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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 7: Nepotism
	
  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—
          appoint, employ, promote, advance, or  advocate for appointment, employment, promotion, or advancement, in or to a  civilian position any individual who is a relative [father, mother, son, daughter,  brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife,  father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law,  sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother,  stepsister, half-brother, or half-sister] of such employee if such position is  in the agency in which such employee is serving as a public official [an  officer (including the President and a Member of Congress), a member of the  uniformed service, an employee and any other individual, in whom is vested the  authority by law, rule, or regulation, or to whom the authority has been  delegated, to appoint, employ, promote, or advance individuals, or to recommend  individuals for appointment, employment, promotion, or advancement in connection  with employment in an agency] or over which such employee exercises  jurisdiction or control as such an official.***Where can I find the provision on nepotism?***
      It was part of the Civil  Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111.  Like  the other prohibited personnel practices (PPP) discussed in this series, it is  codified at 5 U.S.C. §  2302(b).  Nepotism is addressed at prohibited  personnel practice number 7.  Specific restrictions on the employment of  relatives are also set forth at 5 U.S.C. § 3110,  which pre-dates the codification of prohibited personnel practices.
    ***What is the purpose of  this provision?***
      Nepotism  comes from the Latin word for “nephew” and is defined as patronage bestowed or  favoritism shown on the basis of family relationship.  The civil service system is based on the idea  that employees should be selected through fair and open competition and  promoted on the basis of their individual merit.  Since the passage of the  Pendleton Act of 1883, to which the Merit Systems Protection Board (MSPB) traces  its own roots, favoritism based on family relationship has been frowned upon;  with the Civil Service Reform Act of 1978, it was specifically proscribed.  The proscription is not absolute.  Rather it tracks the general societal construct  that, other than in family-run private businesses, favoritism towards relatives  is fraught with potential conflicts that might impede any meritocratic  enterprise.  In order to limit even the  appearance of improper favoritism towards relatives, this provision assures  that public officials cannot use their influence to advance their relatives in  hiring or career advancement.  It does  not prohibit family members from honorable public service, but simply  proscribes improper influence by their relatives in derogation of the merit  system.
    For prohibited 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 high-ranking 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.  Id. at 69.  In other words, the necessary advocacy or act  to further the sister’s employment was missing from this case.  The Board made a similar finding in Alexander  v. Department of the Navy, 24  M.S.P.R. 621, 625 (1984), where it found that the person to whom the  appellant mentioned that his daughter was looking for a job was not his  subordinate and there was no evidence that he “spoke in favor of, recommended,  commended, or endorsed” his daughter’s employment.
    It is, perhaps,  interesting to note that the proscription against nepotism, for which the  relevant relationships are so clearly defined, does not include some modern  relationships which, though not spousal, are similarly close, e.g.,  cohabitating unmarried couples (regardless of sexual orientation).  Improper favoritism involving such  relationships would be prohibited under some other PPP, e.g., PPP number 6.  Nor does PPP number 7 extend to the hiring of  friends and acquaintances.  See Special  Counsel v. Nichols, 36  M.S.P.R. 445, 455 (1988).
    ***How does the issue of  prohibited nepotism arise in MSPB cases?***
      It arises most frequently in one of two ways:  as a charge upon which an employee has been  disciplined for violating the prohibition (or an agency’s internal disciplinary  prohibition that is similar to the PPP), or as an affirmative defense that an  action taken was taken in reprisal for the appellant having blown the whistle  on someone for a nepotism violation.  An  example of the latter is Hudson v. Department of Veterans Affairs, 104 M.S.P.R. 283 (2006), where the Board  found that the appellant made a non-frivolous allegation that he made a  protected disclosure because a reasonable person in his position could believe that his supervisor was  violating 5 U.S.C. §§  2302(b)(7) and 3110 by employing her son and/or assisting in the advancement of her son by giving  him preferential treatment in training, assuming that those allegations are  true.
    ***How do I pursue a claim  that someone violated this provision?***
      The Office of Special Counsel (OSC) receives and  investigates claims of prohibited personnel practices, including this  provision.  5 U.S.C.  § 1214(a)(1)(A).  If OSC concludes that there has been a  violation, it may request that MSPB impose discipline against the  violator.  *Id.* § 1215.   The case will be heard by an administrative law judge who will make an initial  decision that can be appealed to the Board.  5 C.F.R.  § 1201.125.  An individual  employee also could raise this provision as an affirmative defense to an  adverse action by an agency that is within MSPB’s jurisdiction, such as a  removal.  5  U.S.C. § 7701(c)(2)(B).  Absent an otherwise appealable matter, MSPB  does not have jurisdiction to hear a claim by an individual (as opposed to OSC)  that prohibited personnel practices have been committed.  *See Gaugh v. Social Security  Administration*, 87  M.S.P.R. 245, ¶ 7 (2000); *Wren  v. Department of the Army*, 2  M.S.P.R. 1, 2 (1980), *aff'd*,  681 F.2d 867, 871‐73 (D.C. Cir. 1982).****
    ***What penalties may MSPB impose  for violations of this provision?*** 
      The penalties MSPB may  impose include reprimanding, suspending, demoting, or removing the offender  from Federal employment; prohibiting the offender from working for the Federal  Government for up to 5 years; and imposing a fine of up to $1000.  5 U.S.C.  § 1215(a)(3).
    ***Has MSPB studied this  practice?***
      Yes.  For over 30  years MSPB has surveyed Federal employees to determine their perceptions of the  incidence of prohibited personnel practices in the Federal civilian  service.  Results of survey items  pertaining to nepotism were most recently summarized in the 2011 report, *Prohibited  Personnel Practices: Employee Perceptions.*  According to this report, perceived  violations of this provision have decreased steadily in the last 15  years.  In 2010, only 1.7% of Federal employees who responded to MSPB’s  survey reported that they had been personally affected by someone advocating  for a relative.  *Id.* at 32.   This may explain the  paucity of cases substantively addressing nepotism issues.
    Other MSPB reports that  discuss nepotism and summarize survey data regarding employee perceptions of this  practice include: Prohibited  Personnel Practices—A Study Retrospective (2010) and The  Federal Government: A Model Employer of a Work In Progress? (2008).  All MSPB study reports can be found at www.mspb.gov/studies.


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