Lesson learned for Lone Star lothario?

March 11, 2016

CourtroomAn arbitrator ruled that given the nature of his infractions, coupled with the passage of time, a federal law enforcement officer’s lengthy suspension for years-old misconduct was excessive.

United States Customs and Border Protection and NTEU, 44 LAIS 84, 2015 WL 6473096

In November 2014, a Customs and Border Protection Officer was suspended for 45 days for misconduct that occurred when he was stationed along the Texas-Mexico border.

The agency charged him with:

  • Abusing his position by asking a state trooper to do him a “favor” and not cite him for speeding, claiming that a ticket or warning would “kill me” because he had been stopped and warned a few weeks earlier;
  • Asking a woman with whom he had a sexual relationship if she had been called to testify in an Internal Affairs investigation that targeted him;
  • Engaging in sexual liaisons with a woman connected to a Mexican drug cartel, while on a year-long assignment to Immigration and Customs Enforcement.

The union claimed the suspension was vindictive rather than corrective, because the grievant admitted the facts on the first two charges, de minimis violations that occurred almost five years ago.

As for the third charge, the union said the agency failed to interview the woman in question even though it interviewed “just about everyone in southwest Texas regarding the grievant’s meanderings and amorous rendezvous.”

The arbitrator ruled that the suspension was excessive.

(Westlaw users: Click here for the Labor Arbitration Information System.)

He prefaced his decision thusly: “The facts in this case have all the makings of a telenovela that might run on Telemundo or Univision: A war hero grievant, wounded in Iraq, with a broken marriage, having sexual relations with various women all along the Texas border; a Mexican drug cartel, a failed bribe, an abundance of government agencies, and an acquittal in federal court.”

Addressing the timeliness issue, the arbitrator said the agency was not the “chief culprit” in the delay, as the IA process was stayed while the U.S. Attorney’s Office pursued a criminal case against the grievant. Upon his acquittal the administrative process resumed.

But the arbitrator found that the 45-day suspension did not promote the efficiency of the service.

He said the first charge warranted a written reprimand, at most; the second charge would have justified a five-day suspension; and the third charge, standing alone, might have merited a two-week suspension, except that the grievant voluntarily brought the situation to his superiors’ attention and the agency “never fully investigated the case.”

The arbitrator found “no question that the grievant has already demonstrated rehabilitation” in the intervening years, and directed the agency to convert the 45-day suspension to ten days and make the grievant whole for lost wages.