U.S. Marshals Service: Additional Actions Needed to Improve Oversight of Merit Promotion Process and Address Employee Perceptions of Favoritism

USMS mission areas include fugitive apprehension, witness protection, and federal prisoner transportation, among others. USMS whistleblowers recently alleged that USMS officials engaged in improper promotion practices—such as routinely preselecting favored candidates. Investigations have substantiated multiple whistleblower allegations which has raised questions about the integrity of USMS's merit promotion process. USMS announces about 260 law enforcement promotion opportunities annually.

GAO was asked to review USMS's promotion processes and policies and effects that USMS promotion practices have on employee morale. This report examines (1) the extent to which the USMS's merit promotion policies are aligned with federal guidelines; (2) the extent to which USMS monitors its merit promotion processes; and (3) the steps, if any, USMS has taken to understand and address employee concerns about its merit promotion policies and processes. GAO analyzed data and documents on USMS promotions from October 2015 through April 2017, and found these data to be sufficiently reliable for the purposes of GAO's study. GAO also analyzed USMS documentation, and interviewed USMS officials and non-generalizable groups of employees (85 in total) in four district locations.

The U.S. Marshals Service's (USMS) merit promotion policy aligns with relevant provisions in title 5 of the United States Code and Code of Federal Regulations, which are the government-wide laws and related provisions agencies must follow to make federal appointments. Agencies must design and administer merit promotion programs to ensure a systematic means of selection for promotion based on merit and these programs must conform to five key requirements outlined in title 5. GAO found that the USMS merit promotion plan, as revised in November 2016, aligned with each of these five requirements. For example, the first requirement states that agencies must establish merit-based procedures for promoting employees that are available in writing to candidates. The USMS merit promotion plan, which is available to employees, outlines such procedures.

USMS is taking steps to improve how it monitors the implementation of the scoring component of its process to rate promotion applications, but lacks documented guidance to ensure consistent compliance with its merit promotion policy. GAO found that USMS does not adequately monitor the rating process, which allowed for conflicts of interest with raters who may compete with candidates whose applications they score. USMS also does not monitor the rating process to ensure that raters complied with a key requirement—that raters decline to score applications of candidates with whom there is a conflict of interest, such as a supervisor-employee relationship. USMS is implementing a process change that, if implemented effectively, can address these two deficiencies. The new process entails having a third-party contractor, rather than USMS employees, determine candidates' scores. Finally, GAO found that USMS lacks documented guidance on rater scoring. USMS only provides verbal guidance to instruct raters on how to score the experience category of merit promotion packages, creating inconsistent application of the guidelines. Employees GAO met with expressed the view that such discrepancies create the perception that the rating process is unfairly subjective. Developing clear and specific documented guidance on how raters should apply the benchmark guidelines could minimize scoring inconsistency and potential rater subjectivity for both the current rating process and the new competency-based assessment.

USMS has taken limited steps to understand and address employee concerns about the promotion process. An estimated 41 percent of USMS respondents to the 2016 Office of Personnel Management Federal Employee Viewpoint Survey strongly disagreed or disagreed that USMS promotions are merit-based, while 34 percent strongly agreed or agreed, and 25 percent neither agreed nor disagreed. During discussion groups GAO held at four USMS district locations across the U.S., employees frequently expressed negative views and many indicated low or no trust that the process is fair and merit-based. Although USMS has acknowledged employees' negative perceptions of the promotion process, it has not developed an agency-wide action plan in accordance with federal guidance to better understand the nature and causes of employee concerns across districts and divisions. Providing specific and consistent information to employees about key steps in the merit promotion process and internal management decisions could improve transparency and help mitigate employee perceptions of favoritism that have negatively impacted employee morale.

GAO recommends that USMS develop specific rater guidance and develop and implement an agency-wide action plan to better understand and address employee concerns, among other steps. USMS concurred with the recommendations.

Between February 2015 and November 2016 more than 85 United States  Marshals Service (USMS) employees made allegations that USMS  officials engaged in improper promotion practices—such as routinely pre- selecting favored candidates and offering detail assignments to certain  individuals based on non-merit factors—among others. In recent years,  several internal and external investigations have substantiated several  allegations. Specifically, investigations in 2014 and 2015 found evidence  of nepotism and employee misconduct.

In January 2016, the Department of Justice (DOJ) Justice Management  Division (JMD) completed a review of USMS hiring and promotion policies  and procedures and found several deficiencies. JMD made  recommendations to bring USMS into compliance with applicable  statutes, regulations, and policies. For example, based on this review  USMS revised its scoring process to remove points awarded to  candidates for service in an acting (temporary promotion) capacity.  Furthermore, in November 2016, a Senate Judiciary Committee report on  improper hiring practices and whistleblower reprisal noted that USMS had  begun implementing changes in response to the January 2016 JMD  review, such as incorporating and elaborating on restrictions against  nepotism. However, the Committee report also determined that USMS  lacked protections for whistleblowers and could improve employee  engagement to promote a stronger merit-based culture.

In light of ongoing Congressional questions, you asked us to assess the  extent to which USMS’s promotion processes and policies ensure the  selection of candidates based on merit as well as any effects that USMS  promotion practices may have on employee morale. This report  addresses the following objectives:  1.  To what extent are the USMS’s merit promotion policies aligned with  federal guidelines?  2.  To what extent does the USMS monitor its merit promotion  processes?  3.  What steps, if any, has the USMS taken to understand and address  employee concerns about its merit promotion policies and processes?

