Supervisory Border Patrol Agent Proposed for Demotion to Border Patrol Agent and for Suspension from Duty for 30 Days Without Pay Maintains Supervisory Position
006
A Rio Grande Valley Supervisory Border Patrol Agent was proposed for demotion from her position of Supervisory Border Patrol Agent to Border Patrol Agent and a 30-calendar day suspension without pay from duty. She was charged with Conduct Unbecoming a Supervisory Border Patrol Agent.
The allegations concerning the charge were that during an enforcement action, she grabbed and pushed a female subject, and that she forced her to erase a video recording, an unauthorized use of force and a civil rights violation. It was further alleged that she was charged with one count of Deprivation of Civil Rights, a misdemeanor under 18 U.S.C. 242, for which she later pled guilty and was sentenced to two years of probation including 60-days of home detention and 100 hours of community service.
The SBPA hired Lawman Legal attorneys Roberto M. Garcia and David Willis to represent her in the disciplinary administrative process of written and oral replies to the charges before an appointed Deciding Official (DO). Mr. Garcia and Mr. Willis conducted a comprehensive investigation and research into the facts, and the policies and procedures cited in the Proposal Letter and essentially dissected the Materials Relied Upon (MRU). The attorneys drafted a 27-page broad and farreaching Written Reply to the proposal including the allegations and the penalty factors. The facts of the misconduct were admitted, the penalty of Demotion and 30- day suspension without pay were challenged.
The attorneys argued that the Proposing Official’s (PO) managerial judgment was exercised more than within tolerable limits of reasonableness because:
1. The PO failed to take into proper consideration the following facts relevant to the four (4) Douglas Factors listed in the Proposal:
a. The unreasonably difficult and frustrating situation involving several unsecured firearms.
b. Positive actions by the Agency after it had knowledge of the SBPA’s misconduct.
c. A fellow supervisor’s opinion that the SBPA’s misconduct was no more than a “heated initial reaction”.
2. The PO failed to conduct any analysis of six (6) Douglas Factors made relevant by the facts of the case, most importantly the:
a. Potential for the Employee’s Rehabilitation, and
b. Adequacy and effectiveness of alternate sanctions.
The attorneys fully and factually demonstrated the PO’s failures in the analysis of this case which would lead to the excessive penalty proposed by the PO. A mitigated penalty was requested in both the Written Reply and the Oral Reply before the appointed DO.
Mr. Garcia and Mr. Willis’ defense was instrumental in causing the Agency to recognize the PO’s defective analysis and the resulting weakness of its case. The Deciding Official (DO) determined that a thirty (30) day suspension was warranted, but that a demotion was not warranted. The SBPA was able to continue to perform her duties as a supervisor in her more than nineteen (19) year federal law enforcement career.
If you or someone you know in federal law enforcement is facing disciplinary action, call Lawman Legal at 956-223-3550 and/or send an email to roberto@rgarcialaw.com.