Taking Adverse Actions Based on Suitability or Security Issues

Hey, good afternoon,
and welcome to today's Employee and Labor Relations Forum!
My name is Tom Wachter.
I am the Acting Deputy Associate Director
for Partnership and Labor Relations
here at the Office of Personnel Management.
Today's topic, Taking Adverse Actions
Based on Suitability or Security Issues.
And in addition to the participants here
in the Campbell Auditorium,
we are joined by webcast viewers from around the country.
Our speakers will discuss some topics,
including options for taking adverse actions
based on suitability or security issues,
Homeland Security Presidential Directive 12, HSPD-12,
and suitability versus security,
suitability and fitness requirements,
granting security clearances,
and reciprocity policies related to suitability and security.
We do encourage everyone to make the most of this forum,
including asking questions.
The webcast participants can send questions to...
by email to cwrap@opm.gov,
and for those of you in the audience,
please wait until our microphone comes to you,
so that everyone, including our webcast folks,
can hear your questions.
And it is now time to silence your electronic devices,
Black Berry, cellphones.
In your packet you will find the agenda,
the biography of today's presenters
and the PowerPoint presentation, as well as an evaluation form.
And we do encourage you to complete those evaluation forms.
The webcast viewers can email them to cwrap@opm.gov
or fax them to PLR at 202-606-2613,
and your feedback is very important.
Today's presenters, Carol Means and Lisa McGlasson
are both from the U.S. Office of Personnel Management
and they bring outstanding credentials and experience
to this forum topic.
Carol is the Program Manager for Adjudications
at OPM's Federal Investigative Services,
and she spent her entire Federal career with OPM,
with over 30 years of operational experience
adjudicating suitability cases.
She currently oversees two branches;
one of which is devoted to adjudicating suitability cases
where governmentwide debarment is deemed appropriate.
Lisa is a Senior Advisor in Partnership and Labor Relations
and she has over 21 years of experience
in the areas of labor and employee relations
with subcomponents of the Department of Defense
and with the Federal Aviation Administration,
and Lisa currently is responsible
for developing suitability policy.
And with that, I turn it over to Carol and Lisa.
Thank you, Tom.
Got something going on with the phone,
we will get that squared away momentarily.
All right!
Please, if you can't hear me,
if something goes with the microphone, just kind of,
you know, wave us and... closer.
All right, is that better?
No?
Perhaps it's not on.
I don't see it on.
Okay, it's definitely on.
Are we getting sound now?
Okay, got to have it much closer.
All right! Welcome!
For... just for our purposes, can you just...
for those of you in the Campbell Auditorium,
I apologize to those of you out there on the web,
raise hands for those of you who are employee
relations specialist, labor relations specialist,
HR types,
and security suitability types?
Okay, so we've got a good mix,
hopefully we've got the same mix out there in web land.
And it's nice to see these two groups come together,
that was something that we wanted to ensure
happened with this forum.
We all too often speak individually
to one of these groups or the other, and we do see recently,
particularly in developing the policy
in the area of suitability/security,
it's important that these two groups come together
and communicate and talk within your agencies.
So if your agencies haven't developed working groups
or committees or something that include those two groups
and also perhaps your General Counsel's Office,
depending on who does...
who takes out retractions [inaudible]
and who handles those kind of appeals and things,
you might want to bring your General Counsel
and your HR folks and your suitability/security folks
together and start talking
and working through some of these things.
We get a number of calls frequently from agencies
regarding issues where security or the suitability folks
have come up with some information
and think that an action should be taken
and they run into a wall when they get to HR and vice versa.
So that's what we're here to discuss today.
Our Objectives for this session
will be to discuss the various purposes
for personnel investigations.
One of the newer things that we've come across
is the HSPD-12,
the initiative to create a reliable standard identification
across agencies,
and we all have our little cards,
whether you call CACs or PIVs or whatever little acronym
you used to describe, but it's the little thing
that now kind of all looks alike and we're moving to that,
but that requires some sort of investigation for determining
that an individual can have access to government facilities.
We talk about suitability and fitness.
When we talk about fitness in this discussion this afternoon
we are talking about fitness
as it relates to contractor employees
and excepted service employees
and their character and conduct
with regard to ensuring
that they are the right person for the job.
We're not discussing fitness in the employee relations aspect
of medical fitness for duty or those kind of things.
So when we use the word fitness,
that's a term of our used in the suitability area;
suitability refers to individuals
who are in the competitive service,
who can be noncompetitively converted
into the competitive service, or our SES employees.
Fitness covers those folks that are not covered
by the Code of Federal Regulations.
And also National Security,
access to classified information.
So looking at an individual's character, conduct, background,
whether or not they can access.
We'll also be outlining agency authorities and options
for adjudication and procedural requirements for taking actions
when issues arise in investigations,
and we'll be discussing
reciprocity polices and guidance.
Purposes for Investigations, there are requirements
for access of facilities.
We talked about the PIV cards, the CAC cards;
I know DoD calls them CACs, Common Access Card,
and we need to evaluate character and conduct
of government workers.
Suitability is covered under 5 CFR 731
and, again, that talks about competitive service,
those that can be noncompetitively converted
and SES.
If you're not in that group,
you're not covered under the regulation,
and we call it fitness instead of suitability.
Many people kind of use those terms interchangeably.
They do mean somewhat the same thing,
but they cover different groups of people.
There is also a new, newish Executive Order,
13488 that talks about continuous evaluation
of individuals in public trust positions.
Public trust are those positions that may or may not have access
to classified materials,
but they have duties that are autonomous enough
that we need to ensure that their character and conduct
is such that it would promote the efficiency of the service.
They are the folks that have autonomy over budget, policy,
governmentwide regulations, governmentwide policy,
things of that nature.
We also need to evaluate the character and conduct of workers
to ensure that national security requirements are maintained,
that individuals are fit that work for contractors
or that work in excepted service.
Again, talking about protection of National Security,
for those of you who have individuals in your agency
that have security clearances
and have access to classified materials,
there are a number of investigations that are done
to ensure that the appropriate people have access
to that information
or government systems or government locations, buildings,
and such.
PIV Card Requirements,
again, these are mandatory governmentwide standards
to make sure that individuals who are accessing
government buildings, government locations,
are individuals who should be accessing government locations.
It also talks about logical access, that's your computer;
are the right people getting into the systems,
do we have checks and assurances that individuals
who have these access cards pop into a computer
and have access to the database are the right people?
Okay, so now I get to talk about my favorite topic, suitability.
Everybody is familiar with that term.
And as Lisa mentioned,
the reason we kind of separated suitability and fitness
is because there were such a lot of confusion out there
with agencies about what they had...
what regulations they had to follow and how they...
how they could deal with contractors
and just kind of intermixing those two terms made it
very, very confusing,
and so decision was made a couple of years ago
to kind of split the two and talk about suitability one way
and talk about fitness another way,
so that everybody got a little bit clearer about, you know,
what you were required to do for suitability didn't necessarily
I mean that you were required to do the same thing for fitness.
So suitability, here we're talking about
a person's character and conduct, you know,
it's very commonsense that you...
any employer, including the Federal Government,
would want to look at and make sure that the best people
are going to be in the job, to work for the government,
especially we have to promote the efficiency of the service
and protect its integrity, and that suitability
requirement goes down to the very lowest levels,
up to the very highest level.
It's a very basic fundamental thing that you need to look at
when you're... when you're trying to decide
whether a person is a right person to hold the trust to work
for the Federal Government.
So that's what we're looking at, character conduct,
sufficient to determine whether the person's employment
is going to promote the efficiency of the service
and protect its integrity.
Now, when we get to the PIV Card Requirements...
We went down.
Oops, I went the wrong way, okay.
So the Suitability Requirements,
they're basically set forth in detail in Title 5
of the Code of Federal Regulations, Part 731.
And it establishes all the criteria
for making a suitability determination.
It also establishes what's required for investigations
for suitability purposes.
When we set this presentation up
we kind of wanted to differentiate
between the part of 731 and the rest of the regulations
and things that are pertaining to investigations
that applies to investigations
and then kind of separate out what applies to adjudications.
And the main reason I had for that was that many agencies get
really confused when it comes to a suitability investigation
and they think that just because they're conducting
an investigation or a reinvestigation
for suitability purposes,
that they then should always be able to adjudicate that case
under 5 CFR 731,
and actually it doesn't work that way.
The regulations are kind of set up to kind of go along
with the probationary period that someone has,
and so when it comes to the jurisdiction to take an action
for an agency,
it ends when the person becomes an employee,
when they've actually worked for a full year.
And so agencies cannot take a suitability action
under 5 CFR 731.
However, they can still investigate
and reinvestigate it under that authority.
Okay, Lisa mentioned the covered positions,
these suitability regulations do only cover a very narrow margin
really of the huge workforce that works for the government.
There are many, many positions that are not covered by 731,
including all of the contractor workforce out there
and some excepted service positions.
The only ones that are covered are competitive service,
the types of position that start in the excepted service,
like the Veterans' Readjustment Act, those kind of things,
where they start and have like a training period,
and then after a period of time they can automatically,
if they do well, convert to the competitive service,
and then the entry levels in the Senior Executive Service.
Those are the only types of positions
that are covered by the procedures in 731.
Does that mean that agencies don't investigate contractors
and don't investigate excepted service?
No, that's not true, they still investigate those,
but they're required to investigate those folks under...
that are covered by this regulation under 731.
