Continuous vetting for trust and security clearance is easier said than done

Growing numbers of federal employees are about to come under what’s known as continuous vetting. Public databases automatically monitored by security officials to make sure you haven’t been criminally charged or suddenly incurred large debt. Those with national security clearance are mostly under continuous vetting already. Now the Office of Personnel Management plans to expand that to feds with so-called non-sensitive public trust positions. How should agencies prepare? How should you prepare? For insight, the Federal Drive with Tom Temin spoke with the managing partner of the Tully Rinckey law firm, Dan Meyer.

Interview Transcript: 

Tom Temin Continuous vetting is already in place, as we said at the top with national security clearance people. What do they exactly mean by non-sensitive public trust? That sounds contrary. That sounds contradictory.   

Dan Meyer So you have to understand continuous evaluation, the vetting process in a broader context. And this has spread progressively to other areas of federal activity, not even just employment. So with respect to public trust, think of the pyramid of federal access. You have credentialing that your badge gets in. That’s one level of review. Next level up is suitability. Whether you are deemed suitable to be a federal worker employed either as a contractor or as an employee or as a service member. And then the top of the pyramid is what most people focus on, whether you are eligible for access to classified information. People forget that you still go through some review at all levels of federal employment. It doesn’t have to necessarily involve cleared work. So as they do the vetting process, if there are concerns that trigger even just your suitability, you may end up excluded from federal work in a way that you wouldn’t necessarily have anticipated if you were avoiding classified work. Some people to stay in certain types of employment because they know they got a little rickety record and they think, well, they don’t go for a clearance and I don’t have to worry about it. Well, not so anymore. They may catch you in the suitability review.   

Tom Temin Got it. And so for agencies who will have employees coming under this, it sounds like they’re going to have to make some heavy preparations. What do they need to do to get people into whatever system is used here?   

Dan Meyer So the actually placing the person in the system is not that difficult for the agency. Human Relations office, if we’re talking public trust or the security office, if we’re talking security clearance eligibility. The bigger challenge is getting the workforce prepared to be under the system. And frankly, federal agencies are behind the eight ball here. Even slow on the training side of this and you just can’t leave this up. The computerized training, the PowerPoint slides that people just click on things and ignore it. And the training is automated and it’s not very effective. So they haven’t gotten the word out to people how they need to understand that the ways they could nod and wink about rules in the past can’t be done anymore. So in the past, once you got through your suitability review, people could slack off and not abide by what are called the factors, suitability factors. And they would think, okay, well I’ll just catch up with it the next time I go for a new job. And you may not go for a new job again, you may stay in the same job for a very long time. And so you’re in and you don’t have to worry about your behavior. Now, with continuous vetting, your behavior can come back to you again, and then you’re going to have to go through what’s called a suitability review, which means you get a set of interrogatories and you have to explain your financial records or an encounter with law enforcement. And that doesn’t mean that you have to be charged or arrested to have a concern. Somebody could challenge your suitability simply by a police response to your house. I’ve had clients just put in a world of misery by well-intentioned relatives who called the police when there was a fight between two brothers at a memorial Day picnic. And then the next thing we know, the one brother who’s under the suitability vetting rules is now got to explain the fact that he threw a punch at his brother at a barbecue. You didn’t have to concern yourself about this 20, 30 years ago. But but now it is an issue. So the training has legs and that’s what supervisors and managers have to supervise and manager and manage in the old school way. They actually have to reach out and work with our employees to tell them the look, every time 24 seven on the clock, you have no private lives. Your actions are reviewable as a federal employee and people have to internalize that.   

Tom Temin We’re speaking with attorney Dan Meyer. He’s managing partner of Tully Rinckey. And what is the mechanism to prevent just not only capriciousness, but also inconsistency from agency to agency on what to call people in for, as you say, for these interrogatories.   

