Tables of Penalties Can Be Deadly

By William Wiley

Questions, we get questions. And here’s a good one from a longtime reader who is wrestling with an age-old problem: What to do with an unhelpful Table of Penalties.

Dear FELTG Rock Stars-

I’m another “loyal reader” and dealing with a charge issue.  My question is, from my table of penalties, there isn’t an official charge that includes the term “lack of candor.”  Do I just write up the analysis under the table’s charge “Misrepresentation, falsification, exaggeration, and concealment or withholding of material fact in connection with an official Government investigation, inquiry or other administrative proceeding”?

Thanks for your time.  I asked my boss if I could attend one of your FELTG training sessions, and he said no because it was too expensive.  In my opinion, my boss is short sighted. This employee is a really bad actor. Your class would have helped me tremendously.

And here’s our FELTG somewhat-snarky response:

Hi there, Loyal Reader-

I wonder what your boss thinks a single bad federal employee cost the government each year? We’d be happy to put on training for half that amount.

As for your question; no, no, no. Do NOT under any circumstances try to squeeze a Lack of Candor charge into a table of penalties that does not use that charge. Lack of candor is the brass ring in discipline charging these days, much-much better than charging falsification or any of that other stuff. Lack of Candor does not require you to prove an “intent to deceive” as you would have to prove with the charges in your table. Intent is difficult to prove and we avoid charges that require a proof of intent whenever we can.

The key is that you are not obligated to reference a charge in your table of penalties when you discipline an employee. See Farrell v. Interior, 314 F.3d 584 (Fed. Cir. 2002). The Table is a guide, not controlling policy. So you simply draft the proposal letter like this: “Charge 1 – Lack of Candor” without any reference to the agency’s Table of Penalties. Then, use the rest of the Douglas Factors to justify and defend whatever penalty you select. When you get to Douglas Factor 7, you say this, “The charge in this case is not identified in the agency’s Table of Penalties.” Mic drop … you’re done.

Hope this helps.  Wiley@FELTG.com