"Lack of Candor" Provides Basis for Firing

By on April 11, 2006 in Current Events with 0 Comments

Santana v. Department of Homeland Security, U.S.C.A.F.C. No. 05-3159 (non-precedent), 4/6/06

Mr. Santana was a Senior Auditor with the Department of Homeland Security. He was removed on charges of (1) failure to report an arrest, (2) failure to report criminal charges, (3) failure to provide complete information during a background investigation and (4) failure to provide complete information in an Internal Affairs investigation.

The Merit Systems Protection Board sustained the agency action (Santana v. Dep’t of Homeland Sec., M.S.P.B. No. SF-0752-04-0194-I-1 (August 6, 2004)). Mr. Santana took his case to court. In Santana v. Department of Homeland Security, U.S.C.A.F.C. No. 05-3159 (non-precedent), 4/6/06, the court affirms the Board’s decision. (Opinion, p. 1)

The agency’s Conduct and Employee Responsibilities policy requires its employees to report any arrest, detention, or formal charge of law violation. The agency removal action stemmed from several arrests and/or convictions of Mr. Santana over the course of seven years.

Three incidents were for driving under the influence and one for domestic battery. In each case, Mr. Santana failed to comply with the agency’s reporting requirement.

After the last incident, the police department in San Jose, California notified Santana’s supervisor of his arrest. At this point Internal Affairs opened an investigation that uncovered the previous arrests/convictions as well. It also uncovered the fact that Santana had previously submitted to the agency a Standard Form 85, Questionnaire for Public Trust Positions, in which he had failed to disclose one of the DUIs. When Santana’s statement was taken as part of that investigation, he failed to disclose that same DUI arrest. (Opinion, p. 3)

The appeals court found that the Board’s Administrative Judge had properly applied the “lack of candor” standard established by the court in Ludlum v. Dep’t of Justice, 278 F.3d 1280 (Fed. Cir. 2002).

Mr. Santana argued that applying this standard had been error. Instead, the Board should have treated his offenses as falsifications, which would require the agency to show he had made an affirmative misrepresentation and had an intent to deceive.

Not so, said the court, pointing out that lack of candor does not require showing of an intent to deceive: “This court identified lack of candor as not responding fully and truthfully to questions asked by the agency.” (pp. 4-5) The court summed up its decision, “Because the Board’s decision applied the proper legal standard and is supported by substantial evidence, we affirm.” (p. 7).

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.