The new rules will replace the previous standard of “knowingly and intentionally engaging in acts or activities designed to overthrow the US government by force.” Image: Mark Van Scyoc/Shutterstock.com
OPM has proposed a major overhaul of the policies governing fitness and suitability determinations for both current and prospective federal employees, including what would be a revised and expanded set of red flags in those determinations.
Determining suitability and fitness includes whether a person has “the necessary level of character and conduct necessary to perform work” for the government, according to a Jan. 31 Federal Register notice with a 60-day comment period. Eligibility determinations for security clearances that involve some of the same types of considerations are separate and will not be affected by the revisions.
Generally, eligibility definitions apply to competitive service and career SES, while eligibility definitions apply to excluded service positions. Additionally, hiring agencies typically make these decisions, although OPM has this authority if issues involving more problematic types of behavior arise.
The notice is the result of a review process that began in 2018 under a series of executive orders dating back to administrations over the previous decade, and will rewrite or eliminate some regulations that have not been updated since 1953.
“The key objectives of the initiative are to take advantage of information technology capabilities that enable the integration of automation and take advantage of a wider range of data, reduce time-consuming manual processing and encourage greater workforce mobility by providing of verification processes that allow each individual’s verification status to be continuously up-to-date,” it said.
Among many other provisions, the rules will: set standards for agencies to use in determining the risk level of positions and in vetting personnel; replacing policies calling for reinvestigations every five years for incumbents designated as moderate or high risk with “continuous review” for all levels of risk, while providing for full reinvestigations only when necessary; and generally require agencies to honor assessments at the same or higher risk level made by another agency.
Changes to the factors include: clarifying that dishonest conduct “need not be criminal to be considered relevant in determining suitability or fitness”; removing the requirement that evidence of rehabilitation be “substantial” following prior use of illegal drugs or excessive alcohol use that could affect performance; and adding a “violent behavior” factor that does not fall under any other factor.
The rules would also replace the previous standard of “knowingly and intentionally engaging in acts or activities designed to overthrow the U.S. government by force” with four new standards. These would include state, local or tribal governments; “acts of force, violence, intimidation or coercion to deny others the free exercise of their rights”; attempt to indoctrinate others or induce them to act in support of illegal acts’; and “active membership or leadership in a group with knowledge of its unlawful purposes, or participation in such a group with the specific intention of furthering its unlawful purposes.”
“These more nuanced factors are narrowly tailored to address conduct that is not protected by the First Amendment, that has a clear connection to the integrity and efficiency of the public service, and that poses significant risks of an insider threat to federal agencies and the public they serve.” “, it says.
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