Ask FELTG: Falsification Charge: Must Private Material Gain Involve Money?

August 27, 2024

We received the following question from a customer:

Dear FELTG: There’s a debate in my office about the “private material gain” element in a falsification case. A couple of my colleagues think material gain has to involve money, but I disagree. Can you clarify?

Clarify we can, thanks to clear Board case law on the topic. But first, let’s take a look at the required elements for an agency to prove a charge of falsification:

  1. he appellant supplied wrong or incorrect information, and
  2. Did so knowingly and with the intention of defrauding, deceiving, or misleading the agency,
  3.  For private material gain.

Boo v. DHS, 122 M.S.P.R. 100, ¶¶ 10-12 (2014).

A Board case earlier this year that involved an employee who was removed after making false allegations against her supervisor contains a helpful discussion on the private material gain element — Mahmood v. SSA, SF-0752-17-0677-I-2 (May 7, 2024)(NP). The agency charged the appellant with making false statements after the appellant sent an email to her supervisor, which “accused her supervisor of vowing to use his position to ‘slander [the appellant’s] credibility during the course of [her] work performance,’ and threatening the appellant that he would ’discipline [her] for speaking out.’” Id. at 13. The appellant copied her second-level supervisor on the email. These contentions against her supervisor were completely fabricated.

In Mahmood, the Board reiterated that the private material gain aspect in a falsification charge “should be considered ‘quite broad,’ and constitutes any ‘advantage to be secured [by the employee],’ and is ‘by no means limited to monetary gains arising from a falsification.’ Boo, 122 M.S.P.R. 100, ¶ 13 (quoting Bradley v. Veterans Administration, 900 F.2d 233, 237 n.6 (Fed. Cir. 1990)).” Id. at 14.

Because the appellant sent the email to her second-level supervisor, the Board found she sought private material gain in the form of attempting to get her immediate supervisor into trouble:

As the administrative judge indicated, the appellant attempted to cast her supervisor in a negative light by making the false statements about him with the goal of spurring the second-level supervisor to take action against her supervisor. If the appellant had succeeded in convincing her second-level supervisor to take some sort of action against her supervisor, it would have been to her advantage. Such an objective would fit within Boo’s broad definition of private material gain. Alternatively, even if the appellant’s objective was merely to bolster her second-level supervisor’s perception of the appellant at her own supervisor’s expense, by characterizing her supervisor in a negative or unflattering light, that would also meet Boo’s broad definition of the private material gain element. [citations omitted]

Id. at 14-15.

Deciding on the appropriate charge is a critical aspect to any discipline case. As they did here, the Board will usually scrutinize the facts to be sure the conduct matches the charge the agency selects.

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