dissenting.
The essence of this case is whether or not Mr. Ludlum, (“Ludlum”), a Special Agent working for the Federal Bureau of Investigation (“Bureau”), clearly answered questions when he became the subject of an investigation concerning the personal use of his official Bureau vehicle for driving his young daughter to and from daycare. The Bureau charged Ludlum with a lack of candor when he answered questions pertaining to the personal use of the vehicle during the inquiry. The Merit Systems Protection Board (“Board”) administrative judge (“AJ”) specifically found that in order to support a lack of candor charge the Bureau had to “prove ... that the employee knowingly supplies incorrect information with the specific intent of defrauding, deceiving or misleading the agency.” (emphasis added). Consequently, the AJ reversed the Bureau’s removal action. The Board, in turn, reversed the AJ on the basis that the Bureau had specifically charged him with “lack of candor,” which encompasses a broader range of misconduct than the narrower falsification charge. The majority of this panel affirms the Board’s determination without acknowledging that the Board has failed to follow its established legal precedent requiring intent in order to support a “lack of candor” charge. See Boyd v. Dep’t of Justice, 13 MSPB 97, 14 M.S.P.R. 427 (1983); Friedrich v. Dep’t of Justice, 52 M.S.P.R. 126 (1991).
It appears to me that the majority, by a rather prismatic analysis, first abstains from considering as a matter of first impression the issue of whether the Bureau’s lack of candor charge requires a showing of intent by affirming the Board’s clearly inconsistent legal conclusion that no such showing is required, while at the same time feels compelled to highlight the circumstantial evidence in this case which might establish such an intent by inference. The majority should clearly state whether or not intent is required to support the charge of lack of candor, and if so, what level of intent is required.
Overlooking the relevant law on this subject, the majority affirms the Board’s finding that intent is not required to support the FBI’s lack of candor charge. However, a careful review of the cases concerning the FBI’s lack of candor standard leaves me unable to understand how the majority can hold that the standard requires no separate showing of intent. Given that each agency can define its own charges, we need to review specifically those lack of candor cases in which the FBI is a party: Boyd and Friedrich.
Notably, the majority does not cite to Boyd as support for its holding that there is no intent requirement for a lack of candor charge. This is because Boyd specifically does not support this holding. In Boyd, the Board stated that “[i]mplicit in the charge of lack of candor is the allegation that appellant intentionally misrepresented the amount of time that he spent at home.” 13 MSPB 97, 14 M.S.P.R. at 429 (emphasis added). It stated further that
we find that the agency established by a preponderance of the evidence that ap*1287pellant knowingly misrepresented this amount of time in the March 6, 1981 interview. Furthermore, we hold that in view of the presiding official’s finding that appellant misrepresented his participation in the physical fitness program, the agency supported its charge of lack of candor by a preponderance of the evidence.
Id. at 430 (citations omitted) (emphasis added). The Boyd case establishes that the Board requires a showing of intent to deceive before upholding a charge of lack of candor.
Similarly in Friedrich, the Board affirmed a lack of candor finding, stating “[w]e find that the appellant has failed to show that the administrative judge erred in concluding that the appellant had intentionally made an uncandid statement, and thus erred in sustaining charge 1 [lack of candor].” 52 M.S.P.R. at 134 (emphasis added).
The only relevant text cited by the majority for its conclusion that Mr. Ludlum evinced a lack of candor is the FBI’s Manual of Administrative Operations and Procedures which states that “[t]he employee must be entirely frank and cooperative in answering inquiries of an administrative nature.” The majority overlooks the fact that it is entirely undisputed that Mr. Lud-lum was frank and cooperative in answering the inquiries posed to him. It is also undisputed that he admitted that he was unsure as to the specific number of times he drove his daughter home in his Bureau vehicle. Thus, the operative text explaining the standard to be used for assessing Mr. Ludlum’s conduct reads in his favor, as does the Board precedent establishing that a finding of intent is required to support a lack of candor charge.
In an effort to cushion the draconian effect of the holding that a lack of candor charge requires no showing of intent, the majority concedes that the charge “necessarily involves an element of deception.” Maj. Op. at 1284. At the same time, however, it states that “ ‘intent to deceive’ is not a separate element of that offense — as it is for ‘falsification.’ ” Id. at 1285. This text further confuses this jurisprudence by creating an untenable distinction between “elements” and “separate elements.” Seeking to distinguish between lack of candor and falsification, the majority has resorted to an alternative analysis that requires either an element of intent or the lack of one, and as a result finds itself in the quagmire of having to conclude either that all unintentional misstatements are sufficient to support a lack of candor charge, or that lack of candor is the same as falsification. In an effort to resolve this dialectic tension, the majority requires deception without requiring intent, even though deception by definition requires intent.
In this case the Board declined to find that Mr. Ludlum had any intent to deceive. Instead it acknowledged Mr. Ludlum’s credibility in explaining the discrepancy in the statement. If this court wishes to reprimand Mr. Ludlum on the basis of the wrongfulness of his actions, it should do so by reversing the Board’s misapplication of the lack of candor standard, and remanding this case for the Board to apply the correct legal standard, which the majority admits requires at least a minimum degree of intent.
For the foregoing reasons, I respectfully dissent.