OPM issues unfair rules on conduct

The Office of Personnel Management last year issued interim rules designed to ensure that its employees do not use their official positions and their access to nonpublic information to obtain any advantages for themselves or others when taking exams relating to federal service. Unfortunately the agency may have gone too far. OPM issued the interim rules as a supplement to standards of ethical conduct for federal employees published by the Office of Government Ethics in 1992. These standards apply to all executive branch personnel.

OPM's interim rules were designed to prevent the use of public office for private gain. The rules specify that OPM employees who help develop written tests or other mechanisms to assess eligibility or qualification for government jobs must notify their supervisors before they apply to take a competitive exam or an internal competitive exam. They also must notify their supervisors when their spouses children or business partners who are privy to the development of written tests are about to take such an exam.

Although this new notification requirement was intended to ensure that employees who help create written tests do not use inside information for their own benefit it is not clear to me whether it adequately ensures there will be no hanky-panky. Even with this new rule in place OPM employees involved in developing written exams will still be able to obtain information about other written exams created by colleagues at the agency. OPM can prevent such an occurrence by establishing appropriate internal management controls but not by publishing a requirement that employees notify their supervisors before taking exams.

There is a government mentality that says management responsibility ends after an agency publishes a rule prohibiting a certain action. Management controls seem alien to government bureaucrats at least those employed by OPM. If the government wants to prevent those who develop government exams from misusing their inside knowledge it should ensure that those employees cannot take exams they helped develop. But it also should prohibit them from obtaining information pertaining to exams other than those they helped create.

OPM is not doing that. OPM is simply saying that if you design exams for the agency you have to tell your supervisor before you take one. And what is the supervisor supposed to do at that point?

In another part of this interim rule OPM is also requiring employees to notify their supervisors of outside employment that occurs on a substantially regular basis after hours. Specifically OPM employees must now obtain prior approval to provide professional services involving the same specialized skills or educational background as required for the employees' official duties. OPM employees must also obtain prior approval before accepting outside assignments involving teaching speaking or writing if those assignments relate to the employees' official duties.

I am not quite sure what the government is trying to achieve here other than to muzzle OPM employees and I am not sure this is consistent with the freedom of speech protection contained in the Constitution. I question whether this provision will stand if challenged by an OPM employee in the courts.

In addition OPM is prohibiting its employees from working for "prohibited sources " defined as people or organizations regulated by OPM or seeking official action by or doing business with the agency.

That puts an awful burden on whoever has to provide or deny approval for such activities. For example let's assume there is an organization attempting to provide training services to OPM but thus far has been unsuccessful. An OPM employee might want to moonlight by getting a job helping such a company to develop training materials. I am not sure I see anything wrong with that. The OPM employee is not helping the company to get a job or in any way undermining the integrity of his position. He is simply helping a company develop training material.

I can envision an OPM supervisor denying that person permission to work for that company on the grounds that the employee might put in a good word for the company to someone involved in deciding whether to give this company business. This is not a very far-fetched scenario.

Generally I find very little merit in the OPM regulations. If you are not employed by that agency consider yourself lucky.

-- Bureaucratus is a retired federal employee who is a regular contributor to Federal Computer Week.

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