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  • March 31, 2011

MERIT SYSTEM PRINCIPLES (5 USC § 2301)

MERIT SYSTEM PRINCIPLES (5 USC § 2301)

150 150 Gregory A. Hall

What are the Merit System Principles?

The Merit System Principles are nine basic standards governing the management of the executive branch workforce. The principles are part of the Civil Service Reform Act of 1978, and can be found at 5 U.S.C. § 2301(b).  The MSPB recently studied workforce data and Federal employee perceptions of their treatment and issued a report to the President and Congress entitled Fair and Equitable Treatment: Progress Made and Challenges Remaining. You can find this report at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=472678&version=473953&application=ACROBAT

The Merit System Principles (5 USC § 2301)

  1. Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge and skills, after fair and open competition which assures that all receive equal opportunity.
  2. All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
  3. Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.
  4. All employees should maintain high standards of integrity, conduct, and concern for the public interest.
  5. The Federal work force should be used efficiently and effectively.
  6. Employees should be retained on the basis of adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
  7. Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
  8. Employees should be:  A.) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and B.) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.
  9. Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences: A.) a violation of any law, rule, or regulation, or B.) mismanagement, a gross waste of funds, an absence of authority, or a substantial and specific danger to public health or safety.

Why did Congress believe that the basic standards governing the management of the executive branch workforce should be included in statute?

The Pendleton Act of 1883 replaced the political patronage system that had existed until that time with a merit-based system for filling most civil service positions. The drafters of the Civil Service Reform Act of 1978 believed that this merit-based system had broken down over the ensuing century. Thus, they codified the merit principles and created a new agency, the Merit Systems Protection Board as the “vigorous protector of the merit system.”  The MSPB is an independent, quasi-judicial agency that protects Federal merit systems and the rights of individuals within those systems.

What specific role does the Merit Systems Protection Board play in ensuring adherence to the Merit System Principles?

The Merit Systems Protection Board (MSPB) is empowered to hear and decide complaints for corrective or disciplinary action when an agency is alleged to have committed a prohibited personnel practice. 5 U.S.C. §§ 1214, 1215. It is a prohibited personnel practice to (among other things) take an action in violation of the Merit System Principles. 5 U.S.C. § 2302(b)(12). In addition, Merit System Principles are mirrored in the list of prohibited personnel practices, see http://www.osc.gov/pppwhatare.htm. For example, Merit System Principle No. 9 provides that employees “should be protected against reprisal for the lawful disclosure” of waste, fraud, and abuse, while the list of prohibited personnel practices also prohibits reprisal for such disclosures. 5 U.S.C. § 2302(b)(8). The MSPB also conducts studies of the civil service, and reports to the President and Congress on the extent to which the federal workforce is free of prohibited personnel practices. 5 U.S.C. § 1204(a)(3).

Can agency managers contact the Merit Systems Protection Board for advice on whether a particular planned action is consistent with the Merit System Principles or could be a prohibited personnel practice?

The Merit Systems Protection Board (MSPB) speaks primarily through its decisions and its studies. The MSPB provides information about its decisions, studies, and procedures to groups through its outreach and education program. The MSPB is not permitted to issue advisory opinions.

What other agencies are responsible for enforcing the Merit System Principles?

The Civil Service Reform Act of 1978 requires the Office of Personnel Management (OPM) to “hold managers and human resources officials accountable for efficient and effective human resources management in support of agency missions in accordance with Merit System Principles.” 5 U.S.C. § 1103(c)(2)(F). To carry out this responsibility OPM has established an Office of Merit System Audit & Compliance. The Office of Special Counsel (OSC) investigates allegations that an agency has committed a prohibited personnel practice, and may seek disciplinary or corrective action for a prohibited personnel practice before the MSPB. 5 U.S.C. §§ 1214. It is a prohibited personnel practice to take a personnel action in violation of the Merit System Principles. 5 U.S.C. § 2302(b)(12). Other Merit System Principles are mirrored in the list of prohibited personnel practices within OSC’s jurisdiction. For example, Merit System Principle No. 9 provides that employees “should be protected against reprisal for the lawful disclosure” of waste, fraud, and abuse, while the list of prohibited personnel practices also prohibits reprisal for such disclosures. 5 U.S.C. § 2302(b)(8). The Equal Employment Opportunity Commission makes the final administrative decision on claims that an agency has committed unlawful employment discrimination. 5 C.F.R. Part 1614. Discrimination is inconsistent with the first and second Merit System Principles.

What is the first Merit System Principle?

“Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.”

What is the intent behind the first Merit System Principle?

