JOANNA FRIEDMAN, A PARTNER AT THE FEDERAL PRACTICE GROUP, EXPLAINS TO FEDERAL TIMES WHAT HAPPENS WHEN A FED EMPLOYEE RETIRES DURING AN OIG INVESTIGATION
Posted By fedpractice || 6-Jan-2020
A BOP supervisor abused their position then quit. What happens next?
A Department of Justice Office of Inspector General Investigation found a Bureau of Prisons supervisor had committed misconduct, but the supervisor retired before the investigation was completed. (z_wei/Getty Images)
A supervising official at the Bureau of Prisons engaged in an “inappropriate sexual relationship” with a subordinate and then lied about it, used their position to influence evaluations, and removed evidence of the relationship from a BOP-issued cellphone, according to a Jan. 6 Department of Justice Office of Inspector General report.
According to the report, the supervisor entered into a financial arrangement with that subordinate, then worked to influence their performance evaluations, all in violation of agency policy and ethics regulations.
Once the supervisor was asked to hand over their BOP-issued cellphone as evidence, the employee deleted data on the phone, violating policy and requirements to safeguard agency information systems by granting a cellphone company store employee access to the agency device.
That supervisor retired before the OIG completed its investigation, a situation which, according to Federal Practice Group partner Joanna Friedman, usually removes the agency’s ability to take disciplinary action against the employee.
“Once the federal employee separates from an agency, that agency is no longer going to have any authority to take any type of disciplinary action against that employee, if the OIG investigation finds some type of misconduct or performance issue, because that person is no longer employed by the agency,” said Friedman.
Should the misconduct be determined to be criminal behavior or cause the employee to be in debt to the agency due to misuse of funds, the agency can pursue a retired employee to remedy those issues.
A provision in the 2017 National Defense Authorization Act also provides avenues for agencies to address that employee should they try to enter back into federal service at a different agency.
“There is a new law that came out recently that says that even if the employee has been separated and an adverse OIG finding comes back, that it can be added to the employee’s OPF, their official personnel file. And that is potentially problematic for the employee, because an OPF travels with you wherever you go in the government,” Friedman said.
“I wonder how often that actually happens, because federal agencies only have so many resources, and OIG investigations take a long time.”
Placing an adverse finding on a retired employee’s OPF also requires a series of steps that include notifying the impacted employee and allowing them to contest the finding. That employee may also decide to bring the case before the Merit Systems Protection Board.
According to Christopher Keeven, partner at Shaw Bransford & Roth, it’s possible that some agencies don’t even know about the provision due to how it was passed.
“It’s easy to lose sight of things, because the defense authorization bills are huge, and they include a whole, whole lot of things,” said Keeven.
“That safeguard is out there, and I don’t think the public and even a lot of people in the federal community even realize it exists.”
Previously, employees were able to find themselves in positions where they could negotiate the erasure of certain marks on their record in exchange for agreeing to retire, but a May 2018 executive order signed by President Donald Trump prohibited agencies from making agreements that would alter an employees personnel file in such a way.
Employees under investigation can also risk losing an avenue to advocate for their innocence, if they retire in the midst of an investigation.
“Like any line of work, sometimes investigators are wrong, so if the employee does leave they’re foregoing their opportunity to defend themselves and clear their name,” said Keeven.
Federal employees also face a common myth that if the investigation finds them responsible of misconduct, they risk losing or having a penalty placed on their retirement. For the most part, agencies cannot alter an employee’s retirement as the result of an investigation.
“There are certain crimes, a really limited number of crimes that all relate to treason and such, where the government can go and try to take annuity benefits from a person, but it’s less than a handful of specific crimes the person has to be convicted of,” said Keeven.
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