And you'll notice that on this slide we talk about the actions,
as Carol mentioned, the actions an agency can take,
and we limit those to applicants and appointees.
Appointee is the term
that's used for the first year of service
for an individual who is covered by 731
rather than a probationer.
For 731 purposes we use a particular term
called appointee.
So the appointee is the first year of service.
Okay, so when do the regulations require you
to do a Suitability Investigation?
Most cases, if the person is starting their Federal career,
they're going to be required
to have a Suitability Investigation.
There are a couple of exceptions
to the subject to investigation role
that kind of play along with reciprocity.
There is a movement in the government to make sure that
we're not reinvestigating people
that have already been investigated,
that we're trusting each other's decisions,
and that the investigations, if they've been done previously,
are going to be sufficient
if someone's had a continuous Federal employment
and they want to move to another agency.
Okay, so the exceptions to the subject
to investigation requirement
are set out here:
If the person has already undergone an investigation
and they don't need a higher level of investigation,
then they may not need investigation here.
If they're being appointed, converted, transferred,
and they have at least one year of continuous service,
continuous service means continuous service,
no break in service at all,
and that they've been previously determined to be suitable or fit
under 5 CFR 731 or equivalent criteria.
Now, what do I mean by equivalent criteria?
This is basically opening up the door for individuals
that have been working,
for instance, in a contract capacity
and have had the appropriate level of investigation
and want to move into a competitive service position.
If they've been properly investigated
at the appropriate level,
and if they've been continuously employed for the government,
even in a contract position,
they haven't had a break in service at all,
and if they have been adjudicated previously
under criteria that's equivalent to 5 CFR 731.
For instance, a lot of agencies out there, for years now,
they really haven't had any kind of adjudicative criteria
to base their decisions on contractors,
but they've recognized the fact
that those folks are sitting side-by-side,
in many cases doing very similar duties to their Federal workers.
And so they have done investigations on those people
and they've kind of taken the 731 criteria,
which we'll go over in a little bit, and they've applied that,
they've looked at the contractors basically
the same way they've looked at their Federal employees.
And so if that has happened and the agency can say,
the new agency that wants to pick the person up can verify
that the proper level investigation was done,
there has been no break in service,
and the prior favorable decision was made based on
very similar criteria to what's in 731,
then they don't have to reinvestigate the person.
Now, does that mean
that you can't reciprocate in other situations?
No, I mean, logically if someone has a small break in service,
then you might very well want to just go ahead and bring them on
without conducting a brand new investigation,
but this gives you the option to do an investigation
if you want to, if there's been a break in service
for suitability purposes.
Okay.
Now, there are a couple of times when those conditions,
those requirements for reciprocity investigations
do not pertain.
One of the very key principles
for suitability and fitness adjudication
is to look at the nature of the work
that the person is going to be doing.
It's very critical.
There are many positions
where most positions have what we call core duties,
duties that are specific to that job,
where if you're looking at someone's suitability or fitness
you're going to want to have...
you're going to want to be able to consider the fact
that they have done something in their past
that might cause an impact in that particular job.
So we'll talk about some examples of those later on.
And then of course there may be some new information
that's come up during the course of the interview process
or when they fill out their Form 306,
so you are aware of some new information
that impacts on their character and conduct,
and so then you can as well do an investigation in those cases.
Okay.
Under 5 CFR 731 agencies are required to designate
their positions in terms of their impact on public trust,
their impact on the efficiency of the service,
and there are three levels of designations;
there is High Risk, Moderate risk, and Low Risk.
There is an automated tool to use for position designation.
Have any of you been exposed to that or used that?
Okay, just a couple of people.
And basically what that does is it looks at all of the things
that could potentially impact on public trust.
People that have a higher level of responsibility,
fiduciary duties, public health and safety,
law enforcement duties,
there is a whole bunch of things like that, that can be a...
give... put someone a little bit in a position
where they could cause a little bit more damage.
And so this position designation tool
takes you down through the process
and has you identify those types of duties
based on their position description,
but also based on talking to probably the manager
that is familiar with the core duties of the job.
And it takes you through
and identifies eventually what level you're at.
The high... and based upon how you come out there,
that depends on... that dictates
what kind of investigation you'll have in the case.
So at the very lowest level,
the minimum requirement currently is
National Agency Check and Inquiries Investigation,
and at the higher level we would do a background investigation,
so there are kind of some levels in between right now.
And that's just a little bit more intrusive,
because there is a little bit more risk involved,
and that's how that works.
Lisa mentioned earlier that we now have authority
for Suitability Reinvestigations.
If you have been around for a long time like I have,
you may remember way back when
there was something in 5 CFR 731
that instructed agencies to do reinvestigations on people.
Sometime ago there was a legal review of that
and it was determined that OPM really did not have authority
to tell agencies that they had to do reinvestigations,
it always kind of made sense
that you would want to continue
to look at someone's character and conduct.
People change, you know,
and whereas when they first started their Federal career
they might have been found to be suitable,
eventually some things might have happened in their lives
that changed their lives,
and potentially they no longer promote the efficiency
of the service to stay employed.
So we were happy to see this come out,
because for many years now
agencies had to rely on their own authorities
if they wanted to reinvestigate someone.
They could rely on the Computer Security Act
or some agency specific regulation,
but this opens a door now to do reinvestigations.
Now, the regulations concerning this
are currently under review
and Lisa can probably tell you where they're at.
Oh, that's me.
Yeah, that's you.
They were out for public comment,
particularly with regard to the length of time
between reinvestigation.
We did ask for public comments specifically on that area.
The public comment period closed January 4th,
we gave some extensions,
and I am currently working through those comments.
So it should be out for final review
in the Federal Register within the next 30 days.
So once you start doing reinvestigations
then you may already be doing some based on,
you know, your own authorities
that you've had in place for some time.
You get a result of investigation back
and now there's issues in this investigation
that you weren't aware of,
and that can be very problematic for agencies.
You don't... you don't know what to do now.
I get questions like that all the time,
well, can't I take a suitability action under 731?
Well, no, you can't take a suitability action under 731,
you don't have authority to do that.
However, you need to look at it
to determine whether this conduct has some impact
on the efficiency of the service,
because perhaps some sort of an action under 5 CFR 752
might be appropriate.
But that's basically how agencies
will have to adjudicate reinvestigations.
If an action is warranted,
it will have to be taken under that authority.
Okay, so we talked about suitability,
and Lisa mentioned earlier
the correlation between suitability and fitness,
they are essentially the same thing,
you're looking at the same types of character flaws.
You're looking at the same kind of conduct
that might be a concern.
We're going to call that fitness,
so that we can differentiate between the two.
And fitness is going to cover contract employees
and anyone that's not covered,
any Federal person that works in the civil service
that is not covered under 5 CFR 731.
Now, normally, do you all deal with contractors much?
Right.
The contracts usually dictate what you're going to do
in terms of how you're going to investigate,
how you're going to screen the contract employees.
The contracts really are the guide
when it comes to what you can do with a contractor.
So if your contract employees, you may...
if you're concerned about their character conduct,
you may want to make sure that the actual contract
talks about a favorable adjudication
and being investigated at the appropriate level
and that sort of thing.
There really aren't any regulations other than HSPD-12
that really address contractors;
it's more guided by the contract.
All right! Now we're going to get tricky.
Now we're going to add a third piece in, security.
So we've got suitability, we've got fitness,
and now we have security.
Every position in the Federal Government,
regardless of whether it's Competitive Service,
Excepted Service, SES, is given two separate designations
when it comes to the position description.
One designation is the risk designation,
that's what Carol was talking about
with the Low, Moderate, and High Risk.
That is based on the duties,
again, just as Carol explained it.
The second determination is a security level determination,
so that is whether or not the duties
include access to systems, documents, locations,
facilities, equipment that are classified.
And there are multiple levels of classification;
you've heard, you know, confidential secret, top secret,
all those things.
So if an individual is...
let's say a position such as mine
that makes governmentwide policy,
my position is a High Risk position.
And I also do security policy,
so I am also required to have a security clearance.
So with those two separate and distinct designations,
each of them has their own investigation that's done.
So we're going to talk a little bit later about investigations
and we'll get you there, but think about these as two tracks,
they're parallel, they're like railroad tracks,
you've got the risk level and the security level
and you have to make those both determinations.
You will have positions that have both.
You may have a position that is Low Risk and no Security,
so there is no clearance and it's a Low Risk,
and so you're going to have
a much lower investigative standard
than you have for a High Risk with a Top Secret clearance.
But these are two determinations
that have to be made for every position,
and it relates to the duties of the position.
But it does get confusing sometimes
because you're really only doing generally one investigation,
because you're going to do whichever the highest is,
depending on those two determinations,
but it is two separate.
So when we talk about security
we're talking about a reasonable expectation
that the employment or continued employment of an individual
would be clearly consistent
with the interests of National Security,
again, protecting the National Security,
protecting the secrets,
protecting that information
that shouldn't fall into the wrong hands,
pretty simple, seemingly,
till we get into it.
Security determination is a discretionary,
agency responsibility
and it is, again, made in addition to
and subsequent to suitability or fitness.
We at OPM say subsequent to,
because why would you do an investigation on someone
to determine whether or not they can access
top secret materials perhaps
if you would find out pretty quickly
that they're not suitable for government employment.
So it's usually kind of that lower hanging fruit,
if you will, to go ahead and do the suitability
first, look at that, determine if they're suitable
and then go on to see if they can access.
