By John V. Berry, Esq., www.berrylegal.com
What is Lack of Candor?
Lack of candor cases at the Merit Systems Protection Board (MSPB) are unique. Candor, according to Dictionary.com, is defined as "the state or quality of being frank, open, and sincere in speech or expression." Lack of candor charges seem to be more common today than they have been in the past. In fact, more federal agencies use this charge against federal employees today than ever before. While many individuals would think that lack of candor and falsification charges are the same type of charge, they are not. A lack of candor charge is distinct from a standard falsification charge. A lack of candor charge is more broad than a falsification charge. Falsification cases involve direct evidence of deception. Lack of candor is more a term of art, which can involve more general conduct. Usually, lack of candor cases involve charges alleging that a federal employee did not disclose information that the agency thinks should have been disclosed by the employee.
To prove a charge at the MSPB an agency needs to be able to do so by a preponderance of the evidence. For lack of candor cases at the MSPB there is no need for an agency to prove an intent to deceive, but rather that under the circumstances, the information should reasonably been disclosed for completeness. Fargnoli v. Dep’t of Comm., 2016 MSPB 19 (2016). Lack of candor, however, necessarily involves an element of deception. Parkinson v. Dep't of Justice, 815 F.3d 757, 766 (Fed. Cir. 2016). There needs to be some element of proof that the federal employee knowingly omitted or hid facts from an agency.
Sample Charge of Lack of Candor
The following is one sample of a lack of candor charge:
Charge 1, Specification 1: Lack of Candor
On July 12, 2017, you were interviewed by investigators about the theft of computers from your office. You testified that you did not take the computers when asked. However, even though you were not asked if you knew who took the computers from your office, you had knowledge of the individual that had taken them and did not disclose that to investigators. You did not disclose this information.
Elements Needed to Prove Lack of Candor
Lack of candor generally requires that an agency prove two elements according to the Fargnoli case. These are:
(1) the federal employee gave incorrect or incomplete information; and
(2) the federal employee (he/she) did so knowingly.
The MSPB Board in Fargnoli provided reasoning for a lack of candor analysis in their decision:
Because the agency failed to establish by preponderant evidence that the appellant knew her statement was false, we found the administrative judge was correct in not sustaining the charge. Our reviewing court recently took a similar approach in Parkinson, in which an employee of the Federal Bureau of Investigation (FBI) was charged with lack of candor under the FBI Offense Code based on his alleged “failure to be fully forthright” in his statements to agency investigators. In that context, the court found that the “element of deception” required under Ludlum entailed that the employee must have “knowingly” failed to be forthright (citing Parkinson, 815 F. 3d at 766-67).
Id. at page 9.
Hence, the key in defending lack of candor cases before the MSPB falls on the issue of whether or not the federal employee knowingly failed to be forthright. Because of the ever increasing number of lack of candor charges, federal employees involved in administrative investigations and disciplinary actions involving this type of issue should retain counsel early to attempt to avoid lack of candor charges and/or defend against them at the MSPB.
In sum, when facing a lack of candor charge it is very important to retain legal counsel familiar with the MSPB. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at Berry & Berry PLLC Facebook Page.