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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19218
Experience:  Employment/Labor Law Litigation
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Need to speak with a lawyer who is familiar with administrative

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Need to speak with a lawyer who is familiar with administrative law proceedings and proving preponderance of the evidence

Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.


What is your question?

Customer: replied 4 years ago.

I am a law enforcement official for the federal government. They have charged me with lack of candor. This is an excerpt of what they must prove.


1210.13 Burden and degree of proof; affirmative defenses.

(a) Burden and degree of proof.

(1) Agency. Subject to subsection (b) of this section, the decision of the Department must be sustained if it is supported by a preponderance of the evidence.

(2) Appellant. The appellant has the burden of proof, by a preponderance of the evidence, with respect to:

(i) Issues of jurisdiction;

(ii) The timeliness of the appeal; and

(iii) Affirmative defenses.

(b) Affirmative defenses of the appellant. The decision of the Department must be sustained where it has met the evidentiary standard stated in paragraph (a) of this section, unless the appellant shows that:

(1) There was harmful error in the application of the Department’s procedures in arriving at its decision;

(2) The decision was based on a prohibited personnel practice described in 5 U.S.C. 2302(b); or

(3) The decision was not in accordance with law.

Are you familiar with this?

Yes, I'm familiar with the rules concerning the burden, but what is your question?

Customer: replied 4 years ago.

I got arrested off duty for a DWI. There is no dash cam or belt recording. Internal affairs has interviewed the office and he told them that I denied consuming alcohol at the stop. I told the agency during the internal affairs inerview of me that I was impaired and do not remember a lot of the questions or even denying consuming alcohol. So they are charging me with lack of candor and not being forthright with the officer based on his statement alone. What must they show or I show to not sustain this lack of candor charge.

What you have to show isn't that formulaic.


The preponderance of the evidence simply means that they must present evidence of their position that is more likely that not. It isn't like a criminal court hearing, where they have to achieve "beyond a reasonable doubt" which is like 98.9% certainty.


Instead, they have to simply tip the scales in their favor, or you in yours. If it is considered 50.1% likely that their facts are correct rather than yours, that's enough for them to win.


It's really not mathematical like that, but that's just a way to look at it.


So, if they have a witness that says that you were not forthright (meaning that statement of the officer), that's legally enough for them to move forward. It would then be his statement against your statement, but law isn't mathematical. They don't just cancel out his statement because of your statement. The trier of fact can look at the demeanor, believability and testimony of each witness to determine which offered facts seem more likely than not. This is how a single witness can sometimes trump multiple witnesses on the other side....when the multiple witnesses have stories that don't match the facts or line up with each other, while the single witness has a consistent and solid statement of the facts.


So, they have to show, through this one statement, that you did engage in lack of candor. That person's single statement will have to make sense and be believable.


To counter it, your position or statement concerning the facts has to be more believable.

Customer: replied 4 years ago.

My internal affairs interviewed him like a year and 3 months after the arrest. My states criminal attorney that handled my DUI case had him deposed 6 months after the arrest. I have the transcription and the recording of that deposition. The questions that we asked of of the officer was.


Officer: Ah, he's..... he looked fatigue because...well, I'm not sure. I mean I dont know. Like I said, I observed signs of impairment. I asked him if he had been drinking. He said he was sick; he had taken some medication. I believe that's what he had told me as far as I remember.


Interviewer: But never made an admission to consuming....


Officer: He did tell me he was on his way home. He told me he had a gun in the car and I told him not to touch it.



That was the exact transcription from his interview for the deposition months before being interviewed by my internal affairs. He did not said I denied consuming alcohol here and he said I made him aware of having a gun on me.



He told my internal affairs that I denied consuming alcohol and that he asked me if I had a gun in the car and I lied about having one.


Will this prior interview help my case since his statements are not quite the same?

Yes, it will. The prior statement, closer in time to the actual event, would logically be considered the more accurate statement of the events.


You can also call into question that validity of the second statement based on the difference. Basically, the argument is that once the officer understood that the internal investigation was taking place, the focus shifted to this lack of candor idea, whereas the first statement was concerned with the initial investigation behind the DUI.


Prior inconsistent statements also call into question a person's credibility.


All those things together help to weaken his testimony. Now, to what degree it weakens it is a matter for the trier of fact to decide. It goes to the weight that the trier will give his statement.

Customer: replied 4 years ago.

I also have another case in my office of another agent getting a DUI. I can use a disparate treatment defense right? However that works. I know for a fact because he is my friend and i have his criminal complaint because he gave it to me. He told the officer when he got stopped for a DWI that he had two beers when in fact he told our internal affairs he had 10. That is a perfect example of not being forthright with the office and yet they did not charge this other guy with lack of candor as they are me. Isnt that a defense of disparate penalties? Not being honest is not being honest in my eyes. There is no not being honest a little bit.


Are you familiar with disparate penalties

Yes, I'm familiar with that argument, but it is more traditionally used in discrimination claims to prove discrimination. It is not actually an affirmative defense.


One uses it to show that one is being treated differently to establish discrimination based on race, religion, gender, age, disability or FMLA use.


In reviewing the affirmative defenses above, disparate treatment or penalty is not included therein, UNLESS you are alleging more harsh punishment based on an illegal factor. See 5 USC 2302.

Customer: replied 4 years ago.

Thank you for your help.


I just thought the federal government is supposed to treat everyone the same. For instance two people steal a pen. They cant give one 5 days suspension and remove another. I know a lot of people claim disparate penalties

No, that's not actually true. They don't have to treat everyone the same. You have this due process which most people in the civilian world don't get, so that is where you benefit from government service.


People claim disparate penalties, true. You can claim that in regards XXXXX XXXXX punishment itself, seeking to have a lower punishment. It is not, however, a defense to the actual allegations against you.


Do you see the difference in my statement?

Customer: replied 4 years ago.

Oh ok. But what about lack of candor under impairment. You could not charge one for lack of candor and not the other for basically the same thing (Not being honest with the officer)


Here is a article I found on this for federal employees.



You can raise that during your case, and it would go to the punishment that you received compared to the punishment that other person received.


Further, you have to show how you are similarly situated. Same job, some offense, etc.


Yes, it is something that you can raise. I don't consider that an affirmative defense though, rather than a mitigating factor in the case. I suppose it's just a difference in terminology really, which doesn't change your course forward.

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