By Meghan Droste, September 16, 2020

“Today everything’s a conflict of interest.” Sid Vicious’ words are more  than 40 years old, but they do seem appropriate these days. While issues of conflicts of interest have been in the news for the past few months and years, that’s not quite what I’m here to share with you today. Instead I have a more relevant (and possibly less controversial) topic for you — a recent report from the EEOC on how agencies should handle EEO cases that present conflicts of interest.

The Commission’s latest federal sector report, released in June: Best Practices in EEO Conflict Case Management for Federal Agencies, provides recommendations for processing EEO complaints against the head of an agency, an immediate staff member of the head of the agency, the EEO director or a supervisor in the EEO office, or other individuals who hold high-level positions at the agency. The Commission created this guidance based on survey responses from 55 EEO directors, complaints managers, deputy directors, and others connected with the EEO process. The Commission also held two focus group meetings with participants from nine agencies and met with EEO officials from the Department of Agriculture to review the USDA’s process for conflict cases. The EEOC developed five recommended best practices for agencies.

Have a written policy for when and how to process conflict complaints. The process should include a definition of the types of cases that constitute conflicts so that EEO officials and complainants are clear on when the procedures apply. The Commission also recommends that the policy designate the official who will be responsible for making the decision on whether a complaint presents a conflict, and a point of contact, likely outside of the EEO office, for initiating EEO contact in potential conflict cases.

Have a written standard operating procedure for processing conflict complaints. The Commission notes that it is best for the SOP to designate a conflicts case manager and alternate conflicts case manager, and  to outline their responsibilities.  These may include ensuring the timely processing of complaints and serving as a point of contact if the agency sends the complaint to another agency for processing.

Take steps to ensure the confidentiality of conflict cases. This could include password protecting all electronically stored documents in conflict cases and strictly monitoring who has access to the documents. Another step may be to store information about case deadlines and case status in a separate conflict case document to which only the conflicts case manager and alternate have access.

Use memoranda of understanding to set up agreements with other agencies or third parties to process conflicts cases. While many agencies have informal agreements with other sub-agencies, the best practice is to have a written agreement in place, the Commission suggested. The written agreements should be specific on how the agency processing the complaint will ensure timely processing and when and to whom it will provide status updates.

Assign the writing of final agency decisions in conflict cases to another agency or third party. This will apply both when a complainant requests a FAD, and when an administrative judge sends a complaint back to the agency to issue a final action.

Conflict cases may not come across your desk very often, but that highlights the need to have a policy and procedure in place in advance so you don’t lose any of your 30 days to complete counseling or 180 days to investigate a formal complaint trying to set one up.

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