So you want to start at the lowest level
and not waste a lot of resources
doing that highest level investigation.
Start small, work your way up.
National Security Levels, as I mentioned before,
there is Non-sensitive, that's most agencies,
the bulk of employees within the government
are going to fall into that Low Risk Non-sensitive.
These are folks that don't access any classified material.
They don't make autonomous policy decisions.
They don't have major fiduciary responsibilities.
Then there is Non-Critical Sensitive,
so again, the Non-Critical, Low Risk, Sensitive means
they do have access.
Then we get into Critical Sensitive and Special Sensitive,
those are higher levels of sensitivity.
The level of the investigation
depends on the Sensitivity Level.
So of course someone who doesn't access
any classified information,
not going to have a major background.
Somebody who is in that Special Sensitive,
that high level, the highest level of sensitivity,
they know all the good stuff,
those folks are probably going to ask a few more questions.
You might visit some neighbors.
You might talk to some friends.
You're going to get a lot more information,
because you want to make sure
that they're not hiding something,
and these are the, again, the right people
and these are the people
that we can trust with this information.
Executive Order 12968, we're using a lot of numbers,
we've thrown a lot of things at you here,
establishes authority for reinvestigations of positions
requiring access to classified information.
Again, as Carol mentioned earlier,
Executive Order 13488 does that same reinvestigation
for the high risk
and the moderate risk public trust positions
that this does for individuals with classified information.
So, it's kind of... again that parallel track,
think of those railroad tracks
one is looking at the risk,
one is looking at the classified information.
Issues that develop during reinvestigation
have to be evaluated to determine
whether or not continued access
is in the interest of national security.
That's where we come in with those folks
that suddenly its reinvestigation time,
and they filled out their paperwork
because it's been several years
and most recently the bad financials come up,
or you realize that they've got a degree
from a place that we didn't know about before.
So bad financials, that maybe a security risk,
the degree from a non-accredited university perhaps
that's not a security risk so much
but that may get you back into the 731,
to the suitability issues.
So again when Carol was talking about
suitability issues coming up at any time,
they may come up in a security reinvestigation
just as easily as they can come up
in a suitability reinvestigation.
There is a provision, as we are creating these regulations
that if you have someone who is in a moderate or high risk,
who requires a reinvestigation for that aspect
for their risk level,
they also require reinvestigation
for their security designation
that would be one reinvestigation.
You would do one reinvestigation at the highest level
and that would serve for both purposes.
So we're not going... well, you know,
with a parallel tracks again,
but we do know that they are both out there
and we're not going to make somebody go through
a risk level reinvestigation
and then six months later do a security reinvestigation
because that would be a waste of resources.
So we're aware of those parallel tracks
as we're redeveloping this line.
Adjudications -
no, that's fine.
Okay, adjudications.
Adjudication is basically an evaluation of the information
that comes up through the initial investigation,
the reinvestigation,
you would want to look at what it is you're looking at,
the reason that you're investigating
whether it's HSPD-12, suitability,
fitness, security or some other agency authority
that you have to do investigation,
what you're doing it for,
and the information that you have.
And when you're looking at these adjudications,
this is where the HR,
employee relations,
and the security suitability sides come...
become quite parallel
because you are looking at the totality of the circumstances.
You're not just looking at the record and saying,
well, this person got arrested,
you're looking at the totality,
you're looking at how long has the person worked for you,
and all of those aspects and adjudicating,
making a determination and determining
whether or not this person is going to continue employment
or whether they are going to be hired.
HSPD-12; now here is an area
that is becoming problematic for some agencies
because the HSPD-12,
the credentialing standards
are left out to the agency to some degree.
And they do say...
the HSPD-12 that was issued by OPM does say
that a card can be granted if there is suspicion of terrorism,
makes sense,
unable to verify the identity,
sure that sounds good too,
fraudulent identity,
reasonable belief that they're going to gain access
to sensitive information if they don't have authorization too.
A reasonable belief that it will be used
inappropriately or unlawfully,
so they don't try to claim that they are an air marshal
and get on every plane that they want to for free.
Reasonable belief
that the individual use information unlawfully
or make authorizations
or let's see who was at... the passport folks
that gained access to movie stars passport information
a few months back,
and you know broke into those systems and shouldn't have.
Beyond this there are also some agency determinations
that we made, again adjudications.
So as the background investigation is done
and some information is gathered,
you may come up with an individual
that's worked for your agency for five or 10 years maybe,
you've not had a reason to reinvestigate them
because they're on a low risk position,
generally the questions that have come to me,
low risk position, no access to sensitive information,
but you find that just before they got to your agency,
they've been... they resigned from another agency.
But that resignation was after they had been told
that they were going to be removed.
And so now they came on to your agency
and initially on their application they said
they had no prior problems with their employer.
But now five years down the road,
they just slip and make a little problem with a date,
they just got a couple of months off just enough
that the investigator says,
this is odd and looks a little further
and asks a few questions of the prior employer,
and learns this information.
Now this is information that means
you would not have likely hired the individual
in the first place,
but the individual has been stellar for the last five years
at your organization,
not had a problem,
they've come to work everyday,
you find out at the prior agency that was some question about,
it turns out... question about time cards,
but at your agency, the managers says
they've never been a minute late for five years,
they don't have any issues with them,
they don't have any problems with them.
This is when the security office says,
we're not giving them an ID card
because we have this adjudication problem
because they falsified this document,
they told us they didn't have a problem,
now we find out they did.
And your employee relations staff is left standing there
scratching their head
because they're not sure how to get rid of this person,
because at this point you've got an individual
who has done a great job,
and while they may have been accused of something
five years ago,
there is nothing on the record, there is no information,
it's five years old,
and looking again at the totality of the circumstances,
because this is no longer an applicant,
remember this individual has been on board with you
for five years,
so as an agency you can't take a suitability action.
And as an agency then you're left with taking a 752 action
under employee relations you're looking at an adverse action,
which is what we're here to talk about today.
And you've got somebody with a stellar record at your agency,
no problems, but they can't get an ID card,
how do they get in the building.
So this is where those conversations come in
where the security folks,
and the employee relations folks,
and the general council need to come together
and review the agency policy that says
anyone with any negative employment history
does not get an ID card,
because that will paint you into a corner.
So you've got to watch
while you have some real basic no, nos on the HSPD-12.
Be careful that your agency's own internal policy
doesn't... doesn't cause you more problems
when it says also an yes to this list.
So watch out for those, true story.
Can I just add something to that?
Yes.
You may want to call me if you have a case like that
if it's a covered position and there is falsification
that comes up in one of these HSPD-12 investigations,
because whereas...
and we're going to talk about this a little bit later too,
but whereas agencies cannot take an action under 731
after the person has been employed
continuously for a year.
If there is evidence of material,
intentional, falsification,
deception or fraud in examination or appointment,
which in this case there seems to have been,
we would want to...
OPM would want to take a look at that to see
if it's something that would warrant a suitability action.
No, I'm not saying
that necessarily we will take an action,
we look at every case, case-by-case,
we have to make sure that it's a case
that we have enough evidence to establish that
that the person's continued employment
would not promote the efficiency of the service.
And so sometimes if the person has been employed
for a very long time it's very difficult
to push an action like that through.
But if you do have a material falsification case,
you probably or you have to under 5 CFR 731,
you need to let OPM know,
so that we can determine whether or not
it's something that warrants an OPM action in the case.
And we did that and it turned out that one was
just quick enough, but it didn't go that route.
But agencies may use
supplemental credentialing standards
when the position is not covered by the adjudicative criteria.
So again you will be looking at your agency standards
and what we are looking at is a reasonable basis
to believe that there is unacceptable risk.
So should we allow this individual access,
access to the facility, access to the computers,
the systems, the database, the information?
Not necessarily classified information
or access to classified locations,
I am talking about just everyday access to the stuff we have,
because we have a lot of information
within the government,
it may not be classified.
We have got a lot of...
IRS has tax payer information, it's not classified information,
but it's confidential information,
it's very important information
that certainly tax payers wouldn't want shared around
with everyone outside of the government.
So looking for misconduct and negligence in employment,
criminal or dishonest conduct,
again material and false...
intentional false statements, deception,
alcohol abuse without substantial rehab,
we are talking about this a little bit later,
statutory regulatory bars,
willful engagement in acts or activities designed
to overthrow the government by force.
So again we are looking at 731
and we are going to talk about these factors
a little bit more in detail as we move on.
Let me just give you a little bit history on that HSPD-12,
put that back for a second.
As I mentioned I think earlier,
when agencies were dealing with contractors
many, many agencies were already applying
the factors of 5 CFR 731,
but there was nothing out there
that told them this is really what you should be doing.
And so whenever these... these guidelines,
the credentialing guidelines
that OPM put out in 2008 came out,
and we were working on these,
we were thinking you know maybe we should put something in
here that kind of puts it in writing
that if agencies want to apply these factors,
these types of things and, you'll see in a minute
when we go through the suitability factors
that these pretty much mirror those,
that they can apply these supplemental standards.
Because there are many positions as I mentioned,
contractors and so forth
that are not subject to a security clearance determination
or a suitability, I mean they can't be subject to 731.
And so you'll see that these credentialing standards
are essentially equivalent to the ones
that we are going to go over when we talk about 731.
And if you are looking for...
when you make your reciprocity decisions to see
if someone has the appropriate level of investigation
and so forth, as I mentioned earlier,
you are going to be looking to see if a favorable decision
was previously made under equivalent criteria.