To address these objectives, we analyzed relevant USMS documentation  and data. In determining whether the USMS merit promotion policies are  aligned with federal guidelines, we reviewed relevant provisions in title 5  of the United States Code and the Code of Federal Regulations and  compared these with certain provisions in the USMS Merit Promotion  Plan. Specifically, we examined the extent to which the USMS Merit  Promotion Plan conformed to the five general requirements outlined in  title 5 of the Code of Federal Regulations that agencies must incorporate  in merit promotion programs to ensure a systematic means of selection.

In determining the extent to which USMS monitors its merit promotion  processes, we examined documentation on merit promotion procedures  and practices, including documentation on the merit promotion rating  process. To examine USMS compliance with key aspects of this plan,  such as candidate rating and selection, we analyzed merit promotion  documentation, including all lists containing competitive candidate scores  for fiscal years 2015 and 2016.

We examined the extent to which USMS complied with federal  regulations on temporary promotions by analyzing the records for all 844  noncompetitive, not-to-exceed 120-day temporary promotion selection  records from October 2015 through February 2017. We reviewed USMS  compliance with temporary promotion regulations because whistleblowers  alleged that candidates who received temporary promotions may have  received unfair advantages for permanent promotion. We assessed the  reliability of the temporary promotions data we used by reviewing the data  for missing elements, outliers, and obvious errors, and interviewing  officials about data errors and applicable quality control procedures to  ensure the accuracy and integrity of the data. Although we found some  inconsistencies, such as incorrect documentation of legal citations and  some missing data elements, we determined these data were sufficiently  reliable for identifying the extent to which non-competitive temporary  promotions exceeded the regulatory limit of 120 days.

We evaluated USMS internal control activities against Standards for  Internal Control in the Federal Government to determine the extent to  which USMS has developed internal control mechanisms to monitor the  implementation of key steps in the merit promotion process. We reviewed  all job vacancy announcements for fiscal years 2015, 2016, and part of  fiscal year 2017 (October 2016 through April 2017) to determine the  extent to which USMS has documented steps in accordance with Office  of Personnel Management (OPM) requirements.

To identify areas of concern raised by employees, we reviewed USMS  Federal Employee Viewpoint Survey data for fiscal years 2015 and 2016.  We also interviewed USMS officials and federal human capital experts in  OPM and the Merit Systems Protection Board (MSPB) for their  perspectives on the extent to which USMS implemented key steps in its  merit promotion process in accordance with federal guidelines and merit  principles. In addition, we met with four whistleblowers and employees  who contacted us anonymously to provide their perspectives on these  issues. Because of the sensitivity of whistleblowers’ identities, we are not  identifying their locations.

We also interviewed employees in four district locations for their  perspectives on how USMS implemented key steps in its merit promotion  process and efforts to understand and address employee concerns about  the merit promotion process. The four district locations were Chicago, Los  Angeles, San Diego, and Washington, D.C. We selected these sites  based on a range of geographic locations and a medium-to-large district  size to obtain a wide representation of employees and maximize the pool  of employees available to meet with us. At each location, we interviewed  the U.S. Marshal and Chief Deputy U.S. Marshal, and conducted  separate discussion groups with GS-14, GS-13, and GS-12 level law  enforcement employees. For the discussion groups, we used a structured  interview questionnaire, which focused on implementation of USMS merit  promotion processes and potential concerns about merit promotion  practices. Collectively, we met with a total of 93 USMS employees,  including 4 U.S. Marshals, 4 GS-15 Chief Deputy U.S. Marshals, 7 GS-14  Assistant Chief Deputy U.S. Marshals and Chief Inspectors, 24 GS-13  Criminal Investigators (which included both supervisors and non- supervisors), and 54 GS-12 Deputy U.S. Marshals. USMS uses a  separate process for promoting non-operational employees (i.e.,  administrative) which we did not include in our scope. We collectively  refer to law enforcement employees in our discussion groups as USMS  employees. The selection of employees we met with in each district was  based on which employees were available and willing to meet during our  visit. Our discussion groups included a total of 85 GS-14, GS-13, and GS- 12 employees, and we collected questionnaire responses from all 85  participants. To ensure candid discussions, we met separately with  groups of employees by GS level and did not include supervisors with  non-supervisors. While not generalizable to all USMS districts and  divisions, the views we collected overall provide insights into employee  perspectives on USMS merit promotion practices.

We conducted this performance audit from July 2016 to October 2017 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

USMS mission areas include fugitive apprehension, witness protection,  and federal prisoner transportation, among others. There are 94 U.S.  Marshals—one for each federal judicial district—who are presidentially  appointed and direct agency operations in each district. U.S. Marshals  are considered to generally operate autonomously from headquarter  offices and divisions. USMS’s current workforce consists of roughly 3,709  Deputy U.S. Marshals and Criminal Investigators, and approximately  1,435 Detention Enforcement Officers and administrative employees. In  general, a cadre of Deputy U.S. Marshals in each district collectively  conducts various activities associated with the USMS mission areas. In  addition, Deputy U.S. Marshals and Criminal Investigators who are  assigned to headquarter operational divisions are located in district  offices and work collectively with district employees across the 94 districts  to carry out division functions.

Deputy U.S. Marshals are categorized into two federal government  occupational series – 0082 and 1811. USMS typically hires entry-level  Deputy U.S. Marshals in the 0082 series at the GS-5 or GS-7 level. At the  GS-11 level, deputies automatically convert to the 1811 series and  receive non-competitive career ladder promotions through GS-12 if they  complete the required waiting period for advancement to the next grade  level and maintain an acceptable level of performance. For GS-13 and  above, deputies must compete for promotions through the operational  merit promotion process.

