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Date: May 18, 2004
This notice clarifies the responsibilities and authority of the Office of Personnel Management (OPM) and agencies with delegated authority to adjudicate suitability issues relating to falsification of employment applications and materials by individuals applying for or employed in competitive Federal civil service positions.
This notice does not apply to adjudication for contractors, military commissions or enlistments, positions in the excepted service that do not convert to the competitive service, or positions that are not subject to investigation under the provisions of 5 CFR 731.104.
OPM responsibility. As outlined in OPM's published suitability adjudication regulations (5 CFR 731), OPM retains jurisdiction in all competitive service cases involving evidence of material, intentional false statements or deception or fraud in examination or appointment. The regulations define a "material" false statement as "one that is capable of influencing, or has a natural tendency to affect, an official decision." The test of materiality does not rest on whether or not an agency actually relied on a false statement. Actions may be taken against falsifiers whether or not they succeed in their attempts to deceive. OPM's suitability program seeks to deter applicants from falsifying statements to gain advantage in the appointment process, as well as to detect individuals who falsify. Our continued involvement in adjudicating these cases serves to promote the efficiency of the service and to protect its integrity. When we take a suitability action, we are able to debar (for up to three years) an individual from competing for or accepting appointments in the competitive Federal service. Our debarment action prohibits individuals who engage in material, intentional falsification in the appointment process from being appointed to any competitive service position with any Federal agency.
If we identify falsification during the course of an investigation we are conducting at the request of an agency, and determine that there is evidence of materiality and intent, we will contact the agency to coordinate adjudication of the case. If appropriate, we will notify the agency that we will be assuming jurisdiction to adjudicate the case.
Agency responsibility. If you receive the results of an investigation containing falsification and are not contacted by us, the explanation may be that we have no jurisdiction to adjudicate the case or that we have deemed the falsification to be non-material or unintentional. However, we realize that agencies may identify a material and intentional falsification that we overlooked or lacked information to validate. We also realize that agencies may have insight into the requirements of the position and may reach a conclusion that a particular false statement is material because of its nexus to the position or because of the agency's public trust responsibilities, for example.
If you receive the results of an investigation for a position that is in the competitive service and is subject to investigation under the requirements of 5 CFR 731.104, and you believe that it contains an issue of material, intentional falsification, you should contact our Suitability Adjudications Branch (SAB) by phone or mail. We will evaluate the issues in the case and consider any information you provide about the materiality or intentionality of the falsification. We will exercise jurisdiction to adjudicate the case if we conclude the falsification is material and intentional.
Agencies with delegated authority from OPM to conduct investigations that are required under 5 CFR 731.104 should refer those investigations to OPM in which material, intentional falsification issues are developed. Also, if falsification by an applicant for a competitive Federal job is developed independent of an OPM or other agency investigation, the case must be referred to OPM for adjudication.
False statements, even when clearly intentional, do not always rise to the definition of "material." In a situation where the agency believes that an intentional falsification is not material, but that such a falsification raises concerns about the individual's honesty, the agency may wish to identify the issue as part of a suitability action using the factor set forth at 5 CFR 731.202(b)(2), "dishonest or criminal conduct."
Although this option is perfectly legitimate, administrative judges of the Merit Systems Protection Board have recently dismissed, for lack of jurisdiction, several suitability actions taken by agencies based on falsification but characterized as "dishonest conduct." Specifically, several judges have concluded that agencies lack jurisdiction to take a suitability action in cases of this nature because OPM's regulations state that OPM retains jurisdiction in all cases involving evidence of material, intentional falsification in examination or appointment. To avert such a finding, we advise agencies to consult with OPM-SAB about the materiality of the falsification before characterizing an intentional falsification as "dishonest conduct" in a 5 CFR 731 action. If we agree that the falsification is not material, we will indicate to the agency, in writing, that the falsification does not meet OPM's definition of material and we will delegate the authority to adjudicate the case to the agency. If, instead, we conclude that the falsification is material, we will assume jurisdiction over the case and will notify the agency of our decision.
For further information about what constitutes material falsification or about OPM's authority and responsibility to adjudicate material falsification in the competitive Federal service, please contact one of the following SAB Suitability Specialists at (724) 794-5612. Individual extensions are listed.
Written requests for adjudication of a material falsification, or an advisory opinion about whether or not a falsification is material, may be sent to this address:
Office of Personnel Management Center for Federal Investigative Services Suitability Adjudications Branch Box 618, 1137 Branchton Road Boyers, PA 16018-0618
Kathy L. Dillaman Deputy Associate Director for Investigations
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