknesses in how they individually and 

collectively approached the problem. The coach can 

reinforce key learning strategies and help the team apply 

the lessons learned to other situations. 

Action: At the end of the process some action 

must be taken. The team may present their findings and 

recommendations to senior leaders for implementation. 

Alternatively, members of the team may have authority 

within the scope of their own responsibilities to 

implement the recommendations. 

Feedback: The team may receive feedback from 

the senior leader or observe first-hand the challenges 

of implementation and how well the recommendations 

or action resolved the problem. The team can use this 

information to reflect on the outcome and continue the 

learning process. 

Action learning can create a win-win situation 

for agencies and employees. However, agencies must 

exercise discretion in selecting the AL process that works 

best for them. Factors to consider include the nature 

of the problem, available resources, and the previous 

experience of team members with AL.

Regardless of the AL approach, the overall goal is 

to achieve participant learning and agency action on a 

pressing problem. Agencies can also use AL projects to 

foster a learning environment capable of addressing future 

challenges or initiatives. Participants can leverage their 

AL experiences to expand their professional networks, 

develop or strengthen their leadership competencies, and 

refine their problem solving skills. Thus, AL is a tool that 

can provide short- and long-term benefits to both agencies 

and employees. 
6

Supervisors’ Decisions: Merit or Favoritism? 

assignments and training opportunities. Given that 

social interactions and work assignments are often made 

informally, it is not surprising that these topped the list 

in terms of perceptions of favoritism. Yet even formal, 

high-stakes actions were sometimes viewed skeptically. 

For example, about 1 in 5 employees saw awards, 

performance appraisal ratings, and promotions as areas 

where their supervisors had unfairly allocated resources. 

Given these results, supervisors should be aware that 

employees pay attention to the entire range of actions 

that they take during the day, from formal decisions 

to informal interactions, and may attribute even slight 

differences in treatment to favoritism. Such scrutiny 

should not lead supervisors to avoid casual interactions 

and substantive discussions with employees nor to shirk 

their responsibilities to make decisions based on merit 

and to exercise transparency so employees understand 

the rationale behind these decisions. Nevertheless, 

supervisors must be mindful that employees are 

attentive to their actions, including those that may seem 

insignificant to the supervisor, and that employees make 

inferences—which may be correct or incorrect—about the 

supervisor’s motivations and integrity.

These employee perceptions of unfairness can 

influence their feelings about their agency, their 

coworkers, and negatively impact their performance.1

Fortunately, agency leaders, supervisors and employees 

can take actions to avoid perceptions of favoritism and 

ensure merit-based decisions. More about such actions 

can be found in the report. 

1

 U.S. Merit Systems Protection Board, Beware of the 

Unintended Consequences of Favoritism, Issues of Merit, June 

2013, p. 5.

The merit system principles (MSPs) and the 

prohibited personnel practices (PPPs) create clear 

expectations for the fair and effective management of 

the Federal workforce. For example, the MSPs advocate 

selection and advancement on the basis of merit, as well 

as protection against personal favoritism. Favoritism 

occurs when a supervisor provides an unfair advantage to 

an employee or applicant based on non-merit factors such 

as personal feelings or relationships. 

As discussed in the recently published MSPB 

report, Preserving the Integrity of the Federal Merit 

Systems: Understanding and Addressing Perceptions 

of Favoritism, some Federal employees suspect that 

favoritism exerts an undue influence on many supervisory 

decisions. Specifically, 28 percent of employees believe 

their own supervisor practices favoritism, while just over 

half agree that other supervisors in their organization 

practice favoritism. Employees may be more likely to see 

favoritism among other supervisors in their organization 

simply from looking at a larger number of people so that 

one “bad apple” can ruin perceptions of the entire group. 

An alternative explanation could be that employees, who 

don’t know other supervisors (or their employees) as well, 

have less information on which to base their opinions 

regarding favoritism. As a result, they are more likely to 

perceive favoritism outside their work unit compared to 

their closer experience with their own supervisor. 

As shown in the chart below, Federal employees 

report that favoritism can influence a wide variety of 

supervisory actions from formal actions that should be 

made in a structured manner and carefully documented, 

such as selection decisions (for example, initial hiring and 

advancement/promotion), performance recognition,

 and discipline, to activities that are less structured, 

such as social interactions, and providing work 

7%

9%

12%

12%

13%

14%

16%

16%

19%

19%

21%

21%

21%

23%

26%

27%

0% 5% 10% 15% 20% 25% 30%

Geographic location

Telework

Networking opportunities

Retention e orts

Pay

Flexible work schedules

Recruitment

Initial hiring

Training/developmental opportunities

Discipline

Acting supervisor

Advancement/promotion

Performance appraisals

Awards

Work assignments

Social interactions

Perceptions of Favoritism in Supervisory Actions
7

Clean Record Settlements: Words Matter

The fate of a petition for enforcement of a settlement 

agreement often depends on the precise words the parties 

use in their agreement and the extent to which the parties 

understand the meaning of those words. 

