Five Lessons learned in a Suitability for Employment Case

I had advised a federal employee – I will call him Albert, not his real name — who was determined not to be suitable for federal employment because of a finding that he made a false statement on his employment application. Albert appealed and now has received a favorable suitability determination. I share a few lessons learned. As background, the Office of Personnel Management (OPM), or an agency which is delegated OPM authority, may determine an applicant or employee not fit for federal employment. An adverse determination bars the employee from federal employment for a period of years. Similar rules apply to contractor employees.* In Albert’s case, he left a past employer. The past employer’s human resource officer and a manager told investigators that Albert was fired. Albert had said on his federal job application he had resigned and not left under unfavorable circumstances. An investigator interviewed the Albert and a preliminary adverse determination of not suitable for federal employment followed. Albert appealed the preliminary determination. He received a final determination that he was suitable for federal employment. Five lessons learned from Albert’s case follow. (1) Albert consulted me to understand the adjudicative guidelines and considerations in a suitability case. He was advised not only on how to proceed, but also what facts and events were important to OPM making a favorable decision. (2) Albert wrote a time line and organized emails, and other documents concerning the changing events that led to his separation from employment. (3) Albert identified and later followed up with persons who might corroborate particular events. (4) Albert obtained from OPM the results of his background investigation, before submitting his appeal. (5) Albert talked to OPM about an extension of time to appeal, timing receipt of the investigative results, and processing his appeal (on my advice; with other persons I discourage this call.) In Albert’s particular case, (6) Albert also learned not to just repeat on appeal what he already had told the investigator because that information was not sufficient to avoid a preliminary adverse determination. Albert was adamant that he was telling the truth. Accordingly, it was initially difficult for him to understand that something must be missing, or said another way, the question was what information and understandings were not known to OPM that may be important to a final determination. Albert prevailed and I write the lessons learned just off the telephone with him, while memory is fresh. I emphasize, however, that each person is different and each case is different. Consult a knowledgeable attorney.

* I oversimplify a complicated process here but basically (and I highlight the suitability determination definition below): “HSPD-12 credentialing involves all Federal employees and contract personnel requiring long-term access to Government-controlled facilities and/or information systems; suitability determinations involve competitive service and career SES positions; and national security determinations involve candidates for appointments to sensitive national security positions in the Federal service, as well as individuals (typically Federal employees, contractors, or military personnel) who require eligibility for access to classified information.” Office of Personnel Management, Memorandum Introduction of Credentialing, Suitability, and Security Clearance Decision-Making Guide for Heads of Departments and Agencies, Chief Human Capital Officers, and Agency Security Officers from Linda M. Springer, Director, dated January 14, 2008.

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