FUBAR: MSPB’S HALF-PREGNANT EMPLOYEE

There is a reason why this is the first article you have ever read about a half-pregnant employee. It is the same reason you have not come across stories about the half-dead. Pregnancy and death are absolutes; you either are or you are not. We would have said the same about truth; something is either true or false. However, MSPB now recognizes “truth with elements of deception.”   It is not quite a falsification, but it can get an employee fired.

In Rhee v. Dept. of Treasury a supervisor asked a TIGTA Special Agent when she entered a report on the agency database. The employee said Oct. 2, but her manager suspected it was later.  So, he went to the Internal Affairs Division (IAD) of TIGTA calling for a full-blown investigation. TIGTA’s own IAD twice refused to investigate such a petty matter until the supervisor got someone in the Office of the Chief Counsel to force an investigation.  After a four-month dragnet, IAD confirmed what any middle schooler could have affirmed in about three minutes. The database showed the file was entered on Oct.9. Armed with the facts, the supervisor tried to fire the Agent, but the deciding official mitigated it to a 30-day suspension. Neither seemed troubled by the fact that this “crime of the century” witch hunt was launched soon after the Special Agent had filed an EEO complaint and grievance.

However, when the employee appealed to MSPB, the Administrative Judge was very bothered by the linkage between the employee’s complaints and this action.  The judge ruled it to be reprisal. He also found the agency failed to prove its charges. The full Board agreed and sustained the total reversal of the discipline, but, AND THIS IS A HUGE BUT, both the judge and Board agreed that “lack of candor” was a legitimate charge when an agency cannot prove outright falsification.  

Typically, when alleging falsification the agency must prove 1) the employee intended to defraud, deceive or mislead and 2) he did that for his own private gain or a known colleague’s. Intent can be inferred when the alleged misrepresentation is made with reckless disregard for truth or with a conscious purpose to avoid learning the truth.

In contrast, in Rhee the Board said, “Although lack of candor necessarily involves an element of deception, ‘intent to deceive’ is not a separate element of that offense-as it is for falsification.'”  It was quoting a 10-year old federal circuit decision (Ludlum v. DOJ) upholding a 12-year old MSPB decision.

Here is why the Board’s conception is Fouled Up Beyond All Reason (FUBAR). First, this ruling means that 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?

Second, just what is an “element of deception?”  In Rhee the Board stated that there is an element of deception when the agency can prove that the employee knew what she was saying was wrong.  But, isn’t that what a falsification is? If not, is falsification now going to require that agency prove the employee really, really knew that her response to a supervisor’s question was wrong?

Third, the Board held in Rhee that a defense to a lack of candor charge is that the employee’s explanation is “entirely plausible.”  That is nice, but that is the same defense to a charge of falsification, according to Board precedent.  If the defenses are the same, why are the charges different? (By the way, in Rhee the Board found an entirely plausible explanation for why the employee said Oct. 2 even though the computer showed Oct. 9)

Fourth, after 30 years of case law honing the concept and elements of falsification, it looks like we now have to start a long, slow slog through repeated MSPB decisions, probably under different political administrations, and then onto the courts to figure out what an “element of deception” is.  A quick search showed that the Board has only used the phrase in two cases over 30-plus years.

Fifth, there is a very specific statute addressing incorrect statements by federal employees and it only prohibits “materially false” statements. It says nothing about an “element of deception.” Moreover, the rules of ethical conduct for federal employees are set by the U.S. Office of Government Ethics.  In fact, it has sole and exclusive jurisdiction to set those rules. (5 CFR 2635.105)  So given that level of specificity a very good argument can be made that MSPB does not have the authority to create an additional grounds for discipline.

Sixth, MSPB seems oblivious to the trouble it just stirred up in labor-management relationships. If an agency tries to promulgate or use a “lack of candor” or “elements of deception” rule, unions will likely demand to bargain before any implementation. It would not surprise us if that bargaining took years and imposed numerous procedural restrictions on management. Of course, while it is on-going no one may be disciplined for this new ethics rule—or at least that is what every union will argue.   There may even be some challenges to the agency’s right to level such a charge. Great! Just what we practitioners needed–more litigation and conflict.

Seventh, the Board ignored Judge Gajarsa’s very thoughtful dissent in that 2002 Federal Circuit case.  Given that it is just as applicable to the Board’s decision in Rhee as it was to the 2002 majority opinion, the Board would do practitioners on both sides of the table a favor if it addressed and reconciled it before going any further in this direction.  Until it or the Supreme Court does, use of the lack of candor charge will be an unnecessarily high risk venture for agencies.  Here is the heart of that Judge Gajarsa’s dissent,

In an effort to cushion the draconian effect of the holding that a lack of candor charge requires no showing of intent, the majority concedes that the charge “necessarily involves an element of deception.” Maj. Op. at 9. At the same time, however, it states that “‘intent to deceive’ is not a separate element of that offense—as it is for ‘falsification.'” Id. at 9. This text further confuses this jurisprudence by creating an untenable distinction between “elements” and “separate elements.” Seeking to distinguish between lack of candor and falsification, the majority has resorted to an alternative analysis that requires either an element of intent or the lack of one, and as a result finds itself in the quagmire of having to conclude either that all unintentional misstatements are sufficient to support a lack of candor charge, or that lack of candor is the same as falsification. In an effort to resolve this dialectic tension, the majority requires deception without requiring intent, even though deception by definition requires intent.

MSBP should have dismissed the TIGTA charge as an illegitimate one and continued to rely solely upon the falsification charge.  There is no such thing as “truth with an element of deception,” just like there are no unicorns or half pregnant people.   Refocusing on falsification would be consistent with statute as well as OGE rules and provide a much more precedent-rich path for the parties to follow.  Endorsement of the “lack of candor” allegation does little more than enhance agencies’ risk of reversal, expose employees to supervisory second guessing, and generate full employment for litigation attorneys tired of debating how many angels can fit on the head of that proverbial pin.