OPM confirms: Feds will face consequences for smoking pot


I wrote a column in March 2014 about the legalization of marijuana in Colorado and Washington state. I opined in the column that although the states were legalizing possession and use, marijuana still remained covered by the federal Controlled Substances Act, and thus recreational use by a federal employee would pose a risk to a fed obtaining a security clearance or being found unsuitable for federal employment.

Read the past column here.

Now the Office of Personnel Management has issued a memorandum on the subject — confirming what legal specialists presumed would be the federal employer’s position. Use of marijuana remains illegal under federal law, involvement with marijuana can be considered when an agency makes a suitability determination and it can form the basis of a disciplinary action. No surprises. The federal workforce probably would have benefited from timely definitive guidance from OPM, but better late than never.

OPM’s guidance was presented in a memorandum dated May 26, 2015, to all heads of executive departments and agencies.It explains, as I did in my March 2014 column, that marijuana is still a controlled substance under Schedule I of the Controlled Substances Act, which means it is illegal under federal law to possess or use it. The memo then explains: “Involvement with marijuana may be considered when agencies make suitability determinations for covered positions under 5 C.F.R. part 731. Drug involvement can raise questions about an individual’s reliability, judgment, and trustworthiness or ability or willingness to comply with laws, rules, and regulations, thus indicating his or her employment might not promote the efficiency or protect the integrity of the service. However, the individual’s conduct must be evaluated on a case-by-case basis.”

Read the memorandum here.

If you are in a position subject to a suitability determination, then per OPM regulations at 5 CFR 731.202, the determination of whether you are suitable for federal employment is based on eight factors, specifically whether there is evidence of misconduct or negligence in employment; criminal or dishonest conduct; false information provided in your federal appointment; alcohol abuse or illegal use of narcotics “without evidence of substantial rehabilitation,”; or activity to overthrow the U.S. government by force.

The OPM memo identifies two factors as implicated for use of marijuana: criminal conduct and illegal use of drugs. While neither factor is automatically disqualifying in a suitability determination, OPM cautions agencies that “an individual’s disregard of federal law pertaining to marijuana remains adjudicatively relevant to suitability determinations and relevant for disciplinary actions.” Ouch.What the government wants to know in both a security clearance and suitability adjudication process is your track record on complying with law, even when you disagree with it.

There is also guidance for security clearance adjudicators. That guidance was issued by the Director of National Intelligence back in October 2014 and can be found online. That guidance also is most concerned about an individual’s compliance with the law, stating: “disregard of federal law pertaining to the use, sale, or manufacture of marijuana remains adjudicatively relevant in national security determinations.”

Read the guidance here.

It may have taken OPM a long time to issue guidance, but federal employees now have definitive word on how the legalization of marijuana use in some states can affect their federal employment. Don’t use it if you want an issue-free suitability or security clearance determination.


About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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