Legal Insider: Federal government looking to make changes to security clearance application process

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Melissa L. Watkins, Esq.

On November 23, 2022, the Office of Personnel Management (OPM), announced in the Federal Register significant proposed changes to the current landscape of forms utilized to establish trustworthiness of federal employees in positions of trust or requiring access to classified information.

OPM’s proposed changes would result in the adoption of a new form, called the Personnel Vetting Questionnaire (PVQ), which would consolidate and replace the current forms used in this process: the SF-85, SF-85P, and SF-86. The PVQ will exist as a single document, containing four parts, A through D, where the parts flex based on the suitability requirements and needs of the agency submitting the application.

In addition to changing the structure of the questionnaire itself, OPM has also proposed significant changes to the questions contained within the questionnaire.

Questions The Form No Longer Will Include

The PVQ will no longer require applicants to provide information related to gender or selective service. Questions related to Selective Service Registration are being proposed for removal given that such information is available to agencies through other means. For gender, OPM explains that questions related to sex or gender were previously included to assist in identity matching. However, the utility of this information has been reduced by changes at the state and municipality levels.

At present, approximately 45 states allow an individual to amend their birth certificate to match their gender, and 15 states allow an individual to choose a non-binary option. Given the differences among jurisdictions and the possibility that an individual’s self-identified sex may differ from what was previously provided, the effectiveness of using an individual’s self-identified sex as a tool for identity verification has decreased. OPM has concluded that asking an applicant or employee to indicate “Male” or “Female” no longer has utility in the investigative process to justify the burden of requiring it from respondents.

The PVQ also intends to adopt gender-inclusive terminology, such as parent and sibling, rather than terms that are not gender-inclusive, such as mother, father, sister, brother. These changes have been proposed, in part, to align with the current Administration’s priorities.

On June 15, 2021, President Biden issued Executive Order (E.O.) 14035, which directed that steps be taken “to mitigate any barriers in security clearance and background investigation processes for LGBTQ+ employees and applicants, in particular transgender and gender non-conforming and non-binary employees and applicants.”

Questions That The Form Changes

Arguably, the most significant change being undertaken by the PVQ relates to cannabis use. Questions regarding illegal drug use on the PVQ will be divided into separate areas to distinguish between use of marijuana or cannabis derivatives containing THC and use of other illegal drugs or controlled substances, in recognition of changing societal norms.

OPM’s goal in revising this section is based on the desire to increase and improve the applicant pool for those who may have fairly recently used marijuana, particularly in states where it was legal. The new questions will change the timeline for cannabis use such that a person would only be asked about consumption that occurred within the past 90 days, unless they used while working in a criminal justice, public safety or national security position. In those cases, the forms would ask about use that occurred at any time.

In contrast, the relevant forms that applicants are currently required to fill out ask about any marijuana usage within the past one, five or seven years, depending on the security level of the position they are applying for. The new form also makes clear that use of cannabis products containing less than 0.3 percent THC does not need to be disclosed because those products meet the federal definition of legal hemp.

That’s notable given that several federal agencies in recent years have cautioned employees against consuming hemp products like CBD oil because of the risk of mislabeled THC content that could potentially trigger positive drug tests. Additional information on recent changes to the government’s position on marijuana can be found here.

The PVQ will also reflect changes to the psychological health section. In 2016, security questionnaires were revised to shift the focus away from questions about seeking mental health treatment while allowing for the collection of information regarding potentially serious or uncontrolled conditions that could substantially affect judgment or reliability. While the intent this area of questioning has always been to surface any concerns regarding the individual’s judgment or reliability, the approach has shifted from asking about all mental health treatment or counseling to a more tailored set of questions regarding hospitalization and specific diagnoses.

The PVQ seeks to further reduce perceived stigma associated with seeking mental health treatment or counseling by further limiting the scope of questioning. The PVQ will focus on serious mental health illnesses that have very low base rates in the general population. Respondents receiving treatment or counseling for the most common mental health issues, such as depression and anxiety, as well as those seeking treatment or counseling after experiencing trauma or other stressful events, are unlikely to answer affirmatively to any of the items in the PVQ.

Two other areas seeing changes from prior forms will be related to an applicant or employee’s handling of protected information and association record. The PVQ will now include questions that inquire as to whether the respondent has deliberately violated rules or regulations for safeguarding protected information.

In addition, questions regarding use of information technology systems that were previously asked only in the SF-85P and SF-86 will be presented to all respondents in Part A. The PVQ will also contain changes to questions under the Association Record section. On his first full day in office, President Biden directed his national security team to lead a comprehensive review of U.S. Government efforts to address domestic terrorism.

As part of that review, interagency experts identified the possibility that domestic terrorists could attempt to exploit or abuse authoritative positions or sensitive access and recommended potential modifications for security questionnaires. The PVQ contains some new questions as well as some updated questions that have been modified to reduce complexity and further compel candid responses to address concerns related to domestic terrorism.

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