Wednesday, January 25, 2017

What is a Suitability Determination?

No matter what kind of job you do, if you’re working for the federal government in a competitive service position, you will have to be reviewed for “suitability”. What that means in practice is that OPM or your agency will use your application form, interviews, pre-employment inquiries, investigative data forms, and personal subject interviews to discover whether you have any derogatory information that might make your hire harmful to the “integrity or efficiency of the federal service.”

5 C.F.R. §731 contains the regulations governing suitability for federal employment. It lists eight specific factors that may be used in making a suitability determination:
(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.

5 C.F.R. § 731.202(b). These are the only factors that may be considered in making a suitability determination. However, the regulations also offer a list of seven considerations that “must” be considered if the agency finds them to be pertinent:
(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.

5 C.F.R. § 731.202(c). The standard for determining suitability is simply whether “the action will protect the integrity or promote the efficiency of the service.” 5 C.F.R. § 731.201. That is, OPM or the agency may determine a new employee, i.e., one who has worked for the government for less than a year, is “unsuitable,” if they can show that doing so “will protect the integrity or promote the efficiency of the service.” 5 C.F.R. § 731.201.

OPM has developed a chart for evaluating suitability for new employees. At the top, and requiring referral to an adjudicator, is “Any evidence of dishonesty or fraud in the competitive examination or appointment process (such as falsification of application).” The chart below is divided into Major and Substantial Issues, for which referral is required if within the last three years; Moderate Issues, for which referral is required when there are two or more issues; and Minor Issues, for which referral is required if there are three or more within the last three years. This referral process is straightforward.

Agencies can begin suitability considerations at any point in the hiring process, although the investigation does not typically begin until after the employee is hired, and a determination under 5 C.F.R. § 731 must be completed within the first year of a federal employee’s employment.

If the agency (or OPM) determines to take a suitability action under 5 C.F.R. § 731, it may remove the new hire from federal employment or even debar them for up to three years. However, a person subject to a suitability action has procedural rights. The Agency must give reasonable notice in writing, stating the specific reasons for the decision. It must give notice that the employee has a right to review “the materials relied upon”; to an attorney; and to time to prepare a response. The response must be in writing and may be accompanied by documents and affidavit in support. The agency must retain the individual in pay status during the response time.

Applicants and new hires may appeal an unfavorable suitability determination to the Merit Systems Protection Board, which will ensure that the procedural requirements (notice, answer, etc.) have been met.

Employees who have passed their probationary period are also subject to the suitability procedures. Prior to 2015, OPM’s suitability regulations had held that non-probationary employees whom OPM removed (or ordered an agency to remove) on suitability grounds were not entitled to appeal their removal to the Merit Systems Protection Board. In Archuleta v. Hopper, the U.S. Court of Appeals for the Federal Circuit held that OPM could not issue regulations that modified a statute. Because non-probationary employees are permitted to appeal their removal to the MSPB, the Court rejected OPM’s regulation. As the result, a non-probationary employee who is removed on suitability grounds may appeal that removal, and not just the procedures, to the MSPB.

This blog was written by Mary Kuntz.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

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