MITIGATING FALSIFICATION CHARGES
MSPB pleasantly surprised us recently with a decision in Reid v. Dept. of Navy, 2012 MSPB 94(2012) that lays out how to get harsh penalties for falsification mitigated down to a reprimand.
To begin with we must note that the Board was not too upset with the facts of the alleged falsification. In fact, it repeatedly called it a technical falsification, even though it involved an instructor certifying that an employee had completed all levels of a training course when he had not.
The Board began by pointing out that the factors of particular relevance in determining the reasonableness of a penalty in a falsification case are: (1) The nature and seriousness of the offense and its relation to the appellant’s duties, position, and responsibilities; (2) the appellant’s past disciplinary record; (3) the effect of the offense on the appellant’s ability to perform at a satisfactory level; and (4) the mitigating factors surrounding the offense. This is something it has said in prior cases.
It then listed the factors that led it to replace a demotion with a reprimand:
- the appellant is a long-time employee with more than 18 years of federal service, 10 of which were with the police force;
- the appellant was a good police officer, notwithstanding this misconduct, who was promoted relatively quickly in his career;
- the appellant had no prior disciplinary record;
- the appellant admitted the errors that he made;
- the appellant was truthful throughout the course of the proceedings regarding his conduct;
- the appellant’s conduct constituted common practices for which there is no evidence that other employees were disciplined, even when such conduct was reported for investigation; and
- the appellant has much potential for rehabilitation.
So, if you are defending an employee accused of falsification, here is one path to follow to get the penalty mitigated.