So if an agency is applying this criteria,
this would be one example of equivalent criteria,
okay.
Okay, so now we are going to talk about suitability
adjudication under 5 CFR 731.
You got... you have a lot of information
from your investigation,
now what do you do with it
and when can agency actually take an action under 5 CFR 731?
We mentioned what's covered already
several times under 731,
this kind of breaks down who does what.
And you'll see here
that OPM has retained jurisdiction and authority
to adjudicate all of the cases
where there is evidence of material,
intentional false statement,
deception or fraud in examination or appointment
or where there is refusal to furnish testimony.
So just for clarification on that refusal
to furnish testimony aspect of that,
that's not when someone will fill out their forms,
that is a specific civil service rule that indicates
that if OPM or MSPB or the special council
is investigating a federal applicant to a employee,
that person must cooperate in the investigation.
That's the only reason why we can't delegate that
down to the agency level,
it doesn't apply to agencies.
Agencies don't have that authority,
that's only OPM, MSPB or special council.
And so it's an official investigation,
I want to talk to someone...
my investigator wants to come and talk to you
because we suspect that you took a test for your sister-in-law
and we don't do too many tests anymore in civil service
but maybe you fill out some information
or falsified something to help someone,
colluded with someone.
And I need to get testimony from you to find out exactly
what happened there as a federal employee.
Or even if you are applying for federal employment
you have to cooperate and give that information.
So that's a common misconception,
agency sometimes think that that refusal to furnish testimony
has to do with filling out forms
and that's not the case at all.
Agencies have delegated authority to adjudicate
applicants and appointees only.
You cannot take a 731 action against an employee,
does that mean you cannot take an action against the employee?
No, you know, you can do that if it's,
if it's warranted under 752.
But you can't use 731 to take an action.
And if you have a case where there...
where you look at the results of an investigation and you...
you think hey there is some false statements in here.
I think I wanted for instance,
this person is in a probationary employment.
And I am concerned about this information
that they did not admit,
I want to terminate their probationary appointment.
You can do that,
there is no reason why you can't take action
under your own authority.
We are asking however that agencies make sure
that they come back to OPM
and let us know that you've done that.
It maybe a situation that would be egregious enough
that we would want to step in ourselves and take a 731 action.
Main reason for that is
because we can impose a period of debarment up to three years
from every single covered position out there.
And so you terminating someone's probationary appointment
may mean that they'll walk down the street,
lie again, get another job
and the whole process will start over again.
If you let us know and if it's significant...
serious enough, we will step in and take that action.
Okay, so when can you make an adjudicative decision under 731?
Well, you know, really the process should start
when the person is an applicant for the job.
It is the way the system was really setup
to have a very good screening process in place.
When can you have them fill out their form 306?
We used to have some requirements regarding that
and now we are telling agencies do it
when it make sense to do it.
So if you want to, if you want...
if you have a lot of jobs to fill
and you want to get your applicants
to fill the 306s out to expedite the process,
you can do that now.
What I say though is don't wait until the first day,
don't wait until the person shows up to start their job
and that'll be the very first time
you ask them to fill out the Declaration of Appointment,
the OF-306.
Because that form has a purpose,
it's part of the whole pre-employment screening process
and so if you don't have them do it as an applicant
and then they come in
and they admit some serious issues at first day,
then you have to deal with, you know,
an action that you have to take.
Whereas if you have them do as an applicant
it's much easier situation.
If you have a case where there are serious issues
I mentioned falsification,
but any serious issue
particularly if the person is an applicant
and you find out maybe... maybe you do some interview,
maybe do some pre-employment calls
or during the interview something comes up
or on that Declaration of Appointee something comes up
and there are some very, very serious recent issues,
those are the types of cases
that my office gets involved in
because again we can impose a government wide bar.
And we maintain records of that bar
and if anyone comes in,
any agency comes in for a new investigation,
that's the very first thing we look for
to see if there is an OPM,
period of debarment on our record.
Agency authority to take suitability actions
is subject to revocation by OPM,
we have not ever done this yet,
but that isn't to say that we wouldn't.
If we find that an agency
is not properly adjudicating their cases,
if they are not following the regulations,
if they are not following the supplemental guidance
that we put out
and they are not taking appropriate actions
when they should,
we could potentially revoke
someone's authority to adjudicate.
Okay, so now we are going to start talking
about the specific suitability standards and criteria.
The basic thing is that you can take a suitability action
if the person's employment would not protect the integrity
or promote the efficiency of the service,
a suitability action can be taken,
the agencies as I mentioned earlier
can only do that with applicants and appointees,
OPMs has some very limited authority for falsification
or refusal to furnish testimony
and some statutory debarment things for employees.
And there are some factors, we are going to go over those,
if you take a suitability action,
it has to be based on one of the factors,
there is only eight of them.
So if it doesn't fit into one of those,
you can't take a suitability action.
Okay, so let's get down
and talk about each one of these just kind of briefly,
misconduct or negligence in employment is pretty obvious,
misconduct is doing something you shouldn't do,
negligence is not doing something you should do.
You know so we are talking here
about the things that any employer would be concerned with
insubordination, attendance issues,
using drugs on the job, you name it,
anything in the world can happen on the job
and those are the types of things
that we are concerned with here.
Now performance issues, inability to do a job,
those types of things
are not considered to be suitability issues,
they could be qualification issues,
they could certainly be a concern for the agency
that the agency might want
to take a performance based action on... against,
but they would not be suitability issues.
It has to be misconduct or negligence.
And the second one is criminal or dishonest conduct
that's pretty clear as well,
one thing that's not always quite as clear
is the fact that we are just looking at the conduct here
and so even if a criminal offense was dismissed,
if there is sufficient evidence to establish specifically,
what the person did and what their involvement was
and how you know what the conduct was,
it could potentially be a suitability issue
that would be of concern.
So you have to look at the conduct itself,
not the outcome of the conduct.
Many times criminal conduct issues are downgraded
to a lesser charge,
sometimes witnesses don't show up
and that's the only reason that case is dismissed,
so when we adjudicate these cases
if it's something that's been dismissed,
we try to find out why was it dismissed
so that we can understand all of the information.
And dishonest conduct is pretty clear too now,
one thing that's covered under the dishonesty conduct...
one here is financial issues,
but only when those financial issues are so significant
that you can establish
the person has actually been dishonest,
it's not an inability to pay,
it's an unwillingness to pay their debts,
and it's not a situation where they lost their job
and that they can't pay their debt because of that.
It's... some agencies try to set a threshold
for financial issues
and that doesn't really work that well for suitability,
because you have to look at all the circumstances
surrounding the reasons for the debts and that sort of thing
and establish that the person was actually dishonest.
We talked a lot already about the material,
intentional false statement, deception or fraud
in examination or appointment.
The definition that we use for material
and that's outlined in the regulations
is capable of influencing,
affecting, or having a natural tendency
to affect an official decision.
It's a very broad definition and so it is...
this is another thing that's very commonly misunderstood.
Many agencies feel that it...
for instance if there is not a positive education requirement
for the job
and the person lies about their degree,
then that's not an issue at all,
it's not a qualifications issue,
it's nothing to be concerned with,
and that is not the case because under this definition
it very well could be capable of influencing.
Think about interviews that maybe you have been evolved in
you know if you had several different applicants for the job
and you are looking at all of their qualifications
during your interview process,
it very well may be capable of influencing
the fact that someone went to school for four years,
got a degree,
it shows possibility
they could bring something more to the position,
even if a degree is not required for the job.
We have cases frequently where we take suitability actions
because of falsification
even if it's experience or education
that was not required for the job.
So if you have cases like that
that would probably meet our definition of material
and ones that we would want to hear about, okay.
Falsification also it doesn't have to be your own application,
there was a recent case Scott versus OPM,
where an individual falsified his wife's application,
he was a personalist
and he helped his wife fill out her application,
but he did so with some embellishing information
that he knew to not be true, he added duties,
she worked at... she was like a receptionist in an office
and he added many government duties
that they wouldn't do on the outside,
but he padded that resume basically.
And it was his wife's resume
and he was charged with material falsification
because in the process he made the false statement.
So he was removed for helping his wife get the job,
so it doesn't has to be your own application.
It does however have to be in an examination or appointment
for a covered position not necessarily your own,
but for instance if someone makes a false statement
on a contractor application,
that wouldn't fall under this criteria.
It would still be dishonest conduct,
it would still be covered under the suitability criteria,
but it wouldn't be... it wouldn't fall in here.
It has to be in connection with a federal job
that's a covered position.
That was a really interesting case that Lisa was mentioning.
He was using terms like OPM, FEGLI things like that
you know he made them mean something else.
It was pretty funny.
I have a question from our webcast if I could ask it?
Sure.
The question is when an agency refers a material
an intentional falsification case to OPM for adjudication,
how long will it take to receive the adjudication from OPM?
The second part of the question is
if the adjudication from OPM is received
after the appointee has been employed with the agency
over the year... one year time period
does OPM then send the case back to the agency
in order to take an adverse action outside of 5 CFR 731?
Now what happens when we get a case,
when there is material intentional falsification?
Basically the first thing we are going to do
is look at it to see if it's one that we feel is both material,
that we have enough proof,
it's going to be material and also intentional
and that it's a case that we are going to be able to establish,
that there is enough evidence in the case.
We generally have to do more investigation in those cases.
