Mark Davis knows how much work went into the Land Management Workforce Flexibility Act.

The National Federation of Federal Employees vice president said he has helped work on the bill since 2009, saw it become law in August, but now he feels all of that work has been undone by an OPM guidance that defines the word "internal" differently than he does.

"It's not only contrary to the stated legislative intent, but it's very clearly contrary to good government," Davis said.

The law is meant to provide temporary seasonal workers with the opportunity to apply for permanent federal positions in land management agencies. So if seasonal wildland firefighters, which the NFFE represents, want to apply for permanent federal jobs, Davis said the intent of the law is to provide them a pathway.

But the rub comes in with OPM's guidance for how agencies apply the law. The Dec. 29 document from OPM limits temporary employees to applying for positions that are available only agency-specific employees. If the position is open to federal employees from other agencies, temporary employees are barred from applying.

That's wrong, Davis said, and NFFE has released an analysis to show where he says OPM has strayed from the law's intent.

In the analysis, the union cites the law's section specifying that defines eligibility for temporary workers. Under those rules, temporary workers can apply under the internal merit promotion procedures of the agency if they have served for two or more years and have acceptable performance records.

Per the law, they are not limited to apply for positions based on the agency's area of consideration when it comes to the applicant pool, the union said.

Where OPM differs is in defining the term "internal merit promotion procedures". OPM, in its guidance, says the term means "accepting applications only from individuals inside its own workforce."

"So say the Forest Service is the employing agency and they are hiring," Davis said. "Now they decide under their area of consideration that they want to open this job up to all federal employees. Now what they are saying is that Forest Service employees can apply and everybody else can apply too.

"Can permanent employees apply? Yeah, everybody can apply. Does 'everybody' include temporary employees? No, it doesn't include them. They can only apply if we only accept applicants from our own workforce and nobody else."

NFFE disagrees and cited the House Report from the LMWFA, as well as a Merit System Protection Board document, to define the term as specific agency procedures and not a limitation of internal candidates.

Davis said NFFE has reached out to OPM, as well as the offices of Rep. Gerry Connolly, D-Va., — who sponsored the legislation— Sen. Jon Tester, D-Mont., and the House Oversight and Governance Committee to provide the analysis and is awaiting a response.

"It is frustrating, because we got an Act of Congress [passed], not an easy political situation," he said. "We met with a lot of people on both sides of the aisle. Everybody said that, once you explained it to them, this reform is a no brainer.

"We got a simple, two-page bill through Congress unanimously and I thought we were done."

OPM officials were not available for comment by publication.

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