U.S. OFFICE OF SPECIAL COUNSEL ANNOUNCES DISCIPLINARY ACTION AGAINST PERSONNEL OFFICER AND SUPERVISORS FOR OBSTRUCTING FOREST SERVICE EMPLOYEES’ RIGHTS TO COMPETE

FOR IMMEDIATE RELEASE - 7/19/01
CONTACT: JANE MCFARLAND
(202) 653-7984               

    The U.S. Office of Special Counsel (OSC) today announced that, at its request, the U.S. Forest Service has agreed to suspend an agency personnel officer for one week and to reprimand two supervisors for violating statutory provisions that make it unlawful to obstruct federal employees’ rights to compete for positions or influence an applicant to withdraw from competition. OSC’s request followed its investigation of a prohibited personnel practice complaint filed by a Forest Service employee who had been directed to withdraw from competition for two temporary promotions. 

    OSC’s investigation showed that the complainant’s second-line supervisor, acting on the advice of a personnel officer, issued a “moratorium” on details and temporary promotions away from the National Forest in order to maintain staffing levels in the aftermath of downsizing. Under the terms of the moratorium, employees who were interested in applying for temporary assignments outside the National Forest were required to obtain the concurrence of their supervisors and the Management Team before submitting their applications. As part of the approval process, employees were required to demonstrate that their detail out of the National Forest could be accomplished without interfering with the National Forest’s ability to handle its planned workload for that fiscal year.

    After the moratorium was put into effect in October 1999, the complainant applied for a temporary promotion to a higher-graded position at another National Forest and was instructed by his first-line supervisor to withdraw his application. He complied. When he applied for a second temporary promotion, several months later, his second-line supervisor advised him to withdraw his application. The complainant did not comply with this second request but he was ultimately not selected for the promotion.

    In accordance with 5 U.S.C. §§ 2302(b)(4) and (b)(5), it is a prohibited personnel practice to willfully obstruct any person from exercising their right to compete for federal employment and it is unlawful for an individual with personnel action authority to influence any person to withdraw from competition for any position for the purpose of either benefiting another individual or injuring the applicant. The statute does not exempt from these prohibitions an obstruction of an individual’s right to compete or a direction to withdraw an application that is based upon a desire to maintain staffing levels at the employee’s current worksite. OSC concluded that the issuance of the moratorium and the act of directing the complainant to withdraw his applications for the temporary promotions violated sections 2302(b)(4) and (b)(5).

    The moratorium remained in effect until February of 2001 when, after being contacted by an OSC investigator, the personnel officer involved agreed to rescind it. The personnel officer expressed an unawareness of the prohibited personnel practice laws at issue and indicated remorse for the violations.

    In requesting that the Forest Service agree to suspend the personnel officer without pay for five days, OSC considered the personnel officer’s lack of malice and the remorse expressed, along with the officer’s responsibility to advise management on compliance with personnel law as well as the duty of care required by the position the officer held. The complainant’s first and second-line supervisors will receive letters of reprimand. As noted, the moratorium has been rescinded and the Forest Service has agreed to pay for OSC to provide prohibited personnel practice training at the National Forest where the complaint originated.

    The U.S. Office of Special Counsel is an independent federal agency that investigates and prosecutes complaints alleging the commission of a prohibited personnel practice at federal agencies. 5 U.S.C. § 2302 (b)(4) prohibits an official with personnel action authority from deceiving or willfully obstructing anyone from competing for employment. 5 U.S.C. § 2302 (b)(5) prohibits an official with personnel action authority from influencing anyone to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment. In cases where an OSC investigation reveals that a prohibited personnel practice has taken place, OSC seeks a voluntary settlement with the agency prior to initiating litigation.

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