6.731.1. Suitability Determinations for Employment

(1) Every position within IRS requires potential employees undergo a suitability screening and/or investigation conducted by an appropriate government authority. The investigation is based on the position risk or sensitivity level and/or the requirements of Homeland Security Presidential Directive (HSPD-12).

(2) The investigative requirements must be consistent with the Office of Personnel Management (OPM) guidance. The suitability investigation is the first step to ensure the highest standards of integrity and security among employees for the IRS to carry out its mission.

(1) Executive Orders (EO):

1. EO 12968, Access to Classified Information, August 7, 1995:https://www.federalregister.gov/d/95-19654

2. EO 13467, Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information, June 30, 2008:https://www.federalregister.gov/d/08-1409

3. EO 13488, Granting Reciprocity on Excepted Service and Federal Contractor Employee Fitness and Reinvestigating Individuals in Positions of Public Trust, January 16, 2009:https://federalregister.gov/d/E9-1574

4. EO 13526, Classified National Security Information, December 29, 2009: https://www.federalregister.gov/d/E9-31418

5. EO 13764, Amending the Civil Service Rules, Executive Order 13488, and Executive Order 13467 To Modernize the Executive Branch-Wide Governance Structure and Processes for Security Clearances, Suitability and Fitness for Employment, and Credentialing, and Related Matters, January 17, 2017: https://www.federalregister.gov/d/2017-01623

6. EO 13869, Transferring Responsibility for Background Investigations to the Department of Defense, April 24, 2019: https://www.federalregister.gov/d/2019-08797

(2) Laws: United States Code (USC): https://uscode.house.gov/

1. 5 USC 1302, Government Organization and Employees, Part II, Civil Service Functions and Responsibilities, Chapter 13, Special Authority, Section 1302-Regulations:https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section1302&num=0&edition=prelim

2. 5 USC 3301, Government Organization and Employees, Part III-Employees, Subpart B, Employment and Retention, Chapter 33, Examination, Selection, and Placement, Section 3301 - Civil Service, Generally:https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section3301&num=0&edition=prelim

3. 5 USC 7301, Government Organization and Employees, Part III-Employees, Subpart F, Labor Management and Employee Relations, Chapter 73, Suitability, Security, and Conduct, Sec. 7301 Presidential Regulations: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7301&num=0&edition=prelim

4. 5 USC 9202, Government Organization and Employees, Part III-Employees, Subpart H, Access to Criminal History Record Information, Chapter 92, Prohibition on Criminal History Inquires Prior to Conditional Offer, Sec. 9202 Limitations on Requests for Criminal History Record Information:https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section9202&num=0&edition=prelim

(3) Regulations: Code of Federal Regulations (CFR): https://www.ecfr.gov/

1. 5 CFR 731, Title 5, Chapter 1, Subpart B, Part 731, Suitability:https://www.ecfr.gov/current/title-5/chapter-I/subchapter-B/part-731

2. 5 CFR 330.1300, Title 5, Chapter 1, Subpart M, Part 330.1300, Timing of Suitability Inquires in Competitive Hiring:https://www.ecfr.gov/current/title-5/chapter-I/subchapter-B/part-330/subpart-M/section-330.1300

(4) Other:

1. Homeland Security Presidential Directive 12 (HSPD-12): Policy for a Common Identification Standard for Federal Employees and Contractors: https://www.dhs.gov/homeland-security-presidential-directive-12

2. Treasury Order 102-17, Delegation of Authority Concerning the Personnel Security Program, April 1, 2020: https://home.treasury.gov/about/general-information/orders-and-directives/treasury-order-102-17

3. IRS Delegation Order (DO) 10-1, Perform Operating Functions Relating to Personnel Security: IRM 1.2.2.11.1

4. IRS DO 6-25, Delegation of Authority to Approve, Sign, or Deny IRS Debarment Requests: IRM 1.2.2.7.15

(1) HCO PS determines if an individual is suitable for employment with the IRS and ensures these individuals are of the highest integrity and character. The suitability determination is based on the results of preliminary security checks and investigations, which are adjudicated by trained PS adjudicators. For appointees with less than one current continuous year of service, the Associate Director, PS, has delegated authority to make suitability determinations and propose suitability actions under 5 CFR Part 731, except for those cases that must be referred to OPM as described in paragraph (3) of this section. Refer to IRM 1.2.2.16.1 Delegation Order 10-1, Perform Operating Functions Relating to Personnel Security.

