By John V. Berry, Esq., www.berrylegal.com
We often represent federal employees and applicants in suitability responses and appeals. Suitability involves an investigation and review into an federal employee’s background or fitness for employment. Suitability basically concerns a federal agency’s review of an individual’s “character or conduct that may have an impact on the integrity or efficiency of the service.” I have attached a Sample Suitability Letter for reference.
Suitability issues generally fall under Title 5 of the Code of Federal Regulations (CFR), 5 CFR 531. These regulations permit the Office of Personnel Management (OPM) and other federal agencies to make suitability determinations involving individuals subject to investigation. If an agency takes a suitability action, they may remove an employee, cancel eligibility for appointment, debar an individual from a contract, or cancel their eligibility for a position.
Typically, suitability issues come up during the application for federal employment process. Suitability issues often come up when an agency has given a conditional offer, only to later have concerns about an individual’s character for the position. OPM has delegated suitability decision making to each of the federal agencies. For instance, if the individual has applied to the Department of State or Department of Defense and received a suitability notice, the issues would be before those agencies directly, not OPM.
We often represent individuals in suitability appeals before the relevant federal agency. Suitability determinations are somewhat similar to security clearance determinations, but there are some differences. Basically, the same concept is involved and mitigating factors can apply, but there is a different criteria and slightly less scrutiny for suitability determinations as opposed to security clearance investigations.
For purposes of suitability determinations under 5 CFR §731.202, the following factors are considered a basis for finding a person unsuitable for federal employment and taking a suitability action:
(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;
(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.
There are additional considerations in suitability cases under 5 CFR §731.202 (c), which can involve potential mitigation of suitability concerns. These types of mitigating factors include the following 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.
If a federal agency makes a decision to rescind their offer of employment for a federal employment position or take other suitability action, there are certain notice requirements that must be first met. A federal agency must generally provide notice and the reasons why they believe that the individual is unsuitable for employment due to suitability criteria. The federal agency must also explain the individual’s rights to obtain the information upon which the suitability decision is based. Additionally, the federal agency must provide information about an individual’s ability to make a written response to the suitability decision.
We recommend representation when responding to a suitability determination. It is important to fully explain and rebut all issues concerning the suitability issues alleged by the agency. It is also very important to support an individual’s case for mitigation of the suitability issues. For instance, if the suitability issue involves a prior arrest, it is important to obtain all of the documents possible which support the individual’s version of events as to the issue in question. It is always very important to obtain and use documents which explain the individual’s good character (i.e. awards, commendations, good work performance, etc.).
If a federal agency decides to make a final adverse suitability decision against a federal employee, the individual must generally be notified in writing and informed of any appeal rights, i.e. filing an appeal to the Merit Systems Protection Board (MSPB). Not all individuals are eligible to file an MSPB appeal (typically this depends on the particular federal agency involved) so it is important to speak with an attorney about these issues as soon as possible because of the deadlines involved.
When a federal employee is undergoing the suitability response or appeals process, it is important to have legal representation. Our law firm represents federal employees in issues of suitability. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at here.