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MSPB analysis: Recent trends in "lack of candor" charges.

MSPB analysis: Recent trends in "lack of candor" charges.

Increasingly, Federal agencies are charging employees with misconduct based on “lack of candor”. This charge is what Agencies use when they can’t prove “falsification”.

Falsification is an intentional misrepresentation of some fact. It often arises in filling out some government form, or in the course of an official (or unofficial) investigation – the employee is accused of knowingly providing an incorrect answer to a question, or knowingly trying to deceive or mislead the investigator.

“Lack of Candor”, on the other hand, does not necessarily require any intent to deceive. It is a broader concept that depends on the specific facts and context of each case. Just because it’s a broader charge doesn’t mean that Federal agencies have an easier job of proving up the charge.

I surveyed MSPB Initial Decisions, issued in 2006, involving charges of “Lack of Candor” and uncovered some interesting trends:

If an employee is honestly doing his or her best to cooperate with an investigation, and there is evidence that corroborates the employee’s “good-faith”, the Agency is going to have a hard time sustaining the charge.

In the context of an investigative scenario, if the employee gave a specific answer to a specific question, and the Agency cannot prove that the answer is inaccurate, the charge seems destined to fail.

The quality of the investigation, the reputation and experience of the investigators, and the credibility of the investigators seems to be a pivotal factor when the lack of candor purportedly occurred in an investigation.

There appears to be a trend that the Agency must prove that the conduct underlying the charge actually occurred; otherwise, what the Agency perceives as a lack of candor may be nothing more than the employee legitimately defending themselves.

The credibility of witnesses is often crucial to sustaining or over-turning the charge.

“Lack of Candor” can be a tricky charge of misconduct. If you have been suspended or removed because of a charge of “lack of candor”, or any misconduct, it is best to consult with a Federal Employee lawyer to discuss the charges against you.