Two closely related yet distinct charges are lack of candor, which does not include an element of intent, and falsification, which is an intentional misrepresentation of fact. In Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002), the Federal Circuit explained that while 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.”
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 these charges often arise regarding statements federal employees make during investigations or management directed inquiries, this is not always the case. In some instances, a lack of candor or falsification charge may follow an employee’s dishonest reason for failing to meet a deadline or a performance requirement, or with regard to forms federal employees are required to fill out prior to employment. For example, an employee could be charged with falsification for dishonestly reporting they had never previously been fired.
While any federal employee may be removed for lack of candor or falsification, these charges involving integrity are especially serious when brought against federal law enforcement officers. This is because in criminal trials, prosecutors must disclose when a law enforcement officer is Giglio impaired, which prevents the US Attorney’s Office from using that federal law enforcement officer as a witness. This concept comes from the Supreme Court’s decision in the Giglio case, where the Court held that held that criminal defendants have a due process right to be informed of evidence affecting a government witness’s credibility based on, for example, charges in that officer’s personnel file. Thus, even where a federal law enforcement officer may not be facing removal for the charge of lack of candor, for example, when a law enforcement officer is found to be Giglio impaired and unable to perform their job functions, this may ultimately lead to removal.
If you have questions on your legal rights under a lack of candor or falsification accusation, contact us today.
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