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MSPB
Lack of candor

We all know that lying to your supervisor or another federal employee can lead to big trouble.

But what happens when a federal employee does not lie but fails to share everything they know?

Can you be punished for withholding information?

The short answer is yes. The charge for this kind of situation is called “lack of candor,” and lack of candor can lead to discipline.

Agencies tend to use “lack of candor” when they can’t charge an employee with the more serious charge of “falsification.”

But where falsification involves a federal employee who actually lies, lack of candor centers around the employee’s failure to be forthright.

While less serious than falsification, lack of candor discipline can lead to a serious black mark on your federal record, and for some employees such as law enforcement officers, can end one’s career.

For that reason, you should consult a dedicated federal employment attorney if you are facing a lack of candor charge. 

Lack of Candor Meaning

While it is one of the most common misconduct charges seen in the federal workplace, it is hard to describe lack of candor. A legal definition of the concept is hard to find.

Instead, many legal practitioners treat lack of candor as a broader concept—one which involves a failure to disclose something which should be disclosed to make a statement accurate and complete.

Because of its somewhat ambiguous meaning, some federal supervisors use lack of candor as a catch-all charge to throw at an unpopular employee.

This behavior is especially common when a supervisor is harassing or retaliating against an employee that they do not like. 

What are the Elements of a Lack of Candor Charge?

The Merit Systems Protection Board (MSPB) has said there are two main elements of a lack of candor charge.

First, the employee must give incorrect information or incomplete information.

Second, the employee must give incorrect or incomplete information knowingly

Accidentally giving an investigator information that later turns out to be incomplete or incorrect cannot lead to a valid lack of candor charge. 

What Is the Difference Between Lack of Candor and Falsification?

As we stated above, lack of candor only involves concealing information or giving incomplete information.

Falsification requires an affirmative misrepresentation, a lie.

To prove a falsification charge, the agency needs to establish that you had a specific intent to deceive. But proving someone’s intent is quite difficult to do.

Consequently, agencies face an uphill battle when charging employees with falsification. 

Unlike falsification, lack of candor does not have an intent element. All the agency has to prove is that you knew that the information you were giving was incorrect or incomplete.

This is significantly easier than proving you had a specific intent to deceive.

This is another reason that agencies tend to charge employees with a lack of candor rather than falsification. It’s simply easier for them to make the charge stick. 

How Do You Prove a Lack of Candor Charge?

The standard of proof for a charge is the amount of evidence the government needs to produce to win its case.

For most charges, including lack of candor, the standard of proof is preponderance of the evidence.

This means the agency only has to convince a fact-finder that the alleged conduct was more likely than not to have occurred.

That is a relatively low standard, making it easy for the agency to prove its case against employees without legal assistance.

That issue aside, lack of candor cases almost always involve a credibility determination.

In other words, it requires the judge to decide whether the employee accused of wrongdoing seems trustworthy when they give their version of the facts. 

The presence or absence of other evidence is also critical. Are there multiple documents with your signature that make contradictory statements?

Did any witnesses hear you make two different claims at various times? These types of evidence can single-handedly change the outcome in a lack of candor case.

A skilled attorney will interview witnesses and collect evidence that supports your testimony.

That is one of many reasons that having an attorney at your side is absolutely essential if you have been charged with lack of candor.

Are There Any Defenses to a Lack of Candor Charge?

Yes. One defense is that you did not know that the information you related was incomplete or incorrect. Maybe you did not recall the information or did not fully understand the question.

Alternatively, you can assert that your agency acted against you because of illegal discrimination.

Illegal discrimination includes any different treatment based on certain protected characteristics.

A few examples of protected characteristics include race, sexual identity, gender, sexual orientation, disability, and military service.

When you meet with a federal employment attorney, they will most likely ask you if you can think of similar employees who have received different treatment.

If you can think of those kinds of employees, it may be a sign of illegal discrimination in your case. 

What Are My Rights If I Have Been Charged with Lack of Candor?

As a federal employee, you have several basic due process rights. Whether your employer charges you with lack of candor or another charge, they must generally do three things.

First, they must give you at least a 30-day advance notice regarding any proposed adverse action.

Second, they must give you a specific and detailed description of your alleged misconduct.

Third, they must give you the right to review the materials relied on to propose the action and a meaningful opportunity to defend yourself.

If you do not receive these due process rights, a judge may overturn the agency’s action even if they meet their burden of proof.

If the discipline is sustained, you may be able to appeal to the MSPB, or pursue remedy through EEO our OSC routes. 

We Can Help You Defend Yourself Against a Lack of Candor Charge

If your supervisor has charged you with lack of conduct, get legal help right away to protect your career.

Our attorneys at the Federal Employment Law Firm of Aaron D. Wersing, PLLC, have a proven track record of defending talented government employees like yourself.

We know how overwhelming it can be to defend your rights against an aggressive or discriminatory employer.

We promise to sit down with you, listen to your story, and give you the legal representation you deserve. On top of that, we offer all potential clients a free initial consultation.

Consequently, you have nothing to lose in setting up an appointment with us today.

Call us at 833-833-3529 or send us a message on our website.

Author Photo

Aaron Wersing, Attorney at Law

Aaron Wersing is the founder of the Law Office of Aaron D. Wersing. Mr. Wersing graduated from the Georgia State University College of Law with a Doctorate in Jurisprudence and was the recipient of the CALI Excellence for the Future Award. Mr. Wersing previously attended the University of Georgia, where he received a Bachelor of Business Administration degree in Accounting. Mr. Wersing is an active member of his local community. Mr. Wersing acts as a volunteer attorney with Houston Volunteer Lawyers, the pro bono legal aid organization of the Houston Bar Association. He is also a member of professional legal organizations such as the National Employment Lawyers Association and the American Inns of Court. To reach Aaron for a free consultation, please call him at (833) 833-3529.

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