(2) HCO TA oversees the recruitment and hiring process. The servicing Employment Office determines the eligibility and qualifications for external applicants. For the hiring office’s roles and responsibilities, refer to IRM 6.332.2, New Hire, Eligibility and Pre-Employment Review. The Director, TA, has the delegated authority to take suitability actions, except for cases that must be referred to OPM as described in paragraph (3) of this section.

(3) HCO TA Position Management and Classification office develops and issues position management and classification operational and policy guidance, and determines all data elements associated with the position, including the risk/sensitivity level.

(4) OPM retains jurisdiction for adjudicating suitability in all competitive service cases involving the issues listed below. Refer to 5 CFR 731.103, Suitability, Delegation to agencies:https://www.ecfr.gov/current/title-5/chapter-I/subchapter-B/part-731/subpart-A/section-731.103

1. Evidence of material, intentional false statements, deception, or fraud in examination or appointment, including senior executive service (SES) career appointments.

2. Refusal to furnish testimony when required by the Office, the Merit Systems Protection Board, or the Special Counsel of the Merit Systems Protection Board, or by authorized representatives of these bodies.

3. Statutory or regulatory bar which prevents the person’s lawful employment.

4. Suitability action against an employee after the first year of employment.

5. Governmentwide debarment.

Note: OPM has jurisdiction for investigations on all applicants and appointees serving a probationary or trial period and on any case under its authority, as deemed necessary (5 CFR 731.104, 5 CFR 731.105, 5 CFR 731.202).

(5) Defense Counterintelligence Security Agency (DCSA) is the primary investigative service provider for the federal government. EO 13869, dated April 24, 2019, transferred the authority to conduct investigations from OPM, National Background Investigation Bureau, to the Department of Defense, DCSA. DCSA completes investigations for most individuals working for or on behalf of the executive branch of the U.S. These individuals include, federal employees and contractor employees, civilian and military applicants, and consultants to federal programs.

(1) The table lists commonly used acronyms in this IRM:

(1) Below are terms and definitions associated with this IRM:

(1) The below provides additional guidance on suitability for employment and conducting investigations.

1. Treasury Directive 71-10, Department of Treasury Security Manual:https://home.treasury.gov/about/general-information/orders-and-directives/td71-10

2. IRM 10.23.1, National Security Positions and Access to Classified Information

3. IRM 10.9.1, Classified National Security Information

4. DCSA - Personnel Vetting and Background Investigationshttps://www.dcsa.mil/mc/pv/investigations/

5. OPM Suitability Adjudications Overviewhttps://www.opm.gov/suitability/suitability-executive-agent/suitability-adjudications/

(1) A risk level is determined for every IRS position during the classification process, which is completed by the HCO Position Management and Classification (PM/C) Office in collaboration with the appropriate IRS business unit. Each position is designated at the high, moderate, or low risk level based on the potential impact to the integrity or efficiency of the IRS. Access the Standard Position Description Library for position descriptions and respective risk level: https://irs.gov.sharepoint.com/sites/Talent_Acquisition_PMC_SPDLibrary/SitePages/Home.aspx

(2) HCO TA must verify the suitability position risk levels. Below is the description of each position risk level and examples of representative duties:

(3) The position risk level must be recorded on the Optional Form 8, Position Description, and on the Standard Form 52, Request for Personnel Action. The risk designation must be recorded using the following codes:

(1) Employees in IT positions with Privileged Access to IRS sensitive IT systems must be designated at the high-risk level and the requisite completed investigation must be favorably adjudicated prior to obtaining privileged access.

