MSPB CHANGES “FALSIFICATION” PROOF ELEMENTS, BUT GROVELS TO AGENCIES

In a recent case, DHS tried to fire an employee for misrepresentation, which MSPB considers to be the same as falsifying, lying or defrauding.  The employee, on detail to a different position and not trained in security procedures, thought he had been authorized to escort a visitor into secure areas through whichever door he chose.  He did not have that authority, but the Board found that “the record is devoid of any evidence that the appellant intended to defraud, deceive, or mislead the agency for his own private material gain.” Consequently, it overturned the removal.  See Rommel Boo v DHS, TSA, 2014 MSPB 86 (2014). There are two reasons why this is an important decision.

First, until this time, an agency could prove a charge of “falsification” merely by establishing the employee “(1) supplied wrong information; and(2) knowingly did so with the intention of defrauding, deceiving, or misleading the agency.”  Intent is established by showing the employee answered with a reckless disregard for the truth or with conscious purpose to avoid learning the truth. Now, however, the Board also requires that the agency prove that the employee also “intended to defraud, deceive, or mislead the agency for his own private material gain.”  That is not a huge new burden, but it is something.  However, that is where the good news ends and the groveling began.

As soon as it adopted that new element of proof the Board wrote, “we emphasize that the definition of ‘own private material gain’ is quite broad, and that ‘the advantage to be secured [by the employee] is by no means limited to monetary gains arising from a falsification.’”  It then noted that while misleading or deceiving an agency to get extra compensation, overtime, per diem reimbursement, or travel are tangible examples of personal gain, it is also more than happy to accept as evidence of personal gain attempts to—

• influence pending disciplinary proceedings,
• secure employment,
• use sick leave to avoid being placed on absence without leave (AWOL) or  (LWOP), or
• submit falsified medical information with intent to avoid placement on LWOP or AWOL.

In other words, anything more tangible than incorrectly predicting a need to go to the restroom will qualify as grounds for a falsification charge, which itself usually earns an employee a termination.

However, gutting the new criteria was not the end of the toadying to management.  The Board then pointed out that the Federal Circuit Court ordered it to adopt this extra element of proof in 2008, but it’s stonewalling ever since, through six years of falsification cases, was over. It also seemed to regret that it had run out of excuses.

Finally, just to make sure it left management smiling, if not smirking, the Board then went out of its way to explain that if an agency feels at all inconvenienced by having to prove the elements of a falsification charge, it needed not bother.  The Board will gladly fire someone merely for “lack of candor” which it described as “a broad and flexible concept [which] is designed to capture all of those instances which do not otherwise meet the definition of falsification,” which does not require a showing of intent.”

Whoops, we were wrong to call that last option the final one; there was one more demeaning kowtow.  The Board also told agencies that “Alternatively, agencies may charge an employee with the substantive submission of inaccurate information or a more generic charge of conduct unbecoming, neither of which involve an element of intent, and they may include among the proposed aggravating factors the intentional nature of the appellant’s conduct in leveling such charges.”

We have gone on the record before outlining how ridiculous we think these “lack of candor” and similar charges are.  See “FUBAR: MSPB’s Half-Pregnant Employee.”  As we said there, “a manager would have to be seriously stoned to ever again charge an employee with falsification. Why put the agency through the trouble of proving the more rigorous elements of a falsification when it can take away an employee’s career and smear her reputation for life with a simple ‘lack of candor’ allegation?” That posting contains six more reasons why we believe that someone should challenge an agency’s right to take adverse action when all it need do according to MSPB is demonstrate that something , “should have been disclosed in order to make the given statement accurate and complete.”  (See CHAVEZ, 2014 MSPB 37 (2014))  Although more than a decade ago the Federal Circuit court observed that an employee’s lack of candor strikes at the heart of the employee-employer relationship (See Ludlum v. Dept. of Justice 278 F.3d 1280 (2002)), that seems to be an overstatement, if not misstatement.  For example, would it be rational for a manager to toss a government computer into the trash just because it once failed to provide a complete and accurate response to a search request? No, that would be absurdly wasteful.  So, why would it be a removal or discipline offense if an employee gave a similarly incomplete response to a direct question.  Doesn’t the manager share some of the blame for not asking a complete set of questions? Imagine this exchange.

MANAGER: Jones, someone poured coffee all over the printer.  Was that you?

JONES: No, sir. I do not even drink coffee.

Should Jones be fired if he knows who did pour it but does not volunteer that information?How about if he knows that it was not coffee, but water that accidently spilled on the printer from a bottle someone left on the machine when the wind blew the door shut?  We do not think so.

Fortunately, the Federal Circuit has given us a more recent decision to cite in attacking a lack of candor charge.  In Wrocklage v. DHS, Fed Cir. 13-3159(2014) the Court overturned an MSPB removal of the employee for lack of candor due to his assertion that he copied someone on an e-mail attachment in error and that he could not recall how a certain copy of a document got in his hands on a specific day even though he was authorized to have and admitted having another copy of the same report.  The MSPB AJ found it “inherently incredible” that someone would send an e-mail to the wrong person.  The Court, however, overturned him giving us some hope that sanity will prevail when employees make simple mistakes or only answer the questions given them.  If there was no false statement, intent to deceive nor personal gain, how does that strike at the heart of the employee-employer relationship?