Lying to a Government Investigator Can Create More Problems Than Possible Misconduct

A police officer who lied to investigators about using a government vehicle to go to a Denny’s restaurant while on duty, was issued notice of removal, settled for voluntarily resignation, and was then unable to persuade MSPB or the court that his resignation was coerced.

A recent decision by the federal appeals court underscores the perils of lying to government investigators when they are investigating possible misconduct—if the offense doesn’t trip an employee up, the lie most likely will. (Delapenia v. Merit Systems Protection Board, C.A.F.C. No. 2010-3116 (nonprecedential), 11/9/10)

The unfortunate employee in this case was a police officer at Naval Station Pearl Harbor in Hawaii. When interviewed about driving with other officers in government vehicles to a Denny’s restaurant while supposedly on duty, officer Delapenia signed a sworn statement denying he had gone to the restaurant and denying knowledge of any other officers who had gone to it while on duty on the night in question. (Opinion, pp. 2-3)

Several weeks later, Delapenia reaffirmed his denials when interviewed by someone from the Office of the Inspector General. (p. 3)

Unfortunately for officer Delapenia, the investigators had video surveillance tapes showing the group of officers—including Delapenia—going to the Denny’s. (p. 2)

The agency charged Delapenia with misuse of a government vehicle and false statements, proposing his removal. A deal was cut and Delapenia resigned voluntarily and waived his appeal rights. In turn, the agency agreed that his Standard Form 50 would show he resigned for “personal reasons” and his Official Personnel Folder would make no mention that he had received a notice of proposed removal. (p.3)

In spite of this resolution of the removal action, Delapenia appealed to the Merit Systems Protection Board, arguing that his resignation had been coerced and was therefore involuntary. The Board threw his appeal out for lack of jurisdiction since Delapenia “failed to make a non-frivolous allegation of involuntariness.” (p. 3)

On appeal to the Federal Circuit, Delapenia contended that the agency lacked evidence that he had made false statements “knowingly or intentionally,” and therefore the threat of adverse action had been coercive. (p. 4)

Not so, says the court, pointing out that when confronted by agency investigators, Delapenia had a choice. He could have declined to answer (and could have faced adverse action for not cooperating in an official investigation). But, having decided to answer, he had the choice of being truthful or not. By answering untruthfully, he now has to face the consequences.

Not too surprisingly, the appeals court agrees with the MSPB that there was it had no jurisdiction over the appeal since Delapenia’s resignation was voluntarily.

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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.