Defending Federal Employees in PIP cases

By John V. Berry, Esq., www.berrylegal.com

It is important that federal employees faced with a performance improvement plan (PIP) consult an attorney as soon as possible. The longer that a federal employee goes forward in the performance improvement process, without legal representation, the more difficult it may be for an attorney to assist that individual later in the process. When federal employees fall below expected standards, they may be placed on a PIP. A PIP usually begins following a poor performance rating.

Performance Improvement Plans

The use of a Performance Improvement Plan (PIP) is typically the beginning of the removal or demotion process for a federal employee. It is common practice for federal employees to be initially told that placement on a PIP is designed as a positive benefit to them and necessary to make them better performers. Managers sometimes even promise employees that they will be given special assistance to ensure that they are successful during their PIP periods, only to later find themselves facing a potential removal a few months later.

This article discusses federal employee concerns when PIPs become an issue. Please continue reading on the next page.

Defending Federal Employees in Disciplinary Cases

By John V. Berry, Esq., www.berrylegal.com

Our law firm represents federal employees in proposed disciplinary cases. This article discusses the response process for federal employees when they received a proposed disciplinary or adverse action.

Types of Proposed Disciplinary and Adverse Actions

Most proposed disciplinary or adverse actions for federal employees are of two types: (1) proposed suspensions or demotions; and (2) proposed removals. Depending on the type of proposed disciplinary action, a federal employee can have varying legal defenses. Click to the next page to see a description of the response process.

Federal Employee Drug Use and Security Clearance Issues

By John V. Berry, Esq., www.berrylegal.com

One of the more common issues that arise in the context of security clearance investigations for federal employees is the issue of illegal drug usage and/or inappropriate prescription drug usage for federal employees. This issue is regulated by Adjudicative Guideline H for those federal employees holding or seeking a security clearance. This article discusses the issues that many individuals face with respect to drug usage and their security clearance.

Illegal drug use and abuse can be a major factor in maintaining or obtaining a security clearance. Security concerns regarding this issue arise under Adjudicative Guideline H, Drug Involvement and Substance Misuse of Security Executive Agency Directive (SEAD) 4. Adjudicative Guideline H is the section of the Adjudicative Guidelines which involves a federal employee’s use of illegal drugs or misuse of otherwise legal prescription drugs. Guideline H also evaluates the use of drugs by an applicant or clearance holder and its impact on an individual’s ability to obtain or maintain a security clearance.

Guideline H Rules for Federal Employee Clearance Applicants or Holders

Guideline H, Drug Usage, provides the following concerns for clearance holders and illegal drug use or abuse of prescriptions:

The Concern. The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.

Guideline H issues usually come into play when a federal employee has engaged in the use of illegal drugs or misused prescription drugs. The most common way in which this issue arises is when a federal employee is arrested, completes a new SF-86 (eQIP), or self-reports the drug use. If recent usage is involved, these types of issues tend to require more investigation prior to the issuance of a security clearance or may require a full clearance review.  The clear concern for federal agencies that evaluate security clearances is that illegal drug use can lead to the use of questionable judgment or the failure to control impulses, both of which are not considered acceptable for purposes of access to classified information.

Security Concerns Raised by Drug Usage

When issues arise involving illegal drug use or misuse of prescription drugs for federal employees, in the scope of a security clearance investigation or review, it is very important to take them seriously and to obtain legal representation experienced with these types of issues in order to minimize the potential damage to a security clearance. The Government, in addition to an overall evaluation of an individual who has admitted drug usage concerns, considers a number of mitigating factors in these cases. Keep in mind that most cases these days involve the use of marijuana in states where the use is legal, but where the federal government still considers marijuana use illegal by federal employees.

The mitigating factors for drug use, under Paragraph 26 of SEAD 4, include:

a. the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;

b. the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including, but not limited to:(1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; and (3) providing a signed statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility;

c. abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and

d. satisfactory completion of a prescribed drug treatment program, including, but not limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

Examples of Situations With Potential Security Clearance Issues for Federal Employees

Example A: Security clearance holder uses marijuana for the first time because his/her state legalized marijuana and he/she decided to experiment.

Example B: Security clearance holder borrows their daughter’s ADHD medication without a prescription to see if the medication would work effectively for them.

Example C: Security clearance holder purchases marijuana in a state where marijuana is legal for their spouse who is registered as a lawful medical marijuana user.

Example D: Security clearance holder is prescribed pain medication by their doctor but uses it more often than the physician has prescribed it for.

Cases Involving Guideline H Cases where a Clearance Was Denied                              

The following are 2 examples where individuals’ clearances was denied:

Example A: Applicant’s recent use of marijuana was deemed to be too recent to qualify for a security clearance.  Copy of decision is located here.

Example B: Applicant’s history of marijuana use has not been mitigated by sufficient evidence of abstinence. Copy of decision is located here.

