report writing inaccurate report writing supported by some fifty seven specifications patients have to do with information that was gathered by my client mr fitzgerald written into his reports and when they went back and did read interviews with witnesses eighteen months later they came up with different information and a trial lawyer will tell you if you interview a witness eighteen months later you're likely to get new and different information yet o p m insists that this information seems to me that was that was taken into consideration was and i don't believe it was because none of the fifty seven instances were different information different information as to the length of association in a number of cases somebody knew somebody  or more more than mr fitzgerald it indicated in his report so that kind of information in terms of the quality of quality and that the competitiveness of the association could very well have been different information no charges were not sustained in base and it was up to the agency to prove that their information was correct by a preponderance of the evidence basically the ministry of judge just gave every all of the decision given all over to the other side but yes court does not need to reach that issue i mean this is this is a very tenuous performance case and want to point that out it's a tenuous performance case we have in our previous side of the hawthorne effect which is a recognized psychological principle that somebody gets interviewed the second time and they know it's the second time they're on a different psychological tenor and they're likely to give different information they think maybe there was some error in their answers these people are giving information about people that they don't know that well people who are their neighbors people who are their colleagues people who they're not it's not information about them the other thing you want to know in this case is there was testimony from the deciding official that none of the information that was reported in accurately resulted in any difference in any granting  granting of any security players there's no issue of national security here this is not a case where somebody got through that shouldn't have gotten through or somebody didn't get through that should have gotten through there was no significant impact on opium opium in the reid says well we just couldn't trust him because of the amount of the errors mr fitzgerald's errors the ones that he's can with was charged with are less than one percent of his work for that that eighteen month period the national regional average at the time was six percent of the reports were deficient and had to be sent back mr fitzgerald had only two reports sent back in the six month period that immediately preceded this that ended in april two thousand and six yet somehow in this investigation mr fitzgerald got swept up with the people who were writing false reports he got swept up in this investigation this is not an ordinary performance case this comes out of a law enforcement type investigation agent group was looking for instances of ghost reporting ghost reporting is simply not interviewing people and then writing things as if you haven't had an interview there is no evidence here they didn't charge that they can't prove that but somehow he got swept up and got tarred and feathered with those people i think there were also people who were removed or g average he was certainly not on any sort of notice that he was in any peril of losing his job until he was brought into a room in august two thousand and six sat down ask a series of law enforcement type weston's when he refused to write a arguments about whether he should have been permitted to improve its performance and all of those things related to two performance type standards but i didn't see anything in your brief where you're very i believe your honor in the brief we're arguing it as part of the mitigation that these charges are not based on an accurate and reasonable measure of   fifty seven out of sixty one instances that they examined were shown to be incorrect and on that basis they've disciplined your honor i agree with you that there were fifty seven binding that were supported by the m protection board and you have to accept that as a factual matter what i want to point out is that those fifty seven represent out of fifteen hundred that the error rate is one percent that this is a case where he was never given he was never put on notice that these errors were there and that they needed to be changed these reports had been reviewed by his previous supervisor that he'd gotten feedback and they were ok we don't know that the fifteen hundred were examined to know that was the policy with that they were supposed to look at all put to look at these reports and review the what they did here is they step clear out of the performance cycle and went back and did reinterviewed why we have this case this case is based on reintroduce the reinterview methodology we think it's a question that you can accept that finding and still find that this case is not appropriate because the penalty removal is too harsh the penalty of removal is beyond what should be for a performance based case for a twenty year employee who had been adaptable who it worked well as testimony in the record that it worked well with the super  its last rating was above average he has his supervisor the last one row that were a review of your case in the case you still have problems with formatting however the content is usually adequate on two occasions i court and the board require that the lack of a performance period be taken into account and that other factors be taken into account here you have a case where they view the last penalty the most severe penalty without any notice without an opportunity to to improve and for an employee with twenty years of no documented performance history i just think that's a management thing forget the law for a minute stepping back from the law as a matter of management it's a very curious leap to be we you but here the law says that they're supposed to put their penalty is supposed to be based on the charge they actually broke they didn't bring an intention charge they didn't bring a misconduct charge and the judge was very clear the first day of the hearing i tried to raise that issue and  it no we're not talking about misconduct we're only talking about performance then they proceeded to fashion a penalty that was based on this conduct on intentionally on i've lost confidence and there is no evidence in the record they did not charge and they could not bear proof of that mr fitzgerald did anything intention is not that case but why don't we hear from the government now and you can come back in the bottle specifications by the judge now the evidence the court was was right to point out supports the fifty seven specifications petitioner is not in fact testing that those in accuracies were in his reports what