Detailed report still leaves questions about nepotism in government

The federal government has civil service statutes outlawing nepotism. But when the commander-in-chief taps a close relative for a White House position, there is some wiggle room.

In the lead-up to the election, the U.S. Merit Systems Protection Board produced a report called "Preventing Nepotism in the Federal Civil Service" that detailed the statutory prohibitions against hiring close relatives -- a practice the board terms "detrimental" to a merit-based hiring process.

With President-elect Donald Trump's announced intent to appoint son-in-law Jared Kushner to a White House senior adviser role, the report, which includes recommendations as to how the president can weed out nepotistic practices, assumes an added relevance.

Nepotistic practices were outlawed "to protect organizations and the public from the risk that less-qualified individuals would be given positions of responsibility merely because an official wanted to help them get a job," the report states. "The nepotism law is also intended to instill confidence in the American people that their civil service is not corrupt."

Personnel actions involving an official's close relatives -- including a son-in-law -- are specifically listed in the report as an example of nepotism. The report states clearly there are not degrees of nepotism: "It is a binary state. The person either is or is not a relative of the official."

But the rules that govern appointments at agencies through the civil service, the senior executive service and the presidential nominations process may not apply when it comes to White House staff.

A 1993 case in the federal courts about the eligibility of then-First Lady Hillary Clinton to lead a federal advisory committee on health care policy shed some light on the special status of the White House staff. In his opinion, Judge Laurence Silberman wrote that he doubted that Congress meant for the White House staff to be considered as a federal agency for the purposes of the nepotism statutes.

"So, for example, a President would be barred from appointing his brother as Attorney General, but perhaps not as a White House special assistant," Silberman wrote.

Statutorily, the code detailing prohibited personnel practices affords the president the authority to make exemptions "based on a determination that [the personnel action] is necessary and warranted by conditions of good administration."

The MSPB report notes that agency heads are responsible for enforcing civil service laws, and handling complaints of nepotistic practices. Officials found to have committed prohibited personnel practices are subject to administrative and even criminal sanctions, ranging from demotion to imprisonment.

Additionally, nepotism complaints can be reported to the Office of Special Counsel, a small, independent agency that handles civil service and whistleblower cases, as well as cases related to limits of political activity in the federal workplace under the Hatch Act and the employment rights of members of the uniformed services.

The MSPB report, released in July, cautions that, "The transition between administrations may be a particularly high-risk period," no matter who wins, because of the sheer volume of the jobs that have to be filled, and because there will be a large number of new entrants to government service with no prior civil service experience. The report advised that, "transition plans should include preparations to educate political appointees about the [prohibited personnel practices] including nepotism" and how they can be avoided.