By Meghan Droste, May 20, 2020
As many of you are aware, the work of negotiating settlement agreements became more difficult on May 25, 2018, with the issuance of Executive Order 13839. Section 5 orders agencies not to “Erase, remove, alter, or withhold form another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records … as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.” Up to that point, clean records — taking out proposed or final actions from an employee’s OPF — had been a valuable tool for both agencies and complainants in negotiating settlements.
OPM subsequently issued guidance clarifying how to apply the EO. According to the guidance, agencies “are permitted to take corrective action on information contained in a personnel record that is not accurate or records an action taken by the agency illegally or in error.” See Haywood C. v. Dep’t of Homeland Sec., EEOC App. No. 2019003137 (March 3, 2020). (For more discussion of the OPM guidance, check out Bill Wiley’s comments from October 2018.)
Agencies and complainants have been struggling to understand the application of the EO when it comes to settling cases. What exactly constitutes an error? Is it OK to include the removal or change of documents in a settlement agreement if the agency decides there was an error? The Commission recently tackled a case involving these questions, and while it did not provide clear guidance, there are some interesting breadcrumbs for us.
In Haywood C., the complainant alleged that the agency was in breach of a settlement agreement because it had not removed documents related to a proposed removal from his OPF. The agency argued that it could not do so because of the EO. In looking at the case, the Commission cited both the EO and the OPM in its decision. And then it decided that it was not going to determine whether or not the EO or the OPM guidance applied to the specific agreement at issue. This isn’t exactly helpful for other cases, but I do think it is interesting and noteworthy that the Commission specifically pointed to the OPM guidance, even though it decided not to determine whether or not the guidance applied. I might be reading too much into this, but I think the Commission’s decision to draw attention to the guidance might be a signal that it would apply it in the future and uphold settlement agreements that remove or change documents if the parties agree the agency put the documents in an OPF in error or they contain incorrect information. Droste@FELTG.com