If we decide it has potential
to be one that we would want to adjudicate,
we would let the agency know,
we're going to assume jurisdiction in this case,
it's going to be sometime.
Usually it takes a while for us
to get all the evidence that we need,
the threshold for evidence
at the Merit Systems Protection Board is kind of high,
we need to have proof,
especially in these types of cases.
It's very... there is a review of creditability
and things like that
that we need to have proof that it's material,
and we have to have enough of information.
So we usually have to go out
and do some additional investigation,
then we would take the suitability action,
the agency would not take an adverse action,
OPM would take a suitability action.
We would propose the action,
the person would have a chance to respond
and so forth through the process
and then we would make our final decision
and that decision would be appealable
to the Merit Systems Protection Board.
And generally it doesn't take us long to let the agency know
we are going to look into this case,
but it does take quite sometime to actually take the action.
Do you have a question in the auditorium?
Actually I have two questions
relating to the first two factors.
First of all, when would off duty misconduct
want suitability action?
My second question is
what if an employee is unwilling to pay a debt,
but there is a dispute about
whether or not he or she owes the debt?
Both good questions,
the first question off duty misconduct
would probably fall under one of the other criteria,
it wouldn't fall under misconduct or negligence
in employment.
Misconduct or negligence in employment has to do with
what you do on the job,
either in the current job or in prior periods of employment.
But off duty misconduct might be criminal conduct,
might be drug or alcohol abuse,
might be one of those things,
so most likely it would fall under one of the other criteria
and not the first criteria.
And then in response to your second question,
which was about financial issues.
If financial issues are in dispute,
the person does not want to pay the debt back
because they don't think they owe the money,
you are not going to have enough information
to take a suitability action until that is all resolved.
I mean really that... it's one of those things
where you can't take
one person's word over the other person's word...
the financial institution's word;
you would have to wait until it's been resolved.
I have one more question for you.
This regards government travel card
either misuse of the travel card
or failure to pay the outstanding balance
would that established dishonest conduct of a financial nature
and if so would that be a suitability issue?
I think obviously you would have to consider
all the circumstances behind it
but certainly potentially it could be dishonest conduct
and would be a suitability issue.
Okay, moving right along here
we talked a little bit already about
refusal to furnish testimony as required by 5 CFR 5.4.
As I mentioned, that's a specific Civil Service Rule
and only OPM can take an action when that comes up,
both of these factors are limited to OPM actions.
The next two have to do with substance abuse;
the first one is alcohol abuse
without evidence of substantial rehabilitation
and you can see if you read that that it goes into
really kind of tie it to the job.
It has to have some impact on the job.
That he person would be prevented
from performing their duties
or cause a safety hazard to the people,
for this factor to apply.
Now, does that mean that you know
if a person has DWI offenses off duty that
that is not a suitability issue,
no that's not the case,
because we still have criminal conduct suitability factor
that that kind of conduct might fall into.
This one is varying and the one about drugs is also,
they are both very focused on substantial rehabilitation,
it's something that has to be looked at
in both of these factors.
Lisa is going to talk in a minute
about the additional consideration
that go along with the suitability factors
and you will see in there that rehabilitation is one of them.
And she'll also be talking about how it's,
you know, it's the agencies discretion
to decide which ones apply,
but in these two factors it has to be considered,
because they are written right into the factors.
Okay, only two more knowing and willful engagement
in acts or activities designed
to overthrow the United States Government by force.
These are the actions where it's pretty clear
that the person is disloyal, with suitability,
you know we're really looking at
established character and conduct traits.
And so it's not just membership in an organization
or those types of things that are little less clear,
it's actually over actions that the person has taken.
And I have to tell I've never had a case
come across my desk in 30 years of adjudicating,
where I have taken a suitability action based on this factor.
Now that doesn't mean that there haven't been cases
that we've referred to the FBI or you know things like that,
but it's not one that usually people admit,
it's not one that comes up a lot
in the course of an investigation.
And then the very last one is any statutory or regulatory bar
which prevents the lawful employment of persons
in a specific position.
So a few folks in here
that might remember PATCO strike back in 80s,
anybody remember that when all the air traffic controllers
went on strike
and then they couldn't hold a Federal job after that,
that's because it's a statutory or regulatory bar.
A more recent one that you hear a lot about
are the folks that need to carry a gun
in connection with the duties of their job,
but they have a domestic violence conviction
in their background
that is also a statutory bar.
Many of these are things that agency kind of screen
for upfront when they hire their people.
And so consider them to be qualification issues
as well as they could also be a suitability issue,
but there is a lot of them
and they are written into laws and regulations
and many are very specific to specific jobs.
Okay, so how find out about suitability issues
you know you will notice that the four of those happened
before you ever even get there the results
of the investigation back
and you know really the focus needs to be
in that upfront screening
and whenever the person applies for the job,
they fill on their declaration of appointee.
Remember the old SF 171, anybody remember that one?
I'm showing my age here
and there was very,
back in the old days
there was a very clear upfront screening process
where you had the SF 171
and you know you are screened for issues
and if you saw issues you send them to OPM and OPM did it all.
Well, over the years in the interest of expediting
the hiring process and kind of breaking it apart
and looking at qualifications and suitability separately,
it's kind of you know filtered down,
filtered down, then delegated down at the agency level.
So any time I get a chance to talk to any agency group,
I always try to remind everyone
how important that prescreening process is.
And then you have the investigative data forms
when they actually fill out those forms
sometimes that's done pre-appointment,
in many cases it's not done until the person
is already on the job.
And then during the investigation
you may have a subject interview,
if it's a background type of investigation
or you may have the investigation itself.
Now, one thing I want to mention about the investigation,
when you get those investigations back
and you have the adjudication form,
the agency of adjudication form
that you had to fill out the 79 A.
Did any of you fill those out?
A few people.
You will notice on there,
it will show how OPM looked at the issue and it will say...
the results investigation will say,
OPM adjudication and you will have a code.
That doesn't mean that we have adjudicated that case
that just means that in our estimation
we have looked at the suitability issues in that case
and we think they are at a minor level or a major level
or something in between.
So sometimes agencies are a little confused
and they think that agencies actually...
that OPM has actually adjudicated that case.
You will know if we adjudicate one of your cases,
we will call you,
you will know that we are actually adjudicating the case.
Examples, other examples, law enforcement position.
You wouldn't want a DEA agent
who had been convicted of selling narcotics
in the background.
You would not want a Chief Financial Officer
that's been arrested four embezzlement,
probably don't want your, even your mail clerk,
let's say, we are talking about the person
who goes and picks up the mail and delivers it,
if they are required to have a motor vehicle operators licence
and they have several DUIs in their background
probably not the right person for that job.
Using computer to access,
now there very agency has its own little special deals
and I'm not going to call anybody out
but I have worked for agencies
that seem to have individuals with computers
that they like to look in at inappropriate material
to some extent,
you probably wouldn't want them
in charge of your computer security.
And there is the staffing specialist,
the case that we mentioned earlier, the staffing specialist
who had been found to have been involved
in prohibited personnel practices.
So again, this not all inclusive,
we want to look at everything,
you have to look at the job,
every agency has unique jobs, we may call it all,
301 program manager,
but you know what the core duties of that program might be
and they might be different from agency-to-agency
even work unit to work unit.
So your HR folks have to work closely with your security
and suitability adjudicators,
the individuals who are making those determinations
to ensure that everybody understand
what those core duties are.
Here is one that looks familiar to most of you in the ER world.
Nature and seriousness of the conduct,
the more serious conduct
the greater the potential for disqualification,
that seems very simple on its face,
but you need to look into the details.
Assault, assault could minor, assault could be very serious,
you don't know if it's assault
because a spouse perhaps took a golf club to a car
and broke a few windows
or took the golf club to the spouse
and broke a few bones, you have no idea.
So you have to look at the seriousness of offense
and make sure that the nature of conduct was,
let's heat of the moment,
passion filled type you know swing at the car windows
or was this someone who
you know took out a coworker with a refrigerator door,
also happened.
Circumstances surrounding the conduct,
again look at the facts,
look at everything that happened,
look at the circumstances
and just because someone is plea bargained
or just because charges are dropped,
it doesn't mean that conduct didn't occur.
So make sure that the investigation includes
actual facts and what happened and what occurred.
The recency of the conduct,
was this perhaps just youthful indiscretion,
you know recency and age these go together,
was this someone was sixteen and they took a joyride with a car
that wasn't theirs,
or was this somebody who was 24
and took a ride in a car that wasn't theirs.
And what if there is, consider rehabilitation,
perhaps they have gone through anger management
and they will no longer possess golf clubs.
Look at again.
Recency, age, looking at the conduct and the pattern,
particularly if it is heinous,
look at the pattern of activity, the pattern of conduct
in the light of all the information you have available.
Contributing societal conditions,
this is that old stole a loaf of bread
to feed the starving children kind of thing.
Is that something that you would find someone
unsuitable for employment because they were in a situation
and they were forced to do something unpleasant
or where they actually just stealing,
who knows there was a...
there was a newspaper the other day about a priest
that was arrested in Florida
for stealing a pound of butter and a mattress pad,
not sure why, but the priest needed those things.
You would look at the societal conditions
perhaps the butter maybe someone who was starving,
the mattress pad not so much.
Absence or presence of rehab,
again look at the time elapsed.
