Federal employees have an important role to play in the operation of our government. Thanks to their dedication, all the government services we take for granted keep running effectively. As such, public officials deserve protection from baseless or false accusations. To address misconduct by civil servants, government agencies weigh various disciplinary measures. They may contend that the targeted employee is guilty of falsification or turn to a vague charge: that the employee’s actions exhibited a “lack of candor.” Such an allegation sounds rather subjective to a federal staff facing a charge that could result in suspension or even end their career.
What Constitutes Lack Of Candor?
Lack of candor refers to an employee’s failure to be entirely forthcoming or truthful in their communications with their employer. Federal agencies expect employees to maintain a high level of honesty and transparency, which makes this charge a serious concern. Determining a lack of candor hinges on context; what constitutes a key omission in one situation might be irrelevant in another.
Lack of candor is a broader concept that encompasses situations where an employee:
Provides Incorrect or Incomplete Information
The first element involves the employee providing incorrect or incomplete information. It does not solely mean outright lying but involves situations where an employee withholds relevant information. For example, if a worker fails to disclose a previous disciplinary action during an internal investigation, they may be seen as lacking candor.
Has Knowledge of the Inaccuracy
The employee must knowingly provide incorrect or incomplete information. Simply making a mistake or forgetting to include a piece of information does not constitute a lack of honesty. What matters is the intent behind the omission or misinformation. For instance, if an employee unintentionally provides incorrect dates for a leave of absence, it wouldn’t typically be considered a lack of openness unless it can be shown they knew the information was inaccurate at the time it was provided.
Fails to Correct Previous Statements
When an employee realizes that an earlier statement was inaccurate, they are obligated to correct it promptly. It’s a responsibility that stems from the expectation of honesty and transparency in federal employment. Remaining silent after discovering an inaccuracy can be perceived as an attempt to deceive, even if the original mistake was unintentional.
Failure to correct can suggest a willingness to allow false information to influence an investigation or decision, thus undermining trust and integrity. Providing inaccurate or incomplete information during an active investigation is likely to result in an invalid lack of candor charge.
Difference Between Lack Of Candor And Falsification
Although related, lack of candor and falsification are distinctly different. Falsification involves knowingly providing false information with the intent to deceive. It includes actions like forging documents or lying about qualifications. Lack of candor, on the other hand, does not necessarily apply to giving false statements but somewhat incomplete or misleading information.
For example, falsification may involve an employee altering their time sheets to reflect hours they did not work. Lack of candor might involve the same employee failing to mention that they left work early on multiple occasions without explicitly falsifying their time records. The nuance between these charges can greatly impact the defense strategy and potential consequences.
Federal Employee Rights
Due process protections for government workers came into focus in the 2002 case of Ludlum v. Department of Justice. An FBI agent faced over 100 days of suspension for lack of candor. The investigation stemmed from unauthorized passengers riding in his government-issued vehicle. The agent initially admitted to picking up his daughter from daycare three times, but upon further investigation, he later confessed to doing so on numerous occasions.
The inconsistency led to his termination, as it raised concerns about his honesty and efficacy as a public servant. It’s important to be truthful and transparent during investigations. That said, federal employees are not without recourse when facing accusations of lack of candor. Here’s what they can expect:
- Right to representation: Public servants can be represented by an attorney or union rep throughout the disciplinary process.
- Notice of charges: The government agency must provide a written notice outlining the specific allegations and supporting evidence.
- Opportunity to respond: Government workers have the right to present their side of the story, including providing any mitigating factors or evidence that contradicts the accusations.
- Appeal process: Employees can appeal disciplinary actions through an administrative process and ultimately reach the U.S. Merit Systems Protection Board (MSPB).
A skilled MSPB lawyer can help you understand your rights and build a strong defense. They can guide you through the process, represent you in hearings, and negotiate on your behalf. It will be their duty to collect all relevant documents, emails, and other records that can demonstrate that any omissions or inaccuracies were unintentional.
If there are extenuating circumstances, your lawyer will explain any perceived lack of candor. They’ll also argue against the subjective nature of the charge by highlighting inconsistencies or biases in how the charge has been applied in your case compared to others. With the help of an MSPB attorney, federal employees can contest lack of candor charges and seek a fair resolution.
Are There Defenses Against Lack Of Candor Accusations?
Yes, several defenses can be used to counter a lack of candor charge:
Unintentional Errors
One defense is that the information provided was incomplete or incorrect unintentionally. Employees may not be able to recall specific details or fully understand the questions posed. For instance, a federal employee might unintentionally give the wrong date for a meeting during an investigation because they misremembered the details. Later, when the accurate date is clarified, it becomes evident that the initial mistake was not deliberate. Demonstrating unintentional error, based on faulty memory rather than deceit, can be a strong defense against lack of candor charge.
Discrimination
Another defense involves illegal discrimination. If the agency’s actions are based on protected characteristics such as race, gender, sexual orientation, disability, or military service, it constitutes illegal discrimination. An example may involve a federal employee who is openly gay facing a lack of candor charge after disclosing personal leave dates inaccurately.
The employee noticed that heterosexual colleagues who made similar errors were not subjected to the same scrutiny or disciplinary actions. Such a discrepancy suggests that the charge may be influenced by the employee’s sexual orientation rather than the actual mistake. The employee can argue that the lack of candor charge is rooted in illegal discrimination.
Misunderstanding
It can mitigate the charges if the employee can show that any perceived lack of candor was due to a genuine misunderstanding or miscommunication rather than deceit. He or she might argue that they provided an incomplete report because they misunderstood the scope of information requested by their supervisor. It becomes clear that the omission was not an attempt to deceive but rather a result of unclear communication.
Get Help at The Law Office of Justin Schnitzer
The Law Office of Justin Schnitzer specializes in representing federal employees nationwide. We provide comprehensive consultations to understand the specifics of each case and offer tailored legal advice. It’s a necessary step for setting the foundation for a successful defense. Our team manages all aspects of the case, from gathering evidence to filing necessary paperwork. Doing so ensures that every detail is handled professionally and efficiently.
We represent clients in MSPB hearings by presenting a strong and well-prepared defense. The goal is to protect a worker’s career and reputation. If an unfavorable decision is rendered, we are experienced in handling appeals. Our expertise ensures that clients have the best chance of overturning adversative decisions. To book an appointment for a case assessment, contact us at (202) 964-4878 or fill out a short Online Contact Form.
Frequently Asked Questions About Lack of Candor Charges
Is a lack of candor charge related only to on-the-job misconduct?
Yes, a lack of candor charge can be brought up even when the alleged misconduct did not directly relate to the workplace. Let’s say a federal employee with a high-security clearance is discovered to have financial ties to a foreign government. If they fail to disclose said relationship during the security clearance process, the omission could raise concerns about potential conflicts of interest or national security risks.
When is a lack of candor allegation baseless?
A lack of candor allegation is baseless if it’s proven that the employee did not knowingly provide false or misleading information. The charge may be considered baseless if the employee demonstrates that any discrepancies were unintentional and not intended to deceive.
Can I be fired for lack of candor?
A lack of candor charge often leads to disciplinary action, which can be a suspension, reprimand, demotion or termination. A public worker can be fired if the charge is substantiated. In the Wyrick v. Department of Transportation case of 2014, a Federal Aviation Administrative (FAA) officer faced removal after a DUI and hit-and-run incident. He failed to report it to the agency, a requirement for those who use government vehicles. When questioned by his supervisor, the officer initially denied his involvement. However, a further investigation uncovered the truth, which resulted in his termination.
