                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                     2016 MSPB 19

                            Docket No. DC-0752-15-0266-I-1

                                  David A. Fargnoli,
                                       Appellant,
                                            v.
                              Department of Commerce,
                                        Agency.
                                      May 6, 2016

           Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.

           Alpana K. Gupta, Washington, D.C., for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision that
     sustained his removal. For the reasons set forth below, we GRANT his petition
     and REMAND the appeal for further adjudication.

                                    BACKGROUND
¶2         From September 12, 2010, until his removal on December 12, 2014, the
     appellant was employed as a Criminal Investigator with the Office of Export
     Enforcement (OEE), in the agency’s Bureau of Industry and Security (BIS).
     Initial Appeal File (IAF), Tab 5 at 55, Tab 7 at 113. He previously was employed
                                                                                       2

     by the Department of Labor (DOL), Office of Inspector General (OIG). IAF,
     Tab 6 at 176.
¶3         On August 14, 2014, the appellant’s first-level supervisor, C.V.,
     Supervisory Criminal Investigator, proposed to remove the appellant based on
     three charges:     (1) Unauthorized Possession of Equipment; (2) Conduct
     Unbecoming a Law Enforcement Officer (4 specifications); and (3) Lack of
     Candor (6 specifications). IAF, Tab 5 at 262-77. The appellant responded orally
     and in writing, and made supplemental oral and written responses after receiving
     additional documentation from the agency. Id. at 56-258. On December 9, 2014,
     the appellant’s second-level supervisor, N.K., Assistant Director, National
     Security Programs, OEE, issued a decision letter sustaining the proposed
     removal. Id. at 39-54. In his decision, N.K. found that the evidence supported
     the charges, except for specifications 1, 2, and 3 of the lack of candor charge, and
     that the penalty of removal was appropriate for the sustained misconduct. Id.
¶4         The appellant filed an appeal of his removal on December 18, 2014. IAF,
     Tab 1. Following a hearing, the administrative judge issued an initial decision on
     the removal action.   IAF, Tab 19, Initial Decision (ID).      In his decision, the
     administrative judge sustained all three charges, although he did not sustain
     specification 4 of the conduct unbecoming charge. Id. at 3-28. He further found
     that the agency established a nexus between the sustained misconduct and the
     efficiency of the service and that the penalty of removal was reasonable.        Id.
     at 29-31.
¶5         On petition for review, the appellant concedes that the record supports
     specification 1 of the second charge, concerning a car accident in a
     Government-owned vehicle (GOV), but he contests the administrative judge’s
     findings on the remaining charges and specifications. Petition for Review (PFR)
     File, Tab 1.     Thus, the following charges and specifications remain in
     dispute: (1) Unauthorized Possession of Equipment; (2) Conduct Unbecoming a
     Law Enforcement Officer (specifications 2 and 3); and (3) Lack of Candor
                                                                                          3

     (specifications 4, 5, and 6). The appellant contends that the car accident alone
     would not warrant removal, but he does not otherwise contest the administrative
     judge’s findings regarding nexus and penalty.         Id.   The agency has filed a
     response, to which the appellant has replied. PFR File, Tabs 3-4. 1

                                          ANALYSIS
     The administrative judge did not correctly construe the charge of Unauthorized
     Possession of Equipment, but the charge is nonetheless supported by
     preponderant evidence.
¶6         Under the first charge, the proposal notice sets forth the following
     specification:
           Specification:    On or around November 23, 2009, Beretta
           Corporation issued to the U.S. Department of Labor, Office of
           Inspector General a Super Nova Tac/GR, PG weapon (also called the
           Benelli pump action 12 gauge shotgun or Benelli shotgun), a
           collapsible Supernova Stock, and a Benelli Nova Entry Barrel.
           Following your transfer from the Department of Labor to the
           Department of Commerce on September 12, 2010, you wrongfully
           took and maintained possession of these items without authorization.
     IAF, Tab 5 at 270. The specification is followed by a more detailed narrative:
           In November 2009, you obtained the Benelli shotgun by notifying
           Beretta that you were a firearms instructor for DOL OIG. Indeed,
           the shotgun is restricted to law enforcement use only, and thus, you
           could not have obtained it in your personal capacity. The invoice for
           the shotgun and its accessories, totaling approximately $744, states
           that Beretta issued them expressly to DOL OIG. The Bureau of
           Alcohol, Tobacco, Firearms and Explosives would have had to
           approve any transfer of ownership of the weapon, which [approval]
           did not occur. Thus, it is indisputable that such items did not belong
           to you and that Beretta did not provide them to you in a personal
           capacity. To my knowledge, moreover, no one at DOL OIG or


