By John V. Berry, Esq., www.berrylegal.com
We often receive questions from new clients about whether or not it makes sense to resign
instead of being removed / terminated by a federal agency. Generally, the answer to that question is no. There is usually no advantage to resigning prior to termination from a federal employment position once a proposed action has been issued with a settlement agreement being
BACKGROUND
The most typical situation where this issue arises occurs when a pending federal agency investigation has resulted in a proposed removal action. The federal employee is then given the notice of the proposed removal and the opportunity to respond. Thereafter, the employee is approached, usually by Human Resources, and informed of the option to resign before termination. The offer can sound tempting and the employee may think that by doing so that it leaves their employment record clear. That is not generally the case, however. A different situation may arise if the employee has been investigated but has not yet been served with a proposed removal action.
ISSUES WITH RESIGNING PRIOR TO REMOVAL
If a federal employee resigns after a proposed removal is issued, a number of issues can arise. For instance, the first issue is that the employee may receive their final personnel form, SF-50 and see that the federal agency has listed “removal in lieu of termination” or words to that effect as the basis of the action. The Office of Personnel Management (OPM) has an entire manual documenting the specific codes and descriptions to place on different types of resignations for federal employees. Such a notation essentially flags a federal employee as having left the federal service while a removal action was pending. Essentially, another future federal agency would see this as little different than if the SF-50 was coded to show that the employee was removed / terminated from the federal service.
Furthermore, the question of whether a federal employee resigned in lieu of removal / termination will be asked if the individual later applies for federal employment (OF-306) (Question 12) or a security clearance (SF-86 / e-QIP) (Section 13A.5). These forms require honest (and sworn) answers to the questions at issue.
The key to leaving federal employment with as clear a record as possible is to engage in settlement negotiations with the federal agency involved. Typically, in order for a federal agency to consider this, an individual likely needs an attorney to represent them. Otherwise, we have found that federal agencies do not tend to bother agreeing to formalize a settlement agreement. In many cases, federal agencies will not assign their own attorney to enter settlement negotiations until a federal employee has their own counsel.
Conversely, if an agency has not yet proposed a disciplinary action like removal, and an investigation is ongoing, resignation without an agreement may be a potential option for a federal employee but must be considered carefully. Before doing so, it is very important to consult with an attorney experienced in federal employment law.
TYPES OF RESIGNATION SETTLEMENTS
Typically, one of the provisions that is helpful in negotiating resignation settlements in these types of cases involves getting a federal agency to agree to a clause where they agree to rescind the proposed removal action. Other settlement clauses can include confidentiality agreements, other types of clear record agreements, along with other provisions to protect a federal employee. A federal employee cannot and should not rely on verbal promises by federal agency Human Resources that they will handle a resignation in a certain way. A verbal promise tends to be worth very little and leaves little recourse to the federal employee involved. It is very important to get the terms of a resignation agreement in writing.
CONCLUSION
When a federal employee is facing a proposed adverse action (i.e. proposed removal) issues it is important to obtain legal advice and potential representation. Our law firm represents federal employees in this process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at http://facebook.com/BerryBerryPllc
investigations. When a federal employee is under investigation or suspects that they may be investigated in regards to misconduct, on or off duty, it is important to have a federal employment attorney represent and/or advise them through the process. 
