While the Merit Systems Protection Board (MSPB or Board) would certainly never be so politically incorrect as to offer the adage that “a blind man has no business in a card game”, even a cursory reading of its new report, Clean Record Settlement Agreements and the Law, belies the truth of that quote. The report identifies, often by implication, the pitfalls involved in making deals with employees in which the Agency agrees to expunge negative information from the employee’s record in return for a resignation. As such, it provides critical information for those with the sense to read it.
For those not caught up in the Byzantine world of adverse actions(removals) that will likely be appealed to the Board, we’re talking about entering into an agreement in which an employee, generally about to be fired, resigns in exchange for a clean record. The Agency, for its part, gets rid of a problem without running the risk of or facing the cost of litigation. For the Agency, settlement can be a good deal if the case has complexities of law or evidence heightening the risk. I believe it’s always a good deal for the employee in that Agencies prevail in or successfully settle at least 96% of Board eligible cases. (See the FedSmith article How Are Agencies Doing Before the MSPB from earlier this fall.) Employee attorneys, union representatives and those employees who believe themselves to have been unjustly removed by the ongoing oppression of the toiling masses by cruel government overlords may disagree but they probably won’t read this article anyway.
So What’s in the Report Worth Reading?
Frankly, all of it is worth a read. If you prepare adverse actions, case files or particularly settlement agreements, get out your sticky note place holders, yellow pens and three hole punches. If you’re a proposing or deciding official, you’ll need a pen to write questions in the margin to ask your advisors and advocates. If the HR and counsel staffs are on speaking terms, a meeting to discuss the reports and how it can improve your settlement agreement offers would be a very wise idea. I conduct an advanced ER class and this will certainly be included next session.
There’s an introduction and conclusion plus four major areas:
- “CLEANING” THE RECORD
- DISCLOSING THE RECORD
- WAIVING CONFIDENTIALITY
- EXTERNAL RESTRICTIONS ON THE EFFECT OF A CRA
“Cleaning” the record addresses the obligation an Agency incurs to fix both the Official Personnel Folder and other Agency record systems. What wasn’t specifically addressed is the obligation with regard to security-related systems. What’s useful is the attention paid here and throughout the report to how the use of specific agreement language broadens or narrows an Agency’s obligations.
Disclosing the record covers the ins and outs of exceptions to non-disclosure particularly when a legal obligation is involved.
Waiving confidentiality addresses what might be the results of providing information to an outsider and on the Agency’s ability to limit employees from making disclosures. While the Board appears to hold an Agency broadly liable for employee disclosures, missing is a discussion of a good faith belief on an employee’s part that he/she must provide a truthful answer to a legitimate inquiry and what authority an Agency has to limit a coworker’s comments to virtually anyone based solely on some promise its representatives made.
External restrictions on the effect of a CRA talks about obligations to disclose based on public policy and actions of third parties such as criminal investigators or the Agency IG.
The Board included in the report an Appendix (B) in which it listed the questions asked agency representatives and provided their responses. I found this particularly interesting. I think you will too. For example:
- 95% of the 621 Agency reps said they had been involved in settlement agreements.
- About 89% said that some percent of agreements had clean record provisions of which about 30% of respondents said over 505 of agreements had such provisions.
- 73.5% said they agreed somewhat or strongly that clean record agreements are often the only way to get an appellant/employee to agree to settle.
- 94.4% said they agreed somewhat or strongly that they consider the seriousness of the appellant’s/employee’s conduct when deciding whether to recommend/agree that the agency will clean a record that documents misconduct.
- While about 60% though such agreement in the Agency interest, 94% thought they were in the employees’ interest.
There are a lot more interesting opinions recorded in the appendix.
The report indicates a limited role for OPM’s involvement in such arrangements while cautioning Agencies that OPM can trump retirement deals. I wonder if this is a result of a less active OPM than in the past. After all, the OPFs belong to OPM and are maintained under that Agency’s authority. The report leaves unanswered the scope of OPM’s control. Also somewhat missing, I think we all know why, is the issue of national security information and information affecting position sensitivity. In fairness, this is not a speculative or predictive report but one that looks at the record thus far. The report has lots of very good information for the smart advocate or practitioner. The not-so-smart will probably pay little attention giving the Board the freedom to correct their mistakes.
As always, my opinions are my sole responsibility.
© 2015 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.