(2) Privileged Access is defined as administrator or root access to DS, DSTEST and IRSNET domains that contain highly sensitive, critical information. Individuals in such positions (for example, system administrator, data base administrator, network administrator) with this level of access have major program responsibilities and authorities that are critical to the IRS mission. If this information is compromised, it could potentially cause exceptionally serious damage to sensitive IT systems and to the national financial market. Examples of domains include but are not limited to:

1. IBM and application access Individual Master File (IMF)

2. Business Master File (BMF)

3. Customer Account Data Engine (CADE/CADE2)

4. Redesigned Revenue Accounting System (RRACS)

5. Integrated Financial System (IFS)

6. Corporate Files On-Line (CFOL)

(1) OPM establishes the type of investigation required for each position risk/sensitivity designation. In 2015, OPM established Federal Investigative Standards to determine eligibility for logical and physical access, suitability for U.S. Government employment, fitness to perform work for, or on behalf of U.S. Government as a contract employee, and eligibility for access to classified NSI information or to hold a sensitive position. The table below shows the tiered investigation standards:

(1) Appointees should have an investigation initiated before the appointment but no later than 14 calendar days after placement in the position. For appointments subject to investigation, refer to IRM 6.731.1.2. Below are examples of types of appointments and the requisite level of investigation:

(1) If an employee’s position is changed to a higher position risk level due to promotion, demotion, or reassignment, the following will apply:

1. The employee must meet the investigative requirements for the Position Information Risk Level, as designated on the position description, for the new position.

2. Any higher-level investigation must be initiated within 14 calendar days after the date of the new position designation.

(2) For an employee moving into a sensitive position (non-critical sensitive, critical sensitive, special-sensitive) due to an accretion of duties and responsibilities, or an employee occupying a sensitive position, refer to IRM 10.23.1.3, Position Sensitivity and Investigative Levels, and IRM 10.23.1.4, Investigations for National Security Positions.

(1) Employees in positions designated at the high or moderate risk level are subject to a reinvestigation no later than five years from the date of completion of their original investigation and every five years thereafter, unless the following occurs:

1. Prior to the next required reinvestigation, a separate investigation is conducted to determine a person’s eligibility (or continued eligibility) for access to classified NSI information or to hold a sensitive position.

2. A change in risk level and the required investigation meets or exceeds the requirements for a public trust reinvestigation.

(2) Employees in positions designated at the low risk level are not subject to reinvestigation.

(1) To determine if a person is suitable for employment with the IRS or to take a suitability action, HCO PS must base the suitability decision on specific factors and additional considerations outlined in 5 CFR 731.202. For the full list, refer to 5 CFR 731.202, Criteria for making suitability determinations (b) and (c): https://www.ecfr.gov/current/title-5/chapter-I/subchapter-B/part-731/subpart-B/section-731.202.

(2) Suitability determinations must be based on the presence or absence of one or more specific factors (charges), such as:

1. Misconduct or negligence in employment

   Note: This does not include inability to perform or qualification issues.

2. Criminal or dishonest conduct.

3. Material, intentional false statement, or deception or fraud in examination or appointment.

4. Alcohol abuse, without evidence of substantial rehabilitation.

5. Illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation.

(3) HCO/ PS must also consider additional considerations to the extent they are deemed pertinent to the individual case, such as:

1. The nature of the position for which the person is applying or in which the person is employed.

2. The nature and seriousness of the conduct.

3. The recency and circumstances surrounding the conduct.

4. The age of the person when the conduct occurred.

(1) The IRS must ensure the applicant is eligible for the position for which they applied, among the best qualified, and/or within reach of selection. If the individual is appointed, the requisite level of investigation must be conducted prior to determining suitability.

(2) Unless the IRS makes a conditional offer of employment to an applicant, the IRS cannot make specific inquiries concerning an applicant’s criminal or credit history as in 5 CFR 731.103(d)(1), and 5 CFR 330.1300, Timing of Suitability inquiries in Competitive Hiring. However, in certain situations, agencies may have a business need to obtain information about the suitability or background of applicants earlier in the process. If so, agencies must request an exception from OPM. A preliminary review of the applicant’s suitability will occur prior to entry on duty and/or before a formal investigation is initiated for federal employment as described in IRM 6.332.2.6, Suitability Screening. Information will be evaluated to determine the presence of any potential issues of a suitability concern.

