Q: If someone was arrested five years ago outside of work, and immediately put on indefinite leave of absence without pay, and then resigned a few weeks after the arrest before receiving any type of proposed removal, do you think this individual should say “Yes” to the question in Optional Form 306 today after receiving a tentative job offer from the federal government?
A: You stated the arrest was five years ago, but did not indicate what happened as a result of the arrest. I am assuming you do not have a conviction, which would trigger reporting under Question 9.
Question 12 asks, “During the last five years, have you been fired for any job for any reason, did you quit after being told that you would be fired , did you leave any job by mutual agreement because of specific problems, or were you debarred from Federal employment by the Office of Personnel Management or any other Federal Agency? First, if you need to determine whether you are still within the five year reporting window. If the incidents you described are outside the five year window (i.e. more than five years ago versus within the last five years), the circumstances do not need to be disclosed.
Assuming you are within the five year window, the question becomes whether “you left your job by mutual agreement because of specific problems”. A specific problem impacting your employment was identified – your arrest. This led to indefinite suspension, which you ended through your resignation, which was accepted by your employer. From what you describe, there does not appear to be a “mutual agreement” for you to resign. Agencies may place someone on investigation pending a conclusion of any criminal proceedings regarding your off-duty conduct. In your scenario, you resigned before the agency determined what, if any, personnel act was appropriate in light of your off duty misconduct. Therefore, a reasonable interpretation of question 12 and the events in your scenario leads to the conclusion that there was no “mutual agreement” between you and the agency for you to resign.
This response was written by Lisa A. Kleine, associate attorney at Shaw Bransford & Roth P.C., a federal employment law firm.
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