Has someone had an opportunity to get beyond
or grow out of this behavior,
was this useful in discretion,
16 years old when they took the joy ride,
they know better now, they've grown up,
some time has passed, they have gone through some classes,
things like that,
have they been to treatment or counseling,
how long ago was that,
what was the prognosis at the end of that
and other aspects of the life,
look life,
look for stability,
employment stability,
positive changes in their life, things like that.
Okay, suitability action, what is a suitability action?
It's a very narrow thing... narrow list of items,
cancellation of eligibility,
a removal of course, removal from a federal service,
a cancellation of reinstatement eligibility,
Carol talked about that earlier.
That means not only you are not working of us,
but you are not going to be working for somebody else,
you are not eligible to be employed
by the federal government.
Debarment,
that means you are not working
anywhere in the federal government.
You are not going to work into one...
in one of these covered positions.
Non selection,
now this is the change
that was made in 5 CFR 731 in July of '08,
we've had a number of MSPB cases
and MSPB is now reading correctly
that in non selection is not a suitability action
even if it's taken for suitability reasons.
So let's say you've called the individual you said,
"Hey congratulations
we love you, we want you to work with us,
welcome, welcome aboard,
you are on our team."
And then you get the 306 like Carol mentioned
you get at the first day, they come on board,
or you get it even before, let's say you are proactive
and you are going to get it ahead of time
because you were here, you listened to Carol,
you took heed,
now you pick those, get that form early.
You run a little background check
and you find out that the individual is not suitable,
and you send them a letter,
nice letter from your agency that says,
"I am sorry, but you have been determined to be unsuitable
and therefore we are withdrawing our offer of employment."
That is not a suitability action
even if it says it's based on suitability factors.
That is simply a non selection.
So that is one change,
one clarification it was made,
it was always the intent,
but it hadn't been applied in that manner all along
so that was one change that was made in 731
to make that very clear.
So rescission of a tentative offer is non employment,
a non selection,
even if you cancel the tentative offer,
it's not a suitability action
even if it based on the same criteria.
Now you might get in trouble though
if the person keeps coming in and applying for job
and you know... on a case by case basis
if they keep coming in and asking for a job
and you keep telling them no and it's different jobs,
then somebody might start thinking
that you are doing more than
just denying them a specific job,
so be careful.
Right, you need to...
you need to make those same considerations each time.
If the individuals come on...
come in on the same job over and over and over,
then it's one thing.
If they are coming to you everyday
applying to be a customs and border patrol agent,
they want to be a border patrol agent,
but you find out that they were in the country
illegally for eight years
and you decide that's maybe not who you want
protecting the borders.
And they come in everyday and ask about the same job,
that's one thing.
But if the second day they come in and they ask about
being an administrative officer,
and the third day they come in
and they want to be a contracting officer,
and the fourth day they come in and want to be something else
and you tell them no every time
based on your initial suitability determination
and haven't reviewed and re-adjudicated
and all those things again based on the core duties,
based on all the information,
you may get yourself in a bind there.
I could just see that being interpreted by,
you know we don't want to blackball someone from a job,
from many opportunities, the intent is that,
you know if someone is applying for a job
and they are not going to work out for that specific job,
then you were not cancelling their eligibilities,
you were not debarring them,
but if you start,
you know for some time keep telling them
you can't have this job,
you can't have that job,
you can't have this job, you can't,
then effectively you are debarring them
without giving them the due process that they should have.
So just be kind of careful about that.
Right.
So debarment maybe taken by OPM
and what that means is that OPM denies a person examination
for or appointment to all covered positions,
so that any position that's covered by 5 CFR 731
for up to three years,
remember three years is the limit.
We are again looking at those additional considerations,
which include rehabilitation,
they include the timeliness of the action,
when the conduct occurred after those three years,
again the individual gets another bite at the apple,
you are not going to debar them for life.
You are not going to say
you will never work for the federal government,
we can't say that,
we need to give them an opportunity to grow and develop
and become suitable if they so choose.
Agencies may deny a person examination or appointment
to specific, 'specific' that's the keyword,
covered positions within your own agency
for up to three years.
Additional periods of debarment
maybe imposed by OPM or an agency,
but they have to based in whole or in part...
it could be based in whole or in part on the same conduct,
but you have to again look at the 731 procedures
and follow those procedures again
to reinstate an additional period of debarment.
Okay, I've got question on this side of the auditorium.
Well, it goes back to the other slide about suitability
determinations before they actually come on board
when the offer letter is made...
Okay.
And I wondered how much you had to tell them
if they ask you specifically why the job offer was withdrawn
and if they ask you the specifics of why
and if they can dispute it?
Do you have any...
Well, you know anybody can always go through
the Civil Court system and dispute anything
or file any EEO complaint against you
or do anything like that.
I mean as far as the requirements,
it's not really covered by 731,
because obviously it's not a suitability action.
If it's a suitability action
there are very clear and specific procedures
that you have to go through and we'll talk about those,
but I would think and my personal opinion
is it's only fair to let someone know
why you're denying them a job.
Right.
But whether there is... there is requirement for that or not,
I don't know.
And can they contest that, can they take it court, sue you?
Certainly they can, anybody can do that for any reason.
I was just curious because managers
they want to get people on Board
and sometimes these people go ahead and give notice
where they already worked,
where they are working currently
and that might be an issue,
I tell them they shouldn't give notice,
but...
For any offer letter that you are sending out,
it should be very clear in that and...
Complete suitability issues.
Right, right.
a question on this side.
What is the standard of evidence
that applies to making suitability determination,
is it preponderance like it is with 752?
Yes, it is preponderance of the evidence
the fact is likely to be more true than untrue
basically yeah.
I've got one just...
I'm interested in the release of the information
from the investigation report
that can be given to the employee relations specialist
that an action could be based on.
Can you give me some information on that
in terms of what can the office of security
provides the employee relations specialist
because it's difficult to take an action
unless you have specific information that you can cite?
Right, as far as within the agencies,
how they disseminate the information within the agency
is basically on a need-to-know basis
and we leave up to the agencies to determine
who they should share the information with.
Now, if it gets to the point
where you're going to confront the subject
with that information
then you need... if it's from an OPM investigation
you need to be contacting our Freedom of Information
and Privacy Office, in Boyers
to get some guidance... further guidance on exactly,
you know, what requirements they have
before you can actually give the subject the information.
And when you're talking about that need to know,
it does depend on your agency protocol
whether your Employee Relations Office
or your General Counsel's Office
takes the lead on taking those actions.
So, the information,
it may be that your report of investigation
goes to the General Counsel's Office
and an attorney in the Counsel's Office has it
and shares it just enough
that the employee relations persons can write the letter,
it depends, again, on your own internal protocol.
Yeah, if the letters were given to the Supervisor
to make a determination on the (Inaudible)
specific information.
So, the question was,
how would you handle the release on information
because, of course, the manager is who makes the determination,
who is... who proposes the action
and then a subsequent manager makes the decision.
(Inaudible).
Right.
(Inaudible).
They would have to have sufficient information
in order to, again, rise to the level that,
that is appropriate to take the action
and, again, that would be on a need to know basis
under the routine used in the investigation,
but you may not share with everyone,
again, depending on how your agency handles those issues,
handles adverse actions.
It may be that the attorney gets it,
it may be that an...
an Employee Relations Specialist has that information.
It may be that it's shared with the manager
and the manager shares particular information
that is relevant with the Employee Relations Specialist,
again, a question over here.
With the Office of Security what we do is,
when we're working directly with...
Okay, sorry.
When we're working directly with ELR,
we try to give them the information that's necessary
in order for them to do their... make their determination,
which we usually give out a Statement of Reason
which indicates all of the issues,
not exactly but where they're derived from,
the investigation and the credit report,
so on and so on to help to assist them to do their job.
Now, what you just said before was completely correct.
If there is an issue and it goes up to OGC,
then we are required to work directly with OGC.
It is a need to know and that's one of the things
that ELR and Security we're going back and forth with so.
You may get a lot of questions,
especially, when it comes to the 752
because we're trying to pin down some specific areas
of who does what or what is needed?
Right, and that is a problem in a number of agencies.
And a follow-up question on it and it would be also
notification or... let me back up here.
Security makes the determination of unsuitability,
we feel that, that decision is made
and these are the reasons why.
We don't feel that the program manager should have...
I'll say if he's going to make an arbitrary decision,
yes or no, if security makes the determination
how does OPM feel about this?
And that is... that's the type of situation
that I spoke about at the beginning of the session
where you have to get the ER professionals
the Suitability and Security professionals
and possibly the General Counsel
involved and work through some of those issues,
because I have had cases...
individuals who have called me with that specific problem.
You know, Security or Suitability professional says,
look this person is unsuitable,
but, yet, the only way if it is not an appointee
and it's an employee
the only way that you're going to probably get to removal
is by taking a suitable... an adverse action under 5 CFR 752.
In order to do that, you have to go through,
kind of, that whole totality of the circumstances test
that you do with any adverse action
unless it's one of those OPM
let's say it's a bogus degree or falsification
or something that OPM is going to handle for you.
If it's an agency action,
you're still going to have that, kind, of that rock...
between a rock and a hard place with...
you've determined that the individual is unsuitable,
but, yet, it's not sufficient to actually remove an employee;
you have to still meet that threshold and meet that...
How about under 731 and within the probationary period?
Under 731 on a probationary period,
that's when I would advise
the Suitability or Security professionals
to make friends with General Counsel,
because they can then, again, bring that loop...
again, this is a... this has to be team effort
and all three of these entities have to be aware
of what the responsibilities are of each entity.
