A proposed federal rule, now open for public comment, would expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  On February 22, 2019, the Office of Personnel Management (OPM) proposed a new rule to modify its “Declaration for Federal Employment” form (OF–306)—used by federal agencies in applications for federal employment or contracting—to require applicants to disclose not only whether they have been convicted, imprisoned, on probation, or on parole in the last 7 years, as under the current rule, but also whether they have participated in any pretrial diversion or intervention programs during that look-back period.  Such pretrial diversion and intervention programs “allow individuals to agree to comply with specific conditions in lieu of criminal prosecution and upon compliance, to have the charge(s) dismissed.”  No conviction is entered—and in some cases, neither is a plea.

**Update (5/29/19): The federal government has withdrawn this proposal, as reported by the Washington Post.

Reform advocates and a growing number of state and federal prosecutors rightfully promote diversionary dispositions as key tools to reduce the collateral consequences of criminal justice system involvement.  But OPM’s proposed rule treats participation in a diversion program—even where there is no admission of guilt—as a marker of criminality.  By requiring candidates to disclose participation in diversion programs, OPM’s new proposed rule subverts the benefits of diversion: “prevent[ing] collateral consequences associated with [an] incident and allow[ing] for positive community perceptions of the justice system.”  See, e.g., Erica McWhorter & David LaBahn, Confronting the Elephants in the Courtroom Through Prosecutor Led Diversion Efforts, 79 Alb. L. Rev. 1221, 1239 (2016).

The new disclosure requirement is described further below.  Public comments on the proposed rule may be submitted by April 23, 2019.

This move is a departure from the approach of the previous administration.  In 2015, President Obama issued an executive order asking OPM to “take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process” to “better ensure that applicants from all segments of society, including those with prior criminal histories, receive a fair opportunity to compete for Federal employment.”  At the time, CCRC thought this meant “at a minimum that OPM should eliminate the criminal history question on its ‘Declaration for Federal Employment’ form.”  Instead, OPM issued regulations requiring agencies not to inquiry about an applicant’s criminal or credit background in the manner asked on the “Declaration for Federal Employment” form until after a conditional offer is made (unless an exception is granted based on an agency’s need to obtain information earlier).  See 5 C.F.R. §§ 330.1300; 731.103.

Under the current administration, OPM is looking to expand the “Declaration for Federal Employment” form’s criminal history question by making the following changes.  Currently, the question reads:

During the last 7 years, have you been convicted, been imprisoned, been on probation, or been on parole? (Includes felonies, firearms or explosives violations, misdemeanors, and all other offenses.) If “YES,” use item 16 to provide the date, an explanation of the violation, place of occurrence, and the name and address of the police department or court involved.

Under the new rule, this question would read as follows:

During the last 7 years, have you: Been convicted of any crime (Include misdemeanors, felonies, firearms or explosives violations, domestic violence, alcohol, drugs, and all other crimes or offenses); Been subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed; Served time in jail or prison as a result of being convicted of a crime; or Been on probation or parole? If “YES,” use item 16 to provide the date, explanation of the violation/charge, place of occurrence, and the name and address of the police and court involved.

The White House and the federal personnel office did not comment regarding the reason for this change, according to Justin George of the Marshall Project.  OPM writes in its notice that the proposed change “closes a gap for those who participate in or successfully complete this type of alternative disposition and may not have to answer affirmatively to the current question and report the details of the offense.”  But closing this gap, “defeats the purpose of diversion,” as ACLU staff attorney Somil Trivedi told the Marshall Project, and potentially subverts the intention of judges and prosecutors who have specifically authorized or sought a non-conviction disposition so that a defendant may avoid the dire collateral consequences of a conviction.

In addition to avoiding a conviction record, diversionary dispositions are often eligible for sealing or expungement upon successful completion of conditions, and it isn’t clear whether the OPM regulation would require disclosure of a diversionary record even in these circumstances.

The proposed new OPM requirement would be flatly inconsistent with national efforts to promote rehabilitation and reintegration.  Public comments may be submitted by April 23, 2019.

This is the second post in a series for our non-conviction records project, a study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred dispositions, and acquittals.