One of the more confusing aspects of seeking employment with the federal government is the vetting process. While many people are aware of the security clearance process, few realize that each agency also has its own suitability guidelines. Sean Bigley, security clearance attorney and Lindy Kyzer of ClearanceJobs discuss suitability and why it often seems like the wild, wild west of the federal government hiring process.
Sean Bigley:
I am attorney Sean Bigley, and I’m here with my co-host Lindy Kyzer of ClearanceJobs.com. We’re talking this segment about a suitability tidal wave coming, and boy, Lindy, this is a hot topic of late. We’ve got Trusted Workforce 2.0 enrolling all federal employees in suitability, and contractors as well. Federal employees and contractors have always been subject to suitability, but it’s a different ballgame now, and I think a lot of people are waking up to this realization that they are subject to the suitability rules, and things are getting a little messy for some folks. We’re also starting to see a lot of questions percolate on this. So what’s been the biggest surprise for you or the biggest thing that you’re seeing on this topic?
Lindy Kyzer:
We’re always going to talk about suitability and the security clearance process. So, we know that if you have a security clearance, you’ve also been a part of a suitability determination for the government agency that you’re supporting. And what I’ve heard is that as Trusted Workforce 2.0 rolls out to even more of the population, what we’re going to have is just a much larger population involved in some form of suitability. I still have a lot of unanswered questions here, and somebody from the government wanted to walk me through this process, but I haven’t had that phone call yet.
In my mind, they say it’s going to be better for transfer of trust because that’s the next iteration that we have with Trusted Workforce 2.0. We’re going to have a reduction in the number of tiers. We’re going to have a little bit less discrepancy between, in some cases what a high risk public trust and a secret clearance. What those look like is going to be a little bit more streamlined. Again, as I understand it, a rollout of more folks into continuous vetting/continuous evaluation, that seems to me like a bigger population that’s a part of some form of government suitability and that the reciprocity and transfer of trust piece is not necessarily going to get easier. And as we know, public trust, positions of public trust, which are not the same security clearances, those determinations in my experience can take as long or longer than a security clearance determination. And there is not necessarily the same due process afforded for suitability or public trust cases.
If we have more folks enrolled in some form of suitability, is that going to create bigger issues if you’re denied suitability? If that determination is in this system, and there’s a better system of record keeping, is the suitability denial going to have repercussions in other employment decisions across the government?
Sean Bigley:
It’s messy and very complicated on how this will play out, but I’ll give you the quick and dirty on it. As I said earlier, all federal employees and contractors are already subject to suitability requirements. For contractors, it’s usually called a contractor fitness determination or sometimes a contractor suitability determination. That’s not new. What is new is frankly, people’s awareness that they are subject to this and to some extent the level of aggressiveness or assertiveness that we’re seeing on the part of some federal agencies in how they are viewing things through a suitability lens.
I’ll give you some examples. Yes, there is less due process most of the time for suitability determinations. So this is a double-edged sword. On the one hand, if you’re denied suitability as a federal employee or federal contractor, it’s not a security clearance denial. A lot of people breathe a huge sigh of relief when they find that out, and they realize that they don’t have to answer that they’ve been denied a security clearance on an SF-86. Now, they do have to still list the investigation. So, there’s a separate question, obviously on the SF-86, that asks, “Has a federal agency ever investigated your background?” That would be, yes. They would list the investigation, but they would not have to list that they were denied a clearance.
The flip side of that coin is there’s a lot less due process most of the time. There are some federal agencies that do grant appeal rights on a suitability denial. If they do, it’s generally just a one shot written appeal only, and that’s it. An example of that is the Board of Examiners for the Foreign Service. If you are an applicant for the Foreign Service, they toss a lot of people from that process on suitability grounds, and you get a one shot written appeal only.
Now, I say most of the time, because there are some folks who go through the process at DOD who are contractors at other agencies that have a reciprocity agreement with DOD, who get the same level of due process that they would get if they were going through a security clearance adjudication. They would have the opportunity to go before the Defense Office of Hearings and Appeals (DOHA), have a hearing; the whole nine yards. And that is because DOD adjudicates their public trust determinations just the same as they do their security clearance determinations.
Then you have this whole other basket of agencies that give no appeal rights and they basically say, “Thanks for playing. We’re not interested in moving forward with your application so have a nice day.” Examples of places that fall into that category would be NSA, CIA, some other agencies where whatever it is isn’t enough to deny you a clearance, but they just don’t think you’re a good fit, or there’s something that they’re not comfortable with, and they toss you on suitability grounds. There’s no appeal, and that’s the end of the road.