The first clause, concerning recruitment, sets forth the vision of a federal workforce that is representative of the very people who fund the government through their tax dollars and whom the government exists to serve. The second clause, concerning selection and promotion, represents the core value of a merit-based employment model. Up until the latter part of the 19th century, most executive branch employees obtained their jobs through political connections. The Pendleton Act of 1883 replaced this patronage system with a merit system under which anyone, regardless of political affiliation, may receive a civil service appointment so long as he or she is the best-qualified applicant based on objective criteria. The final clause, concerning equal opportunity, echoes the purpose behind Title VII of the Civil Rights Act of 1964 barring discrimination in employment.

Are there any recent decisions from the Merit Systems Protection Board addressing the first Merit System Principle?

The MSPB recently imposed discipline on two agency officials who gave an unauthorized preference to a job applicant. In so doing the MSPB emphasized its obligation to “faithfully uphold the Merit System Principles,” and “to [put] agencies subject to the [CSRA] on notice that selections for employment must be made in accordance with law and must not be the result of personal or political favoritism.” Special Counsel v. Lee, 2010 MSPB 89, ¶ 35. To take another example bearing on the first Merit System Principle, the MSPB recently found that an individual was entitled to a hearing on his claim that the qualification standards used to exclude him from consideration for a federal job were not rationally related to performance in the job. Sauser v. Department of Veterans Affairs, 2010 MSPB 50.

Has the Office of Personnel Management issued any guidance to help agency HR offices comply with the first Merit System Principle?

The Office of Personnel Management has issued detailed rules governing hiring that are designed to ensure fair and open competition, as well as assessment and selection based strictly on merit. 5 C.F.R. Parts 300A, 330, 332.

Has the Equal Employment Opportunity Commission issued any guidance to help agency HR offices comply with the first Merit System Principle?

The Equal Employment Opportunity Commission has published formal guidance, known as Management Directive 715, to assist agencies in their efforts to promote a work force that is representative of all segments of society.

What is the intent behind the second Merit System Principle?

The second principle, concerning fair and equitable treatment, sets forth the vision that Federal personnel management be free of unfair treatment and discrimination, where decisions are made solely on legitimate merit-based considerations. Requiring decision making without regard to political affiliation echoes the intent of the Pendleton Act of 1883 which replaced the patronage system with a merit system. Requiring decision making without regard to race, color, religion, national origin, sex, marital status, age, or handicapping condition echoes the purpose behind Title VII of the Civil Rights Act of 1964 and related laws barring discrimination in employment. The final clause makes clear that employees and applicants for employment are entitled to the protections of the Bill of Rights and the Privacy Act.

What is the MSPB’s role in protecting the second Merit System Principle?

As its name implies, the Merit Systems Protection Board (MSPB) protects the merit system by adjudicating appeals within its jurisdiction. The employee may engage in discovery and request a hearing. Among other things, Board review will consider whether the disciplinary action was taken based upon prohibited discrimination, retaliation, or for reasons which do not promote the efficiency of the Federal service. When an employee has proven intentional discrimination, the Board may award compensatory damages except where the discrimination was based on marital status or age. The Board may even review appeals filed by probationary employees who allege that they were terminated based on partisan political reasons or marital status discrimination. However, the MSPB’s review authority is limited to those matters Congress and the Office of Personnel Management have given it. Thus, although this merit principle seeks fair treatment “in all aspects of personnel management,” the Board may not review a claimed violation of the principle relating to a matter over which it lacks authority.

Doesn’t the EEOC also handle discrimination cases?

The authority of the MSPB and the Equal Employment Opportunity Commission (EEOC) overlap in “mixed cases,” those cases involving an action otherwise appealable to the MSPB (e.g., a removal) and allegations of discrimination. While the EEOC has responsibility for enforcing all Federal equal employment opportunity (EEO) laws and the duty to coordinate and lead the Federal government’s effort to eradicate workplace discrimination, the MSPB also has the responsibility to determine if the personnel actions it has authority to review were taken in accordance with law, to include the anti-discrimination laws. In certain circumstances, the employee may choose whether to file an EEO complaint or an MSPB appeal in the first instance. Regardless of that election, both agencies may ultimately review the case. If the employee files an EEO complaint first, they can appeal to the Board after receiving a Final Agency Decision on the EEO complaint, or 180 days after he filed the EEO complaint if they have not received a final decision. If the appellant files an MSPB appeal first, they may appeal the Board’s finding on the discrimination issue to the EEOC’s Office of Federal Operations.

To talk to a lawyer about a potential MSPB appeal, contact Attorney Gregory A. Hall  at:

Gregory A. Hall
Denver Employment Lawyer
3570 E. 12 Avenue, Suite 200
Denver, CO 80206
Ph. 303-320-0584
Email: gregory@federallaw.com
Web: http://adenverlawyer.com

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