Q. I was arrested while off-duty a week ago. Do I have to report the arrest to my agency even though it was for a minor offense and nothing will come of it?
A. Your self-reporting requirements will depend on your agency's regulations, but federal employees generally must inform their agency of an off-duty arrest and the failure to do so could increase your legal woes. This is especially true for anyone who has security clearance or is in a sensitive position.
Federal employees often run into this failure-to-report issue when they have been arrested on driving under the influence or domestic abuse charges. Even if you believe the charges are baseless, that does not free you from your duty to follow your agency's reporting policies. As a Merit Systems Protection Board (MSPB) judge noted in Peter Santana v. Department of Homeland Security (2004), "the obligation to report an arrest is not dependent upon the eventual outcome of that arrest." Hence, you may think yourself not guilty and ultimately that may be the outcome, but that does not extract you from the reporting requirements that do exist.
If the agency believes a conviction on the charges for which the employee was arrested could lead to imprisonment, the agency may indefinitely suspend him or her with a shortened notice period. The agency may propose his or her removal after the conclusion of criminal proceedings if that is the outcome or return the employee to full duty. If you are indefinitely suspended, you have a right to appeal that indefinite suspension to the MSPB if you have Board rights as an employee at an agency that is under the MSPB's jurisdiction.
However, for the agency to remove an employee for off-duty misconduct, it would have to show there is a nexus between the off-duty misconduct and the efficiency of the service. This usually involves the agency either providing evidence that "the misconduct adversely affects the appellant's or co-workers' job performance or the agency's trust and confidence in the appellant's job performance" or "the misconduct interfered with or adversely affected the agency's mission," the Board noted in Michael A. Walsh v. U.S. Postal Service (1992).
Federal employees who have been arrested while off duty should consult with an experienced federal employment law attorney. Depending on the circumstances, an attorney could help block agency attempts to indefinitely suspend the employee or assist in showing that any off-duty misconduct had no bearing on the efficiency of the service.