Dan Meyer The only thing providing consistency now is the algorithm. I hate tell you, but artificial intelligence is here and it’s already doubling our lives. So to the extent that the algorithm is set to look at certain types of debt, for instance, on a credit report, then there’s going to be a gleaning of all credit reports that show a certain level of short term revolving debt. I tell my clients who are not Intel community that they don’t want credit card debt higher than 12,000. I used to tell them 20,000, but I think the numbers come down. I don’t know that that’s what the algorithm triggers. I just know that I have more clients over 12,000 with financial issues that they’re sorting out more security and with H.R. than I have below 12,000. For somebody in the intelligence community. Zero. No revolving debt. You have to pay off your credit cards every month or else you’re on track for a collision with security. So part of the challenge there is people need to adjust their behavior so that they meet the specs of an algorithm. We don’t really know the details up. But the consistency issue is a challenge because once that dragnet occurs and the emails go out to security, security does have an option or H.R. has an option whether to challenge or whether or not the challenge. And there’s a lot of discretion baked into the process and the supreme court is taking a pass on reviewing this. So the article three judges are really all out of the stadium for this game. So it’s really about your relationship with your agency that determines whether you get reviewed or not. So you just have to think every once in a while. I tell my clients, Think about how you look at the agency, step back 50 feet away from yourself in your head and look back at yourself and think, How do I appear to my security office in my H.R. office? And if you are a good agency citizen and you’re valued and you’re constructive and you’re chipper and cheery, you’ll do fine. But if you’re idiosyncratic, the system can start to question you and you might end up having to defend yourself. The vast majority of which, in those cases, the employee prevails. A good thing to remember is that the number of people who are denied suitability and even denied security clearances is still really small. You just don’t want to have to go through that process of defending your employment.   

Tom Temin Yeah. So how far should the individual employee go in controlling his or her private life? If it’s not criminal, if it’s not something that in the agency’s view could subject them to blackmail or to bribery, you know, if they have to pay a debt or this kind of thing, where does it end? And, you know, how far do you need to really think about what you do in your private life?   

Dan Meyer First thing you have to recognize is the old myth that federal employment was somehow more secure than private employment is a myth. Okay. What keeps you in a public employment job is the laziness of management. That’s what it is. I understood this second, third year I worked for the defense inspector general and I used to review these cases and I realized very early on that it was the laziness of management, not actions of the employee that decided whether somebody in the end was working for the Defense Department or not. Management is  overtaxed too much going on. They want to leave at 3:00 every afternoon and so they don’t do their job properly and that gives the employee an out. That’s an awful thing to count on if you’re a public employee. So you need to be in the case of suitability, you need to read the regulations once a year and tailor your actions to those regulations. The problem with that, Tom, is that they’ve never issued separate regulations for suitability. If you look in the federal code, it gives no guidance whatsoever. So what I tell my client is whether you’re under a security clearance or not. Every year you go to a document called SEAD-4. That’s S-E-A-D-4. If you Google it, SEAD4 with the word security, up it comes. You want the 2017 version. And I tell my clients every year, the week of your birthday, don’t leave it on your birthday. That’s kind of dorky. But the week of your birthday reread SEAD-4. I’m surprised how many people don’t meet at any time in their federal career. That is the code that you have promised to live by. Every suitability factor maps back to one of those guidelines. Every security clearance, security concern maps back to those guidelines. And that’s where you start tailoring your life. And I mean, I’ll give you an example. I had a client, great client, that was rather successful at gambling. It’s legal right? You can go to National Harbor, you can go up to Foxboro. There’s all sorts of places you can go and gamble. And for many years he had a security clearance and then one day gets an inquiry from the security office. And what happened? Well, there’s an automated process. If you win or lose more than $10,000, $10,001, off goes a message to the Treasury Department’s financial crimes database gets logged in as a crime, but as some sort of activity, take note of the person as a security clearance lingo. It goes over to the security officer. Next thing you know, you’re pointing, you know your way. And the vast majority of gamblers can explain that. But there’s a risk assessment that then takes place. The heartbreaking one is the domestic violence issues. Sure. You know, we’ve gone out of the way to report domestic violence, which is good because not enough of it was reported in the old days. But now that means something that is really, really minor. Shouting to the wall of a condominium can be reported by a neighbor and the next thing you know, your federal job is in jeopardy. So what I tell clients is take control of your life. Frankly, if you can afford it, live in a single detached home in which you control all the factors. I don’t want my clients renting out to people and having people living in because then you bring their lifestyle into yours and that could lead to all sorts of complications. I don’t want my client subletting from somebody else because then you then your landlord’s life is, you know, part of your life. If you’re actually living in the facility. Take your debt down to as low as possible and then try to conform things with most of those guidelines. And that way you don’t have to go through the review. If you do have to go through the review, start saving up your shackles, because I think you need counsel. I’m a lawyer. I’m putting in a business pitch here, I guess. But you know, you want to have the resources available so that you’re not guessing because the worst cases I get, somebody could have gotten advice very early on at a very low level of resourcing and everything would have been fine. But they delayed and they waited and they got a hold of me 18 months later. And then we got a world of mess on our hands.   

Tom Temin And one more time the name of that document people should read.   

Dan Meyer Yeah, it’s an acronym, Capital S as in Sierra,  Capital E as an ECHO, Capital A is an Alpha capital D, as in Delta. And then the number four. And then if you type that into the browser and put in the word security, up comes the 2017 version. That’s what you want to read.  

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