By Deborah Hopkins, October 18, 2022

For as long as we’ve been a company (since 2001, in case you’re wondering), FELTG has taught agency reps and supervisors that if you’re charging misconduct that begins with an f-word (falsification, fraud, false _______, etc.), you’d better make sure you have evidence the employee intentionally provided false information. Otherwise, you will lose the charge, which often means losing your case.

So, it was no surprise to see a recent MSPB decision, Conaway v. Commerce, CH-0752-16-0166-I-2 (Sept. 22, 2022)(NP), that overturned an agency’s discipline because of an f-word the agency couldn’t prove. The real heartbreaker is that this case cost the agency eight years and more than a quarter million in back pay, thanks to the lack of quorum at the MSPB. And to be fair, it also dragged out for eight years on the appellant’s side which is no picnic either.

In Conaway, the agency removed the appellant, a Census Bureau GS-6 Field Supervisor, on one charge of providing false information regarding Census Bureau questionnaires, with one specification regarding a March 24, 2014, interview.

The MSPB equates this type of charge to one of falsification. In order to have a falsification charge upheld, the agency must prove the following by preponderant evidence:

  • the appellant supplied incorrect information; and
  • did so knowingly with intent to defraud, deceive, or mislead the agency for her own private material gain.

Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶¶ 10-12 (2014).

The basic premise of Conaway’s misconduct was that she entered information into a survey form she had obtained in a months-earlier interview with a questionnaire respondent, even though procedures required her to ask the respondent questions and enter information in the current interview (held March 24, 2014). At hearing, Conaway presented unrebutted testimony that the respondent had provided her with information during an interview weeks prior to the March 24 interview, and had told her that “nothing had changed” during her phone conversation with the respondent about the March 24 questionnaire.

Here’s how the case fell apart for the agency, according to MSPB:

[While] the record clearly established that the appellant entered information into the survey …that she did not obtain from the March [24], 2014 interview, the agency has not provided any evidence suggesting that this information was incorrect, as required to prove a charge of falsification. To the contrary, it is likely this information is correct given the appellant’s unrebutted testimony…

Moreover, even if this information was incorrect, we find that the appellant had a reasonable good faith belief in the truth of the information, which precludes a finding that she acted with deceptive intent. Therefore, we find that the agency has not proven a charge of falsification.

Although the appellant’s handling of the … survey may have been contrary to established procedures or otherwise improper, the agency did not assert such a charge against her. Rather, as stated above, the agency charged her with providing false information … The Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency and may not substitute what it considers to be a more adequate or proper basis. Therefore, we cannot sustain a charge of failure to follow survey procedure against the appellant, and such failure cannot serve as a basis to sustain a charge of falsification. In light of the foregoing, we reverse the initial decision in part and do not sustain the appellant’s removal. (Citations omitted.)

I talked to FELTG Founder Bill Wiley about this case. He believes the agency made two notable mistakes, both of which FELTG addresses in our training:

  1. If you charge The Effing Word (Falsification), you have to prove, inter alia, that the information provided is false. That’s straight from the Charges day of MSPB Law Week, next held December 5-9. Here, although the employee did not follow procedures, the actual information provided was in fact true. Therefore, bye-bye Effing charge.
  2. The agency did a decent job of describing how the employee failed to follow procedures. However, they did that in some sort of “Background” section rather than in the “Charge” section of the proposal. Agency representatives who attend FELTG’sMSPB Law Week and learn not to waste words in a Background section hardly ever have to tell payroll to cut a backpay check for over a quarter of a million dollars.

We hope this helps you think twice before the next time you charge an F-word. Lots to learn from these new Board cases, and lots of lessons re-affirmed too.

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