WASHINGTON, D.C. (FEDweek) — OPM has finalized rules to take over from agencies the power to fire federal employees on suitability grounds, leaving them with fewer legal protections than if their agencies had followed standard procedures against them.
A June 30 Federal Register notice finalizes, with some minor changes, rules proposed a year ago following a presidential memo requiring that agencies make referrals to OPM for it to make a final suitability determination based on conduct during federal employment. Suitability considerations involve whether an individual’s conduct and actions may introduce risk to an agency’s mission; they traditionally have arisen mainly only in the pre-employment context.
Note: Technically, suitability determinations apply to competitive service and career SES positions, while “fitness” determinations apply to excepted service positions. The rules cover each of those categories.
Employing agencies typically make those determinations under standards set by OPM, although OPM has had decisional authority if issues arise involving certain types of conduct. The rules, effective July 30, essentially extend OPM’s authority to post-employment conduct.
“For too long, the federal government has had stronger tools to prevent someone with serious misconduct from entering public service than to address the same misconduct once that individual is already employed,” OPM director Scott Kupor said in a statement.
Ryan Nerney, managing partner at the Tully Rinckey PLLC law firm said the rules “will likely make it easier for the federal government to remove employees” by expanding “the criteria and reasons that can be used to take suitability actions if they are determined to be unsuitable for federal employment based upon conduct that occurred after an employee is already appointed.”
“This is essentially a way that OPM can use to bypass the procedures in a Chapter 75 case,” he said, referring to the section of law spelling out procedures that must be followed and employee rights in disciplinary charges alleging misconduct. Beyond the maximum penalty of firing in those cases, OPM’s authority over suitability decisions also reaches to making someone ineligible for any federal employment for the next three years, he added.
The rules would incorporate into suitability determinations new examples of potentially disqualifying misconduct or negligence in employment. Among them are refusal to sign a required non-disclosure agreement (see related story); failure to comply with an NDA’s terms; theft, misuse, or negligent loss of government resources and equipment; failure to comply with financial obligations or generally applicable civil legal obligations, such as timely filing of tax returns; and failure to comply with provisions that would preclude federal service, including citizenship requirements.
In response to comments, OPM tweaked several of those terms while clarifying that it would take action against an employee only on the recommendation of the employing agency, and not of its own accord. OPM also said it “disagrees with characterizations of this policy as new or politically motivated” and that “any consideration of partisan political preferences in suitability procedures remains unlawful.”
The notice meanwhile notes that OPM separately has proposed to take over from the MSPB any appeals from applicants denied employment, or current employees fired, on suitability grounds. Under those rules, OPM would make its decisions based only on the written record and individuals would not be entitled to a hearing process, although OPM could conduct investigations and hearings at its discretion.
“Any impacts of that proposed change would, if adopted, be addressed in a final rule in that rulemaking,” the June 30 notice says.
