In a two-to-one decision, The U.S. Merit Systems Protection Board recently reaffirmed some cardinal rules about what it takes for an agency to prove that an employee intentionally falsified an employment application. Over the dissent of Chairman Neil McPhie, Vice Chair Rose and Member Sapin in Guerrero v. Dept. of Veterans Affairs, 2007 MSPB 132 (May 8, 2007), ordered a terminated employee reinstated to his former position.
The opinion said that Guerrero was fired on three charges: that he falsified his employment application, Optional Form 306; that he falsified his qualifications on Optional form 612 by stating that he held prior civilian service as a GS-12 employee and that he had degrees from certain accredited colleges and/or universities, and that he misrepresented his qualifications on the same bases.
With respect to the first charge, the Board majority held that the proposal letter never put the employee on notice of what specific information the agency believed Guerrero falsified. Nor was such information included in the decision letter. Although the agency argued at the hearing that a discrepancy in the dates of Guerrero
