Employees at HUD lose background-check case

A number of employees at the Department of Housing and Urban Development recently challenged the agency when officials there attempted to perform background investigations on them.

Before delving into the case I will offer some information on the issues involved. Regulations issued years ago by the Office of Personnel Management require agencies to evaluate every competitive service job to determine what adverse impact an agency might suffer as a result of employee misconduct. The regulation stated that employees can be subjected to investigations of varying degrees of rigidity depending on the level of risk associated with each subject's jobs. If an agency did not have this right there is no telling who might land a government job.

In this case HUD determined that about 2 500 employees would be investigated using the Standard Form 85P Questionnaire for "public trust positions." A public trust position is one "involving policy-making major program responsibility law enforcement duties or other duties demanding the highest degree of public trust and positions involving access to or operation or control of unclassified confidential or financial records with a relatively high risk for causing grave damage or realizing a significant personal gain."

The government uses information obtained through the use of 85P forms to determine whether to hire job applicants. In the case of incumbent employees agencies can use it to determine whether employees should remain in public trust positions.

A challenge to the practice of using 85P forms was brought individually by employees at HUD and collectively by the American Federation of Government Employees (AFGE) on behalf of its members. The individual plaintiffs all of them long-term employees were determined by HUD to be in public trust positions because of their access to a computer database known as the Line of Credit Control System. The employees had "review privileges" under LOCCS meaning they could approve or reject vouchers alter data and approve payments in some circumstances.

HUD determined that employees with access to LOCCS were public trust employees because federal funds could be lost or redirected due to the employees' misconduct. HUD also noted that the privacy interests of program beneficiaries could be compromised if these employees acted improperly.

The HUD employees were upset with two questions on the 85P form that dealt with drug use and possession and they objected to a question about their financial stability. In addition they objected to the release they were asked to sign giving access to various personal records. The employees and the AFGE challenged the questions on constitutional and statutory grounds. The U.S. District Court for the District of Columbia determined that the government had not presented an adequate justification for forcing employees to disclose some types of information. Therefore it violated the employees' constitutional right to keep private information that the government does not legitimately need. That prompted the government to appeal the case.

In its review the U.S. Court of Appeals noted that HUD allows employees access to classified information or to work in "sensitive" positions only if available information indicates that "the person's loyalty reliability and trustworthiness [justify] entrusting the person with classified information or assigning the person to sensitive duties."

The court concluded that HUD had presented evidence showing that an employee using drugs is more likely to compromise the integrity of a database by making a negligent error. It also ruled that HUD had determined that employees with a substance abuse history or a history of financial indiscretion are more likely to embezzle funds.

The determination of "trustworthiness is an `inexact science at best ' " the court said. It chose not to "second-guess the agencies' conclusions regarding the dangers associated with drug use or financial trouble among employees in public trust positions." The court ruled that HUD may constitutionally require employees to disclose prior drug use and financial history.

As for the release form the court said it authorizes the government to collect only information relevant to determining whether an individual is fit for a public trust position. Of course a release can be abused but that is a separate issue. However HUD did not behave unreasonably by requiring a background check.

In my opinion people who want to work for the government should consider it a privilege - even though the pay is lousy and the working conditions stink. They should not put up a fuss over being subjected to background checks. Without such checks the federal work force could deteriorate to include drug users and financial deadbeats. Surely we don't want to see that happen do we?

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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