RESIGNING WITH A CLEAN RECORD REDEFINED
MSPB has just changed how it will interpret termination settlement agreements that call for the removal, cancellation or even change of the official record. In this case, management settled a removal appeal by agreeing to reinstate the employee and “[t]o change the nature of the Employee’s Standard form [SF] 50 bearing effective date 11 August 2007 from Removal to a 30-day Suspension.”
Years later the employee was denied a security clearance because her record reflected a removal. So, she asked MSPB to void the settlement agreement—and it did. It acknowledged a 1992 MSPB decision which permitted the agency to retain a record of the removal because the settlement did not expressly require the agency to expunge the record. But, it decided to follow a 2001 Court of Appeals decision which attached great weight to the actual meaning of the words of the settlement.
That court held that because the settlement agreement before it required the agency to “rescind” the original removal SF-50 and replace with a SF-50 separation based on personal reasons the agency was required to remove and destroy any reference to the removal from its “professional records.”
In this new MSPB case, the employee’s settlement agreement called for the agency to “change the nature” of the employee’s SF-50; there was no explicit promise to expunge all mention from the OPF or other official records. Based on those facts, MSPB held that even the words of this settlement agreement required the agency “to remove any record of the employee’s removal.”
The lesson here for union representatives is to be deliberate about the wording of settlement agreements giving the employee a clean record. Avoid any language which expressly permits the agency to retain records of the removal anywhere and call for management to rescind or change the record.
(As with any case decision, it could change tomorrow. If you want to rely on this in an important matter get professional legal advice.)