Government Disciplinary Actions
Employees of federal government agencies, including the State Department and Department of Defense, have certain rights and protections in seeking the privilege of a government security clearance, and in defending proposed disciplinary actions by their employers.
Mahdavi, Bacon, Halfhill & Young routinely represents Foreign Service Officers (and other government employees) in security clearance issues, and in grievance matters before the Foreign Service Grievance Board (FSGB). We are on the counsel list for the American Foreign Service Association (AFSA). Our partners have extensive experience representing Foreign Service Officers on a variety of disputes, including:
- Disciplinary actions;
- Reprimands and suspensions;
- Misconduct investigations;
- Security clearance issues;
- Diplomatic Security (DS) inquiries;
- Inspector General investigations and inspections;
- Separation for poor performance; and
- Discrimination complaints.
Security clearances are used by federal agencies to control access to classified or sensitive information or to assign an employee to a sensitive position or position of trust. The security clearances process generally begins with a Personal Security Investigation performed by the Office of Personnel Management (OPM) or the Defense Security Service (DSS). An applicant will generally be required to complete an Electronic Personnel Security Questionnaire (EPSQ) to provide details on his or her background. The OPM or DSS will usually run background checks and, if top secret clearance is sought, perform a background investigation that will involve conducting interviews of references.
After the investigation process comes the adjudicatory process, In the adjudicatory process, the applicant’s record of behavior is reviewed against the 13 adjudicative guidelines, or issue areas, which are in place to ensure fair, impartial, and consistent decisions. The “whole person concept” is used to determine if it is in the government’s interest to issue a security clearance. If the DSS finds cause for concern in its investigation, it may issue a Letter of Intent (LOI) to deny clearance which contains a Statement of Reasons (SOR) for the proposed denial. The applicant will have the opportunity to provide information in response to the SOR and request a hearing
At a hearing, there is the opportunity to present evidence in person before an Administrative Judge of the Defense Office of Hearings and Appeals (DOHA). If the hearing is unsuccessful, the decision can be appealed to the Personnel Security Appeal Board (PSAB) of the DOHA.
While an individual denied a clearance, can reapply for a clearance a year after the denial, but only if the Director of DOHA approves can the reapplication be processed. One must find an employer willing to sponsor the clearance and submit persuasive evidence that his or her situation has improved substantially since the clearance was previously denied.
Disciplinary Actions of Federal Employees
Additionally, employees who have satisfied their probationary periods have heightened protections against disciplinary actions by their employers. These include the right to due process before the agency can seek to affect their entitlement to continued employment and the benefits thereof. These include the ability to respond to the proposed disciplinary action, citing mitigating factors (also called Douglas factors) to show that the alleged conduct does not merit the proposed discipline. Depending on the agency, the employee will also have the opportunity to present further information to the deciding official or the opportunity to present evidence at a hearing before an administrative judge.