USMS’s Human Resources Division (HRD) is responsible for issuing and  implementing policy guidelines, revisions, and supplements in  accordance with appropriate regulations and merit system principles.  HRD also periodically assesses the effectiveness of merit promotion  policy, assists in filling division and district vacancies, and reports officials  who inappropriately discriminate against candidates, and candidates who  engage in improper behavior, such as willful exaggeration,  misstatements, or other abuses of the application process. USMS’s Office  of Professional Responsibility (OPR) oversees the internal compliance  review of USMS staff, division, and district offices, which assess  compliance with DOJ and USMS policies and procedures, and ensures  the integrity of the agency’s internal controls.

Federal Guidelines on Merit Promotion Policy

Congress passed the Pendleton Act in 1883, establishing that federal  employment should be based on merit. The nine merit system principles  established by the Pendleton Act were later codified as part of the Civil  Service Reform Act of 1978. The first merit principle indicates that  federal personnel management should be implemented consistent with  certain merit system principles, including that 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.

Title 5 of the United States Code refers to the government-wide personnel  management laws and related provisions generally applicable to federal  employment. While title 5 of the United States Code generally outlines the  rules agencies must follow to make appointments in the competitive  service, excepted service, and the senior executive service, agencies  have significant discretion to design and implement internal merit  promotion policies and processes. Title 5 also states that federal  personnel management should be implemented consistent with merit  system principles that protect federal employees against “personal  favoritism.” According to MSPB, personal favoritism occurs when a  supervisor or selecting official grants an advantage to one employee or  candidate but not another similarly situated employee or candidate based  on friendship or other affinity rather than a legitimate merit-based reason.  Favoritism is distinct from discrimination on legally protected bases and is  frequently more difficult to clearly identify when it occurs.

OPM is responsible for overseeing all policy created to support Federal  human resources departments as well as for ensuring that these policies  are properly implemented and continue to be correctly carried out. OPM  delegates many personnel decisions to federal agencies, but is  responsible for establishing and maintaining an oversight program  ensuring that the personnel management functions it delegates to  agencies are in accordance with merit system principles and the  standards established by OPM for conducting those functions.

OPM has also established minimum qualification requirements for hiring  or promoting individual employees under the competitive process. In  addition, OPM allows agencies to make minimum qualification  requirements more specific by adding selective placement factors.  According to OPM, selective placement factors identify any qualifications  that are important for the job and are required when an individual starts  the job. Candidates who do not meet selective placement factors are  ineligible for further consideration. OPM generally allows agencies to  establish selective placement factors for any position without prior OPM  approval, but requires agencies to establish and document selective  placement factors through the job analysis process. OPM guidance also  states that selective placement factors have four characteristics: extensive training or experience to develop; essential for successful performance on the job (i.e., if individuals do  not have the selective factor, they cannot perform the job); almost always are geared toward a specific technical competency;  cannot be learned on the job in a reasonable amount of time.

USMS Has Aligned its Merit Promotion Policy with Federal Guidelines and Developed a Corresponding Process

USMS Merit Promotion Policy Is Aligned with Federal Human Capital Guidelines

We determined that the USMS merit promotion policy aligns with relevant  provisions of title 5 of the United States Code, and title 5 of the Code of  Federal Regulations. Specifically, the most recent version of the USMS  Merit Promotion Plan, which was revised in November 2016, outlines the  mechanisms for affording merit staffing and promotional opportunities to  competitive status candidates for GS-13, GS-14, and GS-15 1811  operational law enforcement positions. The plan states that it is the  policy of the USMS to maintain a sound staffing program that will ensure  that USMS fills positions from among the best qualified candidates and  that the selection, assignment, and promotion of employees are on the  basis of job-related criteria.

The Merit Promotion Plan cites parts of title 5 of the Code of Federal  Regulations as the governing authority under which the plan was  developed and aligns with key provisions of title 5 of the United States  Code and title 5 of the Code of Federal Regulations. Agencies must  design and administer merit promotion programs to ensure a systematic  means of selection for promotion based on merit. These programs must  conform to five requirements outlined in title 5 of the Code of Federal  Regulations. Table 1 describes the five requirements and how key  provisions in the USMS Merit Promotion Plan align with these  requirements.

USMS Has Developed a Promotion Process Based on Its Merit Promotion Plan

USMS has developed a multi-step process based on the USMS Merit  Promotion Plan to assess and select eligible candidates for promotion. To  be considered eligible for promotion to GS-13, GS-14, or GS-15 law  enforcement positions, candidates must (1) serve one year in an  operational position at the next lower grade than the position desired; (2)  take the most recent USMS merit promotion examination, which is  administered every two years; and (3) submit required documents,  including the promotion application package, during an annual open  season submission process. Once candidates have met these  prerequisites, they may apply to individual position vacancy  announcements, which are advertised electronically to all USMS  employees. Figure 1 depicts the multiple steps in the USMS merit  promotion process.

Table 2 provides a detailed description of the multiple steps in the USMS  merit promotion process.

