Lack of Candor Leads to HR Supervisor’s Removal at DHS

DHS removed a relatively new employee for lack of candor in filling out his security background investigation questionnaire.

This case (Freeland v Department of Homeland Security (CAFC No. 2020-1344 (nonprecedential) 8/7/2020) involves an all-too-familiar scenario. 

As explained in the court’s decision, David Freeland had worked for the Army Civilian Human Resources Agency (ACHRA) as a supervisory HR specialist. After Army proposed he be suspended for 14 days for “negligent performance of duties,” as well as becoming the target of a sexual harassment complaint and investigation, Mr. Freeland resigned from ACHRA before these matters reached a conclusion. (Opinion p. 2)

Freeland subsequently landed a job with DHS as a supervisory HR specialist in the Recruitment and Placement Branch of one of the agency’s Human Resources Operations Centers (HROC). His appointment was conditioned upon successful completion of an Office of Personnel Management (OPM) background investigation. Freeland had to fill out a questionnaire two different times (SF-85P) for the required background investigation. Both times he answered “no” to question 12 of the SF-85P—the one that asks if in the prior seven years he had been fired, quit under a cloud, left after unsatisfactory performance allegations, or left for “other reasons under unfavorable circumstances.” (pp. 2-3)

It did not take long for the OPM investigator to uncover that Freeland had left his previous job with the Army after being told of his proposed suspension for poor performance as well as after he learned he was the subject (target) of a sexual harassment complaint. When the investigator then interviewed Mr. Freeland, he initially denied everything, only admitting it after the investigator confronted him with the unpleasant facts. (p. 3)

Not surprisingly, DHS was not pleased when OPM submitted its report on Freeland’s background investigation indicating that there was a major snag to giving him background clearance. Following adverse action procedures, DHS removed Freeland for three instances of lack of candor. Two were based on his “no” reply twice to Question 12; the third was based on his initial denials to the investigator. (p. 4)

Freeland appealed to the Merit Systems Protection Board (MSPB), a hearing was held, but the Board sustained his removal. He then took his case to the federal appeals court. (p. 4)

Freeland threw a lot of arguments in front of the court, several of which he had not raised at the MSPB hearing and therefore were thrown out by the court out of hand. Basically, an appellant must raise an argument before the MSPB before the court will entertain it. 

One creative argument Freeland raised in his appeal was that the Standard Form 50 issued by the Army on his resignation states simply that he “resigned” without mentioning the pending suspension nor the sexual harassment complaint that had been leveled against him. The court’s take on that was that “[T]he SF-50 is not a legally operative document controlling on its face an employee’s status…[T]his lack of information does not mean that Mr. Freeland did not resign under such unfavorable circumstances.” (pp. 5-6)

Another somewhat interesting argument was Freeland’s contention that because he had finished his probationary period at DHS, the agency erred in calling his appointment there “conditional.” The court brushed this aside, stating that “Mr. Freeland appears to conflate a Federal employee’s probationary period with an employment subject to a background investigation.” (p. 6)

Without parsing his many other arguments (such as there was no “intentionality” on his part when he gave the incorrect answers; that he had not yet received ethics training when he gave the “no” answer so he “was not on notice that he had to be forthcoming on his SF-85P” (p. 8); etc.), suffice to say that the court found them unpersuasive.

 In short, Mr. Freeland remains fired from DHS for lack of candor.

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.