Appealed from Merit Systems Protection Board.
Markey, Chief Judge, Rich and Smith, Circuit Judges.
The final decision of the Merit Systems Protection Board (board), docket No. PH07528510575, effective 5 days after the board on February 4, 1986, denied the petition for review, affirmed the removal of Amos G. Southers (Southers) from the position of education compliance survey specialist with the Veterans' Administration (agency) based on 23 charges. The said final decision is affirmed in part, reversed in part, and remanded.
The issues presented on appeal are:
1. Whether the board erred in sustaining a multiplicity of 19 charges of false testimony, where the agency repeated substantially the same question 19 times and Southers gave substantially the same answer 19 times; and
2. Whether the board erred in sustaining one charge of false testimony and four charges of intentional falsification of documents.
Southers was removed from his position with the agency based on 23 charges, all involving Southers' oral and written statements that he had conducted a class check at the Baltimore School of Hair Design (school) from 9 a.m. to 10 a.m. on August 30, 1984. The agency found that Southers had not actually attended that class and that he had intentionally made false statements to the contrary.
Four of the charges were for intentional falsification of four different documents. All four documents related to the compliance survey at the school, and in each document Southers alleged that he had conducted a class check from 9 a.m. to 10 a.m. on August 30, 1984.
After Southers had completed the documents, the agency received information from a school official stating that Southers had not attended the 9 a.m. class and had not arrived at the school until 1 p.m. or 1:30 p.m. Based on the latter information, the agency conducted an investigation on April 2 and April 3, 1985, where Southers testified under oath regarding the 9 a.m. class check.
The agency's first question was whether Southers had "sat in on the class from its start right on through its finish," to which Southers answered "yes." The agency's second question was whether Southers had stayed in the class "from beginning to end," to which Southers again answered "yes." In like manner, the agency asked a total of 19 questions relating to whether Southers had attended the 9 a.m. class, and Southers repeatedly answered that he had attended that class. The agency compiled 19 separate charges alleging that each of the answers was false.
The agency removed Southers on the basis of the total of 23 charges of falsification. Southers appealed to the board. At Southers' request, the board conducted a hearing on September 19 and on September 30, 1985. The agency relied on the adverse action file, exhibits, and the testimony of six witnesses. The agency's case depended in large part upon the credibility of several employees and teachers at the school who maintained that Southers had not been at the school during the time in question. An agency official testified that ...