FELTG Modifies the No-Clean-Record Executive Order and OPM’s Interpretative Guidance

By William Wiley, November 14, 2018

This is the final article of a three-part series.

As we have discussed previously, one of the Executive Orders (EOs) issued by the White House on May 25 effectively did away with an agency’s ability to resolve an employee controversy by entering into a “clean record” settlement agreement. In a later article, we pointed out the deficiencies in OPM’s “Interpretative Guidance” issued on October 10. OPM intended the guidance to clarify what the EO really means. Our conclusion is that the EO and the interpretation have problems when we try to apply them in a practical front-line situation. And who better to step into the breach and clean things up than little old FELTG?

First, to be perfectly clear: We love clean-record settlements. They are no-fault resolutions in which both sides concede something of value to the other. If they result in a future government employer hiring a formerly bad employee, that’s their problem. There are a number of ways to address that issue without having to take away the flexibility of a clean-record settlement. With that said, if we were trying to implement what appears to be the desires of the White House relative to surfacing prior workplace problems of applicant former employees, here’s what we’d say, in an EO or in interpretative guidance:

To facilitate transparency relative to prior workplace problems job applicants might have had, agencies are to implement the following procedures immediately:

1 – When an adverse action is proposed, the agency will open an adverse action file in the Office of Human Resources. That file is to contain the proposal notice with its attachments, the employee’s response to the proposal, the relevant operative decision letter, a copy of any related appeal, grievance or complaint, and the documents resolving the appeal, grievance, or complaint.

2 – These files on individual employees are to be retained by the agency for at least five years. There is no provision for destroying or altering these documents within this time period. Copies of the files are to be provided to any other federal agency with a need to know on request within seven days of the request.

3 – OPM, as the administer of this provision, may request file copies at any time.

Bottom line: This approach satisfies the goal of the EO to provide real-time information to selecting officials about the government work history of a job applicant. It does not get all wrapped up with what’s a “personnel record,” or the good or not good reasons for altering the document. It allows an agency to honestly offer in settlement that all relevant documents will be removed from the employee’s e-OPF. It even provides that the parties can enter into a settlement agreement, to be incorporated into the adverse action file, in which both management and the individual agree to a no-fault resolution of the matter.

The adverse action record is not thereby “clean,” but it is annotated to show that the parties reached an agreement that the employee should be allowed to go forward with his federal career, albeit at another agency.

What the hiring agency decides to do with that information is up to that agency. At least this way, everything is transparent, above board, and honest. Wiley@FELTG.com