     1
       The appellant has since filed a supplemental pleading, in which he requests leave to
     apprise the Board of the recent decision by the U.S. Court of Appeals for the Federal
     Circuit in Parkinson v. Department of Justice, 815 F.3d 757 (Fed. Cir. 2016). PFR File,
     Tab 5. The appellant’s request is granted.
                                                                                    4

           Beretta authorized you to maintain possession of the Benelli shotgun
           after leaving DOL OIG. Accordingly, upon your transfer to the
           Department of Commerce in September 2010, you had an obligation
           to return all such items to DOL OIG. Instead, you took and
           maintained personal possession of these items for almost three years
           after your departure from DOL OIG, until August 8, 2013, when
           Supervisory Special Agent [S.F.] retrieved the items from you. I
           find, therefore, that you wrongfully engaged in the unauthorized
           possession of equipment.
     Id. at 270-71.
¶7         The Board is required to review the agency’s decision on an adverse action
     solely on the grounds invoked by the agency; the Board may not substitute what it
     considers to be a more adequate or proper basis.           Gottlieb v. Veterans
     Administration, 39 M.S.P.R. 606, 609 (1989). Here, the gravamen of the charge
     is that the appellant improperly kept possession of the Benelli shotgun following
     his transfer to the agency without the authorization of DOL OIG, his former
     employer.    However, the administrative judge appears to have sustained the
     charge based on a finding that the appellant failed to obtain authorization from
     the agency to keep possession of the Benelli shotgun following his transfer from
     DOL OIG. ID at 10. We agree with the appellant that this was error.
¶8         Nonetheless, the charge as written is supported by a preponderance of the
     evidence. There is no dispute that, while the appellant was employed at DOL
     OIG, he contacted Beretta to request a Benelli shotgun and an additional 14-inch
     entry barrel for “testing and evaluation” purposes. PFR File, Tab 1 at 6. The
     parties disagree as to whether the appellant obtained authorization from a
     supervisor at DOL OIG to obtain the equipment. Regardless, it is undisputed that
     the appellant took possession of the Benelli shotgun and entry barrel after the
     items were delivered to DOL OIG and that he continued to keep the equipment in
     his home after he left DOL OIG and commenced working for the agency. Id.
     The parties also agree that the appellant did not obtain authorization from DOL
                                                                                             5

      OIG or Beretta to maintain possession of the equipment following his transfer to
      the agency. Id.
¶9             The appellant argues that it was unnecessary to obtain authorization from
      DOL OIG to maintain possession of the equipment because he borrowed it
      directly from Beretta, and DOL OIG therefore had no possessory interest. PFR
      File, Tab 1. In support of his theory, he notes that DOL OIG did not acquire
      ownership of the Benelli shotgun by way of gift or purchase and that it was never
      entered into the DOL OIG inventory.             The agency does not dispute that the
      equipment was merely on loan from Beretta and that it never became the property
      of DOL OIG.
¶10            However, the record reflects that Beretta did not lend the equipment to the
      appellant in his personal capacity, but rather to DOL OIG. In his oral reply to the
      proposed removal, the appellant admitted that, when he contacted Beretta’s law
      enforcement representative to request the Benelli shotgun, he identified himself
      as a firearms instructor for DOL OIG and indicated that he was requesting the
      weapon for the purpose of testing and evaluation for potential acquisition by DOL
      OIG. IAF, Tab 6 at 223-29. Furthermore, while there is no contemporaneous
      paper record of the 2009 transaction, the record contains a reprinted invoice 2 and
      a printout from Beretta’s item tracking system, both of which indicate that the
      Benelli shotgun and entry barrel were “sold” 3 and shipped to DOL OIG for
      “testing and evaluation purposes.”          Id. at 50-51.     The reprinted invoice also
      indicates that Beretta had designated the Benelli shotgun as “[law enforcement]
      only.” Id. The appellant argues that the “law enforcement only” designation is

