OPM Oversteps Bounds in Telling Agency to Fire Employee Who Wrote Bogus Resume for Wife

A recent MSPB decision more clearly defines the disciplinary limitations of OPM.

The independent agency responsible for recruiting and promoting federal civil service workers is learning it can’t punish certain appointed employees, even if one of them drafts a false employment application for his wife in a bid to get her a job in his agency.

In a decision that more clearly defines the disciplinary limitations of the U.S. Office of Personnel Management (OPM), the U.S. Merit Systems Protection Board (MSPB) ordered OPM to cancel its April 2008 directive to the Defense Financial Accounting Service (DFAS) to fire James A. Scott.  DFAS was also ordered to rehire Scott, who had received a conditional excepted service appointment to the position of human resources specialist. He will also receive back pay plus interest and other benefits.

Scott got on OPM’s bad side after he confessed to writing his wife’s résumé for a DFAS position. The résumé listed job duties she did not perform for previous employers in the private sector and featured terms exclusively associated with federal employment, such as “FEGLI” “OPM” and “thrift savings plan.” Not pleased with the deception attempt by Scott, who had already served a year with DFAS, OPM deemed him unfit for any covered (i.e. competitive service) position. Further, the agency directed DFAS to remove Scott from payroll, canceled his reinstatement eligibility and barred him from competing for or being appointed to covered positions for a three-year period.

Scott appealed his removal to the MSPB, arguing that OPM lacked authority to base a suitability action solely on post-appointment conduct. He also claimed OPM regulations concerning false or deceiving statements applied only to an individual’s own employment application. Another claim of race-based discrimination was raised. The MSPB agreed with Scott in finding OPM lacked authority in taking the suitability action against him. It did not address the deception regulation issue and remanded the race discrimination appeal for further adjudication.

With regard to Scott’s unauthorized suitability action claim, the board stated, “In particular, we find that OPM does not have the authority … to make suitability determinations or to take or direct suitability actions against an individual based solely on conduct occurring after his admission into the competitive service.”

The MSPB noted that OPM is authorized to investigate and determine the propriety of an appointment after it has taken place, but “[c]onduct occurring after the appointment process is complete … would not lie within the scope of such an investigation or determination.” The board confessed to “erroneously” suggesting in several prior occasions that the scope of suitability investigations may include post-appointment conduct. For example, in Gamble v. Department of the Army, MSPB said, “A suitability inquiry is directed toward whether the ‘character or conduct’ of a candidate or current employee is such that employing or continuing to employ [him] would adversely affect the efficiency of the service.” With Scott v. Office of Personnel Management, the board sought to “modify these decisions accordingly.”

The Scott v. Office of Personnel Management decision should serve as a reminder to federal agency officials that they are not all powerful and cannot go after any employee whose conduct they disapprove. Federal employees should also see in this case how an agency can overstep its legal bounds when taking employment actions, and they should contact a federal employment attorney if they believe their employer has unjustly punished them.

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel. To schedule a meeting with one of the firm’s federal employment law attorneys call (202) 787-1900. The information in this column is not intended as legal advice.