(3) A review of an appointee’s suitability may occur after entry on duty, at the time the required investigation is conducted. The investigation results, applications, security forms, and other appropriate materials will be reviewed to determine if the appointee is suitable for continued employment with the IRS.

(1) When an appointee is deemed unsuitable for employment during the pre-screening process and is erroneously allowed to enter on duty, the following will occur:

1. The servicing Employment Office will collaborate with PS to confirm the person was mistakenly onboarded and is unsuitable for employment.

2. The Associate Director, PS, will notify the Associate Director, Employment Office, of the final determination.

3. The Director, TA, will inform the IRS Human Capital Officer of this determination.

4. PS must notify the local FMSS Physical Security office in the event an employee/appointee/contractor is deemed an unsuitable hire.

(2) PS will submit all relevant documentation to Labor/Employee Relations Negotiations (LERN), Associate Director Field Operations, who will consult with management to determine the appropriate action (such as, a probationary termination action under 5 CFR 315; or removal or debarment under 5 CFR 731). A final report will be issued to the Director, TA, and the IRS Human Capital Officer within two workdays after the corrective personnel action is successfully processed.

(1) The suitability adjudication determines if an individual is suitable for federal employment. Adjudications are made with reference to the person’s:

1. Standards of conduct

2. Character and reputation

3. Suitability to perform duties of the position

(2) During an adjudication, PS qualified adjudicators will evaluate investigation results and other related materials to make sure individuals who work for the IRS are trustworthy and of good conduct and character.

(1) When the IRS takes a suitability action against an applicant or appointee, a Notice of Proposed Action is prepared (see 5 CFR 731.402, Notice of proposed action, at:https://www.ecfr.gov/current/title-5/chapter-I/subchapter-B/part-731/subpart-D/section-731.402). The IRS must notify the applicant or appointee (hereinafter, the "respondent") in writing of the proposed action and the opportunity to request the materials relied upon. The notice must include:

1. Detailed reasons for the proposed action and state the respondent has the right to answer the notice in writing.

2. The time limit for the respondent’s answer and the IRS point of contact (POC) to whom they should direct any reply or questions.

3. Information about the respondent’s right to be represented by a representative at their own expense. If they choose to have a representative, they must designate the representative in writing.

Note: See DCSA for details on requesting and releasing materials: https://www.dcsa.mil/mc/pv/gov_hr_security/agency_use/

(2) HCO TA must take the following action when issuing the notice of proposed action to the respondent:

1. Mail or hand deliver the notice to the respondent's last known residence or duty station at least 30 days before the effective date of the proposed action.

2. The servicing HCO Employment Office will coordinate with LERN before issuing any suitability action notice to a current employee.

3. Issue written notification of the proposed suitability action no later than when the applicant is removed from consideration. Maintain a copy of the written proposal in the case file.

4. If the respondent is employed in a covered position on the date the notice is served, the respondent is entitled to be in retained in a pay status during the notice period.

(3) If the respondent chooses to answer the notice, they may:

1. Submit a written response, including affidavits or other written evidence, up to 30 days from date of notice.

2. Be represented by a representative, at their own expense, if designated in writing.

(4) HCO TA must review the respondent’s answer and make a final decision about their suitability for employment with the IRS. The final decision must:

1. Occur within 30 days from the date of the respondent’s answer.

2. Be in writing and include the reasons for the decision.

3. State an unfavorable decision may be appealed to the Merit Systems Protection Board (MSPB).

Note: If the final decision requires removal, HCO TA must remove the individual from the rolls within 5 workdays from the date of the decision.

