Ask The Lawyer

By Debra Roth

Proposed removal can be tricky hurdle

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A myth of federal employment is that you can resign after getting into trouble to avoid the blemish of a removal from federal service on your records. Another myth is that you can get a “clean” record as part of a negotiation on an adverse action, either at the agency or at the Merit Systems Protection Board.

The reality is that the situation is far more complex, and an employee who receives a proposed removal can never receive a completely clean record, at least for some period of time.

When an employee who is beyond the probationary period receives a proposed removal, the employee is free to resign and avoid the firing, but he will receive a final SF-50 in his official personnel file that says he resigned after receiving a proposed removal.

That SF-50 is a warning to federal agencies that might be prospective employers.

An employee who is fired during the probationary period will receive an SF-50 that notes separation during the probationary period, with no reasons stated for the separation.

Negotiations might lead to a clean SF-50. This is permissible, and in return for waiving MSPB and equal employment opportunity rights, an employee might receive paperwork that says the resignation was voluntary with no mention of an involuntary separation or proposed removal.

This is a decent result for the employee who perceives that he will not be successful in fighting the proposed removal and who plans to work for a private-sector employer that does not do business with government or require its employees to have security clearances.

The rub is on future employment with the federal government or in the suitability and security clearance reviews on many employees of government contractors.

Many agencies use Optional Form (OF) 306 for new employees, including former employees of other federal agencies. It requires a sworn answer to the following question: “During the last five years, have you been fired from any job for any reason, did you quit after being told you would be fired, [or] did you leave a job by mutual agreement because of specific problems?”

A job seeker with a proposed removal or removal might be tempted to fudge the OF 306 question by rewriting history. In other words, some might choose to commit a felony by putting a lie on a sworn statement.

This is never a good idea. You might be able to convince an agency to hire you despite having had a bump in the road somewhere else if you are fully honest and answer all questions asked of you completely and truthfully.

If you are caught lying, you will likely be fired and could be criminally prosecuted.

This obligation to disclose a prior bad work situation extends to private-sector jobs if a security clearance is required. The SF-86, a form that is completed by those who seek a security clearance for both federal and government contractor jobs, has a question about former employment.

A common version of the form asks a question similar to the question in the OF 306 but goes into more detail. It asks for negative job experiences as far back as seven years. It also asks the rather broad question of whether the security clearance applicant left a job under unfavorable circumstances.

The good news about the SF-86 is that a disclosure of a proposed removal on the SF-86 may not interfere with actually finding a private-sector job. For the most part, security clearance adjudicators care much more about full disclosure than the existence of past job problems.

Consider obtaining legal advice if one of the situations above applies to you. You may or may not be required to make a disclosure. Sometimes the circumstances surrounding the departure from a job can be sufficiently murky so as to create an ambiguity. Objective legal advice might prevent bigger problems that sometimes occur in the job application process.

Also, if you know you will be fired, resign before you receive the proposed removal. While not perfect, this is a substantial improvement in posture for the future job search.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Know the ethics rules before looking for another job

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You are looking for a job outside government, but you don’t want your current managers to know. Or you are about to retire and the company you have been working with on special projects might have a retirement job opportunity for you. Are there ethical concerns?

If your job prospect has nothing to do with your federal job and no one could say that your financial interests — e.g. receiving a future salary from a company that does business at your agency — would be affected by your performance of your government job, you are free to look for a job and not tell anyone about it.

If your job search concerns a person or entity that is part of your official duties, you can seek and accept a job, but you must disqualify yourself from that part of your job that concerns a prospective employer once your job search has started.

The rules on prospective employment are important because violating them can lead to criminal prosecution. Make sure you know the rules and, when in doubt, contact the free services offered by your agency’s designated ethics official. They will tell you how you can disqualify yourself from performing services for a prospective employer.

The first question is: When are you considered to be seeking employment? What if you just casually mention to a colleague from the contractor on the project you are overseeing that you would like to one day apply for a job with the contractor?

The Office of Government Ethics (OGE) has specific rules regarding negotiation of any kind for a position; the federal employee’s unsolicited communication about employment; and a response to an unsolicited offer of an employment possibility that is not a rejection.

An employee is permitted to make an unsolicited communication with a prospective employer solely to obtain an application or as part of an effort to send résumés to a class of potential employers. But be careful: If a résumé is sent to the contractor on your project and 15 other companies, as soon as your contractor responds with interest, you must disclose the job search and seek disqualification or a waiver concerning your performance of duties on behalf of that contractor.

According to OGE, the job search ends when the potential employer rejects that job possibility and all discussions about a job have stopped. Also, if two months pass after a résumé or job proposal is submitted without any indication of interest, the employee may consider the job search over. Attempts to bypass these requirements by delaying discussion of employment opportunities to a future date are not considered an end to the job search. So long as a job is a possibility, the employee must be disqualified or seek a waiver.

These rules are significant to the federal employee who works on a case or project with only a single possible outside employer. Disqualification means the employee might not be able to do his job, but failure to disqualify could result in a criminal prosecution.
The best advice is to seek assistance from the ethics official with a complete disclosure. This will likely prevent a criminal investigation or disciplinary action, but the ethics official has authority to extend a period of disqualification for appearance purposes even if a job possibility has ended.

Procurement professionals who participate in procurement decisions have a one-year ban on accepting compensation from a contractor who is awarded a contract over $10 million. The definition of procurement professional goes beyond a contracting officer and includes those who make procurement decisions or participate in technical evaluation teams or source selections authorities. It also can include a program manager. If in doubt, contact the ethics official.

If you are a procurement official and you are contacted for a job with a contractor or potential contractor during a procurement, you have an obligation to report the contact and to either reject the possibility of employment or disqualify yourself from further participation in the procurement.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Illegal Pay Grade Increases and Hiring Spouses

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Recently, a number of federal employees in my organization had their positions upgraded without advertising for their jobs and some even received large pay increases. Others were able to get their spouses hired, with one going through a direct hire without advertising the position. Do these actions violate any merit principles or federal employment laws? If they are illegal, who do I report it to?

A:

You have described actions that could be illegal favoritism or nepotism, both of which are prohibited personnel practices. Inspector Generals and the U.S. Office of Special Counsel investigate prohibited personnel practices. Whether the actions you describe are actually illegal depends on additional facts to be developed.


Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

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Q & A Session – SES Position Vacancy Violation

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I applied for an SES position. No hiring decision has been made, but someone has been hired on detail to “act” in the position and the position has been re-advertised to reflect specific credentials of the detailee. I complained to the MSPB but they said they don’t have jurisdiction. Did this violate any rule?

A:

The rule that governs this situation is contained at 5 U.S.C. § 2302 (b)(6). It prohibits granting or denying any preference or advantage not authorized by law, including defining the scope or manner of competition or the requirements of the job, for the purpose of helping or hurting an applicant. You have not provided enough information to tell if (b)(6) has been violated, but you have raised the issue.

 

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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