Written Testimony of Robert H. Shriver, III Senior Policy Counsel U.S. Office of Personnel Management

Meeting of July 26, 2011 – EEOC to Examine Arrest and Conviction Records as a Hiring Barrier

Good morning Chairwoman Berrien and Commissioners of the EEOC. My name is Robert Shriver and I am the Senior Policy Counsel at the Office of Personnel Management. Thank you for including OPM in this hearing today. I am pleased to be here to discuss the challenges that people with arrest and conviction records face in trying to secure employment, including employment with the Federal Government. OPM has been working on these issues with the Attorney General's Re-Entry Council, and Director Berry was recently extended an invitation to become a member of the Council. I hope that my testimony today will help advance understanding of what the rules are for Federal employment so that people with arrest and conviction records are given a fair chance to compete for Federal jobs.

I. Overview

OPM is the agency responsible for establishing human resources policy for the Federal government. We touch on arrest and conviction issues primarily in four ways:

First, OPM has jurisdiction to establish the suitability policy for employees in the "competitive service." Suitability explores whether the individual demonstrates the appropriate character to hold a Federal job, both as a general matter and considering agency-specific and position-specific factors. We have regulations at Part 731 of 5 C.F.R. that establish suitability rules, including criteria that would be pertinent to arrests and convictions. To be clear, those regulations mostly apply to individuals entering competitive service jobs, which make up between 50% and 60% of the Federal workforce, as well as some other categories, such as career appointments in the Senior Executive Service. OPM's role in setting rules for employment in the "excepted service" is more limited. OPM's excepted service regulations are set forth at 5 CFR pt. 302.

Second, OPM is responsible for issuing "supplemental credentialing standards" that cover contract employees. Agencies use these standards to decide whether to grant credentials to allow long-term access to federally-controlled facilities and information systems. Arrests and convictions are pertinent to these determinations as well.

Third, in addition to establishing suitability policy and credentialing standards, OPM is also the agency that performs approximately 90% of the background investigations that allow agencies to determine whether applicants for Federal jobs meet suitability criteria, and whether employees should be granted security clearances. Our work in this area requires us to gather and evaluate information about people and their character and conduct, including any criminal history.

Fourth, as do most agencies, we have some contracts that we manage at OPM, and we have to make sure that the contract employees meet the fitness criteria prescribed by each contract, and, where a clearance is required, that they possess the appropriate clearances to perform national security functions. We have developed our own process for ensuring fairness to the contractor employees that I will briefly describe.

I'm going to provide more detail on how OPM approaches each of these areas, and then I'll be happy to take your questions.

II. Suitability Policy

Let me start by mentioning a few key points about our suitability policy. First, with just a few exceptions, criminal convictions do not automatically disqualify an applicant from employment in the competitive civil service. The exceptions involve certain statutory bars to Federal employment. For example, 5 USC 6313 includes a 5-year bar if you are convicted of inciting a riot. 18 U.S.C 2381 bans from future Federal employment anyone who has been convicted of treason. One of the most common statutory debarments is 18 USC 922. It requires an indefinite bar from any position requiring the individual to ship, transport, possess, or receive firearms or ammunitions if you were convicted of a misdemeanor crime of domestic violence. There are also some agency-specific prohibitions, particularly in the financial area.

Aside from these statutory bars, OPM's suitability regulations in 5 C.F.R. part 731 permit a suitability action to be taken against an individual on the basis of prior criminal conduct only if the action will protect the integrity or promote the efficiency of the service. Our regulations and other guidance help agencies make those determinations, as well as some Federal case law. A suitability action is not a simple nonselection -- its consequences may involve removal, debarment, and cancellation of eligibilities. Accordingly it is a formal procedure requiring notice, opportunity to respond based on the materials relied upon by the agency, and a final decision with an appeal to the Merit Systems Protection Board. Also, our regulations identify several factors that agencies can take into account when evaluating someone with a criminal past, and these may be aggravating or mitigating. Specifically, 5 CFR § 731.203(c) mentions things like the seriousness of the offense, the circumstances under which it occurred, how long ago it occurred, and the absence or presence of rehabilitation, among others. Some folks think our regulations could be a little clearer on this point and in other areas, too, and that is something we are considering.