USMS Is Taking Steps to Improve Monitoring of Its Merit Promotion Process, but Lacks Documented Guidance to Ensure Consistent Compliance with Merit Promotion Policy

Although USMS Does Not Monitor Key Aspects of Its Merit Promotion Process, It Is Taking Steps to Improve

USMS does not monitor the implementation of the scoring component of  its rating process or compliance with its temporary promotion policy, but is  taking steps to improve these aspects. We found that raters may directly  compete with candidates whose merit promotion packages they score.  For example, for an open GS-13 position, a GS-12 employee may  promote into the position or a GS-13 employee may be laterally  reassigned to the position. Employees seeking a lateral reassignment to  another district or division are not required to submit a merit promotion  application package during the open season, but instead submit  documentation to the merit promotion staff to confirm their eligibility for a  lateral reassignment. Thus, a GS-13 employee who serves as a rater may  directly compete as a lateral candidate with a GS-12 employee seeking a  promotion to the same position. Some USMS employees in our  discussion groups expressed the view that the rating process is biased  due to this potential conflict of interest. Specifically, seven employees  across multiple districts, including four who had served as raters,  expressed the view that raters may have personal incentives to score  strong candidates lower because they may compete with these  candidates for the same positions.

The Office of Management and Budget’s (OMB) Circular No. A-123,  Management’s Responsibility for Internal Control (A-123) explains that an  agency should have processes in place to detect and mitigate potential  employee conflicts of interest to demonstrate a commitment to integrity  and ethical values. We found that USMS does not have a process in  place to eliminate potential rater conflicts of interest. USMS stated that it  would be difficult to detect situations where raters who might be seeking a  lateral reassignment would be scoring a potential competitor, but  acknowledged that to the extent this is occurring, it would be a conflict of  interest.

USMS also does not monitor the implementation of the rating component  of its process to ensure that raters complied with a key merit promotion  process requirement. Specifically, USMS guidance states that raters are  expected to decline to score a candidate’s application if there is a conflict  of interest with the candidate, for example, a former employee or  supervisor relationship or a close personal relationship. USMS officials  explained that using two raters to score each merit promotion application  is intended to mitigate personal bias. However, during our discussion  groups, 4 employees who had served as raters said they had directly  observed raters scoring applications for employees with whom there  existed possible conflicts of interest. Additionally, 18 employees in our  discussion groups told us they had heard from colleagues who served on  rating panels that raters have used personal knowledge of candidates to  influence their scoring. Another 16 employees expressed a related  concern that raters can see the names of the applicants they are scoring.  According to HRD officials, they relied on raters to decline to score  applications of candidates for which they may have personal knowledge  and only use the information in the package to determine candidate  scores.

Although USMS does not monitor the implementation of key aspects of its  rating process to mitigate potential rater conflicts of interest or bias,  USMS has begun to implement changes that could address these  deficiencies. In February 2017, during the course of our review, USMS  announced a planned change to the process the agency uses to assess  the experience component of candidate applications. Under the existing  process, USMS raters collectively score the experience narrative  component, which helps determine the overall merit promotion score. The  planned change entails having a third-party contractor, rather than USMS  employees, determine candidates’ competency scores using a scenario- based competency assessment. As part of the new process, USMS also  updated the scoring rubric based on the new competency assessment,  which includes the elimination of the experience category (see table 3).

USMS started to implement this change to the process during the  summer 2017 promotion cycle for GS-13 promotions. USMS plans to  evaluate the effectiveness of the new process during the fall of 2017 and  determine whether the new process is ready to be implemented for GS- 14 and GS-15 promotions during the next promotion cycle. If USMS  effectively implements these planned changes, these actions could  address the deficiencies we identified by reducing the potential for rater  conflict of interest and bias because independent, third-party raters will  assess candidate qualifications, rather than USMS employees evaluating  their colleagues.

We reviewed USMS compliance with federal guidelines for  noncompetitive temporary promotions and found, in a few instances, that  USMS violated federal guidelines and its merit promotion policy by  extending some noncompetitive temporary promotions beyond the  regulatory limit of 120 days. According to USMS officials, they typically  use temporary promotions to fill open positions between merit promotion  cycles. A temporary promotion may also be used to temporarily promote  a GS-14 employee to the Chief Deputy position in the event a U.S.  Marshal resigns and the Chief Deputy becomes the acting U.S. Marshal.  According to title 5 of the Code of Federal Regulations and the USMS  Merit Promotion Plan, individual employees may receive noncompetitive  temporary promotions or details to a higher-graded position, or a position  with known promotion potential, if the total time spent in any  noncompetitive position is 120 days or less within a 12-month  timeframe. USMS may also fill open positions between cycles using  another type of temporary promotion for up to one year; however,  employees are required to compete for temporary promotions beyond 120  days through the merit promotion process. These requirements help  USMS use a systematic process of selection according to merit. We  analyzed all 844 noncompetitive temporary promotion selections (of 120  days or less) from October 2015 through February 2017 and found 9  instances in which the USMS exceeded the regulatory limit of 120 days  for individual employees. These 9 instances exceeded the statutory limit  by approximately 30 days on average, while ranging from 5 days to 103  days.

USMS officials acknowledged that because they manually enter the  noncompetitive temporary promotion end dates into the system that  contains the temporary promotions data, they have made errors in  reviewing these dates, such as incorrectly adding dates for candidates  who have received multiple noncompetitive temporary promotions that  exceeded a 12-month timeframe. According to HRD, this system has  internal checks and controls to ensure an employee’s temporary  promotion does not go beyond the not-to-exceed date. For example, the  system does not allow an employee who received a noncompetitive  temporary promotion to a higher grade level to continue to be paid at the  higher level beyond the date the temporary promotion is set to expire  unless HRD processes an action to extend the promotion. Otherwise, to  ensure the employee continues to be paid, HRD must process an action  to revert the employee back to their original grade level. USMS officials  explained that they must manually review instances in which employees  receive multiple noncompetitive temporary promotions within a year, to  ensure the total time spent serving in these positions does not exceed  120 days during any 12-month period.