Security and Suitability folks are there to ensure
that the information
that we get about these individual's backgrounds
is properly applied,
because you'll have, you know,
this great guy when you talk to the manager,
this is a great guy, we love him,
oh, he brings donuts every Friday,
yeah, you see he's just the best thing
that's ever happened to us.
But, yet, from a suitability standpoint
he's really not the great guy,
he's not the guy that you think he is.
So, sometimes these things
and that may take some pressure from somewhere else,
because you have to then overcome that manager that says,
"No, he's a great guy;
you know, he brings in the best donuts,
and, you know, all that stuff and,
you know, he's great,
you know, that we fish together and all of that,"
but he's not the guy
that we need in the government doing that job.
So, that is a difficulty,
we have a question over here now.
Hi Lisa!
Can I ask for your thoughts about debarments
and violent type of offences that we have for employees,
not applicants or appointees, but employees.
And if we want to take, like, removal action
against someone for bringing in a gun
and trying to hunt down their supervisors that, sort of thing.
Obviously, we don't want those people back
even after they're fired
and so would it... how would debarment fit in to that scheme?
Would we, like, take concurrent action to
maybe propose a debarment and a removal and would we...
can we wrap that up in one letter
or can you talk about that?
No, you can't really wrap it up in one letter,
because you're following different processes
and so there has to be...
you have to follow whatever process you're following.
If there's falsification issues
which it doesn't sound like in this particular case
or would be, but if there's falsification issues
then OPM would potentially take a suitability action
even if the person had already left,
albeit fired from the job
we might potentially take an action.
However, if it's conduct issues which is the...
the case in your situation here,
OPM doesn't have authority to take an action
either if it's just conduct issues.
Once a person passes that first year,
so we would have to wait until they reapplied for a job,
and once they reapplied if we became aware of the information
then we could take an action.
(Inaudible).
We would have to.
How would we... how would we do that?
Well, more than likely, if there was a break in service
there would be a new investigation
if the person applied for a job
or, you know, maybe he'd admit it on his... on his forms.
There's always that possibility
or maybe an agency would get an applicant
and they'd give you a call
because they're looking for references,
the information sometimes surfaces that way.
That is another case in point to take back
to those who of... for those of who train managers,
that's an other reason for hiring officials
to make those reference calls,
"Hey! Why don't they work for you anymore?
Do you have any documented conduct problems
or performance problems or things like that?"
A conduct problem might bring up,
"Well, yeah, he brought a gun one day
and tried to kill his supervisor,"
something that's probably not going to be reflected
on the application,
but you never know what people will admit to.
It is amazing what they write on some of those forms,
so debarment is an option.
Alright, I think we're...
Okay, Procedural Requirements,
731 actions are similar in some ways to 752 actions.
There's a process
wherein you have to give the person a chance
to respond to the issues in writing,
they get sometime to do that.
They can request the materials relied upon in the case
and that would be anything
that was considered in the case as well as anything
that should have been considered in the case,
not just the adverse information,
but basically the good and bad information,
because it might impact
on the additional considerations in the case.
They get a chance to respond in writing.
They can have representation,
a question that I hear sometimes from agencies is
do we have to give them time on the job for this representation,
and the regulations are silent on that,
we leave that up to the agencies to decide what they want to do,
yes.
Yes, I have a question.
I just want to clarify it in my own mind.
The proposed action includes one of the actions
that you have listed in 731,
that's not a letter just saying,
"Oh! We found this information - address it,"
You need to put a proposed action removal
if they're an appointee or some action that you're proposing
not only that you have found the derogatory information
and given them a chance to address it,
is that correct?
That is correct, if you are taking a suitability action,
you can if you want to before you take a suitability action
send an interrogatory and just get the information...
get the subject to respond to the issues,
but that is not a proposed action.
Once you actually start down the road
of taking a proposed action,
you'll have to put in the letter exactly what you're proposing,
what the factors were,
what the additional considerations
that you considered
because unlike 752 actions
where MSPB can look at all of those Douglas Factors,
whether or not you considered them, in a 731 action,
they can only... can look at the additional considerations
that the agency deemed appropriate
to consider in the case.
And then after they...
whoever issues that proposed action for the suitability,
the decision letter has to address that
and make the final determination at that point.
Exactly!
The decision letter is going to be very clear and specific.
it's going to go down through all of the conduct again,
and it's going to address all of the subject's comments
concerning the conduct,
and it's going to specifically spell out
what factors were used,
what additional considerations were used,
and what the final outcome,
what the final actions that were taken were,
and the debarments; yes.
The appeal rights?
And the appeal rights,
yep, that's on the next slide.
So, you see we just covered that.
Oh! We're ahead.
Okay, reporting... we had a question earlier about
what agencies are required to report to OPM
and anytime OPM does an investigation
will send a form out to you and ask you to tell us,
how you've adjudicated that case.
That form is under revision,
it's going to be a little clearer as to
what the nature of the decision was,
whether it was a security decision or a...
you know, when it comes to favorable decisions
for reciprocity purposes,
but right now you're just going to report
whether you took an action
or you didn't take any action and so on
and we make that part of our records
that support reciprocity.
Agencies can come
and look at our Clearance Verification System
and see what prior favorable actions
other agencies have taken.
Also, let's see,
if you have a case where you feel
that there's a government-wide debarment warranted,
then that we need to know about those cases,
I mentioned the falsification earlier.
We have another question.
Yes, I had a question about if we have...
and the agency had the grounds to take a probationary action,
which, of course, has a very low,
you know, threshold of evidence.
There's no reason for us
not to go ahead and proceed with that action, right?
Well...
Absolutely not, you have full authority to take actions
under any authorities that you have.
We only ask that if it involves falsification
that you let us know about that, because...
Would we use this same form you were taking about
to report an action that we've taken
that might be suitable for debarment,
I think that goes back to what Rebecca was asking.
If we a take probationary discharge or 752 removal
that would be for a conduct that might warrant debarment,
we would send that information to you?
Right or you could give us a call;
just pick up the phone and give us a call and let us know,
"Hey! I just took a probationary action.
This guy lied about his degree,"
maybe you want to look at it OPM,
and we'll pull up the records and look at them.
There was question over... on this side as well.
You done, okay.
Okay, so can these decisions be reviewable?
Absolutely!
Full appeal rights to the Merit Systems Protection Board.
They look at pretty much everything in the case,
de novo review basically,
whether we made the right decision or not.
Establishing fitness criteria...
agency heads have the authority
to establish the fitness criteria for their agencies.
OPM does not have the authority to establish fitness criteria.
We do however have... can submit some guidance to agencies
to help them out and things like that.
Agency heads also have discretion
to determine whether the criteria
that they're using or that another agency used
is equivalent to the standards in 5 CFR 731
and we ask that agencies take in to consideration
the OPM guidances out there on the subject.
Okay, a little bit about security determinations.
You know, basically the difference between the two
is for Suitability and Fitness
you're just looking at the person's character and conduct,
their own character and conduct,
but when it comes to making a Security Clearance Determination
you're going beyond that,
you're looking for influences,
you're looking for things where the person could be susceptible
to bribery or coercion and those types of things.
There are 13 different guidelines
when it comes to making a national security determination
or clearance determination.
You'll see some overlap there,
you'll see things like criminal conduct,
you'll see drug involvement...
many of the suitability issues...
actually the suitability issue
is generally going to be a security issue too,
but it doesn't work the other way around.
So, kind of, security goes above and beyond suitability.
So, I'm not going to, kind of,
go into a lot of detail about those.
You don't see anything there about material,
intentional falsification;
that's, kind of, covered under personal conduct.
There are many things thrown into personal conduct,
that's where you had the employment issues
and things like that as well.
Alright, procedural requirements for access denials
again, these look very familiar.
These are pretty commonsense.
There's a comprehensive and detailed written explanation
of why you are looking at pulling a clearance
for an individual with... in a sensitive position.
The information relied upon and upon request
the information will be provided within 30 days,
right to representation, time to reply,
written notice of the review results,
an appeal in writing to a panel.
That panel is appointed by the agency head,
there's be three members,
two outside security and one in security,
and an opportunity to appear.
Most agencies have these pretty well set.
If you have sensitive employees,
you've got this all down,
not... we're not seeing too many issues
with this process within agencies.
What can you do when an employee looses their security clearance?
When they go through the whole process,
security clearance is revoked.
First thing you want to do is,
look at your agency policy
and see if you can transfer the individual
to a nonsensitive position.
Look at the agency policy,
because some policies say that you will look
within the metropolitan area,
some collective bargaining agreements may say
that you have to look in a particular spot,
some collective bargaining agreements will say
that you have to look United States wide or worldwide
for a nonsensitive position and will dictate
whether or not some payment or anything,
PCS or anything else will be involved.
You may indefinitely suspend an employee
pending the final revocation.
So, during that process we talked about on the last slide,
if you have an individual
and you're looking at pulling their clearance,
you first pull their access,
while you're going through the review.
An agency may indefinitely suspend an employee
during that process,
pending the outcome of that determination
and a final revocation.
And, finally, if you have no nonsensitive positions
that the employee may be moved in to,
either because your agency has no nonsensitive positions
or because you don't have any of the employees qualified for
or they're just not available,
you may end up removing the individual,
because the security clearance is a condition of that position.
So, that position itself requires a clearance
and they can't hold the clearance,
they can't hold the position, pretty much math.
Is it reviewable?
MSPB may not review the substance of the decision
to remove the clearance.
