Suitability: When Conduct and Character Come Into Question

“Suitability” refers to identifiable character traits and conduct sufficient to decide whether an individual is likely or not likely to be able to carry out the duties of a federal job with appropriate integrity, efficiency, and effectiveness. 

The interests of the national security require that all persons privileged to be employed in the departments and agencies of the government shall be reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States.  Suitability adjudication is not new, and the requirements for making suitability determinations in federal agencies is found in 5 CFR 731.

The appointment of each civilian employee in any department or agency of the government is subject to investigation. The scope of the investigation will vary, depending on the nature of the position and the degree of harm that an individual in that position could cause.

The responsibilities of a suitability adjudicator in human resources have always been a very responsible position, but in the last few years these duties are taking on an even greater importance as more background investigations are being returned with some issue requiring closer scrutiny towards the person’s fitness for continued employment.   When people are desperate, they will commit acts that do not conform to society’s norms or expectations. The role of the adjudicator is to determine whether these acts are acceptable to the position for which the person is being considered. An unfavorable suitability determination can result in the cancellation of eligibility, debarment from federal service up to three years, and removal.

One of the nation’s founding fathers, Thomas Jefferson, said it best:   “When a man assumes a public trust, he should consider himself as public property.”  

Elliot Richardson became more famous when he resigned as Attorney General for refusing to comply with President Nixon’s directive to fire the special prosecutor, Archibald Cox, during the Watergate scandal.  He said:  “Public service is a public trust. The highest obligation of every individual in government is to fulfill that trust.  Each person who undertakes the public trust makes two paramount commitments:  to serve the public interest and to perform with integrity.”

America is facing a crisis in character.  We are reminded of this everyday in the news as witnessed by the various actions involving the Secret Service, GSA’s lavish conference expenses, Bernie Madoff, the abuses by members of the clergy, insider trading by members of Congress because the law affecting everyone else did not apply to them, and much more. 

In 2010 the University of Central Florida found itself amidst a cheating scandal that prompted the school to issue an ultimatum to the students involved.  Hundreds of students were offered the opportunity to come clean, take an ethics course and to retake an exam, or be expelled.  One student interviewed on Good Morning America expressed a different view.  He accused the university of a witch hunt.  In his opinion, “This is college.  Everyone cheats, everyone cheats in life in general.  Are they trying to teach us some kind of moral lesson?”  Sadly, his opinion just may be a growing reflection of society as ethics failures are becoming far too common place. 

Years ago a major tire manufacturer risked everything when they did a cost benefit analysis on the cost of a recall on known defective tires or the payout from a wrongful death suit.  This confidential study made its way into the hands of a plaintiff’s attorney and the wrongful death suit mushroomed into a class action suit nearly destroying the corporation.  Its market share and stock price plummeted when this corporate misconduct became public.

These problems are not unique to the public sector as resume fraud is a large issue to the companies as well.  In fact, a whole new industry in the private sector has been established to look into a person’s past just as government does with its NACI, MBI or BI investigations. 

In 2001 Christian Timbers did a study of 7,000 résumés and found that nearly 25% contained at least one major misrepresentation.  A 2004 Korn Ferry study found that the most frequently fabricated information included the reason leaving the last job (67.8%) and applicant accomplishments (68.2%).  A 2003 SHRM study found that 53% of all applications contained inaccurate information.  A 2005 report issued by ADP Screening and Selection Services found that when checking references, 49% revealed discrepancies between the application and the reference’s statements.

Resume fraud is also a growth industry whereas a 2010 Bears Guide to Earning Degrees by Long Distance reported that diploma mills are a $500 million annual business.  There are an estimated 400 diploma mills in operation, with another 300 websites offering counterfeit degrees.  Some glaring celebrities caught up in the web of their own deceit are:

  • May 2007 — Dean of Admissions Marilee Jones resigns from MIT after it is learned she falsified her credentials 28 years earlier.
  • December 2001 — George O’Leary lands his dream job as head football coach at Notre Dame, and resigns five days later because he claimed a master’s degree and football experience he did not have.
  • February 2006 — David Edmondson resigned as CEO of Radio Shack when it is discovered he misstated his academic background.
  • March 2004 — Laura Callahan resigns from Department of Homeland Security after it is learned that her claimed degrees, including a Ph.D., were acquired from Hamilton University, a diploma mill in Wyoming. 

In 2010 a former Monterey Institute instructor is arrested after allegedly lying about his credentials.  The instructor lectured on counterterrorism, and claimed he was a retired colonel in the Army’s Special Forces.   

In another celebrated case a federal attorney was found guilty and sentenced to a 212 month prison term for taking nearly one-half million dollars in bribes from immigrants, who were promised immigration benefits that would allow them to remain in the US.  The attorney worked for Immigration and Customs Enforcement.

The impact of fraud of any kind is exorbitant to both industry and government.  The Association of Certified Fraud Examiners reported in 2004 that fraud cost US companies more than $660 billion annually, and organizations, on average, lose about 6% of its total revenue annually to fraud by its own employees.

Under 5 CFR 731.202(b) a suitability adjudicator is looking at specific factors to include misconduct or negligence in employment; criminal or dishonest conduct; material intentional falsification in examination and appointment process; refusal to furnish testimony and to cooperate in the investigations/adjudicative process; alcohol abuse; illegal use of narcotics drugs, or other controlled substances; knowing and willful engagement in acts against the US government; and any statutory or regulatory bar such as striking against the government.  All of these issues are very serious, and the Office of Personnel Management (OPM) has delegated a great deal of authority to agencies in making suitability determinations.  However, whenever it can be demonstrated that there was a material and intentional falsification in the examination and appointment process, OPM will retain authority over the outcome when such misconduct is identified.

Establishing and maintaining an effective suitability program is just as vital to the overall human resources strategic plan as any other major HR goal.  Too often supervisors and managers resist terminating a person, who has been found to be unsuitable, be
cause their current performance, conduct and reliability are satisfactory.  Current satisfactory performance should not be confused with suitability.  If a person’s past or present character is in serious doubt, and could adversely affect the integrity and efficiency of agency operations, then that person should not be considered suitable for continued employment.  This conclusion will only occur after a careful and objective analysis of all relevant information. 

Protecting the interests of the Federal Government against fraud, waste and abuse should be the paramount responsibility of everyone, and there must be a consensus and commitment to this outcome.

© 2016 Robert Dietrich. All rights reserved. This article may not be reproduced without express written consent from Robert Dietrich.

About the Author

Bob Dietrich has more than 37 years of federal human resources experience and he is a widely known trainer on FMLA, FLSA, Employee and Labor Relations, HR for Supervisors, and is available to bring training to your agency. It is far cheaper to bring the instructor to the class as opposed to the class to the instructor. He may be contacted through Dennis Hermann & Associates.

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