Federal Manager's Daily Report

Proposal would require applicants to disclose whether they have participated in a so-called diversion program in the past seven years to avoid criminal charges.

Several senators of both parties have raised objections to a proposed hiring policy rule change that would require applicants to disclose whether they have participated in diversion programs, which allow individuals to agree to certain conditions in lieu of criminal prosecution and to have any potential charges dismissed if they comply.

The proposed change, in a February draft regulation whose comment period has now ended, would require applicants to answer on the Declaration for Federal Employment Optional Form (OF 306) whether within the last seven years they have “been subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed.”

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That requirement “will no doubt exclude deserving applicants from valued federal employment opportunities,” says a letter from four senators to OPM. “Nor will this change forward any legitimate agency objective, as this information is unduly prejudicial to job candidates. If prosecutors have determined that participation in a diversion program is sufficient, the federal government should not craft rules that undermine that judgment.” A separate letter from two senators made similar arguments.

Administration officials, though, have said that up-front disclosing participation in such programs–which often are offered in low-level and non-violent cases–actually would avoid having a red flag raised later during the background check process, improving the chances of acceptance.

OPM now turns to drafting a final version, at a time when committees of both the House and Senate have passed bills to generally bar agencies from asking about criminal history until after a conditional offer of employment has been made.