FEDweek

MSPB Limits Misrepresentation Charges

On December 3, 2014, the Merit Systems Protection Board issued a decision in Boo v. Dept. of Homeland Security, 2014 MSPB 86 that redefined its prior case law on misrepresentation charges, and in doing so reduced Boo’s removal to a 30 day suspension.

Boo, a TSA employee, was detailed to an administrative officer position. In that position, Boo had the authority to escort visitors through TSA security doors into the “sterile area” security zone at the airport without screening, but not through normal TSA screening checkpoints. In June 2013, Boo was escorting a GSA employee for a mold inspection at the airport. After an initial visit through the security doors, Boo and the GSA employee later attempted to reenter the sterile area through a TSA screening checkpoint. When challenged at the checkpoint, Boo inaccurately told the checkpoint screeners that he had the authority to escort the GSA employee through the checkpoint without screening. After an investigation, TSA removed Boo on charges of undermining required security procedures and misrepresentation. Boo appealed the removal to the MSPB. After a hearing, the MSPB administrative judge upheld the removal on all charges. Boo then filed a petition for review with the MSPB.

The MSPB partially vacated the administrative judge’s decision and mitigated the penalty to a 30-day suspension. While the MSPB upheld the charge of undermining required security procedures, it rejected the charge of misrepresentation. Under MSPB case precedent, certain disciplinary charges have specific definitions. Under prior precedent, the charge of misrepresentation (synonymous with the charges of falsification and lying) required proof of intent by the employee in order to sustain the charge; merely providing inaccurate information is insufficient to establish the misrepresentation charge. In contrast, certain other related charges such as “lack of candor” or “submission of inaccurate information” do not require proof of intent.

In this case, the MSPB narrowed the definition of what constitutes intent that will substantiate a misrepresentation charge. Citing the decision of the U.S. Court of Appeals in Leatherbury v. Dept. of the Army, 524 F. 3d 1293 (Fed. Cir., 2008), the MSPB modified its prior case law to limit misrepresentation charges to cases where employees intend to defraud, deceive or mislead the agency for their own private material gain. In this case, Boo had no private material gain in escorting the GSA employee through the security checkpoint, and so the misrepresentation charge could not be sustained.

With one of the two charges against Boo overturned, the MSPB was able to independently review the agency’s penalty decision under the Douglas factors in order to see if removal exceeded the bounds of reasonableness for the sustained charge of undermining required security procedures. Noting no testimony showing that the deciding official would have removed Boo on just the charge of undermining required security procedures, and citing mitigating factors such as Boo’s length of federal service (civilian and military), his immediate remorse, his lack of training on security procedures in his detailed position and the fact that there was no actual danger from Boo escorting the GSA employee through the checkpoint since he was not only authorized to escort the same GSA employee through TSA security doors (and had already done so the same day), the MSPB found that the maximum reasonable penalty for Boo’s infraction was a 30-day suspension. The MSPB accordingly ordered Boo reinstated with back pay and his removal mitigated to a 30-day suspension.

* This information is provided by the attorneys at Passman & Kaplan, P.C.