Wednesday, June 17, 2015

Are You Suitable for Appointment to a Federal Law Enforcement Position? Women in Federal Law Enforcement - WIFLE

Disclaimer

✤ The legal information contained in this document is of a general nature and is subject to change; it is not meant to serve as legal advice in any particular situation. The law is in a constant state of change as Congress amends statutes or passes new statutes, Federal agencies issue new regulations and courts issue new interpretations of the law. The Jeffrey Law Group, PLLC, does not guarantee the accuracy of the legal information in this document. The Jeffrey Law Group, PLLC, recommends you consult a licensed attorney of the firm who is knowledgeable about the area of law in question before you take action to address a legal matter.

Webinar Agenda

✤ Discuss the difference between suitability determinations and security clearance adjudications;

✤ Identify the criteria for making suitability determinations;

✤ Contrast the criteria for making suitability determinations with the criteria for granting assess to classified information;

✤ Identify suitability actions taken by the U.S. Office of Personnel Management (OPM) and other agencies; and

✤ Outline suitability action procedures and U.S. Merit System Protection Board (MPSB) appeal process.

Suitability Determinations

✤ Whether the character or conduct of an applicant, appointee or employee is such that employing her may have an impact on the integrity or efficiency of the service. See 5 CFR §731.101; Alvarez v Department of Homeland Security, 112 MSPR 434 (MSPB 2009).

✤ Distinct from determinations of eligibility for assignment to, or retention in, sensitive national security positions made under E.O. 10450 (3 CFR, 1949-1953 Comp., p. 936), E.O. 12968, or similar authorities.

Appointments Subject to Investigation

✤ Positions in the competitive service;

✤ Positions in the excepted service where the incumbents can be converted non-competitively to the competitive service; and

✤ Career appointments to the Senior Executive Service. See 5 CFR §731.101(b).

Persons Subject to Investigation

✤ Applicant: a person being considered or has been considered for employment.

✤ Appointee: a person who has entered on duty and is in the 1st year of a subject-to-investigation appointment; and

✤ Employee: a person who has entered on duty and has completed the first year of a subject-to-investigation appointment. See 5 CFR §731.101(b).

Authority to Take Suitability Actions✤ U.S. Office of Personnel Management (OPM) may take a suitability

action against an applicant or appointee, as well as an employee based upon certain criteria.

✤ 5 CFR Part 731 delegates authority to all agencies to take action in most suitability cases involving applicants for and appointees to covered positions in the agency; however, where the case involves a material, intentional false statement, or deception or fraud in examination or appointment, OPM retains jurisdiction and the agency must refer the case to OPM for a suitability determination.

Criteria to Take Suitability Actions

✤ Whether the character or conduct of an applicant, appointee or employee is such that employing her may have an impact on the integrity or efficiency of the service. See 5 CFR §731.101; Alvarez v Department of Homeland Security, 112 MSPR 434 (MSPB 2009).

Criteria for Access to Classified Information

✤ Persons whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness to abide by regulations . . .

Suitability - Specific Factors

1. Misconduct or negligence in employment;

2. Criminal or dishonest conduct;

3. Material, intentional false statement, or deception or fraud in examination or appointment;

4. Refusal to furnish testimony as required by §5.4 of this chapter;

5. Alcohol abuse, without evidence of substantial rehabilitation, of a nature and duration that suggests that the applicant or appointee would be prevented from performing the duties of the position in question, or would constitute a direct threat to the property or safety of the applicant or appointee or others;

6. Illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation;

7. Knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force; and

8. Any statutory or regulatory bar which prevents the lawful employment of the person involved in the position in question.

Suitability - Additional Considerations

1. The nature of the position for which the person is applying or in which the person is employed;

2. The nature and seriousness of the conduct;

3. The circumstances surrounding the conduct;

4. The recency of the conduct;

5. The age of the person involved at the time of the conduct;

6. Contributing societal conditions; and

7. The absence or presence of rehabilitation or efforts toward rehabilitation.

Security Clearance - Adjudicative Guidelines✤ GUIDELINE A: Allegiance to the United States;

✤ GUIDELINE B: Foreign Influence;

✤ GUIDELINE C: Foreign Preference;

✤ GUIDELINE D: Sexual Behavior;

✤ GUIDELINE E: Personal Conduct;

✤ GUIDELINE F: Financial Considerations;

✤ GUIDELINE G: Alcohol Consumption;

✤ GUIDELINE H: Drug Involvement;

✤ GUIDELINE I: Psychological Conditions;

✤ GUIDELINE J: Criminal Conduct;

✤ GUIDELINE K: Handling Protected Information;

✤ GUIDELINE L: Outside Activities;

✤ GUIDELINE M: Use of Information Technology Systems

Suitability - Reciprocity✤ An agency cannot make a new determination under this section for a person who has

already been determined suitable or fit based on character or conduct unless:

✤ The covered position requires a higher level of investigation than previously conducted for the person being appointed;

✤ An agency obtains new information in connection with the person's appointment that calls into question the person's suitability under §731.202; or

✤ Reinvestigations at least once every 5 years for persons appointed to public trust positions.

Suitability Actions

✤ A suitability action is defined at 5 C.F.R. § 731.203(a) as a cancellation of eligibility, removal, cancellation of reinstatement eligibility and/or debarment. See Upshaw v. Consumer Product Safety Commission, 111 M.S.P.R. 236, ¶ 8 (2009).

✤ 5 C.F.R. § 731.203 does not include non-selection for a specific position as a basis for a suitability action. See id.

Suitability - Due Process✤ Notice of Proposed Action

✤ Must be in writing and set forth the specific reasons for the proposed action;

✤ Notify the Respondent of the right to review, upon request, the materials relied upon;

✤ Notify the Respondent of the right to answer the charges in writing and the deadline to submit an answer; and

✤ Notify the Respondent of the right to be represented by a representative of her choice.

✤ Opportunity to Answer

✤ Must be in writing;

✤ May include documentation and/or affidavits in support of the answer; and

✤ Must be submitted no more than 30 days after the date of the notice of the proposed action.

✤ Decision

Suitability - MSPB Appeals

✤ The Board has jurisdiction to review all aspects of a suitability determination, including whether the charged conduct renders an individual unsuitable for the position in question.

✤ However, the Board is precluded from reviewing or modifying the ultimate action taken.

MSPB Case Law

✤ Douglas P. Harden v. Department of Justice, DC-3443-14-0755-I-1 (MSPB 2014) (MSPB ruled that an agency action of non-selection for a specific position, even though based upon its determination that Appellant was unsuitable for that specific position, is outside the Board's jurisdiction as it is not a suitability action under 5 CFR Part 731).

✤ Saunders v. Department of Justice, 95 M.S.P.R. 38 (MSPB 2003), and Brady v. Department of the Treasury, 94 M.S.P.R. 439 (MSPB 2003) (MSPB ruled that it lacked jurisdiction over appeals from suitability determinations where the determination was made by an agency without delegated authority from OPM).

✤ Armando A. Merino v. Department of Justice, 94 MSPR 632 (MSPB 2003) (MSPB upheld INS negative suitability determination based upon Appellant’s past criminal or dishonest conduct that had occurred prior to Appellant’s 18th birthday, despite evidence of rehabilitation in his adult years).

Questions?