Supervisory Border Patrol Agent Proposed for Demotion to Border Patrol Agent and for Suspension from Duty for 30 Days Without Pay Maintains Supervisory Position
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A Rio Grande Valley Supervisory Border Patrol Agent (SBPA) was proposed for demotion from his position of Supervisory Border Patrol Agent to Border Patrol Agent and a 30-calendar day suspension without pay from duty by the assigned Proposing Official (PO). Four (4) charges of misconduct were leveled against him. The charges were 1.) Conduct Unbecoming a Supervisory Border Patrol Agent supported by two (2) specifications; 2.) Misuse of Position supported by four (4) specifications; 3.) Unauthorized Use of a U.S. Customs and Border Protection (CBP) System, BPETS supported by eighteen (18) specifications; and 4.) Misuse of Government Equipment Other Than Official Purpose supported by one (1) specification.
The allegations concerning Charge 1 were that the SBPA was instructed by a Watch Commander (WC) to not schedule people off unless he considered them in order of seniority. He was further instructed to advise the WC if he had approved of any requests for employees he had scheduled to work. The SBPA disregarded the WC’s instructions and continued to make changes to an employee’s leave and work assignments, even though the employee was not on his shift and without notifying the WC of the changes. During an oral interview with RGV MIT the SBPA admitted that he failed to follow instructions as directed by the WC.
The allegations concerning Charge 2 were that in the oral interview with RGV MIT the SBPA admitted validating an employee’s timesheets while he was off duty. During the period in question the SBPA was not the employee’s assigned supervisor and did not have the authority to validate the employee’s timesheets. It was also alleged that during the interview the SBPA admitted that while he was Acting Watch Commander and after his shift, he called another SBPA and told him that the employee needed to take sick leave. On another occasion while off duty and requesting leave for the employee the told the employee’s supervisor “Don’t mention this to anybody”. It was also alleged that during the interview the SBPA admitted that after being reassigned to another station he reached out to the employee’s supervisor and asked for the employee’s duty status. It was also alleged that the SBPA had checked BPETS while on duty to check the employee’s duty status without a need to know. The SBPA had no official need to know the employee’s duty status. During the interview, the SBPA admitted living with a subordinate at his home on a rent-free status.
The allegations concerning Charge 3 were that the SBPA granted employee administrative leave in lieu of sick leave and granting and approving requests to be off duty in the Border Patrol Enforcement Tracking System (BPETS). This was done without authorization and when not the employee’s assigned supervisor. These acts were documented 18 times in the BPETS.
The allegations concerning Charge 4 were that the SBPA admitted using his government issued computer, while off duty, for other than official business purposes. This purpose was for making schedule changes and approve leave for employees not assigned to his shift.
The SBPA hired Lawman Legal attorneys Roberto M. Garcia and David Willis to represent him in the disciplinary administrative process of written and oral replies to the charges before an appointed Deciding Official. Mr. Garcia and Mr. Willis conducted a comprehensive investigation and legal research into the facts, and the policies and procedures cited in the Proposal Letter and essentially dissected the Materials Relied Upon (MRU) in support of the charges and specifications.
Mr. Willis drafted a Written Reply to the charges and specifications arguing that:
1. All charges and specifications, except for Charge 2, specifications 3 and 4 should be merged and treated as one charge, because all are proven by the same proof.
2. All charges and specifications except for Charge 2, specifications 3 and 4 are barred by administrative double jeopardy, because the SBPA had been reprimanded for that conduct.
3. The penalty is unreasonable because it is based on the aggravated punishment ranges for this conduct in the Table of Offenses and Penalties. With the charges properly merged, and excluding conduct for which the SBPA was reprimanded there is no sufficient basis to penalize the SBPA in the aggravated range.
The attorneys fully, factually and legally 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 by the Lawman Legal attorneys in both the Written Reply and the Oral Reply before the appointed Deciding Official (DO).
The Lawman Legal attorneys’ defense was instrumental in causing the Agency to recognize the PO’s defective analysis and the resulting weakness of the case. The DO determined that Charge 1 was not sustained; Charge 2 specification 1 and 4 are sustained, specifications 2 and 4 are not sustained; Charge 3 specifications 1-18 were sustained and Charge 4 was not sustained. The DO mitigated the proposed thirty (30) day suspension without pay and demotion to a twenty (20) day suspension from duty and pay. The DO held six (6) days of suspension in abeyance in accordance with the terms of a duly agreed upon and executed Abeyance Agreement with a one (1) year term. The SBPA was able to continue to perform his duties as a supervisor in his 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.