this case really boils official considered the mitigating factors in the first paragraph and then set forth the aggravating factors and found that the aggravating factors outweighed the mitigating factors and he went through it set forth in detail what effect mr fitzgerald's inaccurate reporting had on o p m on o p s mission and on o p m is now lack of confidence in mr fitzgerald to conduct these investigations honestly and with integrity and that they could no longer trust him to do so and found that removal was the only penalty appropriate and that gets directly of course the nexus which is that the misconduct here was that he and accurately reported and that goes directly to his job performance which is that he's required to  accurately convey the results of his investigations in his reports investigation one other point the petitioner may well he was up here was that the agency was required to consider the lack of an approving plan and i believe the same for that would be fair or which is a board decision record his supervisor at the time janine burke had in january two thousand and six which is six months before he was interviewed by by the integrity surance team actually gave him a case review in which it said you're cutting and pasting is resulting in acar reports and you need to here is small in comparison but there is no authority for the fact that o p m needs to use it comparable error rate in addition if you look at the facts as set forth in the integrity integrity assurance team report what they did was when they discovered there were identical testimonies and  as they went back and simply looked at a ninety day period and they found inaccuracy as resulting from his performance in almost all of those reports so there was a there was a systematic and objective look and there's no need for them to do a comparison to the errors of the  they didn't uncover any evidence the only evidence that sort of speaks to that is that when he was interviewed by phil crews the investigator who interviewed his case he admitted to knowing that he had put in accuracies in his reports that he that he provided information to sources ask them to verify it and then put it in the reports as if they had known the information so he knew that the information was generally collect correct but not specific to that source so there's no evidence that he deliberately sought to  he was filling out reports that he thought were accurate and later turned out to be inaccurate is it under those circumstances proper to terminate someone well the agency is within it rights to terminate someone simply for poor performance under chapter seventy five this court held and loved him poor performance you know if you look at the factors and you didn't you do the penalty analysis as more than that enough to justify removal but in this case what i'm getting at here is whether there was anything here other than poor performance and i'm not suggesting that we're performance under these circumstances may not be a proper basis to remove him but i'm i'm just asking about the re here and it ties in with the arguments made by mr fitz that gerald's counsel about these charges really being having some element of intent well the charge itself doesn't have an element of attack but if you look at if you go into the actual specifications i think it it's not just poor performances that he didn't do a good job in specification five and six he put in his report that he received and reviewed a security clearance form for someone who was either  you know applying for a federal plan or getting a background check the person who he who he put in his report had provided him with that report actually testified at at the end as people hearing and said not only were those reports the security files not held in his office but he never he never gave it to mr fitzgerald he never requested it for mr fitzgerald so mr fitzgerald put into his report that he had received a review report a report that he never received or of you in addition he received information from sources that he simply failed to put into his reports this occasion twenty seven was an interview that he conducted with an actual subject the subject told him that he had been arrested for a felony and he failed to put that into his report and so whether or not that evinces deliberate action on the court i wanted to just look at to page thirty six and thirty seven the decision by ms to shine and read from that it says you should serve as a model and leader your coworkers requirement is that your credibility as a visitor have been severely compromised by your misconduct your misconduct is income panel with the responsibility of the indiscretion of the investigator this is clearly a decision based on misconduct and this is right in the middle of the  you know what the penalty should be the deciding official contrary to counsel's representations in his testimony and in this letter specifically says i've lost confidence here because i think you have your gazed in misconduct i believe you have falsified the report he doesn't use the word holes but he says your credibility has been hurt people make errors my client would be the first to say them in writing fifteen hundred sources for it he probably made some errors we don't believe you made as many errors but if there are fifty seven  these were cutting and pasting was more than just one but cutting and pasting using model paragraphs was acceptable practice if the information was correctly convey here what happened is in his cutting and pasting in one of the cases the wrong first name of the wrong last name end up together so that's clearly a cutting and pasting error some of the others apparently his nose you misread his notes the agency was not able to provide him with any of the notes that he took so that we could go back and look at whether his notes were accurate or not or his notes had been mis trent had been transposed those records were not available to us in here in this case what you have is a simple case of somebody who has a lot of reports to write and apparently you in putting and putting the reports together there were some errors made and we had meant that there were some errors made and we think mr fitzgerald after twenty years of exemplary performance with an above average rating at the time that this came down should have been given this i can see it that he could have been given a think in some cases if it were intentional misconduct absolutely but here on a performance basis we've had twenty years of being able to do the job i don't think that you send them into are basically a libyan without a chance to show that they can still do the job this is a performance based case there is no evidence of intent they didn't charge it counsel very carefully says we're going to have to charge it well they didn't have to charge it they didn't charge it and they can't rely on it for the penalty and that's what the law says and that's what they did it's right here in