A comparison of the Board’s recent decision in 

Shirley v. Department of the Interior and an older case, 

Sena v. Department of Defense, helps to illustrate this 

point. In Shirley, the appellant was employed by the 

National Park Service (NPS) in Tennessee prior to his 

removal. After the appellant filed an appeal with MSPB, 

the parties entered into a clean record agreement in which 

they agreed that the appellant’s removal action would be 

replaced with a resignation action and that “the terms and 

conditions of this Agreement, including the identity of the 

Parties, and the facts surrounding the Agreement are to be 

deemed confidential and not to be disclosed to anyone[.]” 

The appellant later applied for and was offered 

a position with the NPS in Alaska. The appellant’s 

petition for enforcement alleged that someone within 

the NPS then informed the Alaska office of facts 

surrounding the agreement and thereby breached the 

agreement. However, the Board determined that the 

precise words of the agreement stated that it was entered 

into by the appellant and the “National Park Service.” 

Relying upon prior Board case law, the Board held that 

information cannot be deemed a disclosure if a party 

shares the information with itself, and thus the purported 

communication within the NPS could not be a breach of 

the agreement.

The Board noted that this was a different outcome 

than had been reached in Sena v. Department of Defense, 

in which the settlement agreement specifically said 

that the information could not be shared, except among 

the positions and individuals explicitly named in the 

agreement. In Sena, a breach occurred when the agency 

shared information with its equal employment opportunity 

office, which was not named in the agreement as an 

authorized party. The Board held that because the Shirley

agreement lacked the limits of the Sena agreement, the 

Shirley agreement was not breached when one part of the 

NPS told a different part of the NPS about information 

covered by the agreement. 

As explained in our recent report, Clean Record 

Settlement Agreements and the Law, distinctions in the 

precise wording of settlement agreements can result in 

very different outcomes in a petition for enforcement. 

Parties need to be careful about the words they use and 

understand the implications of those words, recognizing 

that the Board will apply the established meaning of those 

words. Every word matters. 

MSPB Welcomes James M. Read

as the New Director of the Office of Policy and Evaluation

Chairman Susan Tsui Grundmann of the Merit Systems Protection Board (MSPB) announces the appointment of 

James M. Read as the Director of the Office of Policy and Evaluation (OPE) at MSPB headquarters. 

Mr. Read is an attorney and career Senior Executive at MSPB, where he has held a variety of positions including 

Chief Counsel to Chairman Neil McPhie, Director of the Office of Appeals Counsel, and, most recently, Senior 

Counsel to Board Member Mark Robbins. In recent years, Mr. Read has served on inter-agency assignments as 

Special Counsel for Personnel with the Executive Office for U.S. Attorneys and Special Assistant to the Director of the Federal Bureau of Investigation’s whistleblower protection program. Mr. Read received his B.A. from 

Hamilton College and his J.D. from George Washington University and began his legal career clerking for the 

Chief Judge of the Court of Federal Claims. He is licensed to practice law in New York, Connecticut, and the 

District of Columbia, and previously served as co-chair of the American Bar Association’s Federal Service Labor 

& Employment Law Committee. 

In making this appointment, Chairman Grundmann, stated, “ I am delighted that Jim will continue his service 

to MSPB and the public in this critical leadership position. I look forward to his significant contribution to our 

adjudicatory and studies missions in the years ahead.”
I s s u e s of

M e R I T

I n T h I s I s s u e * I n T h I s I s s u e * I n T h I s I s s u e

J a n u a r y 2 0 1 4 V o l u m e 1 9 I s s u e 1

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U.S. Merit Systems Protection Board

1615 M Street, NW

Washington, DC 20419

Fair and Open Competition. Three 

decision points where agencies, 

HR staff, and managers can impact 

the fair and open nature of a job 

competition. (Page 1)

What Makes You Engaged? 

Employees must take the lead in 

identifying what matters for their 

engagement. (Page 4)

Supervisors’ Decisions. 

Perceptions of favoritism can occur 

across a range of supervisory actions. 

(Page 6)

Director’s Perspective. OPE’s new 

Director discusses the complementary 

nature of MSPB’s adjudication and 

studies functions. (Page 2)

Action Learning. A tool to achieve 

solutions to agency problems while 

providing hands-on learning. 

(Page 5)

Clean Records. Parties need to be 

careful about the words they use and 

understand the implications of those 

words. (Page 7)