Developments at OPM: On October 10, 2018, the Office of Personnel Management (OPM) issued Interpretive Guidance on implementation of Section 5 of Executive Order 13,839. OPM's Interpretive Guidance clarifies some aspects of how Section 5--the provision limiting modification of federal personnel records in settlement--should be applied.
As previously analyzed in this blog, Section 5 of E.O. 13,839 prohibits agencies from agreeing in settlement (including settlements of MSPB appeals, whistleblower reprisal complaints or EEO complaints) to modify or expunge discipline or negative performance evaluations. E.O. was one of three federal sector-related executive orders issued on May 25, 2018. While other provisions of the three May 25, 2018 federal sector executive orders have been struck down in court (and are currently on appeal), Section 5 has so far not been directly addressed in litigation, and so for now remains in force.
OPM's Interpretive Guidance makes several important clarifications on how Section 5 operates. First, OPM instructs that Section 5 does not prevent agencies from modifying or expunging personnel records for proposed personnel actions which have not yet been finalized--including instances where the agency doubts if the personnel action is valid or would be defensible upon appeal. For example, agencies are permitted to modify such records based on subject employees' responses to proposed discipline, prior to the final decision imposing discipline. This clarification addresses some agencies' interpretation that even proposed discipline had to be left unmodified due to Section 5. Second, OPM instructs that agencies are allowed to modify records if the agency later determines that the personnel action contains inaccurate information or records a personnel action that was taken by any agency illegally or erroneously. Agencies are not prohibited from making these corrections by the fact that an appeal or complaint concerning the relevant personnel action happens to be ongoing. While not fully ameliorating the negative effects of Section 5, OPM's Interpretive Guidance should help expand the group of case for which settlements are possible.
If you are a federal employee in need of legal representation in matters before the MSPB, the EEOC or the OSC, and need assistance, you might want to request an initial consultation with one of Passman & Kaplan's attorneys.