Despite having identified relatively infrequent instances of non- compliance, we note that agencies are required to comply with federal  regulations. As a result of our review, USMS took immediate steps to  strengthen its internal controls to ensure its compliance with these  temporary promotion regulations. Specifically, USMS reported to us that  they developed a spreadsheet to help staffing specialists correctly  calculate the number of days the employee is eligible for a temporary  promotion. Moreover, USMS has developed training on how to use the  new tool and on the federal regulations that guide temporary promotions,  which it plans to provide to staffing specialists in October 2017. Finally,  USMS plans to incorporate a regular review of temporary promotion  actions into the HRD standard operating procedure.

USMS Lacks Documented Guidance on Rater Scoring

USMS provides verbal guidance to instruct raters on how to score the  experience category of merit promotion packages, which may result in  inconsistent application of the guidance. USMS Merit Promotion  Procedures generally state that raters assign a numerical grade to each  experience category—such as problem-solving or leadership—by  comparing how the experience described in the application relates to the  established benchmarks. The benchmarks, which are provided to raters,  contain descriptions of relevant experience that are designed to guide the  raters as they assign scores to specific knowledge, skills and abilities,  such as supervising staff and working with databases. At the beginning of  the scoring process, each rating panel receives verbal guidance from  merit promotion staff, which entails using actual candidate applications as  examples and verbally discussing how to use professional judgment to  apply the benchmarks.

Some employees in our discussion groups expressed the opinion that the  guidance provided to raters to score candidate experience narratives is  unclear, which results in inconsistent scoring. Specifically, during our  discussion groups, 39 employees across multiple districts, including 7  employees who had served as a rater, stated that raters often had  different interpretations of HRD’s expectations for how to apply the  benchmarks. For example, they stated that some raters determined  scores based on whether a candidate’s narrative contained the specific  language in the benchmark. Other raters, by contrast, determined scores  based on whether the candidate met the intent of the benchmark,  regardless of whether the candidate included the specific language in the  benchmark. As a result, employees in our discussion groups explained  that highly qualified candidates with relevant management and  supervisory experience may receive a low experience score if a rater  determines that the candidate did not use the exact language appearing  in the benchmarks.

Furthermore, 70 of 85 employees (82 percent) expressed the view that  inconsistent scoring of similarly qualified candidates creates the  perception that the rating process is unfairly subjective. Specifically, they  asserted that comparable candidates with similar types of experience  have received vastly different scores depending on which raters scored  their applications. Two employees in different districts also said that they  re-submitted the same experience narrative as the prior year, and  received a significantly different score each year. Additionally,  approximately 20 employees contended that raters may be influenced by  their own professional experiences. For example, raters who have  operational experiences that are different from candidates’ experiences  may not sufficiently understand the duties or professional experiences  described by candidates. Consequently, they argued, these raters may be  limited in their ability to fairly rate some candidates’ experiences.

Although USMS is implementing a new competency assessment process  for GS-13 merit promotions, it is not clear at this time whether the new  process will address concerns about inconsistent rater scoring because  the agency plans to use new benchmarks that were developed by a third- party contractor in collaboration with USMS subject matter experts to  determine candidate scores. According to USMS officials, the new  process will entail professionally trained assessors using evaluation  guidelines to assess how well USMS promotion candidates respond to  scenario-based questions. In collaboration with the contractor, USMS  also developed evaluation guidelines that include plans for monitoring  quality assurance over the rating process. For example, according to  USMS officials, the third-party contractor will conduct random spot checks  to assess the consistency with which raters apply the new benchmarks  and will provide USMS a report on the results of the quality assurance  monitoring. However, given that USMS implemented these changes near  the end of our review, we did not assess the implementation of the new  process or the related quality assurance monitoring. Furthermore, until  USMS determines a timeframe for implementing the new competency  assessment at the GS-14 and GS-15 levels, the current rating process  will remain in effect.

Standards for Internal Control in the Federal Government call for agency  management to determine the consistency with which controls are  applied. Furthermore, it states management should document policies in  the appropriate level of detail to allow management to effectively monitor  the control activity. While USMS provides raters with benchmarks and  verbal guidance on how to apply the benchmarks when scoring  applications, USMS has not documented guidance for raters. Six  employees who had served as raters said the rating guidance provided  was insufficient or the guidance could be improved. By developing clear  and specific documented guidance on how raters should interpret and  apply the benchmark guidelines, USMS could minimize rater subjectivity  and scoring inconsistency for both the current rating process and the  forthcoming competency-based assessment.

USMS Has Taken Limited Steps to Understand or Address Employee Concerns about the Merit Promotion Process

USMS Employees Have Expressed Negative Views and Concerns about the USMS Merit Promotion Process

According to an OPM report summarizing 2016 Federal Employee  Viewpoint Survey (FEVS) data, about one-third of USMS employees who  answered the survey indicated they agree that promotions are based on  merit. Specifically, in response to the survey statement, promotions in my  work unit are based on merit, an estimated 41 percent of USMS  respondents strongly disagreed or disagreed with the statement, while 34  percent strongly agreed or agreed, and 25 percent neither agreed nor  disagreed. Based on our review of an agency report examining district  and division-level USMS 2016 FEVS scores, district and division scores  varied greatly among those employees who responded to the FEVS.  For example, across the 10 districts with the lowest reported ratings in  2016, we found that 63 percent to 78 percent of respondents disagreed  that promotions are based on merit. By comparison, across the 10  districts with the highest reported satisfaction ratings in 2016, 7 percent to  16 percent of respondents disagreed that promotions are based on merit.

