By Barbara Haga, January 17, 2023
Last month, I wrote about problems with clean record agreements (CRA) in the hiring process. While the OPM regulations now contain no bar to doing them, living up to their terms can present some huge problems. This month, Iet’s look at the impact of CRAs on employees in their future job search.
The MSPB 2013 report Clean Record Settlement Agreements and the Law is an excellent resource if you want to delve into the fine points of these agreements. Pages 51 to 56 of that report deal with an employee’s obligation to disclose information after the signing of a clean record agreement.
Answering Tough Questions
MSPB asked OPM what the employee’s obligation is to disclose the actual nature of the action that was settled if they return to work for the Federal government or are in that process. You are probably familiar with the types of questions that appear on official forms.
The OF-306 asks in question 12, “During the last 5 years, have you been fired from any job for any reason, did you quit after being told that you would be fired, did you leave any job by mutual agreement because of specific problems, or were you debarred from Federal employment by the Office of Personnel Management or any other Federal agency?”
Question 13.A5 of the Questionnaire for Public Trust Positions (SF-85P) asks if in the last 7 years the individual has been fired, quit after being told he or she would be fired, left under mutual agreement following allegations of misconduct or left following notice of unsatisfactory performance. Question 13.A6 asks about other less serious actions such as warnings, reprimands, suspensions, or other discipline. The SF-86, Questionnaire for National Security Positions includes the very same questions.
OPM’s answer to the Board was “yes,” the employee is obligated to disclose the truth. I wonder how many employees whose representatives are signing CRAs understand that. The report notes:
“Several of the appellant attorneys we spoke with indicated that the primary reason why appellants seek clean records is to aid them in their efforts to obtain another Federal position.”
We might say these employees are going to go look for employment outside the Federal government. That might be true in some cases, but there will be many trying to return to Federal jobs.
Where has their experience been? Is that Federal experience translatable to a non-Federal job? How many jobs like management analyst and program analyst would be available at comparable pay rates to what Federal agencies pay for that work? And the pay and benefits are the biggest reasons those employees are likely to try to find another Federal job. For many types of work in many localities, working for the Federal government is the best deal in town.
When employees don’t tell the truth on those forms, bad things happen. The examples that the Board describes in the report involve departures/settlement agreements from outside employers. Here are summaries of those:
A tax examining technician with the IRS provided inaccurate information on her OF-306 regarding her termination from two prior jobs. In response to the question quoted earlier in the article, the examiner answered, “no,” even though she was terminated by her two previous employers. She was removed for providing false/misleading information on an official employment document. The Board upheld the action. Ly v. Treasury, 112 FMSR 165 MSPB (2012).
An assistant personnel officer was removed for a negative response on employment documents and security paperwork when responding to the questions listed. In this case, the officer argued he was not fired but “released by mutual agreement” due to a mismatch between his skills and the job he was holding. The AJ overturned the removal. The Board restored the removal, indicating that the charge of falsification was proven. Forma v. Justice, 93 FMSR 5139 MSPB (1993).
A former New York State Police employee was told he would be terminated due to bad judgment and his inability to react appropriately in stressful or complex situations. When hired as a Board Patrol agent (trainee), he responded negatively to the questions about resigning after being told he would be fired. OPM took a negative suitability action in this case. The employee was debarred for three years due to deception or fraud in the examination process. Again, the AJ did not uphold the action, but the Board restored the negative suitability determination, and the Federal Circuit affirmed without opinion on April 13, 1998. Pappas v. OPM, 97 FMSR 5368 MSPB (1997).
I was able to locate one relatively recent initial decision that deals with a Federal employee who failed to disclose he had been removed from a Federal position. This was a GS-15 supervisory human resources specialist. He had a CRA from one Army installation and then was rehired by another. Torres v. Army, AT-0752-16-0319-I-1/AT-0752-11-0876-C-1, (June 23, 2016).
The employee argued he had bargained for a CRA and was entitled to the benefit of it. The Army had a different answer and removed him based on making false statements. In this case, however, the Army decision was not sustained.
When provided the MSPB report and the information discussed above about employees having to answer truthfully, the AJ said OPM’s answer was not dispositive. The AJ overturned the Army’s removal.
I sincerely hope that the Torres case is in that pile of cases waiting for the new Board to issue a decision. Haga@FELTG.com