By John V. Berry, www.berrylegal.com
Suitability determinations are an increasingly important issue for federal government applicants and federal employees. The process of successfully navigating suitability concerns has at the same time become more complex due to the ever-increasing security concerns of the United States Government. Our firm serves as suitability lawyers for federal employees and applicants who encounter difficulties in the suitability process.
What is Suitability?
Federal employment positions often include important duties that do not require a security clearance but are sensitive in nature. Hence, a suitability or background investigation is required in order to hold the position. For instance, included in these types of positions are certain types of federal law enforcement officers, IT professionals, comptrollers, and public safety and health workers. These positions are often referred to as public trust positions. They are subject to background investigations, which include a National Agency Check and Inquiries (NACI) review and potential personal interview and reference checks.
Public Trust/Suitability Investigations
The first step in a suitability, background or public trust investigation often comes from an individual’s completion of the SF-85 (Questionnaire for Non-Sensitive Positions), SF-85P (Questionnaire for Public Trust Positions) and even occasionally an SF-86 (usually used for secret level clearances). The investigation can also include follow up information requests (interrogatories) and/or interviews regarding areas of concern.
Areas of Suitability Concern
When making suitability concerns, under 5 C.F.R. § 731.202, an agency or OPM will consider:
(1) Misconduct or negligence in employment;
(2) Criminal or dishonest conduct;
(3) Intentional false statements, deception, fraud;
(4) Refusal to furnish testimony;
(5) Alcohol abuse, without evidence of rehabilitation;
(6) Illegal use of narcotics, drugs or other controlled substances, without evidence of rehabilitation;
(7) Knowing and willful engaged in acts designed to over the U.S. Government by force; and
(8) Any statutory or regulatory bar that prevents the lawful employment of the person at issue.
Initial Response to Suitability Issues
Should background security issues not be resolved during the investigation, a federal agency and/or the Office of Personnel Management (OPM) can take what is known as a suitability action. Suitability actions are governed by federal regulations at 5 C.F.R. Part 731 and are taken when an employee or applicant is deemed to be unsuitable. During suitability actions, a federal applicant or employee will be given notice of the suitability issues and be given an opportunity to respond to these issues. The goal of a response is to mitigate or show that the allegations are not warranted.
Under 5 C.F.R. § 731.202 (a) and (b), federal agencies and OPM must consider the following considerations in mitigating suitability concerns:
(1) The nature of the position that the individual is applying for or 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 and maturity of the person involved at the time of the conduct;
(6) Contributing societal conditions; and
(7) The absence or present or rehabilitation or efforts towards rehabilitation.
An applicant or employee will normally be provided the opportunity to respond to the suitability concerns within a short period of time, often 30 days. In that response, it is critical to seriously rebut the allegations at issue. This can often include providing documentation rebutting the allegations, and character affidavits and/or declarations. If a suitability action is sustained, then an appeal is needed.
Suitability Appeals
If an applicant is deemed unsuitable, depending on their federal employer they may be able to appeal the suitability denial to the agency or to the Merit Systems Protection Board (MSPB). Each federal agency varies with respect to suitability rights. If the case is before the MSPB must find that the suitability allegations against the federal employee or applicant can be shown by a preponderance of the evidence. If the federal employee or applicant is successful in rebutting all allegations made, the matter must be remanded to OPM or the agency for a determination as to whether the original action was appropriate. If the case is before a federal agency instead of the MSPB, they have discretion to overturn the suitability determination. Some federal agencies do not provide appeal rights in suitability cases.
Contact Us
When an individual is facing suitability issues or a suitability appeal it is important to obtain legal advice and legal representation. Our attorneys can advise employees on areas of the SF-85, SF-85P and SF-86 or other related suitability documentation that require additional care and attention. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.