Most of the USMS employees at four district locations who met with us  and answered our questions viewed the merit promotion process  unfavorably, citing concerns primarily related to favoritism in the process.  For example, 57 of 82 employees (70 percent) indicated that they had low  or no trust that the merit promotion process is fair and based on merit.  Employees in lower grade levels expressed a greater degree of mistrust  than did those in higher grades (see table 4). Specifically, 45 of 53 GS-12  employees (85 percent) indicated that they had low or no trust in the merit  promotion process, while just less than half of GS-13 employees (10 of  22) and relatively few GS-14 employees (2 of 7) said they had low or no  trust in the merit promotion process. While most employees (51 of 70, or  73 percent) answered that sometimes qualified candidates get promoted;  several explained during our discussion groups that they believe the  promotion of less qualified—or unqualified—employees occurs frequently  enough to affect morale. Further, 47 of 84 employees (56 percent) noted  that morale has deteriorated as a result of merit promotion processes or  selections. Finally, most of the employees (66 of 85, or 78 percent)  answered that USMS has not taken any steps to understand or improve  employee morale or they were unsure of whether any steps had been  taken.

In addition, USMS employees we talked with during our discussion  groups expressed concerns about the USMS merit promotion process.  The prevalent themes that emerged during these groups were concerns  that (1) promotions are based on favoritism, (2) the promotion process  lacks transparency, and (3) promotion guidance is unclear and promotion  candidates do not receive feedback.

Concerns that Promotions are Based on Favoritism

Employees in our discussion groups expressed the view that many  promotion decisions are based on personal relationships over individual  merit. Notably, 51 of 85 employees in our discussion groups cited  examples of qualified candidates who were passed over for promotion by  those whom they believed were less-qualified due to favoritism. From  their perspective, there have been instances where candidates with high  promotion package scores and good reputations as supervisors have not  been promoted, while lower scoring candidates with poor reputations as  supervisors who have personal relationships with decision-makers have  been promoted. Further, 36 employees in our discussion groups said they  believed that career-enhancing opportunities, such as temporary  promotions, which improve employees’ promotion potential by providing  them with directly related experience in positions for which they may be  competing, are often provided unfairly to employees based on personal  relationships.

Employees in our discussion groups also expressed the view that some  employees receive more guidance on their application from supervisors  than do others, which they attributed to favoritism. As part of the merit  promotion process, supervisors are required to verify the experience  statements submitted by candidates. We found that among the limited  number of supervisors with whom we met, there were varying  interpretations of their responsibility in meeting this requirement.  Specifically, 1 supervisor viewed his role as strictly verifying the  experience and providing no further input. However, 7 other supervisors  viewed their role as providing guidance and mentorship to employees by  offering advice for improving candidate applications. Finally, 5 additional  supervisors said they provided additional guidance to employees only  when specifically requested. Of the 85 employees in our discussion  groups, 28 indicated that they believed supervisors helped certain  candidates develop their merit promotion packages, which provides an  unfair advantage over candidates who do not receive such guidance.

Additionally, nine employees raised concerns that USMS has sometimes  expanded certificate of eligibles lists inconsistent with USMS policy to  include preselected, favored candidates. According to the USMS Merit  Promotion Plan, if there are more than five candidates applying for a  position, at least the top five scoring candidates will generally be included  on the list and subsequently referred for candidate selection. In some  circumstances, more than five eligible candidates are allowed to be  placed on the list. For example, if there is a tie for the last position on the  list, all candidates with that score will be included. Additionally,  candidates with a score within one point from the fifth highest scoring  candidate would also be included on the list. Finally, if there are multiple  vacancies for the same position (same series, grade, title, and location),  one additional name for each vacancy may be added to the list.

To examine USMS compliance with this policy, we analyzed certificate of  eligibles lists and the corresponding candidate scores for fiscal years  2015 and 2016. For fiscal year 2015, we examined all 213 position  vacancies and found 2 instances where additional candidates were  included on the list inconsistent with USMS’ established policy.  Specifically, these 2 lists contained the names of candidates with scores  that were more than one point below the fifth highest-scoring candidate,  and of these 2 instances, 1 candidate was promoted. For fiscal year  2016, we examined all 224 position vacancies and did not find any  inconsistencies with USMS’ established policy.

Whistleblowers who raised concerns about improper promotion practices  to Congress had alleged that USMS managers used selective placement  factors to limit competition for certain positions or to tailor vacancy  announcements for preselected, favored candidates. Similarly, five  employees in our discussion groups expressed the view that USMS used  selective placement factors to limit competition or pre-select certain  candidates. In this regard, we reviewed USMS compliance with OPM  requirements for the use of selective placement factors. Specifically, OPM  requires that agencies document the justification for using selective  placement factors through a job analysis process.

We reviewed all job vacancy announcements for fiscal year 2015, fiscal  year 2016, and part of fiscal year 2017 (October 2016 through April 2017)  to determine if a job analysis had been performed when selective  placement factors were included in the announcement. In fiscal year  2015, there were 213 vacancy announcement positions, and 12  contained selective placement factors. We found USMS had not  completed a job analysis justification for any one of these 12  announcements. In fiscal year 2016, there were 224 vacancy  announcements, and 15 contained selective placement factors. USMS  completed a job analysis justification for all 15. For part of fiscal year  2017, there were 171 vacancy announcements, and 23 contained  selective placement factors, each of which had a justification. HRD  officials acknowledged that in the past they did not consistently document  the agency’s use of selective placement factors by conducting job  analysis justifications, as required by OPM, but have consistently  complied with this requirement since April 2016.

