New rules would replace a former standard of “knowing and willful engagement in acts or activities designed to over throw the U.S. government by force”. Image: Mark Van Scyoc/Shutterstock.com
OPM has proposed an overhaul of policies governing suitability and fitness determinations for both current and prospective federal employees, including what would be a revised and expanded set of red flags in those determinations.
Suitability and fitness determinations involve whether an individual has the “required level of character and conduct necessary to perform work” for the government, says a notice in the January 31 Federal Register with a 60-day comment period. Determinations for eligibility for security clearances, which involve some of the same types of considerations, are separate and would not be affected by the revisions.
Generally, suitability determinations apply to the competitive service and career SES while fitness determinations apply to excepted service positions. Also generally, employing agencies make those determinations, although OPM has that authority if issues arise involving more problematic types of conduct.
The notice results from a review process that started in 2018 under a series of executive orders dating back through administrations over the prior decade and would rewrite or remove some provisions not updated since 1953.
“Key goals of the initiative are to capitalize on information technology capabilities that allow for the integration of automation and take advantage of a wider spectrum of data, reduce time-intensive manual processing, and promote greater mobility of the workforce by providing vetting processes that enable each individual’s vetting status to be continuously up-to-date,” it says.
Among many other provisions, the rules would: set standards for agencies to use in designating the risk level of positions and in vetting personnel; replace policies calling for reinvestigations every five years for incumbents of positions designated as moderate or high risk with “continuous vetting” for all levels of risk, while providing for full reinvestigations only as needed; and generally require agencies to honor assessments at the same or higher risk designation that was performed by another agency.
Changes to factors include: clarifying that dishonest conduct “need not be criminal to be considered relevant to a determination of suitability or fitness”; removing a requirement that evidence of rehabilitation be “substantial” after prior illegal drug use or excessive alcohol use that could affect the performance of official duties; and adding a factor for “violent behavior” that does not fall under any other factor.
The rules also would replace a former standard of “knowing and willful engagement in acts or activities designed to over throw the U.S. government by force” with four new standards. Those would include state, local or tribal governments; “acts of force, violence, intimidation, or coercion with the purpose of denying others the free exercise of their rights”; attempting to indoctrinate others or to incite them to action in furtherance of illegal acts”; and “active membership or leadership in a group with knowledge of its unlawful aims, or participation in such a group with specific intent to further its unlawful aims.”
“These more nuanced factors are narrowly tailored to address conduct that is not protected by the First Amendment, that has a clear nexus to the integrity and efficiency of the civil service, and that poses significant insider threat risks to federal agencies and to the public they serve,” it says.
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