(1) When the IRS takes a suitability action against a person, that person may appeal the action to the MSPB. The decision by the MSPB is as follows:

1. If one or more of the charges against the person is supported by a preponderance of the evidence, regardless of whether all specifications are sustained, the MSPB must affirm the suitability determination. The MSPB must consider the record as a whole and make a finding on each charge and specification in making its decision.

2. If fewer than all the charges are sustained, the MSPB must remand the case to the IRS to determine if the suitability action taken is appropriate based on the sustained charge(s). The IRS must hold in abeyance a decision on remand until the person has exhausted all rights to seek review of the MSPB’s decision, including court review.

3. Once review is final, the IRS will determine if the action taken is appropriate based on the sustained charges and the determination will be final without any further appeal to the MSPB. (5 CFR 731.501)

(2) The procedures for filing an appeal with the MSPB are outlined in 5 CFR Part 1201, Practices and Procedures: https://www.ecfr.gov/current/title-5/chapter-II/subchapter-A/part-1201.

(1) When PS deems an applicant or appointee unsuitable for employment based upon reasons in 5 CFR 731.202, Criteria for making suitability determinations, the IRS:

1. Can impose a period of debarment of up to three years from the date of the unfavorable suitability determination that will deny that person examination for, and appointment to, either all, or specific covered positions within the IRS.

2. Must follow the suitability action procedures described in 5 CFR 731, Subpart D in taking such action.

3. Can impose an additional period of debarment following the expiration of a period of debarment by the IRS, but only after the person again becomes an applicant or appointee subject to the IRS suitability jurisdiction and their suitability is again determined in accordance with the procedures of 5 CFR 731.

(2) The additional debarment period may be based in whole or in part on the same conduct on which the previous debarment was based, when warranted, or new conduct. The IRS has sole discretion to determine the duration of any period of debarment (of up to an additional three years) it imposes under 5 CFR 731.205.

(1) OPM retains the authority to issue government-wide debarments, where appropriate, and the authority to issue debarments in cases where there is evidence of specific types of conduct, which includes cases where there has been:

1. material, intentional false statement

2. deception or fraud in examination or appointment

3. refusal to furnish testimony

(2) When there is evidence of the specific types of conduct, the IRS must refer these cases to OPM. When the IRS determines that a government-wide debarment by OPM may be an appropriate action, it must refer the case to OPM for debarment consideration. The IRS must make these referrals prior to a proposed agency debarment, but only after sufficient resolution of the suitability issue(s), through subject contact or investigation, to determine if a government-wide debarment appears warranted. If a government-wide debarment is warranted, OPM will:

1. Assume jurisdiction in the case and implement debarment action.

2. Return the case to the IRS to complete the suitability determination if government-wide debarment is not warranted.

(1) The suitability determination involves deciding whether a person is suitable for employment in a covered position with the federal government. A qualified adjudicator will evaluate all available information to determine if the individual is suitable for appointment or employment with the IRS based on the specific factors and additional considerations outlined in 5 CFR 731.202. For the list of specific factors and additional considerations refer to: IRM 6.731.1.7.1.

(1) When the IRS proposes a debarment against an applicant or appointee, they are entitled to due process. The IRS must:

1. Notify the individual in writing of the proposed debarment as set forth in 5 CFR 731.402.

2. Explain in the written notice the reasons for the proposed debarment.

3. Hand deliver or mail the written notice to the individual’s duty station or last known residence at least 30 days prior to the effective date of the proposed debarment. The notice must provide the IRS POC to whom the individual should direct any reply or questions.

(2) The individual will be provided an opportunity to explain, mitigate, or refute the reasons for the proposed debarment and submit any evidence in support of the answer as described in 5 CFR 731.403. The individual’s written answer must be submitted to the IRS POC within 30 days from the date of the notice of proposed debarment.

(3) If the IRS determines the individual’s character and conduct warrants debarment, the individual will be notified in writing of the final decision to debar them from all or specific covered positions within the IRS. The notice will include:

1. Detailed reasons for the debarment.

2. Information about the individual’s rights to appeal the final decision to the MSPB.

3. A copy of MSPB regulations, 5 CFR 1201, and the MSPB Appeal Form 185.