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**Update (5/29/19): The federal government has withdrawn this proposal, as reported by the Washington Post.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