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MSPB Charge: Burden of Proof in charges of Falsification.

MSPB Charge: Burden of Proof in charges of Falsification.

Agencies often charge employees with a variety of misconduct charges that all come under the umbrella of “Falsification”. These charges are typically: fraud, forgery, misrepresentation and falsification.

The key to each of these charges is that the Agency must show that the employee intended to deceive or mislead the Agency in some way. If an employee is just negligent and provides erroneous information, the falsification charge will most likely not prevail. The MSPB has said that falsification requires proof that the employee supplied incorrect information with the intent to deceive or mislead the Agency.

Agency attorneys often have difficulty proving intent because they usually only have “circumstantial” evidence. That is, the Agency attorney has to persuade the fact-finder to make inferences that suggest that the employee acted with intent. For example, the Agency often argues that the failure to consult regulations on how to fill out a certain form implies that the employee intended to falsify the firm. Another example is the argument that a particular employee has been with the Agency so long that it is unreasonable to think that they didn’t know the proper way to fill out a particular form, and so it can only be assumed that they intended to deceive the Agency.

The problem with inferences like this is that there is rarely a set of facts which doesn’t yield equally opposite conclusions. If an employee can show that the Agency’s proposed inference isn’t the only reasonable inference, or proves that the Agency’s inference is itself unreasonable, the Agency cannot sustain its burden of proof.

Another key to a falsification charge is that the Agency must prove that the falsification was “material”. For example, in a Federal Circuit case, the court found that the falsification of travel vouchers was not proven since the employee was entitled to the same travel benefit even if he provided the correct information. See, Bradley v. V.A. 900 F.2d 233, 237-38 (Fed Cir. 1990).

Falsification charges are very serious – Agencies rarely impose discipline less than removal, demotion or very long suspensions for incidents of falsification. However, many times these penalties are simply too harsh, and can be attacked by putting the Agency to its proof of intent and by arguing for mitigation on Douglas factors, depending on the circumstances of each case.

If you face a falsification charge, and would like to speak with an attorney who has experience before the MSPB, contact the Law Offices of Eric L. Pines, PLLC today.