Is the ‘lack of candor’ standard too objective?
When federal agency officials contemplate disciplinary action against a federal employee, they have many arrows in their quiver. For example, the officials may contend that the targeted employee is guilty of falsification. On the other hand, they may turn instead to a much more nebulous charge: that the actions of the employee exhibited a “lack of candor.” To many federal employees facing a charge which could result in suspension or even end their career, “lack of candor” sounds rather subjective. Indeed, is the standard too subjective?
In an important decision from the Court of Appeals for the Federal Circuit [Ludlum v. Department of Justice, 278 F.3d 1280 (Fed. Cir. 2002), an FBI special agent ultimately received a 120-day suspension based on a charge of lack of candor. The agent was investigated due to having unauthorized passengers in an official agency vehicle. He initially admitted to using the vehicle to pick up his daughter on three previous occasions from daycare. About a month later, the agent admitted to transporting his daughter in the vehicle about 12 to 14 times. The agency terminated the agent because of his failure to be candid during the administrative inquiry which brought into question his effectiveness as an agent.
The Court explained that falsification and lack of candor are distinct charges. Generally speaking, falsification involves an affirmative misrepresentation and requires intent to deceive. Lack of candor, on the other hand, is a broader and more flexible concept. The Court said that lack of candor need not involve an affirmative misrepresentation; failure to disclose something that, in the circumstances, should have been disclosed may suffice. The Court added that unlike the case with falsification, lack of candor does not require intent to deceive.
A Lack of Candor Requires Deception
The Court continued that nonetheless, lack of candor necessarily involves an element of deception. While the agent might not have been able initially to recollect the exact number of times he transported his daughter, the Court said the gross disparity between the 3 instances he first admitted and the 12 to 14 additional instances he admitted to a month later indicated he knew it was substantially more than 3. This conclusion, coupled with his later explanation for his earlier failure to mention these additional instances demonstrated that he was less than candid in his initial statement. The agency could require the highest degree of candor from its agents and the 120-day suspension was appropriate under the circumstances.
In order to discipline a Federal employee for lack of candor, the agency must prove two things:
For example, in another case [Ebron v. Dep’t of Homeland Sec., 475 Fed. Appx. 752 (Apr. 10, 2012)], the Court of Appeals for the Federal Circuit upheld the removal of a former federal employee for failure to meet the requirements of his position and for lack of candor where the employee’s position required a four-year bachelor’s degree from an accredited institution and where the employee failed to disclose that his diploma was from what amount to a “diploma mill,” an unaccredited institution. The Merit Systems Protection Board (MSPB) specifically found that the employee knew his diploma did not meet the minimum requirements for the job. The Court agreed, concluding that the employee may have rationalized his conduct in his own mind, but there was substantial evidence that he knew his diploma was not to the standards set by the federal agency.
A lack of candor charge can be brought even when the alleged misconduct did not directly relate to the workplace. For example, in a case out of California [Wyrick v. Department of Transportation, CAFC No. 2014–3162, Dec. 9, 2014)], the court affirmed the removal of an administrative officer for the FAA in Oakland. This administrative officer was involved in a DUI and hit-and-run accident. In addition, he did not report it to his agency. Such is a requirement for employees who routinely use government vehicles. When the administrator’s supervisor realized there might be some problem, the administrator denied that. Instead he indicated his stepson was the one involved in the accident.
Later, an investigation showed the administrator had been the one charged. The administrator contended that he had not actually lied. Because when his supervisor questioned him, the police had not yet charged him. The court noted, however, that while the State of California had suspended the administrator’s license, he had checked out a government vehicle and used it. This violated government rules and amounted to misuse of a government vehicle. The lesson: Troubles in your family life can leak over into the employment arena.
A lack of candor charge can quite so far-reaching, and the federal agency’s burden of proof is less for a lack of candor charge than for falsification. Therefore, any federal employee facing such an allegation should consult a qualified, experienced federal employment attorney.
Candor in whistleblowing – is the standard too subjective?
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