They look at whether the position required a clearance,
so that PD say the position required a clearance,
was the clearance denied or revoked,
could they have been transferred to a nonsensitive position,
you show that the agency tried or there are none
or whatever the case may be
and that you followed the procedural requirements
in the removal action,
that's the 752 requirements.
That's all that the MSPB can look at
when you are removing an individual
for loss of a clearance.
Other authorities -
again, we've talked a lot today about 731,
we're also going to talk...
we're also going to point you to 5 CFR 315,
we're not going to read them, here, to you,
that is Competitive Service Probationary actions.
Looking at 359
that would be Senior Execute Service probationary employees,
and, of course, 752 we've talked quite a bit about that today.
That's our reference for the procedural requirements
for taking an adverse action under 752.
Alright, reciprocity of Suitability Determinations -
if, and I think Carol talked about this earlier as well.
If you have an individual
who requires a suitability determination
and they have already been determined to be suitable or fit
based on character and conduct
you would not do a new investigation
unless those specific factors were present.
Perhaps a new investigation is required
because they're higher level,
maybe they were in a low risk position before,
now they're moving to a moderate or high risk
and you need to determine
whether they are suitable for that higher risk position
or if new information calls into question
so maybe during the HSPD 12,
you're looking to give them a badge
and during that badgeing investigation
some new information comes up
about their failure to pay bills
and their unwillingness to pay bills
and this is your Chief Financial Officer with fiduciary duties
and they're in a high risk
because of the amount of money they handle
and the fiduciary duties that they have.
That may call into question
you're bringing them over to a new position,
you're not going to have to apply reciprocity
or the investigative record shows
the conduct is incompatible of core duties;
again that's a fiduciary and embezzlement,
those things that we've already talked about.
Reciprocity for fitness determinations,
this is relatively new
and OPM did put out some guidance last fall
on applying reciprocity.
So this is where you have an employee of a contractor
who has been determined to be fit
and they change contractors.
Maybe either the contract expires
and the employee is not...
was working for ABC contractor
and that contract expired and DEF got the contract
but they're going to keep that person.
If there is no break in service,
they had a prior determination.
The equivalent criteria is used
because it's still your agency, right?
You can determine them to be fit to work
for that second contractor.
Alternatively you've got individual
who has been determined to be fit,
they move from one contractor to another contractor
working for another government agency,
let's say they were working for DoD,
now they're working for DoT
on a contract as a contractor employee,
DoT doesn't have to do a new investigation,
because they can rely on the fitness determination
that was made by the prior agency,
so long as there is no break in service.
Break in service under the executive order
is no break in service that means zero.
That is when reciprocity is required to be applied.
Can an agency apply it even if there is a break in service?
Yes, but you're not required to under the executive order,
if there is a break in service.
So what you're looking for is if these are met
you must accept the prior fitness determination
from the other agency.
But if those conditions are not met you're not required,
you may reinvestigate
if you find new information or something of that nature.
Reciprocity of clearances,
executive order 12968 also requires agencies
to mutually reciprocally accept
existing background investigations.
Again you don't do this when the new position
that the employee is moving to
requires a higher level of investigation
or when the existing security clearance was discretionary,
because they didn't meet the standards.
Some agencies don't apply the same investigative standards
as other agencies.
So if they've apply different standards
then you would apply...
it would be appropriate for the level of risk
or the level that you're looking at,
you would not have to reciprocally accept a clearance.
And I think we are to any other questions.
Yeah.
We went through those last few quickly.
We got some questions,
please wait till we get you a microphone
so the folks that are on the web and on the phone can hear you.
Okay.
Mike Colcal.
I just received a case back from your adjudications office.
Eight out of ten items
were rated as pending or undeliverable,
which gives me great concern about making a
favorable or unfavorable adjudication decision
on a case like that.
I have issues with that,
because other agencies maybe making
favorable determinations on cases
that they do not have full information on case-wise.
So how can we correct that
as far as the quality of the cases
so we can make appropriate adjudicative decisions
on the full investigation,
not just partial investigation?
Well I would guess that,
that was a national agency check and enquiry investigation,
is that correct?
Yes, it was.
Okay, that is a low level investigative product,
and we depend upon the goodwill of people
to respond to those enquiries
and often times they don't respond to those enquiries.
If we were to change our processing alone
and cover all of those things,
the investigative product would be much more expensive
and so based on the need of the agencies out there
we've left that product where it is,
where some of those things are pending
and we leave it up to the agencies at least at this point
to fill in those gaps,
if they feel they need to fill in the gaps.
Now, I will say we're working on new investigative products
and I'm not sure where they're going to end up following
what information will be there,
but I do know that there will probably be some expanded checks
on some of those things in the future.
Thank you.
A question on this side.
Yes, my name is Cheryl George,
I'm a Human Resources Specialist
at GSA National Capital Division.
We have... we've been having some issues
where our security office has come to us stating
they we were supposed to be reporting
all disciplinary conduct actions to them
and that's one of main reasons why we are here
because we never used that process in the past.
We've used our own discretion case-by-case,
so I wanted you to answer that question for me if you could.
So we're making a full circle here
where you're taking 752 actions,
adverse action
so let's say you've got employee misconduct issue.
You take an adverse action perhaps short suspension
or something and your internal security wants to make sure
that you report that for suitability and security reasons
to ensure that the individual is still suitable for...
Let me clarify something
mostly with our White House employees
who have a top secret clearance,
and normally if the case comes into our office
by way of a supervisor we will not support it because...
I mean we would not report it
because it came straight into our office.
I think they're just trying to close the loop.
You know they need to make sure that the person
remains eligible to hold a clearance,
and so if they do something on the job,
they could have an impact on their eligibility
to hold that clearance.
I think they're just trying to get that information
so that they can take that under consideration
to determine whether or not continued eligibility
is warranted and I kind of understand
why they would want to do that.
That actually does sound like a good loop to close.
Okay.
Thank you.
And you might want to just use that as an opportunity
to again open a dialog with them and say,
you know we've not done this before
and we're trying to get understanding what is it exactly
that you're doing with this and maybe they can help you
and you can help them a little bit more
but it does sound like a good loop to close.
I have a couple of questions,
the first of which is how do you explain
or reconcile the MSPB cases
that where an agency has taken an action under Chapter 75,
but then the MSPB finds a constructive suitability
determination.
Are you familiar with those cases?
Few of them but...
If the agency doesn't have authority
to take a suitability action
because it's outside the first year,
how can the MSPB then find a constructive suitability
determination has been made?
I'm not aware of that situation, are you Lisa?
I'm aware of the first situation
that's pending with MSPB right now, where MSPB is looking at...
Well that's getting into my second question.
Yeah.
Which is what OPM's position about
whether Egan applies to actions based on a failure
to maintain eligibility for a security clearance,
not a clearance itself but that's that sensitivity level.
Right and that is pending litigation so
right now we're not at liberty to say
what OPM's position might be,
because we're working with MSPB on that.
An amicus brief on that?
I'm not sure what... I'm not in the General Counsel's office,
so the General Counsel's office is working
and it is in pending litigation, right.
-Thank you. -So that we can't comment on.
Sorry, the first one, let's get your information
and we'll kind of close that for you,
because okay, sounds good.
Lisa, I have few other questions from the webcast.
How does OPM currently make known the suitability
determinations that were completed by other agencies,
whether favorable or are they unfavorable?
We have a clearance verification system
that was recently expanded to include suitability information.
Previously it just covered clearance information
but has been expanded over the couple of years to include
suitability information and fitness information as well.
So if there is a favorable decision that's been made...
a previous favorable decision that's been made,
you'd be able to see that on our clearance verification system.
Thank you.
Next question is, do we have to call OPM for every case
to see if a favorable or unfavorable
determination was given?
No, agencies generally
within their agency they have people
that have access to that clearance verification system,
and they can do that.
Some agencies actually have access to the system
right in their offices
where they can look right into the system
and see what actions have been taken.
So no, not... you don't have to call on every one
but... I think we have time for one more question
because we have the auditorium for a specific time,
we'll need to wrap it up.
So if you want one more, do you have one more?
-I have one more. -Okay.
What happens with the OFI-79A
when they return the form to OPM?
What happens with the OFI-79A,
basically it's a scannable form.
So if the information that's on there,
it can go through our scanner,
it goes through our scanner
and then it gets uploaded on to our system of records
and becomes part of our system of records and CVS
to show the agency adjudication.
If it's questionable one that has comments
or something like that it may actually come to my shop
and we may have to send it back to the agency to...
to get some clarification or contact the agency about it.
All right, you do have our contact information
in the back of your packets
and with that Mr. Wachter.
Yes, let us thank Lisa McGlasson and Carol Means
for a great presentation, thank you.
And we also need to thank the OPM's communications
and public liaison for the webcast of this forum
as well as the facility folks who help make it possible.
And also I want to thank
the Partnership and Labor Relation staff
who coordinated this whole event for us.
Again, I want to remind you
to please fill out those evaluation forms.
You can hand them to the staff in the back
if you are here at the auditorium
and the webcast viewers at...
you can e-mail them to cwrap@opm.gov
or fax them to 202-606-2613.
And you can batch those,
just let us know they are coming from the single location.
We do rely on your feedback,
so it is important for us to have your feedback
when we're developing new forums
because we want to set schedule forums
that meets your needs and interest.
So please do take a moment
and let us know of your thoughts.
And I thank everyone for participating today.