Lack of Candor/Falsification
Lack of Candor and Falsification Defense
If you are facing lack of candor or falsification charges as a federal employee, it is essential you take quick action to preserve your rights and career. These charges are rarely straightforward, and there may be multiple procedural defenses available to you. For instance, it may be that your employer failed to properly advise you of your rights or failed to follow proper procedures when proposing discipline. An experienced federal employment attorney at the Federal Practice Group can spot these issues and develop a plan of action.
The first step in your defense is understanding the difference between lack of candor and falsification.
What Is Lack of Candor?
Lack of candor refers to a situation where a federal employee fails to provide complete and accurate information in response to a lawful inquiry. In Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002), the Federal Circuit explained that lack of candor, “is a broader and more flexible concept whose contours and elements depend on the particular context and conduct involved.” This type of charge includes verbal interactions and written statements in failing to provide complete documents to a government agency.
There are many contexts in which federal employees can face lack of candor charges. These can occur during an investigation, during a security clearance process, or during an administrative hearing.
Lack of Candor vs. Falsification
While these two charges are closely related, lack of candor does not include an element of intent. Falsification is where an intentional misrepresentation of fact occurs. Again, in Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002), the Federal Circuit explained that falsification “involves an affirmative misrepresentation, and requires intent to deceive.”
In Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17 (2016), the MSPB further explained that a lack of candor charge may be proven by showing that: (1) the appellant gave incorrect or incomplete information; and (2) that she did so knowingly. Thus, while lack of candor does not require proof of intent to deceive, it does involve an element of deception.
In contrast, a charge of falsification or making false statements requires an agency to prove by preponderant evidence that the employee knowingly supplied incorrect information with the intention of deceiving, defrauding, or misleading the agency. This is done by proving that (1) the employee supplied false information; (2) the false statement was material; and (3) the employee acted with the requisite intent, i.e., (a) the employee intended to deceive or mislead the agency, and (b) she intended to defraud the agency for her own private material gain. See Leatherbury v. Department of the Army, 524 F.3d 1293, 1300 (Fed. Cir. 2008).
While any federal employee may be removed for lack of candor or falsification, charges involving integrity are especially serious when brought against federal law enforcement officers.
Contact a Trusted Federal Employment Attorney
If you are a federal employee facing lack of candor or falsification charges, our highly skilled team of federal employment attorneys can help. We have a successful track record in defending federal employees against lack of candor and falsification charges. Contact us today to schedule a consultation.
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Frequently Asked Questions
Federal employees are protected from discrimination based on sex, gender, color, race, national origin, religion, age, and disability, and have the right to file an EEO complaint against their agency should they face discrimination. Federal employees also have the right to due process before being subjected to an adverse action.
Yes, federal employees can sue for discrimination, but first you must exhaust administrative remedies, which includes filing a formal complaint with your agency and letting 180 days pass. In many instances, federal employees elect to pursue their EEO complaints through the EEOC’s hearing process instead of filing a civil action.
Federal employees must initiate contact with an EEO Counselor within 45 days of any act of discrimination. After an informal complaint stage, you will be issued a Notice of Right to File a formal complaint, which will permit you 15 days to do so.
Federal employees do not have the right to sue for wrongful termination the way private sector employees do, but most federal employees have the right to appeal a removal to the MSPB, which will adjudicate whether the Agency can sustain any charges raised against you.
Yes, most federal employees can file a complaint against their agency with the U.S. Office of Special Counsel (OSC) if they are facing whistleblower retaliation. If OSC does not accept your complaint for investigation and prosecution, OSC will issue you an Individual Right of Action (IRA) notice giving you the right to pursue corrective action at the MSPB. Federal employees do not have the right to sue in court under the Whistleblower Protection Act.