In September 2006, the Department of Homeland Security proposed Gilberto M. Rodriguez’s removal from his position as a senior criminal investigator for Immigration and Customs Enforcement on the charge that Mr. Rodriguez had falsified official government documents and made false statements. After a hearing at the Merit Systems Protection Board, the Administrative Judge sustained the Agency’s charges. Mr. Rodriguez requested reconsideration and on April 10, 2008, the Board found that the Agency did not prove its charges and did not sustain Mr. Rodriguez’s removal.
The Agency’s first charge alleged that while processing an undocumented alien in the Agency’s custody, Mr. Rodriguez falsified agency form I-213 by indicating a specific Assistant United States Attorney (AUSA) had declined the alien’s prosecution. Mr. Rodriguez testified that he used the duty roster to determine which AUSA he had spoken to about the prosecution of the alien. The Agency did not find Mr. Rodriguez’s response to the charges to be credible, and inferred that this lack of credibility coupled with the incorrect information, constituted circumstantial evidence that Mr. Rodriguez had knowingly supplied incorrect information.
A falsification charge contains an element of intent which must be proven by preponderance of the evidence and in consideration of the totality of the circumstances involved. To sustain a falsification charge, an agency must prove that the employee knowingly supplied incorrect information with the intent of defrauding the agency. Thus, establishing that the employee supplied incorrect information is not, by itself, enough to sustain the falsification charge.
Charges such as “improper conduct” or “failure to obey orders,” do not contain a specific intent element and the Board’s decision indicated that Mr. Rodriguez’s actions might support a charge for this type of conduct. However, the Board is unable to substitute the charge that it deems more appropriate, but is instead limited to a review of the Agency’s decision and the charges put forth by the Agency. Therefore, the Board held that the Agency had not proven the “intent” element of the charge and therefore the falsification charge could not be sustained. The Agency was ordered to cancel the removal action and to retroactively restore Mr. Rodriguez’s employment.
Federal employees who are subjected to an adverse action based upon a charge that requires intent should be aware that the agency bringing these charges against the employee will need to establish that the employee actions were intentional, not simply negligent or unintentional.
Case discussed: Rodriguez v. Dept. of Homeland Security, Docket No. DA-0752-07-0177-I-1, 2008 MSPB 85 (April 10, 2008).
If you would like to discuss your federal employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.
This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.
The Agency’s first charge alleged that while processing an undocumented alien in the Agency’s custody, Mr. Rodriguez falsified agency form I-213 by indicating a specific Assistant United States Attorney (AUSA) had declined the alien’s prosecution. Mr. Rodriguez testified that he used the duty roster to determine which AUSA he had spoken to about the prosecution of the alien. The Agency did not find Mr. Rodriguez’s response to the charges to be credible, and inferred that this lack of credibility coupled with the incorrect information, constituted circumstantial evidence that Mr. Rodriguez had knowingly supplied incorrect information.
A falsification charge contains an element of intent which must be proven by preponderance of the evidence and in consideration of the totality of the circumstances involved. To sustain a falsification charge, an agency must prove that the employee knowingly supplied incorrect information with the intent of defrauding the agency. Thus, establishing that the employee supplied incorrect information is not, by itself, enough to sustain the falsification charge.
Charges such as “improper conduct” or “failure to obey orders,” do not contain a specific intent element and the Board’s decision indicated that Mr. Rodriguez’s actions might support a charge for this type of conduct. However, the Board is unable to substitute the charge that it deems more appropriate, but is instead limited to a review of the Agency’s decision and the charges put forth by the Agency. Therefore, the Board held that the Agency had not proven the “intent” element of the charge and therefore the falsification charge could not be sustained. The Agency was ordered to cancel the removal action and to retroactively restore Mr. Rodriguez’s employment.
Federal employees who are subjected to an adverse action based upon a charge that requires intent should be aware that the agency bringing these charges against the employee will need to establish that the employee actions were intentional, not simply negligent or unintentional.
Case discussed: Rodriguez v. Dept. of Homeland Security, Docket No. DA-0752-07-0177-I-1, 2008 MSPB 85 (April 10, 2008).
If you would like to discuss your federal employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.
This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.