III. Credentialing Standards

OPM has established government-wide "supplemental credentialing standards" for HSPD-12 determinations, which are used for issuance of PIV cards to contractors and employees. In such cases, supplemental standards may be used because the final decision to grant or deny the credential is not simply derivative of a separate vetting process. Agencies may consider prior criminal conduct, but they must have a reasonable basis to believe that the conduct poses an unacceptable risk to life, safety, or health; to the Government's physical assets or information systems; to personal property; to records; or to the privacy of data subjects. These standards are published in OPM memorandums available on our Web site.

IV. Background Investigations

The next issue I want to touch upon is what our investigators do when they come across an arrest record during the course of a background investigation. We recognize that reliance on the arrest record itself can paint an incomplete picture. So we also collect information on the ultimate disposition, where it is available in criminal history records, and for public trust and clearance investigations, we review court records if necessary to obtain the disposition.

In fact, rather than "arrest records," OPM collects "criminal history record information" (CHRI). CHRI means "Information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, sentencing, correction, supervision, and release." 5 U.S.C. § 9101(a)(2) (emphasis supplied). In suitability cases, we give that information to the employing agencies, who then conduct what we call the "adjudications," or, in some cases (such as dishonesty), we assert jurisdiction to conduct the adjudications ourselves. In cases involving security clearance eligibility, the adjudicating agency assesses conduct against adjudicative guidelines issued by the President, including so-called "Guideline J" addressing criminal conduct. Part of what OPM or the other adjudicating agency is supposed to be evaluating is whether it believes the underlying criminal conduct actually occurred. It is the conduct that would be assessed in the final suitability or national security determination, not the arrest per se.

The assessment about whether the conduct occurred might be based upon a number of things, including the subject interview. That conclusion would then get integrated into the overall assessment of character and conduct, which would involve the evaluation of relevant mitigating factors.

If the individual was convicted of the underlying crime, we would view that as indisputable evidence that the conduct occurred, given the evidentiary standard of "beyond a reasonable doubt." On the other hand, a dismissal does not necessarily mean the agency should conclude that the conduct didn't occur, given the varying burdens of proof between criminal proceedings and the integrity and efficiency of the service standard.

V. OPM's Contractors

The last point I want to discuss briefly is how we handle our contractors at OPM . We have some contracts that we manage at OPM, and we have to make sure that the contract employees meet fitness and credentialing standards and have the appropriate clearances to work in OPM facilities.

As a threshold matter, we have certain contracts that require contract employees with staff-like access to undergo a background investigation, even if they do not need eligibility for access to classified information. We have determined that we would apply the suitability standards contained in our Part 731 regulations to such employees. Agencies don't have to do that, but we've chosen to do so, because we think they are good standards and that there is no need to reinvent the wheel for contractors.

We also try to be transparent with respect to any adverse determinations.

• We provide notice to the contractor employee of a potential adverse determination.
• The contractor employee has a right to respond to that determination.
• A final determination is made by a high-level OPM official (e.g., the Director of Personnel Security).
• And for some types of contracts, if the final action is unfavorable, the contractor employee can seek reconsideration.

We think it is important to provide this kind of process.

VI. Conclusion

In conclusion, I hope that you can see that we at OPM are serious about providing fair treatment to individuals with arrest and criminal conviction histories. The rules are set up to provide agencies with a complete picture of the person's background, so that they can make informed character judgments. We are trying to do a better job of explaining those rules, so that agencies don't run into trouble when applying them. And that is why public meetings like this, and the work that the Attorney General's Re-entry Council is doing, are so important.

Thank you for your time and I look forward to any questions you may have.