Why ‘Lack of Candor’ Can Get Federal Employees in Real Trouble

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According to OPM, “lack of candor”  focuses on an employee’s duty to be forthcoming in responses with regard to all facts and information in their possession. Frederick v. Justice, 52 MSPR 126, 133 (1991); Fargnoli v. Dept. of Commerce, 123 MSPR 330 (2016). 
Federal Times/Legal Matters cited the 1998 case of Lachance v. Erickson, 118 S.Ct. 753: “…. 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.” Read in full here.
A most public “lack of candor’ case that made relatively recent news is here.
Below is an excerpt from FSGB Case No. 2014-049. This case is notable because the grievant is a tenured DS agent who got in trouble, among other things, for not being “entirely forthcoming,” the fact that the agency has access to private emails, and how each instance of not being forthcoming becomes a specification in the charge.
HELD: The Department of State carried its burden to prove by a preponderance of the evidence that grievant, a tenured Diplomatic Security Officer, committed the acts with which he is charged. The Board found that a 10-day suspension without pay was reasonable. The grievance appeal was denied.
OVERVIEW: Grievant, a tenured Diplomatic Security (DS) Agent, appeals the Agency’s denial of his grievance in which he sought a reduction of a 10-day suspension, the penalty he received for multiple disciplinary charges. The original charges included: (1) improper personal conduct; (2) misuse of government resources; (3) lack of candor; (4) poor judgment; and (5) failure to follow regulations. Although the deciding official declined to find grievant liable for Charge 4 and although grievant takes responsibility for Charges 2, 3, and 5, he denies the misconduct alleged in Charge 1 and the reasonableness of the penalty. The deciding official determined that the 10-day suspension originally proposed remained reasonable even though one charge was not sustained. The Board concluded that agency satisfied its burden of proving that grievant committed the improper personal conduct as charged, i.e. groping a female, subordinate employee (grabbing her buttocks) at a Marine House toga party in The Board also concluded that the 10-day suspension was reasonable under the totality of the Douglas analysis and that the agency was not obligated to reduce the penalty originally proposed merely because one of the charges was not sustained.

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No Comparator Case For DS Agent With PTSD — Failure to Follow Regs, Lack of Candor Charges Came 2 1⁄2 Years Late

Posted: 3:12 am  EDT
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This is a case of a DS Agent charged with lack of candor and failure to follow regulations for incidents that took place in 2010 related to his PTSD.   The State Department issued a final decision to  suspend the agent for 12 days.  According to the ROI, the deciding official at the agency level grievance “also considered the mitigating factors and gave grievant credit for having no past formal disciplinary record and a satisfactory work history. The deciding official also noted grievant’s potential for rehabilitation, while recognizing that grievant clearly was embarrassed by his diagnosis of PTSD, and feared that he might be stigmatized by the label, or that he might even lose his job with the Department.”

A couple things striking about this case.  Following grievant’s military service in Iraq in 2006, he started having panic attacks and severe anxiety, for which he was prescribed several medications – none of which he says worked very well. His symptoms became worse over time. In 2009 he was diagnosed as having Post Traumatic Stress Disorder (PTSD).  The incidents that ultimately led to the two charges occurred in November 2010; yet the Department did not propose disciplinary action until April 24, 2013 – a span of 29 months. The ROI does not explain the delay.

Grievant reportedly denied during the interviews with that he had been diagnosed with PTSD, saying instead that he had been treated for anxiety and panic attacks. And yet, according to the ROI, grievant avers that “he discussed his PTSD diagnosis in considerable detail with the DS investigators, and authorized release of his medical records.”

Grievant admits he did not comply with Department regulations requiring him to report that he had been prescribed psychiatric medications, but claims he was unaware of the policy requiring him to do so. He claims that he was not alone in being unaware of this requirement, as many other DS officers to his knowledge were also unaware of the regulation.

Since grievant is a DS agent, the Department has also cited 12 FAM Exhibit 023 2.5, its Deadly Force and Firearms Policy (which we can no longer read online, as it’s now behind the firewall). 12 FAM Exhibit 023 section 2.5 12 FAH-9 H-030 appears specific to prescription medication.  The State Department showed, and the FSGB agreed that there are no similar cases that presented the same set of circumstances as in this grievant’s case.

The Board held that grievance be granted in part and denied in part. The Board remanded the case to the Department to consider an appropriate penalty in view of their decision not to sustain two specifications of one of the two charges.

Summary:

Grievant faces two charges – Lack of Candor and Failure to Follow Regulations – that were leveled against him because of statements he made during a Department investigation about incidents that took place while he was in the U.S. on leave in 2010. He is a Diplomatic Security Special Agent who was admitted to the hospital on two occasions (on consecutive days) after he drank alcohol heavily and took an unknown quantity of prescription medications after he became upset about the breakup of his engagement to be married. The investigation revealed discrepancies between the information grievant gave to investigators and that found in his medical records. Records show that grievant suffers from PTSD and that he had not reported this fact to the Department. The investigation report claims that grievant denied during interviews that he had ever been diagnosed with PTSD or that he was ever in a treatment program to address the condition. His records also show that he had been prescribed several psychiatric medications, and contained no evidence that grievant had reported to the Department either the PTSD diagnosis, or the prescription medicines which are required to be reported under the agency’s Deadly Force and Firearms policy. The Department’s final decision provided for a 12-day suspension without pay.

Grievant denies the majority of the specifications cited in the charges. He claims to have discussed his PTSD diagnosis in detail with the investigators and avers that he responded candidly to all of the questions posed to him during two DS interviews. He admits that he did not report the prescription medicines, but argues that he was unaware he needed to do so. Grievant also claims that the charges are untimely, having been brought after a very long delay – nearly 2 1⁄2 years after the incidents, and that the delay has prejudiced his ability to present his case. He claims to have been particularly disadvantaged in that he is unable to find witnesses who could corroborate his positions or shed light on the quantity of medications he took prior to the 2010 incidents. He also argues that the proposed penalty, in any case, is overly harsh in light of penalties the Department has imposed for like offenses. He requests that those charges/specifications the Department is unable to establish should be overturned, and the 12-day suspension should be mitigated.

Click on the image or the link below to read ROI in pdf file. The file is redacted and originally published online by the Foreign Service Grievance Board.

2014-020 - 04-29-2015 - B - Interim Decision_Redacted-2-02

FSGB Case 2014-020 – 04-29-2015 – B |DS Agent – PTSD Case                         (click image to read in pdf)

2014-020 – 04-29-2015 – B – Interim Decision_Redacted-2

The regs apparently say that “a DSS Special Agent who is taking prescription medication to notify his supervisor and submit a medical certificate or other administratively acceptable documentation of the prescription … to the Domestic Programs Division of the Office of Medical Services immediately after beginning the medication.” We don’t know what happens to DS agents who self report as required by regulations.  Are their USG-issued weapons removed? Are they subject to reassignment? Is there a perception that this is an embarrassment?

Given that many Diplomatic Security personnel have now done multiple tours to war zones and high threat posts, is this really an isolated case of not self-reporting both the PTSD diagnosis and the use of prescription medication?

We sent this individual to Iraq in 2006. He came back with unseen wounds. And here he is in 2015, still fighting his battle.   What can the State Department do to make employees with potential PTSD less fearful of being stigmatized in coming forward and acknowledging they need help? What can the Bureau of Diplomatic Security do more for its agents? How can this be made into a less lonely fight?

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