By Joe Davidson
Washington Post Staff Writer
Monday, November 8, 2010; 10:34 PM
Just in time for Veterans Day, the Merit Systems Protection Board has sharply undercut a federal hiring program, saying it violates the employment preference Uncle Sam gives to those who have served in uniform.
The MSPB decision last week is a victory for organized labor, which has long complained that some agencies use the Federal Career Intern Program to circumvent the statutory preference given veterans seeking U.S. government employment.
The program has been the target of much high-level attention, including a union lawsuit against it and congressional hearings. At President Obama's direction, the Office of Personnel Management has evaluated the program and made confidential recommendations to him about it.
Yet for all of that, it was a tenacious Department of Veterans Affairs file clerk in Columbia, S.C., Larry Evans, who threw what could be a major blow to the way the program functions.
It was his case against the VA, and another brought by David Dean against OPM, that led MSPB to find "a violation of appellants' veterans' preference rights" in the operation of the intern program.
The decision has serious implications for a program widely used by some agencies to fill vacancies.
"Since 2003, U.S. Customs and Border Protection has used FCIP as its exclusive method for hiring all incoming customs and border protection officers," Maureen Gilman, legislative director of the National Treasury Employees Union, told Congress in May. Other agencies use the program to hire financial experts, tax collectors, engineers, claims representatives, accountants and contracting specialists.
To Max Stier, president and chief executive of the Partnership for Public Service, the widespread use of the program is an indication of how valuable it is. But if its days are numbered, he said, "the critical thing is to move to an alternative quickly." (The non-profit Partnership has a content-sharing relationship with The Washington Post).
About 15 percent of FCIP hires are veterans, compared with 25 percent in the federal workforce generally. Since 2003, the number of FCIP employees jumped from 400 to 27,000.
"Untold numbers of veterans are potentially being shut out of job opportunities for which they would have preference because the agencies are filling the positions under FCIP without public notice," said MSPB.
That's odd, or at least should be, since veterans' preference does apply to the intern program. Because it is part of the "excepted service," positions filled through the intern program do not have to be publicly advertised, as is the case with jobs in the "competitive service."
That lack of advertising, which hindered the preference, is what led to the violation of the veterans' rights, said Jim Green, a former OPM lawyer.
The program's name can be misleading. It does not bring students into government for a short try-out period, as "intern" implies. NTEU said in a statement that employees hired under the program should be converted to the competitive service without loss of pay and benefits.
In the VA case, Evans charged the department with violating his veterans' preference when it used the intern program to fill all nine openings for veterans' service representatives in the Columbia facility. In briefs filed in support of Evans and Dean, NTEU and the American Federation of Government Employees said the positions should not have been placed in the excepted service.
"I wasn't even considered for the position," Evans, a Gulf War veteran, said in an interview. "I think I could be used in . . . better ways by being a veterans' service representative. I don't want to be stagnant in this position and not being used to my full potential."
MSPB ruled that Evans "is entitled to reconstruction of the hiring process" to determine if he "would have been selected for the position he sought."
In the OPM case, Dean charged that his right to compete for federal jobs was violated because the intern program is not required to publicly post vacancies.
"Dean argues that OPM has failed to justify placement of positions filled under FCIP in the excepted service; that this improper placement allows agencies to avoid the statutory requirement that notice of competitive-service vacancies be made to the public; and that as a result, his veterans' preference rights have been systematically violated," MSPB said, adding, "we agree."
An OPM spokesman said it is reviewing the decision. A VA spokeswoman said that the "VA is reviewing the Board's decision and will comply with its orders."
Immediate compliance, however, may not happen if the administration decides to fight the decision.
If compliance is chosen, it's not clear what that would look like.
"That's the million dollar question," said Andres M. Grajales, an AFGE lawyer, because MSPB did not spell out exactly how the program should be fixed.
"The only way they do that, practically speaking," Grajales said, "is through suspension or eliminate the program in its entirety or rework it so drastically that it will no longer be recognized as what it is today.
"We think OPM should just scrap [it]," he said. "We have great difficulty seeing a way, if there is any, to fix the program."