Concerns that the Promotion Process Lacks Transparency

Employees in our discussion groups also expressed the view that poor  communication and limited transparency about the merit promotion  process and certain management decisions further contribute to  employees’ negative perceptions of the merit promotion process. For  example, among the 85 employees in our discussion groups:

Sixty-three employees expressed the view that the merit promotion  process lacks transparency because HRD does not effectively  communicate with employees about procedural steps or process  changes, contributing to a lack of understanding about the process.

Forty-eight employees expressed the view that they have a limited  understanding of the rating and ranking process or that there is no  mechanism to dispute or appeal their score if they do not believe they  were fairly rated.

Nineteen employees stated that HRD does not provide information  about policy or process changes until the changes have been  implemented and that they initially learn about forthcoming process  changes through other employees and hearsay, causing confusion  and frustration.

Twenty-five employees expressed the perspective that USMS  management cancels vacancy announcements when preselected or  favored candidates do not appear on the certificate of eligibles list.

According to USMS officials, the agency cancels an announcement when  the announcement posting was made in error (i.e., the position was not  actually available) or when they need to reassign an employee to a  different location. We found vacancy cancellations were infrequent—9 of  437 announcements—during fiscal years 2015 and 2016; however, we  noted that USMS canceled 5 of the 9 announcements after final certificate  of eligibles were issued, which may have contributed to employees’  concerns.

Concerns that Promotion Process is Unclear and Promotion Candidates Lack Feedback

Another prevalent theme that emerged during our discussion groups was  that the merit promotion process is unclear, and that employees do not  receive feedback when they do not get promoted. Notably, among the 85  employees in our discussion groups:

Forty-six employees described the merit promotion process as  unclear.

Fifty-nine employees stated that the merit promotion application  package does not reflect their qualifications to perform specific jobs or  their readiness to be promoted.

Thirty-seven employees told us they are not notified of key steps in  the merit promotion process, such as whether they make the  certificate of eligibles list.

Thirty-eight employees stated that because they are not provided  feedback when they are not selected for a promotion, they do not  have a clear understanding of how the USMS promotion process  assesses the extent to which candidates are ready for promotion.

While there is no formal mechanism for providing specific feedback, HRD  officials explained, they may provide general feedback about the process  to candidates who proactively request feedback. However, as part of the  promotion process, HRD officials do not provide employees with specific  feedback at that time about their performance or readiness for promotion.  HRD officials also noted that as part of the new competency-based  assessment process, candidates will receive detailed instructions and  guidance on how candidates will be assessed for each competency. HRD  officials acknowledged that informing candidates about key merit  promotion steps, such as making the certificate of eligibles, would help  improve transparency and employee morale. They further explained that  while they do not directly inform candidates about making the certificate  of eligibles, in 2016 during the course of our review, they began posting  the cutoff scores for each job so candidates are now able to determine  whether they made the certificate of eligibles by comparing their final  score to the cutoff score for each position.

Federal guidance notes that perceptions of favoritism, particularly when  combined with unclear guidance, a lack of transparency, and limited  feedback, negatively impact employee morale. According to MSPB,  perceptions of favoritism are damaging to employee morale regardless of  their basis in fact, because employees’ perceptions are their reality.  Moreover, MSPB noted that providing honest feedback from selecting  officials can help employees improve their readiness for future  opportunities, and provide transparency to decrease perceptions of  favoritism. The report further noted that to achieve the goals of fair and  effective management of the federal workforce, organizations must  establish clear expectations for supervisors, and supervisors must be  aware of employees’ perceptions and exercise sound judgment when  making a variety of decisions such as promotion selections, work  assignments, training, performance management, and providing  workplace flexibilities.

In addition, Standards for Internal Control in the Federal Government  state that management should communicate quality information down and  across reporting lines to enable personnel to perform key roles in  achieving objectives, addressing risks, and supporting the internal control  system. Providing specific and consistent information to employees  about key steps in the merit promotion process and internal management  decisions, and constructive feedback to employees on the results of the  promotion process, including employee readiness for promotion, would  improve transparency and help mitigate employee perceptions of  favoritism that have negatively impacted employee morale.

USMS Has Taken Limited Steps to Understand and Address Employee Concerns about the Merit Promotion Process

USMS has taken limited steps to understand and address employee  concerns about its merit promotion process. Specifically, after analyzing  the results of the 2016 FEVS responses, USMS headquarters staff  acknowledged employees’ negative perceptions of the merit promotion  process as an internal agency challenge. In an update provided to DOJ  on plans for addressing employee engagement challenges identified in  the FEVS, USMS reported that the primary employee engagement  challenges are the geographical dispersal and management structure of  district offices (since USMS districts are led by political appointees, who  have different management styles). To address this challenge, USMS  disseminated an agency-wide memorandum emphasizing to all  employees that each employee and manager has an individual  responsibility to take action to improve engagement at the local level.  Also, USMS encouraged local managers to evaluate their FEVS results  and formulate an action plan that fits their individual district or division.

USMS does not track the extent to which district and divisions complete  action plans and does not require district or division offices to submit their  action plans to HRD. We found that none of the four districts we visited  had developed a written action plan in response to the 2016 FEVS  results. At three of these districts, the Chief Deputy U.S. Marshals  indicated to us that no steps were being taken to develop an action plan  because they did not consider it a required or necessary step. However,  the Chief Deputy U.S. Marshal in one district explained that while he did  not document an action plan, he took steps to better understand  employee engagement challenges identified in the FEVS for his district.  Specifically, he facilitated small discussion groups to better understand  low employee agreement with two FEVS survey statements, including  promotions in my work unit are based on merit. During these discussions,  he said that he aimed to clarify areas where employees’ negative  perspectives were based on a lack of understanding about the merit  promotion process.

