HOW TO BEAT A “LACK OF CANDOR” DISCIPLINE CHARGE
MSPB has a long record of terminating employees not just for making outright false statements, but also for failing to volunteer information about an incident that management did not even ask for. The former is often justified, but the latter has never impressed us as fair. So, we were very surprised to see the employee reinstated in a recent case based on the facts, but we give a “tip of the hat” to MSPB for honorably adhering to the rules of evidence over gut-level conclusions. The case shows how union reps might be able to save an employee’s job despite the initial superficial stink of the employee’s statements and actions.
Back in April 2021 when this employee told the agency that his daughter had COVID, the agency told him to stay home for 14 days. Near the end of that 14-day period he informed management that his wife now had COVID. Consequently, his agency told him to stay home another 14 days. When he returned to work in late May he gave management a picture of what he said were the two, home-administered COVID tests showing the positive results for his daughter and wife.
Soon after an alleged friend of the employee’s called management to report the employee was incoherent at home. When the agency asked the police to do a wellness check, the employee was not home. The employee’s supervisor called soon after that and spoke to his wife only to learn that neither the wife nor daughter ever had COVID.
When the employee returned to work, he gave his supervisor a note from his chiropractor certifying he needed the time off. Because the supervisor concluded it looked suspicious, he called the chiropractor’s office only to be told by the receptionist the employee had not been in on two of the dates mentioned in the notes and that the chiropractor never gave him a note asking him to be excused from work.
I have had cases like this and honestly my first reaction usually was “How can I get this guy a clean SF-50 in return for a resignation—and then out of my sight?” But the proper reaction is to see what kind of actual evidence the agency has to back up its case. After all, the agency has the burden under law to prove its charges by the preponderance of evidence. That is a very big protection.
When the agency terminated the employee for a lack of candor, disregard of an agency directive, and unauthorized evidence, MSPB reinstated him with just a 7-day suspension. Here is why.
The agency never got the wife to sign a sworn statement or testify in person before MSPB. It merely had a supervisor who talked to her recount the call without explaining why it could not submit a sworn statement or deposition from the employee’s wife.
Similarly, it failed to submit a sworn statement, deposition or even signed paperwork from the chiropractor’s office affirming what had actually happened there. In fact, when the supervisor recounted his call to the chiropractor’s office he could not even identify the name or title of the person to whom he spoke.
The lesson here for union reps is that they should always examine the quality of management’s alleged evidence against an employee before accepting it. In this case, by describing what actual witnesses told him rather than submitting their own testimony the supervisor was giving hearsay evidence. The MSPB has said that while that kind of evidence can be considered substantial evidence, it does not meet the higher standard of the preponderance of evidence unless other factors are present.
In its landmark case on hearsay evidence (Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981)) the Board noted eight factors to consider when second or mere documentary evidence is offered by management:
(1) the availability of persons with firsthand knowledge to testify at the hearing;
(2) whether the statements of the out-of-court declarants were signed or in affidavit form, and whether anyone witnessed the signing;
(3) the agency’s explanation for failing to obtain signed or sworn statements;
(4) whether declarants were disinterested witnesses to the events, and whether the statements were routinely made;
(5) consistency of declarants’ accounts with other information in the case, internal consistency, and their consistency with each other;
(6) whether corroboration for statements can otherwise be found in the agency record;
(7) the absence of contradictory evidence; and
(8) credibility of declarant when he made the statement attributed to him
The Board went on to draw the following conclusions which make clear how it applies those eight factors.
The case is before us in this posture: In the face of contradictory live testimony at the hearing, the presiding official has accepted the agency’s unsigned hearsay statements, without more, as dispositive of disputed facts that the agency must prove. The agency has offered no explanation as to why it did not obtain the declarants’ signatures on their statements and/or have someone witness the statements; neither has the agency explained why it failed to present any witnesses with firsthand knowledge at the hearing. These statements are patently not like medical reports. Although the statements were consistent with each other, the declarants were actors to a greater or lesser degree in the incidents at issue and cannot be considered disinterested; the statements were not routinely made; nor have statements of this kind traditionally enjoyed judicial acceptance at hearings….In addition, by being unsigned, not even the declarants have signified the accuracy of the transcriptions or the truth of the statements. Furthermore, the fact that two sentences tending to exculpate appellant were omitted from the transcripts diminishes the probative value of these statements. While appellant apparently had the opportunity to review the statements prior to the hearing and to subpoena the declarants to appear at the hearing, the burden is not upon appellant to call witnesses that the agency needs to prove its case.
For a deeper understanding of this new case check out Saun C. Ortiz, v. Dep’t. Of The Air Force, MSPB DOC. No. DE-0752-22-0062-I-1 (January 25, 2023)