We received the following question via Ask FELTG.

Dear FELTG: If an agency is investigating misconduct and the employee being investigated lies to an investigator, does it make sense to charge the employee with lack of candor on top of the other misconduct the agency discovers?

Thanks for the question. In many instances, agencies will indeed charge lack of candor when a witness is not truthful during an investigation. The key in doing so is to be sure the witness’s conduct meets the elements of lack of candor:

(1) The employee gave incorrect or incomplete information; and

(2) Did so knowingly.

Fargnoli v. Commerce, 123 M.S.P.R. 330, ¶ 17 (2016).

A recent MSPB case involving a Deputy U.S. Marshal raised this exact scenario: Smith v. DOJ, DA-0752-16-0383-I-1 (Feb. 1, 2024)(NP). The appellant attempted to leave a Whole Foods without paying for $6 worth of tacos, and the store’s Loss Prevention Officer stopped him and escorted him back into the store to pay. When the appellant got to the cash register to pay for the tacos, he took his money out of his U.S. Marshal’s credential case.

The appellant was then detained in the security office to await the police, but after an hour the police still had not arrived, so the appellant signed a statement admitting to wrongfully depriving the store of its property and was released. The Whole Foods store declined to press charges, but the police department reported the incident to the agency.

During the agency’s misconduct investigation, the appellant made several claims:

  • The tacos were complementary (“comped”).
  • When he signed the statement admitting to the dishonest conduct he was under duress.
  • The security personnel were aggressive toward him, yelled at him, threw paper and a pen at him, and prevented him from explaining the tacos had been comped.

Each of these statements was debunked by other evidence, including a video of the appellant’s time in the security office and the order receipt for the tacos, which was not marked as a comped order.

As a result, the agency removed the appellant based on four charges:

(1) Dishonest conduct for taking the tacos without paying for them;

(2) Failure to report that he was detained and accused of criminal conduct while on official duty as required by agency policy;

(3) Failure to follow an agency directive that prohibited the use of his credential case to store personal items, including his cash and driver’s license; and

(4) Lack of candor during [the] investigative interview into his alleged misconduct.

Id. at 3.

The Board upheld the lack of candor charge, as well as the other three charges, and sustained the removal. The video evidence from the security office clearly showed the appellant’s statements to the agency investigator were inaccurate. Also, the appellant’s “shifting explanations during his OPR-IA interview and across his subsequent statements are sufficiently distinct to allow for an inference that the appellant knowingly mischaracterized the incident,” Id. at 9.

For more on conducting legally sufficient investigations (and what to do with the findings) join FELTG for Workplace Investigations Week.

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