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Meg Bartley

Meg Bartley, National Veterans Legal Services Program, Senior Staff Attorney

I am honored to have the opportunity to provide the subcommittee with this testimony. 

During the past eight years, the National Veterans Legal Services Program (NVLSP) has reviewed and investigated complaints concerning veterans preference violations in the federal hiring process.  We have filed amicus briefs, on behalf of The American Legion, in several veterans preference-related cases.  These include Augustine v. Dept. of Veterans Affairs, Abrahamsen v. Dept. of Veterans Affairs, Dean v. Dept. of Agriculture, and Meeker v. MSPB (known as the Azdell case). Our conclusion, based on discussions with individual veterans, review of numerous complaints, and participation in litigation concerning alleged veterans preference violations, is that there are many violations of the spirit and the letter of veterans preference laws.  

My testimony summarizes three problems that prevent preference eligibles from receiving the preference that Congress intended and I provide some ideas as to how to correct these problems. These are clearly not the only circumstances that create problems for veterans.  Other veterans service organization representatives will testify shortly, and they will discuss a variety of other problems.  But the three situations I chose to focus on best illustrate some systemic problems with how veterans preference is applied, and these situations dramatically illustrate that often when a veteran visits, there is not an even-handed and consistent application of veterans preference laws. 

1.       Cancellation of a Certificate of Eligibles in order to Avoid Hiring a Preference Eligible

I first address the agency practice of cancelling a certificate of eligibles in order to avoid hiring a preference eligible.  Let’s take a typical hiring situation: an agency posts a vacancy; applicants, including preference eligibles, apply; a certificate of eligibles is generated; and, the certificate is headed by a preference eligible.  The law currently provides, and this is a quote from the Merit Systems Protection Board,

if the agency subsequently decides to cancel the announcement in order to avoid hiring the preference eligible that heads the list, an appellant’s veterans preference rights are not violated.

The cite for thatoutrageous statement is Scharein v. Dept of the Army, 91 M.S.P.R. 329 (2002).  Scharein essentially held that an agency that wants to avoid hiring a preference eligible who heads a certificate of eligibles may do so by cancelling the certificate.  Allowing this situation to continue allows an agency to intentionally foil veterans preference laws. 

Recommendation:  Require an agency to request permission to cancel a certificate when the certificate is headed by a preference eligible.  The agency could be required to file written reasons for the cancellation with OPM and allow the preference eligible time to respond (similar to 5 U.S.C. § 3318(b),the passover provision).  OPM could then determine the sufficiency or insufficiency of the reasons submitted by the agency, determine whether cancellation was appropriate or whether its primary purpose was to avoid applying veterans preference.  The agency would be required to comply with the findings of OPM.

2.       An Agency’s Ability to Choose from Multiple Certificates or Programs in Filling a Single Vacancy

Under current veterans preference laws, emphasis is placed on a preference eligible’s rank on a single competitive examining certificate.  The preference eligible is at the”top” of the certificate. This process provided meaningful preference to veterans years ago when an agency chose a candidate by reference to only a single certificate or “register” of eligibles.  However, at the current time, agencies have the ability to choose a candidate from among multiple certificates and programs.  The existence of multiple certificates and programs, any of which may be used to fill a single vacancy, renders the rank assigned to the preference eligible on the competitive examining certificate potentially meaningless.  Let me put it this way:  what is the benefit to heading a list of candidates on a certificate when the agency has the ability to choose from 4 or 5 other certificates in deciding who to hire?  Veterans are completely confused to find that they were at the very top of a certificate but someone from a completely different certificate was appointed to the job.  We believe that an agency cannot claim to have given preference to veterans in such situations.  Veterans preference is diluted or nullified when multiple certificates are used.

Recommendation:  Because Congress contemplates in Title 5 of the United States Code that competitive examination is to be the primary method of entry into the competitive service, we encourage the Subcommittee to ensure that a certificate generated through the competitive process is favored over other hiring methods and over other certificates. 

3.       Agencies Tend to Ignore the Primacy of the Competitive Examination Process, which includes application of Veterans Preference, in Federal Hiring.

The issue just mentioned, multiple certificates, leads agencies to a dangerous view of federal hiring.  Agencies may view the choice of the method used to select a candidate for a competitive service position as almost completely unrestricted—competitive examination as one hiring method among several, with all being equal.  However, the statutory scheme set forth in 5 U.S.C. §§ 3302 and 3304(b), requires that an individual be appointed in the competitive service only if he or she has passed an examination or is of necessity excepted from examination.  

Deviations from using competitive examining as the primary entryway into federal service can lead to serious violations of veterans preference laws.  This is evidenced by the fact that the Outstanding Scholar Program operated undisturbed for many years and only recently was recognized as violating veterans preference and, essentially, being inconsistent with the statutory emphasis on the competitive examination hiring process. 

Many veterans and service organizations worry that the growth and increased use of student hiring programs, without adequate oversight of their implementation, is becoming yet another method of evading consistent and rigorous application of veterans preference. 

The websites of several large agencies contain lists of multiple student-related hiring programs.  NVLSP and other service organizations are certainly not opposed to increasing employment opportunities for students—many of whom are veterans and who qualify as preference eligibles.  However, we object to any program that attempts to accomplish hires into the competitive service by denying veterans their rights under veterans' preference laws.  

Recommendation:  Congress should ensure thatthe competitive examining process, including veterans preference laws, remains the primary hiring method for the competitive service.  Congress should also ensure that any necessary student or other hiring program vigorously applies veterans preference laws (including rating and ranking and application of points), and ensure that the passover provisions of 5 U.S.C. 3318(b) are required in each of these programs.

I appreciate the opportunity to provide the subcommittee with this testimony. Thank you.