      2
        The invoice bears the date September 30, 2013, which is presumably when it was
      printed or retrieved from Beretta’s record keeping system. We are not persuaded by the
      appellant’s speculation that, for reasons left unexplained, Beretta simply fabricated the
      document.
      3
          It is undisputed that Beretta did not request or receive payment.
                                                                                           6

      not a legal distinction, PFR File, Tab 1 at 14-17, but this is not in dispute, at least
      regarding the shotgun itself. The fact that Beretta deemed the Benelli shotgun as
      being for “law enforcement only” is significant not because it reflects a legal
      designation, but rather because it serves as evidence that Beretta would not have
      loaned the equipment to the appellant in his personal capacity.
¶11         In sum, regardless of whether the appellant obtained permission from DOL
      OIG to borrow the shotgun on its behalf, or made his supervisors aware that he
      had done so, DOL OIG and Beretta were the parties to the transaction. Hence,
      upon his departure from DOL OIG, the appellant should have either surrendered
      the equipment to DOL OIG or Beretta, or obtained permission from DOL OIG,
      and presumably Beretta as well, to maintain possession. Accordingly, we sustain
      the charge of Unauthorized Possession of Equipment.

      The administrative judge correctly sustained specification 2 of the second charge,
      but not specification 3.
¶12         Under specification 2 of the charge of Conduct Unbecoming a Law
      Enforcement Officer, the agency alleged the following:
            Specification 2: On March 1, 2013, you improperly carried a firearm
            in a government-owned vehicle that was not authorized by OEE.
            Per the SAM [Special Agent Manual] Section 2-5, “SAs [Special
            Agents] are not authorized to carry any weapons under their
            authority as OEE SAs while on duty or pursuant to OEE authorities,
            other than those specifically authorized by this Section (e.g., batons,
            pistols, shotguns, rifles and carbines).” Section 2-7 states, further,
            “All OEE SAs who are authorized to carry firearms shall only carry
            weapons authorized by OEE.” On March 1, 2013, you had a car
            accident in your assigned GOV. You admitted that, at that time, you
            were carrying a personally-owned Mossberg Shotgun, which OEE
            had not authorized. As you were carrying this weapon in your
            assigned GOV, you were carrying it under the color of your authority
            as an OEE Special Agent. I find, therefore, that you engaged in
            conduct unbecoming a law enforcement officer.
      IAF, Tab 5 at 271.
                                                                                       7

¶13            The appellant does not dispute that he was carrying an unauthorized
      personally-owned Mossberg shotgun in the trunk of his assigned GOV at the time
      of the March 1, 2013 accident. PFR File, Tab 1 at 18. Rather, he argues that he
      did not violate Sections 2-5 and 2-7 of the SAM because he was not carrying the
      Mossberg shotgun under his authority as an OEE Special Agent. Id. However, it
      is undisputed that the appellant was in an “on duty” status while traveling home
      in his assigned GOV.       Hearing Compact Disc (HCD), Track 1 (testimony of
      C.V.).     Furthermore, the record reflects that OEE agents are not permitted to
      carry personally-owned long guns while on duty and that the appellant had
      previously been counseled on that very issue. IAF, Tab 6 (P.K. interview). The
      appellant does not allege that he sought or obtained approval to deviate from that
      policy.    Accordingly, we agree with the administrative judge that the agency
      proved specification 2 of the conduct unbecoming charge by a preponderance of
      the evidence.
¶14            We reach a different conclusion concerning specification 3. The agency set
      forth that specification as follows:
               Specification 3: On March 1, 2013, you improperly stored a firearm
               in an unoccupied government-owned vehicle.
               The SAM, Section 2-9, instructs SAs regarding the proper storage of
               firearms. As it instructs, “Firearms will not be left unsecured in
               unoccupied vehicles.” As it instructs further, “When no other option
               is viable, and firearms must be stored in a vehicle, the firearm will
               be secured by being placed in the trunk and hidden out of site [sic].
               This option should be used only as a last resort, when no other means
               of authorized storage are available.” Nevertheless, in the evening of
               March 1, 2013, you left your GOV unoccupied on a local street with
               the Mossberg Shotgun in the trunk. Given that BIS never even
               authorized you to use the Mossberg Shotgun in your official capacity
               and you, by your own account, left your vehicle unattended to watch
               a movie, I have no basis to believe that “no other option [was]
               viable” and that such firearm “[had to be] stored in a vehicle.”
               Accordingly, I find that you engaged in conduct unbecoming a law
               enforcement officer.
      IAF, Tab 5 at 271.
                                                                                       8

