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Implementation of Changes to 5 U.S.C. 3322 and Resignations During Investigation

In a May 7, 2018 memorandum, Jeff T. H. Pon, the Director of the Office of Personnel Management (OPM), informed Chief Human Capital Officers at federal agencies of the implementation of Title 5’s new section 3322: Voluntary Separation Before Resolution of Personnel Investigation.

Under this new section, any employee who voluntarily resigns in the midst of an investigation will receive “a permanent notation in [their] official personnel record file… [within] 40 days after the date of the resolution of such investigation.” Prior to 5 U.S.C. 3322, employees who were under investigation could resign and not incur derogatory marks on their personnel file, and then could reapply to federal service without disclosing the investigation. Section 3322 intends to prevent this occurrence by clearly notating the investigation and its findings directly into the employee’s personnel file.

This section defines “personnel investigation” as either “an investigation by an Inspector General… or an adverse personnel action as a result of performance, misconduct or for such cause as will promote the efficiency of the service under chapter 43 or chapter 75.”

Employees still have rights if a personnel file notation is proposed. They have a 30-day window to respond to the resolution of the investigation. After the decision is issued, employees who have received a notation have appeal rights before the Merit Systems Protection Board. The personnel file notation will remain during the appeal process, but it will be joined by an additional notation indicating the pending appeal with the MSPB.

If the employee is successful in their appeal, both notations will be removed. If the appeal is dismissed, only the second notation pertaining to the MSPB appeal will be removed.

The Agency has no set guidelines on the format of the notations, and, according to OPM, “an agency may use its own discretion for determining the format for making the notation.” A sample notation provided in OPM’s memo encloses a one-page document describing the investigation and its findings, written and signed by an agency official. Any supporting documentation or response provided by the employee regarding the investigation is included in the personnel file as well.

While Section 3322 was put into effect in December 2016, this memorandum will alert agencies to its implementation, most likely resulting in an increase in these types of notations. As previously indicated, these notations are appealable to the MSPB, meaning that employees facing a personnel file notation still have options for legal recourse. Federal employees who are considering appealing a personnel file notation should contact a federal employment attorneyto discuss available appeal rights and potential representation.