OPM is proposing broad changes to the SF 85P, a form first issued in 1990 and last revised in September 1995.  Among the most significant proposed changes is the requirement that all public trust employees answer questions about illegal drug use and the use of alcohol.  Currently, those questions are on a supplemental form, and the employees can only be asked if the agency demonstrates a specific job-related need for the information. 

OPM also proposes more detailed questions about the employee's financial record, covering amounts overdue for shorter periods of time than in the current form, any unmet tax obligations, misuse of a government credit card, and credit counseling.  In addition, it proposes to add new questions about improper use of information technology systems, which include a broadly phrased question about the use of "hardware, software, or media in connection with any information technology system without authorization," when specifically prohibited by any rule, procedure, or guideline.

NTEU has numerous objections to the proposed changes.  The overarching concern is that OPM is moving toward making the form applicable to public trust employees closely resemble the form used to investigate national security employees.  In doing so, it is rejecting significant reforms implemented in 1990 and 1995, when it recognized that the forms should be tailored to the nature of the position and demand no more information than necessary.  

In addition, NTEU raises concerns based on the overly broad or vague phrasing of several questions.  In some instances, the requested information is irrelevant.  NTEU further argues against compelled disclosure of information that the government sees as "mitigating," such as counseling for alcohol abuse; that information should be supplied only if the employee wishes.  Finally, NTEU objects to the burdensome nature of the information-gathering. 

Comments regarding specific aspects of the form:

Timing of the interview:  The instructions indicate that the personal interview must be conducted “immediately” after the employee is contacted.  The current form says “as soon as possible.”  NTEU’s position is that the current language be retained. 

The scope of the interview:  Although the form prescribes time frames for many questions, the investigator is free to inquire about matters outside that time frame if he or she feels it “necessary.”  NTEU objects to instructions that give investigators license to inquire at will about activity outside the prescribed time frames. 

Dual/Multiple Citizenship:  NTEU suggests that the form be amended to include a space for an employee to indicate uncertainty regarding whether he or she currently holds citizenship in a foreign country. 

Residences:  NTEU endorses the exclusion of all residences in temporary locations of less than 90 days.  NTEU questions why an employee need report whether the residence was owned or leased or other.  NTEU also notes that it may be difficult, if not impossible, for an employee who moved often to provide a person who knew him at each location during the last three years and who still lives in that area.  NTEU endorses the limitation to three years, which is an improvement on the prior request for contacts for the past five years. 

Education:  NTEU questions why an employee need provide the name of someone who knew him at school. 

Employment Activities:  NTEU believes that the term “employment” needs to be defined and should be limited to work for which the individual received compensation.  NTEU objects to the request for the name of someone who can verify the employee’s “unemployment activities” and means of support while unemployed.  NTEU does not know what is meant by “unemployment activities”.  NTEU questions why the government needs to know an employee’s means of support.  

NTEU believes that the employee should be instructed to omit any disciplinary action that was overturned at a higher level and to describe only the ultimate penalty, if it was modified or mitigated.  NTEU questions the need for a section which asks for information about unfavorable grounds for leaving employment that had not previously been listed.  Because all prior employment (with grounds for departure) is already required, this section seems superfluous. 

Marital Status:  The new form will demand information about former spouses (including deceased spouses of widowed employees) and cohabitants.  NTEU asks why information about former spouses is necessary when it was not required for 21 years. 

Travel:  NTEU is of the view that completion of this section could be excessively onerous in this day of frequent overseas travel, which requires the employee to list all foreign trips.  It would make more sense to list and describe only certain trips, which involved an encounter with the police, persons suspected of being involved in or associated with foreign intelligence, terrorist, security, or military organizations. 

Police Record:  NTEU believes that employees should not be required to disclose information that a court has determined is properly expunged or otherwise stricken from the record. 

Illegal Use of Drugs and Drug Activity:  All employees will be required to respond, not just those for whom the employing agency can demonstrate a sufficient justification.  NTEU objects to the requirement of disclosure of drug use prior to the age of 16.  NTEU questions the value of asking about future intent to use a drug or to engage in drug trafficking.  The proposed form asks about “cultivation” of any drug or controlled substance in the last seven years.  NTEU questions the need to include this activity.  NTEU objects to the question about intentional misuse of prescription drugs that were prescribed for the employee.  NTEU strongly opposes the required disclosure of voluntary counseling or treatment programs. 

Use of Alcohol:  The new question asks about undefined “negative impacts” on work performance or professional relationships as a result of use of alcohol.  This question is subject to multiple and subjective interpretations and could be construed very broadly.  NTEU further objects to the required disclosure of counseling or treatment that the employee voluntarily sought. 

Financial Record:  This section represents an enormous expansion over the information previously collected.  The previous form asked about delinquencies over 180 days.  The proposed new form extends the questions to matters not previously covered and to delinquencies of any duration.  The question about disciplinary action for misuse of a government credit card is also new.  NTEU says this section should be modified to allow reporting of any subsequent reconsideration or modification of agency imposed disciplinary action.  NTEU questions why OPM sees a need to inquire into use of a credit counseling service. 

Use of Information Technology Systems:  An entirely new category of questions about improper access to IT systems, damage to such systems, and improper use of hardware, software, or media association with IT systems.  NTEU is concerned about the lack of clarity as to the activity intended to be covered by this section.  It appears to cover off-the-job activity on personally-owned IT systems, as well as on-the-job misuse.  It could be interpreted to cover activity that the employee may not know is illegal or is widely condoned.  NTEU suggests that the description of activity covered be tightened and more clearly defined. 

Non-Criminal Court Actions:  This section inquires about actions where the employee is a defendant and actions involving alleged fraud or intentional tortuous conduct.  NTEU proposes the section be rephrased to inquire only about civil court actions alleging fraud or intentional tortuous conduct by the employee defendant.  This change is necessary because it is not uncommon for a complaint to name a long list of defendants and many counts with only some relevant to any given defendant. 

Association Record:  NTEU wonders about the conspicuous absence of any guarantee of use immunity.  Some of the questions are aimed at conduct that is undeniably criminal.  The absence of such an assurance raises serious Fifth Amendment concerns. 

Authorization for Release of Medical Information:  NTEU has long complained to OPM that the permissible uses for this authorization were not clearly outlined and that employees frequently completed it by mistake.  OPM now indicates that employees will also be required to complete the release in the event information arises in an investigation that requires further inquiry for resolution.  This language is so vague and broad as to permit an investigator to require a signature on the release virtually at will.  There should be objective standards against which to measure a claimed need for the release.  NTEU strongly objects to this limitless extension of the grounds for inquiry into an employee’s consultations with a mental health professional. 

Comments regarding the electronic format and the burden on respondents:

NTEU does not oppose the new electronic format.  NTEU has a concern about the extent of an employee’s ability to correct or amend answers to eliminate inadvertent errors or omission once inputted.  Clarification on this point is needed. 

NTEU has a major problem with the burden represented by this form.  OPM estimates that it would take approximately 75 minutes to complete the proposed SF 85P.  NTEU submits that OPM has wildly underestimated the burden imposed on federal employees.  NTEU estimates that employees could spend up to 23 hours completing this form.