¶15         The specification is explicitly based on the appellant’s alleged violation of
      SAM, Section 2-9. However, the first paragraph of Section 2-9 unambiguously
      delimits the policy to the storage of “authorized” firearms:
            2-9 WEAPON STORAGE
            A. SAs are responsible for taking all reasonable steps to prevent the
               unauthorized use, accidental discharge, and/or theft of authorized
               firearms. The SA is responsible for the storage of his/her
               authorized firearm in every circumstance.         All authorized
               firearms shall be stored in accordance with the following
               [provisions]. . . .
      IAF, Tab 7 at 86 (emphasis added).        Regardless of the spirit in which it was
      intended, Section 2-9 cannot reasonably be read to cover the storage of an
      unauthorized firearm, such as the appellant’s Mossberg shotgun. The appellant
      may well have engaged in misconduct by failing to store his unauthorized
      Mossberg shotgun with the same care mandated for authorized firearms.
      However, as previously discussed, the Board is required to review the agency’s
      decision on an adverse action solely on the grounds invoked by the agency and
      may not substitute what it considers to be a more adequate or proper basis.
      Gottlieb, 39 M.S.P.R. at 609. Accordingly, we do not sustain specification 3.
      Nonetheless, the sustained specifications, i.e., specifications 1 and 2, are
      sufficient to sustain the second charge.     See Burroughs v. Department of the
      Army, 918 F.2d 170, 172 (Fed. Cir. 1990).

      The administrative judge did not fully analyze the Lack of Candor charge.
¶16         In Ludlum v. Department of Justice, 278 F.3d 1280 (Fed. Cir. 2002), our
      reviewing court explained that lack of candor and falsification are distinct
      charges.   While falsification “involves an affirmative misrepresentation, and
      requires intent to deceive,” lack of candor, by contrast, “is a broader and more
      flexible concept whose contours and elements depend on the particular context
      and conduct involved.”     Id. at 1284.     Lack of candor need not involve an
      affirmative misrepresentation, but “may involve a failure to disclose something
                                                                                        9

      that, in the circumstances, should have been disclosed to make the statement
      accurate and complete.” Id. Unlike falsification, lack of candor does not require
      “intent to deceive.” Id. at 1284-85.
¶17         Nonetheless, lack of candor “necessarily involves an element of
      deception.” Id. at 1284; see Parkinson v. Department of Justice, 815 F.3d 757,
      766 (Fed. Cir. 2016); Rhee v. Department of the Treasury, 117 M.S.P.R. 640,
      ¶ 11 (2012), overruled in part on other grounds by Savage v. Department of the
      Army, 122 M.S.P.R. 612 (2015). In Rhee, 117 M.S.P.R. 640, a case in which the
      appellant was charged with lack of candor in making an incorrect statement to her
      supervisor, id., ¶ 2, we found that, to establish the “element of deception,” the
      agency had to prove that the appellant knowingly made an incorrect statement,
      id., ¶ 11. Because the agency failed to establish by preponderant evidence that
      the appellant knew her statement was false, we found the administrative judge
      was correct in not sustaining the charge. Id., ¶¶ 12-16. Our reviewing court
      recently took a similar approach in Parkinson, in which an employee of the
      Federal Bureau of Investigation (FBI) was charged with lack of candor under the
      FBI Offense Code based on his alleged “failure to be fully forthright” in his
      statements to agency investigators.    In that context, the court found that the
      “element of deception” required under Ludlum entailed that the employee must
      have “knowingly” failed to be forthright. Parkinson, 815 F. 3d at 766-67. The
      court reversed the Board’s decision to sustain the charge, finding that, even if the
      employee failed to be fully forthright, there was no substantial evidence that he
      did so knowingly. Id. at 767-68. In light of Rhee and Parkinson, we now hold
      that lack of candor requires proof of the following elements:          (1) that the
      employee gave incorrect or incomplete information; and (2) that he did so
      knowingly.
                                                                                              10

