Position Sensitivity: Where It All Begins

Within a week of each other, two learned colleagues wrote companion articles dealing with suitability and actions taken when a person’s character and conduct come into question.

On August 13, 2015, Susan McGuire Smith, wrote an article “No Security Clearance, No Job.” On August 16, 2015, Bob Gilson, published another excellent article: “Security Clearance and Indefinite Suspensions: Federal Circuit Court vs. MSPB.” Both of these articles are very instructive, and every employee relations practitioner should be intimately aware of how the loss of trust and integrity can mean the loss of a person’s federal career.

Where does it all begin? It begins with the position classifier and the supervisor/manager who owns the position. This interactive process is both essential and vital in determining the position sensitivity and risk.

Personnel or other agency officials who are responsible for suitability case processing and adjudication do so under the authority delegated to them by the Office of Personnel Management (OPM) in title 5 of the Code of Federal Regulations, part 731 (5 CFR part 731).

What does it mean to say a position is sensitive and in the “public trust”?

Public trust is defined as the category of positions, at the moderate or high risk levels involving a significant degree of public trust (such as policy making or major program responsibilities, fiduciary responsibility, law enforcement positions, public safety, human resources and health duties, etc). And, position risk relates to an assessment (LOW, MODERATE, or HIGH) of a position to determine its potential for adverse impact to the integrity or efficiency of the service, its effect on the agency or on the agency’s operations.

The position sensitivity is broken down into four major categories:

  • Non Sensitive – A position sensitivity designation indicating the potential for impact on the integrity or efficiency of the service, but very little impact on the National Security.
  • Non-Critical Sensitive – A position sensitivity designation indicating the potential for moderate to serious impact on the integrity or efficiency of the service or on the National Security.
  • Critical Sensitive – A position sensitivity designation indicating the potential for exceptionally grave impact on the integrity or efficiency of the service or on the National Security.
  • Special Sensitive – An agency’s final position assessment designation reflecting the potential for grave or inestimable damage to the National Security.

Based upon my many years of federal human resources experience, I believe there is a major flaw in this crucial process.

Position sensitivity and risk is not a subject matter taught in depth, or at all to position classifiers, nor is this group required to take a basic course in suitability determinations to understand how their analysis plays a vital role in determining position sensitivity and risk. Then, you compound this lack of knowledge with supervisors and managers who are even less sophisticated and knowledgeable of this part of their responsibility.

Public service requires high standards of integrity and trust to promote the interests of the public, and the suitability adjudication program is intended to reduce the potential for abuse of the public trust. It is also intended and to ensure Government-wide uniformity and fairness for applicants, appointees, and employees.

Suitability is not a one-time decision; it can occur whenever a person moves within an organization to occupy a position of public trust to warrant a new or higher level of investigation, 0r whenever a person’s actions and conduct betrays the fundamental trust placed in them.

Suitability refers to identifiable character traits and conduct sufficient to decide whether an individual’s employment or continued employment would or would not protect the integrity or promote the efficiency of the service. Again, the focus here is not on a person’s knowledge, skills and abilities, but their conduct, character and integrity. Satisfactory performance never overshadows the compromise or loss of integrity, and when that occurs it can result in the cancellation of eligibility as an applicant, removal, cancellation of reinstatement eligibility, and debarment. All of these actions occur under 5 CFR 731.

However, since 2011, the suitability landscape has changed dramatically after the MSPB issued their decision in Aguzie v. OPM where the administrative judge adjudicated the removal for suitability reasons as an adverse action under Chapter 75, as opposed to 5 CFR 731.

The appellant was employed by the Internal Revenue Service under a career-conditional appointment subject to a one-year probationary period. OPM found her unsuitable for any covered position in the federal service based on charges of misconduct or negligence in her prior employment and making material, intentional false statements on forms submitted in connection with her job application.

I cannot believe the legislative history of 5 U.S.C., 731, or the passage of the Civil Service Reform Act, that created the Merit Systems Protection Board, that the Congress intended the Board to treat adverse suitability decisions the same as any other adverse action for misconduct, including the Douglas Factors. Again, in my personal opinion, the Aguzie case is an attempt by the Board to once more try to assert itself into personnel actions that disqualify people from occupying positions of public trust because of egregious character and integrity failings.

As Susan and Bob pointed out in their articles referenced above, in the revocation of a person’s ability to occupy a sensitive position, the person can be removed, and these removals are not appealable to the Board.

This principle was well established in the Department of the Navy v. Thomas Egan, 108 S. Ct. 818; 86-1552 (S. Ct.); 484 U.S. 518, February 23, 1988, when the Supremes decided that the MSPB may not review the agency’s reasons for revoking a security clearance. SCOTUS decided in its 5 to 3 decision that a denial of a security clearance is not an adverse action, and therefore subject to the Board’s review.

In Bob Gilson’s June 17, 2015, article: “Circuit Says OPM Dropped the Ball on Suitability, MSPB Can Now Say Hire Liars,” OPM had another golden opportunity to defend its actions in taking adverse action to remove people for suitability reasons, but “a panel of D.C. Circuit Court Judges lambasted (literally) OPM for asking for a three judge panel to review a single judge’s ruling without having a case to hang its legal hat on.”

Since the Aguzie decision, OPM has had a deplorable record before the Board, as well as the courts in defending suitability removal actions. It is becoming more and more difficult for the practitioners in the field to feel secure that taking a removal action for reasons of unsuitability will be supported by third party tribunals.

The mercurial nature of the MSPB is well established. Consider the case of DENISE L. DOERR v. OPM, 2006 MSPB 347. On June 1, 2003, Ms. Doerr was appointed to a Physical Scientist position with the Department of Labor, Occupational Health and Safety Administration (OSHA). In her appointment, she answered “No” on her Declaration of Federal Employment that she had ever been convicted of a crime or on parole. Her background investigation proved otherwise, and OPM took action to remove her from federal service for criminal and dishonest conduct, and a serious misrepresentation and lack of candor on completing her initial forms for employment.

Although it was proven that she engaged in criminal and dishonest conduct, and this fact was established in the hearing, the Board did not sustain her alleged falsification of her security forms to gain federal employment and ordered her reinstatement. Chairman Neil McPhee wrote a sharply worded dissenting opinion.

As long as an agency can show that they have afforded due process in taking an action to revoke a person’s eligibility to occupy a sensitive position or to obtain or retain a security clearance, I would take that approach every time as opposed to giving the Board the opportunity to second guess management’s decisions.

The Department of Defense has a well established internal review and appeals process through their Central Adjudication Facility (CAF). The question is, do all of the civilian agencies have a similar process to satisfy due process?

© 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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