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Washington, D.C.—The National Treasury Employees Union (NTEU) has serious concerns about proposed Office of Personnel Management (OPM) changes to regulations impacting employee rights in determinations about their suitability for initial employment or for a new position within the government.

In particular, NTEU President Colleen M. Kelley said in comments submitted to OPM, the union “takes strong exception” to changes that would narrow the scope of jurisdiction for the Merit Systems Protection Board (MSPB).

The proposed changes would limit the authority of the MSBP to reverse an agency or OPM suitability determination or action, Kelley said, and “would bar the MSBP from considering any mitigating factor not deemed pertinent by OPM.”

She warned that “OPM appears to be transforming the MSPB from a legitimate reviewing authority into a rubber-stamp, according only the patina of due process,” calling that “particularly troublesome in light of the obvious potential for agencies to manipulate the system by casting a removal action as a suitability determination.”

Kelley offered her assessment of the proposed changes in comments filed in response to an OPM Federal Register notice of its intention to amend its regulations regarding federal employment suitability.

With some exceptions, a suitability determination needs to be made, either by OPM or an agency, within one year of an employee taking a position. After the year, OPM can take a suitability action against an employee only for false statements or fraud in the application, failure to furnish testimony, or a statutory or regulatory bar.

On another aspect of the proposed changes, President Kelley questioned the regulatory basis for subjecting employees in the excepted service to removal as ‘unsuitable’ when they have never sought to convert to a competitive service position.

There are regulations identifying “disqualifying factors” that impact the excepted service, she said, but noted that these affect only applicants for employment. “What authority does OPM cite to authorize the removal of an excepted service employee, post-appointment, for alleged misconduct prior to appointment?” the NTEU leader asked.

On the plus side, President Kelley applauded OPM’s decision to adopt additional procedural protections for persons subject to an unfavorable suitability decision or action.

“Notice of the reason for the decision and an opportunity to explain or refute the information, along with representation of one’s choice, are the minimum requirements of due process,” she said. “Given the degree to which the scale is already tipped in favor” of the office proposing the employee’s removal, “these due process protections are essential,” she added.

As the largest independent federal union, NTEU represents some 150,000 employees in 30 agencies and departments.