Merit Systems Protection Board (MSPB) recently ruled on four cases "clarifying required constitutional
due process when an employee faces a proposed indefinite suspension because
of a cancelled or suspended security clearance." What does this actually
mean for the federal employee?
Constitutional due process mandates that suspended employees be afforded
"a meaningful opportunity to respond to the suspension of [their]
clearance or classified access." The problem with this, of cousre,
is that terms like "meaningful" and "reasonable" are
open to interpretation. Before the series of four recent decisions was
issued, the MSPB had consistently held that, while employees in danger
of losing their clearances or access had to be given an opportunity to
respond to a resulting suspension, the deciding official in these matters was not
required to determine whether or not the employee's arguments, justifications,
or defenses were true.
Put simply: Suspended employees had a chance to respond to the suspension,
but the person to whom they responded was under no obligation to acknowledge
the validity of that response. Put even more simply: you could talk, but
no one had to listen.
The Board's reasoning was harsh but clear:
1) If you need access to classified documents to do your job,
2) But you can no longer be trusted with those documents,
3) Then you can no longer do your job; and
4) If you can no longer do your job,
5) There is no reason to keep you at your job.
After reviewing the details in the case of McGRIFF v. DEPARTMENT OF THE
NAVY and three companion decisions, the MSPB has now determined that,
for a "meaningful opportunity to respond" to a clearance-based
suspension to be truly meaningful, the merits of the suspended employees'
claims must be considered.
Much like the Board's previous reasoning, the new approach is clear
and much more employee-friendly:
1) In order for an employee to have a "meaningful opportunity"
2) The deciding official must consider the validity of the employees' response,
3) Because how can you find that a suspension is warranted,
4) Unless the reasons behind it are legitimate?
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