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.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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