¶18            Here, the administrative judge determined that the appellant’s statements
      described in specifications 4, 5, and 6 were not true. ID at 22-28. 4 However, he
      made no findings as to whether the “element of deception” was present, i.e.,
      whether the appellant knowingly gave incorrect or incomplete information. That
      matter is in dispute, and the administrative judge did not make the credibility
      determinations needed to resolve it.           See Spithaler v. Office of Personnel
      Management, 1 M.S.P.R. 587, 589 (1980) (finding that an initial decision must
      identify all material issues of fact and law, summarize the evidence, resolve
      issues of credibility, and include the administrative judge’s conclusions of law
      and his legal reasoning, as well as the authorities on which that reasoning rests).
      Because credibility determinations should be made in the first instance by the
      administrative judge who conducted the hearing, we remand the appeal.                  See
      Gardner v. U.S. Postal Service, 79 M.S.P.R. 9, 15 (1998).                On remand, the
      administrative judge should reanalyze the lack of candor charge in light of




      4
          The specifications read as follows:

               Specification 4: In a sworn interview on December 6, 2013, when asked why
               you did not return the [Benelli shotgun], you stated, “I intended to.” In the same
               interview, when asked what your purpose was for keeping the Benelli shotgun
               after leaving DOL OIG, you stated, “My intent was to T&E [test and evaluate] it
               and present the package to BIS.”

               Specification 5: In a sworn interview on December 6, 2013, you stated that you
               received permission from [R.P.], Special Agent in Charge, OIG, DOL, to acquire
               and test the [Benelli shotgun]. However, [R.P.] did not give you permission to
               obtain a shotgun.

               Specification 6: In a sworn interview on December 6, 2013, you stated that you
               felt the [Benelli shotgun] was a “personal assignment, not a—assigned to an
               agency.”

      IAF, Tab 6 at 273-74.
                                                                                            11

      Parkinson and Rhee and make a new finding as to whether the sustained
      misconduct warrants removal. 5

                                              ORDER
¶19         We remand the appeal to the regional office for further adjudication
      consistent with this Opinion and Order.




      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.




      5
        In his prehearing submissions, the appellant alleged that the agency violated his right
      to due process. IAF, Tab 15 at 15. In his summary of the prehearing conference, the
      administrative judge noted the appellant’s due process claim and set forth the legal
      standard for proving such an allegation. IAF, Tab 17 at 2-3. However, the
      administrative judge did not address the due process claim in the initial decision.
      Although the appellant has not raised the due process claim on review, there is
      nothing in the record to indicate that he abandoned or withdrew that claim prior to
      the initial decision. Therefore, the administrative judge should have addressed that
      claim in the initial decision. See Hall v. Department of Transportation, 119 M.S.P.R.
      180, ¶ 6 (2013). On remand, if the appellant indicates that he no longer wishes to
      pursue his due process claim, the administrative judge should document the appellant’s
      withdrawal of that claim, explain that the Board will no longer consider it when
      deciding the appeal, and give the appellant an opportunity to object to withdrawal of the
      affirmative defense. See Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶ 10 (2010).
      Otherwise, the administrative judge should address the due process claim in the remand
      initial decision. See Hall, 119 M.S.P.R. 180, ¶ 7.
