“Clean Records” Are Back!

George M. ChuziIn a series of blogs, we have chronicled the efforts of the former Trump Administration to punish the federal workforce, which he seemed to believe was part of the “deep state” dedicated to undermining his presidency. This resulted in the creation of a new Schedule F, which would have eliminated civil service protections for many mid-level employees, making them easier to replace with political appointees; and most significantly, the issuance of Executive Order 13839, which made it easier to remove employees and almost impossible for them to negotiate for a “clean record” as part of a settlement. OPM issued regulations under EO 13839, which were effective November 16, 2020, after President Trump was defeated for a second term.

Almost immediately upon taking office, President Biden withdrew Schedule F, and he issued Executive Order 14003, which rescinded EO 13839 (OPM instructed agencies in March 2021 not to comply with the 2020 regulations.) In January 2022, OPM published proposed regulations, which would have the effect of eliminating the 2020 regulations. On November 10, 2022, OPM issued its final regulations, which will be effective on December 10, 2022. Below, we offer the major changes that are reflected in these final regulations (all citations to regulations are to 5 C.F.R.):

  • § 432.104: Part 432 of OPM’s regulations concerns performance and performance based actions. The 2020 regulation had added this language: “No additional performance assistance period or similar informal period shall be provided prior to or in addition to the opportunity period provided under this section.” The new regulation deletes that language, and adds the following language (which the 2020 regulation removed): “As part of the employee’s opportunity to demonstrate acceptable performance, the agency shall offer assistance to the employee in improving unacceptable performance.” OPM indicated that the 2020 regulation impermissibly restricted the kinds of assistance to which employees are entitled if their performance is unsatisfactory.‌‌
  • § 432.105(a)(1): The 2020 regulation had added this language: “the agency’s obligation to provide assistance, under 5 U.S.C. 4302(c)(5), may be discharged through measures, such as supervisory assistance, taken prior to the beginning of the opportunity period in addition to measures taken during the opportunity period” (emphasis added). OPM believed highlighted language changed the focus of assistance from the improvement/opportunity period to measures offered prior to that period. OPM emphasized the agency’s obligation is to assist the employee during that period.‌
  • § 432.108 and § 752.203(h) (Part 752 governs discipline for misconduct): This was the ballgame. The 2020 regulations – applicable to performance and misconduct penalties – provided that agencies could not “agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records,” as part of a settlement of “a formal or informal complaint by the employee or settling an administrative challenge to an adverse action.” OPM agreed with most commenters that this regulation needlessly prevented both agencies and employees from settling cases that could (and should) have been settled. OPM specifically said that it was not encouraging or suggesting that agencies agree to a “clean record” settlement, but was merely indicating that they had the discretion to do so if they believed it appropriate.‌
  • § 752.103(d)(2) and § 752.404(b)(1) OPM eliminated the requirement in the 2020 version of 752.103(d)(2) that a decision on a disciplinary action be issued within 15 days after the employee’s reply. According to OPM, while agencies are encouraged to issue decisions “promptly,” when necessary agencies can continue investigations in order to reach the proper decision. OPM also eliminated the requirement in the 2020 version of 752.404(b)(1) that a decision on an adverse action (a removal or suspension of more than 14 days) be issued no later than 30 days after the proposal was given to the employee. (The statute says the employee is entitled to “at least” 30 days before a decision on the proposal.) OPM saw no reason to curb an agency’s discretion to take longer than 30 days to decide, if it deemed appropriate.‌
  • § 752.202: The 2020 regulations added requirements that an agency resort to progressive discipline, that it consult appropriate comparators, that it consider past discipline and work record, and that “suspension should not be a substitute for removal.” OPM rescinded those requirements, reminding agencies “to calibrate discipline to the unique facts and circumstances of each case.”‌
  • §§ 752.602-604 (Senior Executive Service): As in the 2020 regulations governing the regular civil service, the regulations governing the SES imposed deadlines of 15 days for a response to an adverse action and 30 days for the final decision. OPM rescinded both of those requirements, and for the same reasons.‌

Without question, the 2020 regulations were an attempt to make it easier for agencies to discipline and remove employees. While a long time in the making, OPM’s revision to these regulations is a welcome breath of fresh air.

George Chuzi is a partner at KCNF.