MSPB PANDERS A TINY BIT LESS TO AGENCIES

One of the most disappointing precedents to ever roll out of the Board established that agencies need not meet the tough standard of proof required to fire an employee for falsification, namely, that the employee intentionally gave false information or intended to deceive. It told agencies that all they need do to avoid that long-established standard is change the wording of the charge from “falsification” to “lack of candor.”   That, the Board said, “is a broader and more flexible concept whose contours and elements depend on the particular context and conduct involved.” In other words, even an unintentional false statement in an interview or on a form was enough to fire an employee. That triggered the adverse action equivalent of a third world blood bath across government. According to Cyberfeds.com,

between 1979 and January 1, 2003, when the shameless precedent started to take hold, only 42 “lack of candor” cases ever came before MSPB. However, since then MSPB logged 847 “lack of candor” cases. Ebola spread at a slower pace than that. Moreover, the rate of agency successful adverse action “kills” soared—something like what you would imagine the kill percentages to be for a big game hunter who suddenly switched from wandering the vast open Serengeti to walking through a downtown zoo.

But, finally there is a tiny bit of good news. On May 6, 2016 the Board issued David A. Fargnoli v. Dept. of Commerce, 2016 MSPB 19. It did not change its position that the “lack of candor” charge will remain a “flexible” way to fire employees where agencies do not have the evidence to prove falsification. It did, however, say that henceforth agencies will be required to prove that the employee “knowingly” made a false statement. The Board had hinted at that change periodically over the last four years, but it now felt confident enough to proclaim the new precedent because the Federal Circuit court had endorsed the idea.

Here is why it is not great news. Suppose a federal employee had an accident while using a government car and he was improperly transporting his girlfriend in the car at the time. Assume further that she slipped away unhurt right after the collision. If the accident was not his fault, he could not be fired. If it was not his fault but he lied to agency investigators about having an impermissible passenger in the car when asked a direct question, he could be fired. But if the investigators never asked about, cared about, nor suspected the girlfriend being in the car and the employee failed to rat himself out about something they were not even investigating, he could still be fired. Why? Because he “knew” he was withholding information about something investigators did not even care about nor that played a role in the accident. The Board does not require that the omission have any direct or causal relevant to the core infraction.

We always thought (and continue to believe) that the flexible “lack of candor” path to firing an employee was little more than pandering to agencies that do not want to be bothered with the rigors of fairness. So, this new decisions is a tiny bit of good news. Let’s hope that as the Board wades through future cases it will realize there is no viable distinction between intention to deceive and knowledge that one has deceived. Then, maybe we can get back to requiring full proof of falsification before we rip someone’s livelihood away from them for something that agency investigators never cared about in the first place.