Cheri Cannon is a partner at Tully Rinckey PLLC and the former chief counsel to the chairman of the Merit Systems Protection Board. She concentrates her practice in federal sector employment and labor law and can be reached at info@fedattorney.com.
The theft from the Office of Personnel Management of information on millions of current and former federal employees, presumably by Chinese hackers, has raised questions about the trustworthiness of people exposed to the data breach. The question of the day is, Will the stolen personal information make certain employees susceptible to blackmail?
Related: OPM hack went undetected for a year
If an employee already holds a security clearance or works in a sensitive position, his or her ability to protect classified information should not be doubted, barring any conduct that could turn him or her into a security risk. As the Adjudicative Guidelines for Determining Access to Classified Information states, "No coercive policing could replace the self-discipline and integrity of the person entrusted with the nation's secrets as the most effective means of protecting them."
It is also important to remember that trustworthiness is not a quality required only of employees with access to classified or sensitive information. In fact, an agency can remove an employee when it loses faith in him or her, so long as it can show a nexus between the adverse action and the efficiency of the service.
While trust for the sake of the efficiency of the service and trust for the sake of national security are two very different beasts, they are both based on the same basic principles. So here are some key points that agency managers and supervisors should keep in mind whenever questions about an employee's trustfulness arise.
In Beauford v. U.S. Postal Service(2014), the Merit Systems Protection Board adopted Webster's Collegiate Dictionary's definition of "trustworthiness" as "worthy of confidence." All it takes to establish the nexus between a removal action and the efficiency of the service is a deciding official's "declaration that he lost confidence and trust in an employee."
Agencies must ask not only if they can trust an employee, but if the public can as well. "The public will not, and should not be expected to, place trust and confidence in a government employee found guilty of a criminal misdemeanor, especially where the criminal activity relates to the role of the governmental agency," the board said in Richardson v. Resolution Trust Corporation (1995).
A supervisor's loss of confidence in an employee does not have to result in the employee being put on administrative leave. "Even in cases of serious employee misconduct, the agency may feel that the
If the agency keeps an employee in his or her position after learning he or she engaged in certain misconduct, it may have difficulty removing him because the continuation in a "position with unlimited access to the installation
An agency does not have to retain an employee it does not trust if the employee's "future work and would be subjected to the added burden of oversight not required for the other employees," the MSPB found in Rhodes v. Department of the Treasury(1982).