While USMS has taken some positive steps, having a better  understanding of the basis for these concerns, and how to address them,  will likely require that USMS take additional steps. Most of the employees  we interviewed said they were unaware of whether USMS has taken any  steps to understand or improve employee morale related to merit  promotions, and some feared raising concerns to management.  Specifically, 25 of 85 (29 percent) employees in our discussion groups  said no steps were taken to understand or improve employee morale,  while an additional 41 employees (48 percent) were unsure that any steps  were taken. Further, 24 of 85 employees in our discussion groups  expressed fears of raising concerns to USMS district or headquarters  management, citing allegations of district management intimidating or  retaliating against employees who raise issues, such as not selecting  those employees for career-enhancing opportunities or promotions. To  the extent that employees fear they will not get promoted if they raise  concerns to management and management does not have sufficient  information to understand the nature and causes of employee concerns  about the merit promotion process, taking meaningful and effective steps  to address the concerns will be difficult.

OMB and OPM intend for agency managers to use the findings in the  FEVS to develop policies and action plans for improving agency  performance, including the enhancement of employee engagement and  satisfaction. According to OPM, action plans should be developed at  multiple levels; agency-wide, by subcomponent, and several levels down  in the agency. Also, many agencies have found it beneficial to conduct  focus groups after reviewing survey results to better understand the  underlying causes of employee engagement scores and get employee  suggestions for how to improve. OPM’s action planning guidance also  suggests that agencies specify  time frames for accomplishing the actions, who will be responsible for implementing the actions, who will be affected by the actions,  the resources required, and a plan to communicate these actions to managers and employees.

Although HRD disseminated a memorandum requesting district and  division managers to develop action plans, it has not developed an  agency-wide action plan, nor has it taken steps to ensure that all districts  and divisions develop action plans. By delegating responsibility for  developing action plans to individual districts and divisions, HRD does not  have consistent or adequate information to understand the nature and  causes of employee concerns across districts and divisions. Without this  information, USMS is unable to address employee concerns about its  merit promotion process and remains vulnerable to adverse effects, such  as decreased employee satisfaction and engagement, and decreased  agency performance.

USMS management stated that they take employee concerns and  feedback into consideration as appropriate, but are primarily concerned  with ensuring the process is implemented in accordance with legal  requirements. They further stated that they generally believe the USMS  merit promotion process to be fair, and attributed some employee  concerns with the merit promotion process to a lack of available positions  relative to the number of employees who are ready for promotion.  Nevertheless, we believe an agency-wide action plan would help USMS  more fully understand and address areas where employees express  negative perceptions of the merit promotion process.

Selecting candidates based on their qualifications instead of patronage  has been the foundation of the federal hiring system for more than 130  years. Federal guidelines give agencies significant discretion to design  and implement their merit promotion processes to best meet their needs.  Since 2016, USMS has been implementing changes to its merit  promotion process in response to multiple internal and external  investigations, which substantiated allegations made by whistleblowers.  While the new competency assessment process has the potential to  reduce the risk of rater conflicts of interest and bias, USMS could still do  more to further improve its process. Developing specific guidance to help  raters more consistently score candidate applications would minimize  scoring subjectivity. Continuing to take steps to improve this process  would better position USMS to improve employee engagement. In light of  the significant distrust in the merit promotion practices we heard from  employees, USMS management can also take further action to better  understand and appropriately address employee concerns, such as  providing employees specific feedback on the results of the promotion  process, including their readiness for promotion and developing an  agency-wide action plan to more fully understand and address areas  where employees express negative perceptions of the merit promotion  process. More actively engaging employees could also bolster ongoing  USMS efforts to improve the promotion process and enhance agency  performance.

We recommend that the Director of the USMS take the following actions:

Develop specific documented guidance—both for the current and new  processes—to enhance raters’ ability to consistently interpret and  apply experience-based benchmarks for GS-14 and GS-15 positions  and competency-based benchmarks for GS-13 positions when  evaluating candidate qualifications. (Recommendation 1)

Develop and implement a mechanism to provide specific feedback to  employees on the results of the promotion process, including their  readiness for promotion. (Recommendation 2)

Develop and implement an agency-wide action plan to more fully  understand and address areas where employees express negative  perceptions of the merit promotion process. Consistent with OPM  guidance in this area, the plan should specify  time frames for accomplishing the actions, who will be responsible for implementing the actions, who will be affected by the actions,  the resources required, and a plan to communicate these actions to managers and employees.  (Recommendation 3)

We provided a draft of this report to DOJ and USMS for review and  comment. Liaisons from DOJ and USMS responded in an email that DOJ  had no formal comments on the report. In addition, the USMS liaison  concurred with the recommendations and provided technical comments,  which we incorporated as appropriate.

We are sending copies of this report to DOJ, the Director of the USMS,  appropriate congressional committees and members, and other  interested parties. In addition, this report is available at no charge on  GAO’s website at http://www.gao.gov.

If you or your staff have any questions, please contact Diana Maurer at  (202) 512-8777 or maurerd@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. GAO staff that made significant contributions to this report  are listed in appendix I.

Appendix I: GAO Contact and Staff Acknowledgments

In addition to the contact named above, Brett Fallavollita (Assistant  Director), Carissa Bryant (Analyst-in-Charge), Jessica Du, and Kelsey  Hawley made key contributions to this report, along with David Alexander,  Willie Commons III, Dominick Dale, and Eric Hauswirth.