By John V. Berry, Esq., www.berrylegal.com
Clean record agreements for federal employees in light of Presidential Executive Order 13839 (EO) still exist given the right circumstances. There is significant confusion over this EO which attempts to bar clean or clear records, which is confusing for both federal agencies and federal employees. Federal agencies themselves often disagree with what the EO actually means and when it is applicable to settlement of cases. The negotiation of clear records for federal employees in the right situations is still viable and complies with the EO. Hopefully, this article will provide some context for how the EO and negotiations can still factor into settlements for federal employees.
What is a Clear Record or Clean Record Agreement?
A clean record agreement is simply an agreement to clear or change the a personnel action or performance record as part of a settlement or other resolution of a case. This was a significant component of most settlement agreements over the past 20 years for federal employees. The EO, however, has provided some restrictions on such agreements, but in reality little has changed legally. It is important for both federal employees and federal agencies to understand that this is the case.
Why Has Little Changed for Clear Record Agreements?
The reason why EO 13839 has not truly changed the landscape of federal employee settlements is that the recent EO takes the position that “legitimate” personnel actions should not be changed. It is my experience that there are always two sides to a personnel dispute and most often federal supervisors or Human Resources allege disciplinary issues that do not correspond to the facts or other wrongdoing not supported by the facts.
Managers may also often also assert performance issues that truly do not exist as a means of attempting to terminate an employee. Most federal personnel actions and issues result because a federal supervisor does not like to work with a particular federal employee. As a result, the contentious nature of the workplace relationship results in a personnel action that is flawed or not legitimate.
On this basis, we have settled a number of cases despite the introduction of the EO. A number of Merit Systems Protection Board (MSPB) judges and federal agency attorneys have worked with our firm in settling personnel issues involving either MSPB or Equal Employment Opportunity (EEO) complaints. During such, there have often still been ways in which to resolve such cases with clear or modified record resolutions. The point is that the parties have to keep an open mind and can still comply with both the EO and their mutual goals in resolving cases.
EO 13839 Require Allows Federal Agencies to Correct Records through Settlement
EO 13839 (5) does not prohibit changing federal employee personnel records, it merely sets procedures for doing so. There are options for fixing issues as explained by OPM and in practice with other agencies. OPM has offered additional guidance on correction which states that Section 5 requirements should not be construed to prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action, that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error.”
Examples of Potential Avenues to Correct Personnel Records
Here are some of the ways that we have been successfully able to settle cases with federal agencies:
1. Action Taken in Error: An agency can always correct a mistake. However, an action taken in error doesn’t mean that an employee gets to publicize the mistake. A good way of resolving these cases is for an agency to acknowledge that there was a mistake or potential mistake. It simply means that upon further review, some arguments have been raised that call into question the accuracy of the decision or penalty assigned. If you are considering settling a case at all, then a federal agency has obvious concern about how strong it is, or whether or not that penalty will be upheld (in error).
New information and review can cause always cause a new analysis which could by itself require an agency to correct an erroneous personnel action. As a result, the most common way that we have settled these cases with other federal agencies, in matters involving suspensions and even removals, is to have the federal employee waive their rights, have the agency modify the record due to new information which calls into question the specification sustains or in error, and then insert a confidentiality clause.
2. Rescind the Action and Rehear it: We have also settled cases where a federal agency rescinds a personnel action based on new doubts about the individual allegations, re-issue it with corrected charges (if appropriate) and then agree on a final disposition. Then a final decision can be rendered.
3. Settle a Proposed Suspension/Removal Prior to a Decision: This method is the easy way to settle an early a case under OPM’s guidance. OPM’s Interpretive Guidance on Section 5 Ensuring Integrity of Personnel Files Contained in Executive Order 13839 has made it clear that proposed actions can be resolved without issue: “When persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action. Additional information may come to light at any stage of the process prior to final agency decision including during an employee response period.” As a result, for future cases we should try to settle cases at the earliest stage possible prior to the action being taken.
4. The Federal Employee May Not Be Covered by the EO: A final though is that an employee may not be covered by the EO, depending on the agency or position involved. I always check to see if your employee is an employee for purposes of the EO (i.e. Congressional employee, hybrid federal employee, federal employee not covered by the EO). Sometimes, certain agencies or agencies within agencies are not covered. Rare, but I have seen it.
Current State of Settlement Procedures
Some federal agencies will agree to a proposed change in personnel records given that it is a corrective action in settlement and not bat an eye to a change. Other federal agencies will not do so, because they are still confused about the application of EO 13839. However, it is important to fully understand the EO prior to entering a settlement agreement at the MSPB or the EEOC for enforcement purposes. Very specific language should be used in settlement agreements. Some administrative judges have even adopted a policy permitting such changes so long as the federal agency counsel asserts that it complies with EO 13839. There also remain other ways, outside of the MSPB and EEOC settlement enforcement process in which to process an agreement to clear an incorrect or debatable disciplinary or performance record.
If a federal employee needs legal representation in federal disciplinary or performance matters, then we can assist them in their employment matters. Please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on our Facebook and Twitter pages.