Issues to Consider for Drug Usage Cases Under Guideline H

In security clearance appeals involving Guideline H, Drug Usage, it is very important to understand just how important it is that the federal employee understands and acknowledges, where appropriate, the misconduct they committed and to acknowledge that it will not happen again. This provides a strong basis for mitigation in many cases. Defending illegal use or an addiction problem only makes mitigation more difficult. It cannot be overstated that security clearance adjudicators take drug usage concerns seriously and are often looking for acceptance of responsibility and other steps in order to mitigate it.

The following are 20 items (not a full list, which is too long to provide here) that we often consider when handling Guideline H cases:

  1. How long ago was the last illegal drug use?
  2. How many incidents of illegal drug usage are there in the last 7 years?
  3. How many incidents of illegal drug usage are there over the federal employee’s lifetime?
  4. Has there been medical / counseling intervention for the drug usage?
  5. Has there been any drug treatment given or taken?  
  6. If there has been drug treatment, has it been voluntary or mandatory (i.e. part of a court order related to a criminal case).
  7. Is it important to get an independent review by a medical expert regarding the likelihood of recurrence of drug issues? An expert physician or psychologist may be needed.
  8. Has there been abstinence from illegal drug usage or abuse of prescription drugs (and for how long)?
  9. Was there any confusion about state laws on drug usage (typically with marijuana)?
  10. Has there been a change in illegal drug usage by the federal employee?
  11. Who could potentially testify positively about the federal employee’s drug usage and change in drug use behavior?
  12. What kind of documentation can be used for exhibits to show abstinence from illegal drugs?
  13. What kind of documentation can be used to show a change in behavior around illegal drugs or associates involved in illegal drugs?
  14. What types of organizations (Narcotics Anonymous, Church, Treatment Programs, Physicians, other groups) can be used to support the federal employee’s case that he or she avoids or has ended drug misuse?
  15. What types of evidence can be used to show how serious the federal employee takes the drug use issues? i.e. letters of support, character letters, etc.
  16. Is a letter of proposed revocation of a security clearance appropriate to add as an exhibit should illegal drug usage issues recur.
  17. Is there medical or treatment documentation available to potentially use as exhibits during the clearance proceedings?
  18. Has the federal employee stopped associating with others engaged in illegal drug use?
  19. Was there some medicinal use needed for the illegal drug (typically marijuana) or prescription drug?
  20. Did the use of unauthorized prescription drugs lead the federal employee to seek a lawful prescription for the medication?

Illegal drug use and prescription misuse security clearance cases under Guideline H can involve many different types of variables and a number of mitigating factors specific to each case so hiring experienced counsel to represent and advise the individual involved is critical because each case is different. The key in representing federal employees in security clearance proceedings in this type of case is to be prepared.

Conclusion

In sum, when a federal employee is facing illegal drug-related or prescription misuse in reference to a security clearance, it is very important to have experienced counsel. If you need assistance with a security clearance case, please call us at (703) 668-0070 or contact us at www.berrylegal.com, our Facebook page or through this page.

Federal Employee Rights in OIG Investigations

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By John V. Berry, www.berrylegal.com

We often represent federal employees in investigations before the Officeof Inspector General (OIG) of their federal agency. When a federal employee is under investigation (or going to be interviewed) by their respective OIG it is important for them to be aware of their legal rights, options and best plan of action for any potential legal defense. This article covers many of the issues that arise when a federal employee is contacted by their federal agency’s OIG.

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Performance Improvement Plans (PIPs) for Federal Employees

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By John V. Berry, Esq., www.berrylegal.com

Our law firm represents federal employees who have been placed on a Performance Improvement Plan (PIP) relating to alleged poor performance. Federal employees should always be wary if they learn that a PIP is being recommended or considered as a means of correcting a federal employee’s work performance. In our experience, the issuance of a PIP almost always indicates the beginning of the removal or reassignment process for a federal employee. Federal employees, however, are usually told that a PIP is only designed to benefit them and make them better performers. This, unfortunately, is not the usual case.

pip-plan

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Preparing a Federal Employee Administrative Grievance

By John V. Berry, Esq., www.berrylegal.com

Our law firm represents federal employees in federal employee grievance procedures. Most, if not all federal agencies have their own federal employee grievance procedures. Most of these procedures are similar but each agency may have their own twists that an employee should be aware of. Continue reading

Responding to Proposed Discipline for Federal Employees

Sample Proposed Disciplinary Action

By John V. Berry, Esq., www.berrylegal.com 

We often represent and defend federal employees in proposed disciplinary actions. When a federal employee is facing proposed discipline it is important for them to speak with an attorney knowledgeable in federal employment law for legal advice and representation. This article outlines some key points for federal employees as they respond to proposed disciplinary actions. We have also drafted a Sample Proposed Action, a hypothetical proposed removal, so that federal employees can better understand how a disciplinary action starts.  Continue reading

Federal Employee Law Blog Begins

 

By John V. Berry, Esq., www.berrylegal.com

Berry & Berry, PLLC, attorneys specializing in federal employment law matters before the Merit Systems Protection Board, the Equal Employment Opportunity Commission, the Defense Office of Hearings and Appeals, the Office of Special Counsel, and many other federal administrative agencies are proud to announce their new blog, which provides information on various areas of interest to federal employees.