Legal Briefs: Fair favoritism

Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

The Office of Personnel Management is appealing a ruling by the Merit Systems Protection Board that restricts the use of veterans' preference in the appointment of administrative law judges.

MSPB ruled on Apr. 22 that the selection process for administrative judges discriminates against people who are not eligible for veterans' preference.

OPM gives applicants an examination to see if they are qualified to be administrative judges. A 70 is a passing score. OPM then ranks applicants by their scores, adding points for people with veterans' preference. When agencies want to hire administrative law judges, OPM sends the agencies a list of the highest-ranking applicants.

Under a new formula OPM developed in 1996, people with veterans' preference who score below a 70 on the administrative law judge examination could be ranked higher on the applicant list than non-veterans who score above 70. The new ranking system has the potential to make veterans' points the dominant determinant selection, the board said.

But, OPM disagrees. "OPM will not accept this ruling, which dilutes veterans' preference, an important employment benefit earned by men and women who have sacrificed part of their most productive years in service to their country," OPM Director Janice R. Lachance said.

OPM has asked the three-member MSPB board to overturn the chief judge's finding.

Lesson: Maybe favoritism isn't always unfair.

Ann S. Azdell and Donald B. Fishman v. Office of Personnel Management, Merit Systems Protection Board (DC-300A-97-0369-I-2), September 23, 1999

Stubborn and Stingy

In a recent case reported in Legal Briefs, two Army civilian employees traveled to St. Petersburg, Fla., in January for a training trip. Both stayed in rooms that were under the St. Petersburg federal per diem rate, which they thought was $103 per day for lodging.

But, mid-way through the training week the women discovered that the lodging per diem for St. Petersburg had been reduced to $59 per day as of Jan. 1. Both women tried to find rooms at that rate in the area, but could not.

When they got back, both women asked to be reimbursed for the actual cost of their rooms, but their requests were denied.

The General Services Board of Contract Appeals reviewed the case and determined in July that the Army needed to reimburse the women for the actual costs of their rooms. The Army asked the board to reconsider that decision.

The board refused, largely because the Army's reasoning was weak.

The agency offered an unsubstantiated opinion that there must have been some cheaper hotel rooms in the area, the board said. In fact, a few months later the General Services Administration revised the St. Petersburg lodging per diem rate up to $105, reflecting the employees' claim that no hotel room could be found for $59.

In response, the board said: "If the Army believed that training in St. Petersburg, Fla., in January was an inappropriate use of funds, it should not have authorized the training."

Finally, the Army refused to take any blame for the situation, despite the fact that Army officials were partly responsible. The Army should have rectified the situation by reimbursing the women for the full rate of their hotel rooms, the board repeated.

Lesson: You shouldn't have to be told twice not to be stubborn and stingy.

E. Patricia Liegey and Linda B. Webb, General Services Board of Contract Appeals (GSBCA 14964-TRAV), November 4, 1999.