This presidential memorandum delegates to the Office of Personnel Management (OPM) the authority to make final suitability determinations for federal employees based on post-appointment conduct.
The OPM Director must then propose regulations amending existing rules to clarify this process and establish procedures for suitability actions, potentially including employee removal.
These regulations must also clarify requirements for agency referrals to OPM, and set a five-day compliance period for agency heads to adhere to OPM directives.
The memorandum aims to strengthen the suitability and fitness of the federal workforce.
Arguments For
Intended Benefit: Improves the suitability and fitness of the federal workforce by providing a clear process for addressing employee misconduct or issues affecting their suitability for federal service.
Evidence Cited: The memorandum relies on the President's constitutional authority and the laws of the United States. It also references Civil Service Rule 5.3.
Implementation Methods: The OPM Director is delegated authority to make final suitability determinations and is required to propose regulations to define procedures for these determinations. The regulations will consider a referral requirement by employing agencies. Agency heads must comply with OPM's instructions within a set timeframe.
Legal/Historical Basis: The memorandum's authority stems from the President's constitutional power and existing federal laws related to personnel management.
Arguments Against
Potential Impacts: The increased authority of OPM might lead to inconsistencies in suitability determinations across agencies. It could also increase the workload of OPM.
Implementation Challenges: Developing and implementing the new regulations may be time-consuming and complex. Coordination between OPM and various agencies will be crucial for successful implementation. The 5-day compliance timeframe could be challenging for agencies.
Alternative Approaches: Alternative approaches might include strengthening internal agency processes for handling employee misconduct, rather than relying solely on OPM intervention.
Unintended Effects: The increased emphasis on suitability might create an overly cautious environment, potentially discouraging applicants or leading to an overly punitive approach to employee discipline.
MEMORANDUM FOR THE DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT
SUBJECT: Strengthening the Suitability and Fitness of the Federal Workforce
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Delegation of Authority to Make Suitability Determinations and Required Rulemaking. (a) The Director of the Office of Personnel Management (OPM) is delegated the authority to make final suitability determinations and take suitability actions regarding employees in the executive branch based on post-appointment conduct, consistent with applicable law. In this context, a suitability action can include a directive by OPM to the head of an executive department or agency (agency) to remove an employee who does not meet the suitability criteria defined in OPM’s regulations.
(b) The Director of OPM shall propose regulations, consistent with applicable law, amending Part 731 of title 5, Code of Federal Regulations, to account for the delegation described in subsection (a) of this section and to implement appropriate rules and procedures regarding suitability determinations and suitability actions based on post-appointment conduct. The delegation described in subsection (a) of this section shall not be effective until the completion of this rulemaking.
(c) In drafting the regulations described in subsection (b) of this section, the Director of OPM shall consider requiring that an employing agency must make a referral to OPM in order for the Director of OPM to make a final suitability determination and take a suitability action regarding an employee based on post-appointment conduct.
(d) The regulations described in subsection (b) of this section shall additionally propose that, consistent with Civil Service Rule 5.3, if the Director of OPM issues specific instructions as to separation or other corrective action with regard to an employee, including cancellation of a personnel action, the head of the agency concerned shall comply with the Director of OPM’s instructions within 5 work days of the final decision.
Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Director of OPM is authorized and directed to publish this memorandum in the Federal Register.
This memorandum gives the Office of Personnel Management (OPM) the power to make final decisions about employee suitability in the executive branch, based on actions after they're hired.
This includes the power to order an agency to fire an unsuitable employee.
The OPM director must create new regulations to formalize this power, following existing laws.
These regulations will define the process for suitability evaluations and actions.
The OPM's new authority only takes effect after these regulations are complete.
The regulations will also address whether agencies need to officially ask OPM to make a decision on an employee's suitability.
Agency heads must follow OPM's orders regarding employee removal or other corrective steps within 5 workdays of the final OPM decision.
This memorandum doesn't change or interfere with existing agency authority or the Office of Management and Budget's (OMB) roles, is subject to funding availability, and does not grant any legal rights.
Finally, the OPM is instructed to officially publish this memorandum.