Supervisory Border Patrol Agent Proposed for Removal, Reinstated to Former Duties
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A Rio Grande Valley Supervisory Border Patrol Agent was proposed for removal from his position of Supervisory Border Patrol Agent (SBPA) and from Federal Service for acts of misconduct. Two charges of misconduct were leveled against the SBPA. The charges were 1.) Unprofessional Conduct supported by seven specifications; and 2.) Lack of Candor supported by five specifications. A Giglio impairment penalty enhancement was also filed against the SBPA.
The allegations concerning Charge 1 were that for a two-month period the SBPA communicated in an unprofessional manner with a female subordinate. That on numerous occasions during the two-month period he kept the female subordinate in his office after her assigned duty hours to discuss non-work-related matters. That he pulled the female subordinate from her assigned duties and took her for a ride on a ranch tour in a government owned vehicle and discussed non-work-related matters. That he followed the female subordinate onto a bus while she was conducting an inspection. That he kept the female subordinate in his office on numerous occasions after her assigned duty hours to discuss non-work-related matters and instructed her to claim compensatory time.
The allegations concerning Charge 2 were that the SBPA was not candid in his responses during his interview with Special Agents of the Office of Professional Responsibility (OPR) concerning the specifications on Charge 1.
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 research into the facts, and the policies and procedures cited in the Proposal Letter and essentially dissected the Materials Relied Upon (MRU) which consisted of 265 pages and four (4) videos. Mr. Willis drafted a 33-page broad and far-reaching written reply to the charges and specifications. SBPA denials, admissions, clarifications, corrections and mitigating circumstances were set forth in detail. The Agency proposal was shown to be deficient in that it did not take into consideration all the relevant Douglas Factors such as the SBPA’s work record, its clean disciplinary history, his potential for rehabilitation nor the effectiveness of a lesser or alternative penalty. It was also shown that the Agency failed to exercise due diligence in the investigation of the case by not interviewing the SBPA or witnesses for almost three (3) years after the incident in question and by losing a recorded witness interview. Double jeopardy issues were raised as well as poor investigative interviews which failed to probe into relevant case details such as inconsistent statements and missing evidence. As to charge 2 and the (five) 5 specifications purportedly in support of the charge, it was shown that the Agency had failed to meet its burden of proof entirely.
Mr. Garcia and Mr. Willis’ defense was instrumental in causing the Agency to recognize its case weakness and offering the SBPA a Last Chance Agreement holding the removal decision in abeyance for a period of one (1) year, offering a 14- day suspension without pay and agreeing to purge the SBPA’s Official Personnel File (OPF) of the removal action at the end of the one year period. The SBPA was able to continue with his long 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.