Ask The Lawyer

By Debra Roth

Admit the misconduct

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Sounds like easy advice, right? When confronted by an agency investigator regarding your conduct, the natural tendency however, is to deflect, divert, downplay or deny. But doing so, almost always, will result in a more severe penalty than if you simply admitted to the conduct — in its truest and most complete form.

Why is that? Because back in 1998, a unanimous U.S. Supreme Court decided that a federal agency may discipline an employee who lies or lacks candor to the agency regarding alleged employment-related misconduct, including falsely denying the offense, such that the agency can discipline the employee not only for the underlying act of misconduct, but also for the lie or lack of candor. It’s the latter (the lie) that almost always results in a more severe penalty than if the employee simply admitted the underlying wrongdoing.

The case is Lachance v. Erickson, 118 S.Ct. 753 (1998). Until the Supreme Court ruled, there was litigation at the Merit Systems Protection Board (MSPB) and its appellate review court, the U.S. Court of Appeals for the Federal Circuit, on the issue of whether a federal employee could be disciplined for making a false denial to investigators of alleged misconduct: “I didn’t do it.”

For many legal observers, there was surprise when the court of appeals held that federal employees could not be disciplined for falsely denying (“I didn’t do it”) an act of misconduct. The issue was so important that the White House’s Office of Personnel and Management exercised its right to appeal that decision to the Supreme Court and obtained a reversal.

While the MSPB and the court of appeals had always held that an employee could be disciplined for making statements to investigators in which he or she provided false facts, that situation was distinguished from the simple false denial of the offense: “I didn’t do it.” With the decision in the Erickson case, it became clear that even when an employee simply, but falsely, states “I didn’t do it,” without stating additional false facts to support the denial, he or she could be disciplined for making a false statement when falsely denying the offense.

And so with the Erickson decision, the culture of the federal workplace went through a sea change. Federal agencies rolled up their sleeves and began charging employees with false statements, lying, or lack of candor whenever there was evidence to support such a charge. And for the most part, employees have been slow to catch up, even though everyone knows that lying will get them in trouble.

Big trouble. In most law enforcement agencies, your first offense of lying or lack of candor in an investigation into your alleged misconduct is a firing offense regardless of your lengthy and impeccable service record. That is because the MSPB and court of appeals have held over and over again that candor to your federal employer is at the heart of the employer-employee relationship, and the honesty and integrity of its employees is essential to attaining the confidence of the citizens that agencies serve.

From years of practicing law defending federal employees under all types of investigations, there is a single explanation for why a person, when confronted by a misdeed, will deflect, divert, downplay or deny — human nature. Just try questioning your third-grade son or daughter on one of their misdeeds, and you’ll see human nature at work.

Unfortunately, the OIG community isn’t that patient in ferreting through our human tendencies, and it takes great offense to attempts to deflect, divert, downplay or deny. That is why I preach that if you know you’ve made a mistake or done something wrong (intentional or unintentional), it is in your interest to be prepared to tell your entire story, with all of its gruesome details, when called into an interview. Not only will it make your interview a lot less painful, you will reduce your exposure to a charge of false statement or lack of candor.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federal times.com and view her blog at blogs.federaltimes.com/federal-law.

 

Comments

  1. Turd Ferguson Says:
    April 29th, 2014 at 8:08 am

    I wonder if this advice applies to Politicians???