So this, as you’re probably gathering now, is all over the place. And I think most people erroneously assume that if they’re going to get tossed from the process, it’s always for a security clearance denial, and that’s just not the case. We get a lot of suitability cases that come in our doors. Oftentimes, people think it’s a security clearance denial, and we have to educate them that these are slightly differing processes, different standards, unlike the security clearance process where the adjudicative guidelines lay out potential mitigating factors, suitability denials are governed under the code of federal regulations, which is totally different ball of wax.
It gets very wonky and very complicated, but the bottom line is, I think as more people are becoming aware that they are governed by the suitability rules, and as agencies get more aggressive in how they’re asserting their prerogatives under those rules, I think we’re going to start to see more and more people who are tossed from application process either as a federal employee or a federal contractor on suitability grounds. The reason for that is because in most cases, there is less due process, it’s a lot cheaper, quicker, and easier for federal agencies to do that than to give somebody the security clearance due process.
Lindy Kyzer:
Yeah, so that’s definitely a question. Do some agencies use suitability as a reason to vet people without really having to vet them? So, suitability differs across agency to agency, and there are no requirements for suitability to be the same? It seems like as we’re reducing the tiers and with Trusted Workforce 2.0, why can’t we have a government-wide suitability determination? Is that a bad idea? A good idea? I’m confused on that.
Sean Bigley:
This is, again, where it gets really complicated. I mean, technically there are provisions that say that somebody who has received a favorable adjudication on suitability grounds doesn’t need another one to go work at a different agency. But practically speaking, that doesn’t really happen. And a lot of agencies find reasons to justify having to do a new investigation on somebody. We see this all the time in the Intelligence Community. They just flat out take a hard pass on the idea of reciprocity most of the time. A lot of these things that are supposed to happen in theory just don’t, and because some agencies are just so resistant to the idea of not doing their own vetting on somebody, it just doesn’t happen. So that’s one part of the problem. There are a lot of people who suffer this fate when it comes to suitability who could probably be saved or could save themselves by a little bit of an additional legwork upfront.
I think that’s also something that’s really important to talk about here, because the reality is in many cases, people aren’t even getting to the background investigation phase. A lot of people don’t understand that when their application goes in the door at a federal agency, whether it’s as an employee or a contractor, before the investigation even starts most of these agencies are doing an initial suitability screen on the SF-86 or the SF-85P itself and saying, “Is there something on here that we just don’t even want to waste our time with?”
If that’s the case, then the person doesn’t even get put into background investigation. That’s it. They get a letter saying, “Thanks for playing. Adios.” That’s a tough pill for some people to swallow because they say, “Hey, yeah, I know I admitted to past experimental drug use on my paperwork, but had you asked me some questions, I would’ve explained to you that this is all in the rear-view mirror. I’ve got all this corroborating evidence to back that up.” What we must tell them, sadly, is it’s too late in many cases to make that case unless you’re being given an appeal, which not all agencies do.
The reality is, with the increasing assertiveness of the suitability process at many agencies, it’s becoming more and more important that applicants are utilizing the comments section on the SF-86 or the SF-85P effectively and providing mitigating information where applicable so that someone reviewing this form, they also see all these mitigating factors that the person is laid out in the actual form, and can be comfortable that there’s a good probability they’re going to pass background.
Lindy Kyzer:
It’s still confusing to me, Sean. I don’t think I’ll figure out suitability.
Sean Bigley:
I get it. It’s the story of my life. I’m always baffled at how agencies make a determination that something is suitability versus security, because half the time it could go either way. We see agencies trying to shoehorn in things and claim they’re suitability when there’s nothing in the suitability regulations that support that. I think the bottom line is any employer, whether it’s the federal government or elsewhere, is going to find the easiest, cheapest way to get somebody onboarded. I think what a lot of agencies are realizing is unfortunately, the security clearance process isn’t the cheapest and easiest way to do that. It’s to flush them on suitability grounds. I think as things evolve with Trusted Workforce 2.0, that’s something that’s going to have to be addressed – are we giving people a fair shake?
Lindy Kyzer:
Well, no. I think suitability determinations are being used to vet people for employment issues and not anything related to suitability – is my experience or understanding. I wish there was a better way to splice out what is a security clearance, what is suitability, and what is just your agency’s specific employment requirements, but I guess maybe someday.
Sean Bigley:
Yeah, we can dream, right?
