Can I Resign from Federal Service While Under Criminal Investigation? What You Need to Know

Despite the uninformed propaganda, A federal career brings stringent rules. When a criminal investigation leads to an indefinite suspension, federal employees often face a difficult question: Can I resign? This situation pits a personal decision to leave against ongoing agency and legal action. The answer, fortunately for the employee, is clear—but navigating the aftermath requires careful, strategic action.

Understanding the Agency's Power: The Crime Provision and Indefinite Suspension

The basis for removing a federal employee from duty pending a criminal matter lies in what is often called the "crime provision" of federal personnel law (codified in part at 5 U.S.C. § 7513).

What is an Indefinite Suspension?

An indefinite suspension is the placement of an employee in a temporary status without duties and pay for an indeterminate period of time. It is not a final disciplinary action but a precautionary measure.

When Can an Agency Impose It?

An agency can place an employee on indefinite suspension, even without a prior 30-day notice, if it meets four key legal requirements, which are subject to review by the Merit Systems Protection Board (MSPB):

1. Reasonable Cause: The agency must have reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed. Note: The agency does not need proof beyond a reasonable doubt (the criminal standard) or even a conviction—only reasonable belief.

2. Nexus to Service: The agency must demonstrate a nexus (connection) between the alleged criminal conduct and the efficiency of the service. This is usually satisfied if the crime relates to the employee's job duties, trustworthiness, or if the employee's continued presence compromises the agency's mission or public trust.

3. Ascertainable End: The suspension must have a clear, ascertainable end. This condition is typically defined as the conclusion of the criminal proceeding (e.g., dismissal of charges, acquittal, or conviction) and the completion of any subsequent administrative action the agency decides to pursue.

4. Reasonableness: The penalty of indefinite suspension must be reasonable under the specific facts and circumstances.

The ability to place an employee on indefinite suspension is often why employees seek a way out: to regain control over their employment status rather than remaining in a non-pay status for an unknown duration.

The Non-Conflict: Resignation and Crime Provisions

The short answer is: A resignation and crime provisions do not conflict.

As a federal employee, you generally retain the right to resign your position at any time, even while under an indefinite suspension related to a criminal matter.

• No Agency Approval Needed: You do not require agency approval, nor does the agency need to "grant" or "approve" your resignation. It is a one-sided action on your part.

• Avoid "Request for Removal": Be very careful not to "request removal." By asking for removal, you are essentially asking to be fired, which can have different implications than a voluntary resignation. Seek legal counsel before taking any action if your situation involves a criminal investigation.

• Your Benefits Remain: Whether you resign or are removed, your access to major financial benefits like your Thrift Savings Plan (TSP) and retirement options (if otherwise eligible based on years of service) remains intact.

Protecting Your Record: Key Steps When You Resign From federal Service

If you choose to resign, your focus should immediately shift to legally documenting your departure and protecting your personnel file.

1. Formalize Your Resignation

We strongly recommend documenting your resignation in writing to your agency. In the document, clearly state that you are resigning for "personal reasons." This neutral language helps avoid negative connotations in your file.

2. Obtain Your Official Personnel File (OPF)

If you decide to resign from federal service, prior to the effective date of your resignation, it is critically important to download or otherwise obtain a complete and current copy of your Official Personnel File (OPF). This file is your personal record and can be difficult to retrieve once you have separated from federal service.

3. Review and Correct the SF-50

Your final SF-50 (Notification of Personnel Action) is the permanent record of your separation. You must follow up to ensure it is coded correctly as a voluntary resignation.

• Adverse Agency Findings: If you are not serving a probationary/trial period or are otherwise serving under an appointment that provides appeal rights, the agency may try to document "adverse agency findings" in the remarks section of your final SF-50, potentially referencing the indefinite suspension.

• Negotiate a "Clean 50": You should aggressively seek to negotiate a "clean 50"—an SF-50 that does not document these adverse remarks. While this was previously restricted by Executive Order, that is no longer the case.

Executive Order Update: Negotiating a Clean Record

There is positive news for federal employees seeking to mitigate the impact of an administrative or criminal investigation on their separation record.

✅ UPDATE (January 22, 2021): President Biden signed Executive Order 14003: Protecting the Federal Workforce, which revoked the prior Trump Executive Order 13839, Sec. 5.

This revocation means that it is again possible to negotiate a "clean record" agreement with your agency. Most agency representatives are amenable to such an arrangement, but all situations are fact and circumstance dependent.

Need Consultation?

The decision to resign while under criminal investigation is complex, combining personnel law, criminal law, and regulatory compliance. Due to the high-stakes nature of this situation, we strongly recommend you seek consultation with an expert who specializes in federal employment law to discuss the specifics of your case. The consultant will not be able to address athe criminal aspect, but can provide expert advice on the administrative employment issues.