A Head-shaking Tale About Lack of Candor
By Barbara Haga, March 15, 2022
Last month, I wrote about the case of Freeland v. Department of Homeland Security, No. 2020-1344 (Fed. Cir. Aug. 7, 2020). Freeland was a supervisory human resources specialist who was hired by DHS after resigning from his Army job under shaky circumstances. Most of what I covered last time centered on how exactly DHS hired someone with this kind of background. After all, we in the HR Office should be pretty good at recognizing the signs of trouble and knowing how to check references and ask good questions about past employment.
Let’s look at the lack of candor charge in Freeland’s removal case.
To recap: DHS brought Freeland to work on Sept. 20, 2015. He was removed in 2017 from the position of supervisory human resources specialist in the Recruitment and Placement Branch of a DHS Human Resources Operations Center. Prior to working for DHS, Freeland held the same type of position at an Army Civilian Human Resources organization. He resigned in May 2015 after he was issued a proposed 14-day suspension for negligent performance of duties. At the time of his resignation, he was also the subject of a workplace sexual harassment investigation.
After the tentative DHS offer, Freeland was required to complete an SF-85P, Questionnaire for Public Trust Positions. Question 12 of the form asks: Has any of the following happened to you in the last 7 years?
- Fired from a job
- Quit a job after being told you’d be fired
- Left a job by mutual agreement following allegations of misconduct
- Left a job by mutual agreement following allegations of unsatisfactory performance
- Left a job for other reasons under unfavorable circumstances
Freeland completed and signed his SF-85P form on two occasions, once on July 18, 2015, and again on Sept. 23, 2015. In both instances, he answered “no” to this question without providing any further details in the corresponding comments section.
(Note: The SF-85P was revised in 2017. The current version of the form has these questions in Section 13, not 12, and the questions asked are different.)
The Investigation
Roughly four months after Freeland completed the form the second time, he was interviewed by an OPM investigator. The investigator asked about the situation surrounding the departure from his Army position. Freeland initially denied any issues with his Army employer until he was directly confronted by the interviewer who had information that the Army had proposed a disciplinary action against him. Freeland also initially denied the sexual harassment allegation until he was directly confronted by the interviewer with the allegation. OPM issued its findings to the DHS Office of Security and Integrity, Investigations Division (OSI). OSI noted that OPM rated it a D-issue, indicating that a significant impediment existed for obtaining background clearance. On Aug.18, 2016, OSI sent its review and excerpts from the OPM background investigation to the Chief of the HROC.
One year later, DHS issued a notice of proposed removal based on lack of candor. The charge was supported by three specifications. Two of the specifications were based upon the responses on the two SF-85P forms he completed. The third specification was based on the follow-up interview when Freeland initially denied having any problems or issues in his prior Army employment.
I am biting my tongue. I want to write about why it took one year to get this person off the rolls. He was a supervisor. He was a staffing specialist. Based on the third specification, he was not honest in responding about the circumstances of his departure from the Army. He would have signed an OF-306 as a new employee which gave permission for DHS to go directly to the Army to get the information. According to the Federal Circuit decision, Freeland was placed on a probationary period when hired by DHS. The probation would have ended on Sept. 19, 2016. The DHS OSI turned over its report on August 16, 2016.
Why did they not terminate him? Pre-appointment procedures would have required notice and a “reasonable” period of time to respond, but that’s all. (See 5 CFR 315.805(b)). I’m going to let that go, though, and end with what Freeland said in his defense. That’s the unbelievable part.
Freeland’s Response?
Freeland argued that he had finished his “conditional” period with DHS, ostensibly meaning that agency couldn’t take action on the information about his Army employment. The Court found that Freeland had completed his one-year probationary period, but that he confused that with the requirement of being subject to a background investigation. (One would expect that a supervisory staffing specialist would understand these things.)
The truly surprising arguments were these:
Freeland stated that his incorrect answer on the SF-85Ps was not done for “personal gain.” The Court dealt with this as a Douglas factor issue and upheld the AJ’s determination. The proposed removal notice stated: “You were aware that the prior Proposed Discipline and sexual harassment investigation would interfere with your recruitment and placement into the supervisory position that you currently hold.”
Freeland also argued “that the Board disregarded that he did not take his ethics training until after the dates on which he completed iterations of the SF-85P — therefore, he was not on notice that he had to be forthcoming on his SF-85P form.” The Court pointed out that the form specifically required certification that the responses were “true, complete and correct.”
Wow. A supervisor who receives and handles official documents with applicant and employee signatures all day long doesn’t know that one needs to be truthful without the ethics training. I’m still offended when I read this. When you have a few minutes, look at the case. Maybe you will be shaking your head, too. Haga@FELTG.com