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How a Federal Agency May Prove An Employee’s Lack of Candor

Sometimes federal agencies attempt to discipline its employees with the very subjective allegation of the employee’s “lack of candor”.  The charges are sometimes misplaced or overused based upon the difficulties in establishing just what is required to prove the charge.

To begin with, lack of candor and falsification are distinct charges. Falsification “involves an affirmative misrepresentation and requires intent to deceive,” lack of candor, by contrast, “is a broader and more flexible concept whose contours and elements depend on the particular context and conduct involved.”

For example, lack of candor need not involve an affirmative misrepresentation, but “may involve a failure to disclose something that, in the circumstances, should have been disclosed to make the statement accurate and complete.”

Furthermore, while lack of candor “necessarily involves an element of deception, ‘intent to deceive’ is not a separate element of the offense—as it is for falsification.”

Hearsay statements are admissible against the employee they should be complete, speak to their observations of the employee’s demeanor and be signed under affidavit.

Finally, the alleged lack of candor should have a purpose, it must necessarily involve an element of deception and contain some inherent probability.

Let’s look at an incorrect charge of lack of candor based upon a discrepancy which is found in where the specification was as follows:

On 26 May 2015, you were interviewed regarding the [traffic stop incident]. You claimed that you could not have been the one to stop (the individual) because you were not working that night and had been relieved of your badge and credentials on 25 February 2015. However, your time card shows you having worked that shift and the (other documents) shows that you were making entries during that shift. You were not candid and truthful with me [sic] during that interview.

A lack of candor charge need not involve an affirmative misrepresentation. However, because the agency in this case based its charge on an alleged affirmative misrepresentation, i.e., that he had been relieved of his badge on February 25, 2015, it must prove that the employee in fact made the statement in question and that he did so knowingly.

The Merit Systems Protection Board (MSPB) is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency; the MSPB may not substitute what it considers to be a more adequate or proper basis).

In sustaining the charge, the administrative judge credited the statements that the employee told them he had been relieved of his badge on February 25, 2015.  However, because the administrative judge did not in that instance base her credibility determination on observations of witness demeanor, the reviewing court decided it would reweigh the evidence.

The reviewing court decided to credit the employee’s version of events because:

  1. The employee did not have any apparent reason to misrepresent the subject. The inherent probability or improbability of a witness’s version of events is among the factors to be considered in making a credibility determination.
  1. Here, the agency presented a signed memorandum from its witness which was immediately made (which tends to weigh in its favor) but it failed to elicit sworn testimony from its witnesses (the witnesses statement was not notarized as “sworn to under oath”). Factors that affect the weight afforded hearsay evidence include the availability of persons with first-hand knowledge to testify at the hearing and whether statements of out-of-court declarants are signed and in affidavit form.

Brad’s tip: Whenever your employer wants to obtain your statement, ask if it may be recorded, to avoid any confusion about what was said. You can also ask if you may record the statement yourself or if you may have a copy of the transcript of your recorded statement.

In summation, when giving a statement to your agency, all employees should tell the truth and ask to be advised of any discrepancies the agency has or might develop prior to any action against them in order to afford them the opportunity to provide reasons for the discrepancies prior to any action against them in order to avoid the charge of a lack of candor.