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MSPB Modifies Prior Decisions Regarding Falsification, Misrepresentation and Lying

A Transportation Security Administration (“TSA”) Financial Specialist at the Bob Hope Airport in Burbank, California, was removed on charges of undermining required security procedures and misrepresentation after he allegedly escorted a General Services Administration (“GSA”) representative into a sterile area of the airport through a TSA security screening checkpoint instead of through the Security Identification Designated Area (“SIDA”) to inspect office space where mold had been observed.

The employee allegedly explained to both a Transportation Security Officer (“TSO”) and a Supervisory Transportation Security Officer (“STSO”) that he was escorting the GSA representative into the sterile area on “official business.” When the STSO asked whether the Federal Security Director (“FSD”) had approved the GSA representative’s screening bypass, the employee allegedly answered “Yes.” However, the FSD did not specifically authorize the GSA representative to bypass screening at the TSA security screening checkpoint. TSA policy only allowed the employee to escort individuals on official business through the SIDA-controlled door. The employee appealed his removal to the Board, and an MSPB administrative judge sustained both charges and affirmed the removal, finding that the Agency had proven its charge of undermining required security procedures and that the employee, under the totality of the circumstances, had “acted with intent to deceive or mislead the TSO and STSO.” The employee petitioned the full Board for review. On December 3, 2014, the Board vacated the initial decision in part, did not sustain the misrepresentation charge, and mitigated the penalty to a 30-day suspension.

After reviewing the record and initial decision, the Board agreed with the administrative judge that the agency had established its charge of undermining required security procedures. Agency policy, according to the Board, requires all persons passing hrough the TSA security screening checkpoint to be screened, subject to certain narrow exceptions, none of which applied in this case. The employee argued that since the GSA representative had already entered the sterile area earlier in the same day through the SIDA-controlled door, the violation was only technical and did not actually endanger the public. However, the Board determined that this argument was better suited for an analysis of the Douglas factors rather than as part of the analysis of the employee’s legal arguments against sustaining the charge.

Citing Leatherbury v. Department of the Army, 524 F.3d 1293 (Fed. Cir. 2008), the Board found that the agency’s charge of misrepresentation could not be sustained because there was no evidence that the employee “intended to defraud the agency for his own private material gain.” The Board stated that in order to sustain such a charge, the above cited standard must be met.

After not sustaining the charge, the Board explained that prior Board decisions have found that the charges of misrepresentation, falsification, and lying all require the same elements of proof: (1) supplying wrong information (2) and knowingly doing so with the intention of defrauding, deceiving, or misleading the agency. Per the Board, the intent to defraud or mislead “may be established by circumstantial evidence or inferred when the misrepresentation is made with a reckless disregard for the truth or with the conscious purpose to avoid learning the truth.”

According to the Board, although it stated in Seas v. U.S. Postal Service, 73 M.S.P.R. 422, 427 (1997) and Schoeffler v. Department of Agriculture, 47 M.S.P.R. 80 (1991) that it was unaware of any case holding that financial gain is required to prove a falsification charge, the Leatherbury decision by the Federal Circuit subsequently explained that there must be an intent to defraud the agency for the employee’s own private material gain.

In light of the Leatherbury decision, the Board in this case stated its intent to modify Seas and Schoeffler to the extent “that they suggest that an agency does not have to establish that an employee personally benefited or gained from his misrepresentation when assessing the elements of a charge of falsification, misrepresentation, or lying.” In order to establish such charges, the Board found, the agency must establish by a preponderance of the evidence that the employee intended to defraud the agency for his own private material gain. The Board explained that the definition of “own private material gain” is broad, and not limited to monetary gains arising from a falsification. Attempts to influence pending disciplinary proceedings, securing employment, using sick leave without being placed on Absent Without Leave or Leave Without Pay status, or to hide facts which would otherwise prompt disciplinary action could all constitute “own private material” gains, according to the Board.

And the Board further clarified its position, stating that when the Agency cannot prove the “intent to defraud, deceive, or mislead the agency for his own private material gain” element, lack of candor, substantive submission of inaccurate information, or conduct unbecoming may still be charged since none of those charges involve an element of intent.

Applying Leatherbury to this case, the Board found that the record was completely devoid of any evidence that the employee intended to defraud, deceive, or mislead the agency for his own private material gain when he represented to the TSO and STSO that the FSD had authorized the GSA representative to pass through the checkpoint without being screened. Further buttressing the conclusion of the Board was the fact that the “appellant could have escorted the GSA representative into the sterile area using the SIDA-controlled door as he had already done earlier that day.” At best, the Board explained, the employee acted with the intent to expedite the GSA representative’s entry into the sterile area in order to meet with agency officials, which would fall outside even the broad definition of “private material gain.”

Although security measures are at the heart of TSA’s operational mission, the Board found that the employee’s actions, however technically improper, did not seriously jeopardize airport security and safety, and that at no time was the traveling public “placed in jeopardy or was its safety compromised in any way by the appellant’s actions.” Because the employee was only trying to access an area that he and the GSA representative already had access to, and had already accessed, and because of his immediate remorse and lengthy military and civilian service record, the Board found that the penalty of removal for the charge of undermining security procedures was unreasonable. The Board determined that a 30-day suspension, rather than removal, was the maximum reasonable penalty.

For the above stated reasons, the Board sustained the first charge, did not sustain the charge of misrepresentation, and mitigated the removal penalty to a 30-day suspension.

You can read the full case, Boo v. Department of Homeland Security, hosted on the MSPB website.

 


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC. 

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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