The proposal cites that authority as grounds for extending to OPM the authority to remove current employees by citing the same types of considerations that would bar initial employment. Image: Jacquelyn Martin/AP/Shutterstock
By: FEDweek StaffOPM has proposed rules under which it could fire employees of other agencies on grounds that they are unsuitable for federal employment on misconduct grounds, leaving affected employees fewer legal protections than if their agency used standard disciplinary channels on the same grounds.
“Current Federal employees, no less than applicants, must remain suitable for Federal employment. Employees who engage in serious misconduct while in the Federal service are equally as unsuitable for Federal employment as applicants who engaged in serious misconduct before applying for Federal employment,” say proposed rules in the June 3 Federal Register.
The proposal follows a March Presidential memo telling OPM to require that agencies make referrals to OPM for it to make a final suitability determination based on post-appointment conduct. (Technically, “suitability” determinations apply to competitive service and career SES positions, while “fitness” determinations apply to excepted service positions. The proposed rules would cover each of those employment categories.)
Traditionally, suitability considerations arise only in the pre-employment context. Employing agencies typically make those determinations under standards set by OPM, although OPM has had decisional authority if issues arise involving certain types of conduct or if a legal bar to employment might apply.
The proposal cites that authority as grounds for extending to OPM the authority to remove current employees by citing the same types of considerations that would bar initial employment. “OPM believes that the same set of suitability factors should be evaluated when considering removal of an employee as considered when evaluating an applicant for appointment,” it says.
“The objective of the suitability and fitness adjudicator is to establish a reasonable expectation that employment or continued employment of an individual either would or would not protect the integrity and promote the efficiency of the service . . . These interests and objectives apply equally to applicants for employment and current Federal employees,” it says.
When taking disciplinary actions for misconduct during employment, agencies “have reported frustration with not being able to take the next logical step, a suitability action,” it says, but instead rely on formal ”Chapter 75” procedures giving employees certain legal protections, such as the right to appeal to the MSPB.
“This means that, illogically, the government has far greater ability to bar someone from Federal employment who has committed a serious crime or misconduct in the past than it does to remove someone who engages in the exact same behavior as a Federal employee,” it says, adding that removal on suitability grounds “is separate and distinct from Chapter 75 and does not provide the employee with the same protections.”
“The administration is attempting to take rules originally intended to help agencies root out unqualified job applicants and apply them to current employees so it can bypass due process laws and quickly fire workers it claims are no longer suitable for their jobs,” said the AFGE union. “This is yet another example of this administration willfully disobeying existing laws to carry out its ideological agenda.”
The proposal also would incorporate into suitability determinations new examples of potentially disqualifying misconduct or negligence in employment. They include theft, misuse, or negligent loss of government resources and equipment; failure to adhere to non-disclosure obligations; failure to comply with legal obligations such as filing taxes; and failure to comply with provisions that would preclude federal service, including citizenship requirements.
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See also,
Work Longer or Take the FERS Supplement Now: Which is Better?
Doubling Your TSP (C Fund vs G Fund)
How to Estimate a FERS Special Retirement Supplement (calculator!)
