The federal appeals court has refused to overturn the firing of a Customs and Border Protection Officer stemming from his "conduct unbecoming" in his dealings with special agents of the agency’s Office of Internal Affairs. (Weekes v. Department of Homeland Security, C.A.F.C. No. 2009-3185 (nonprecedential), 11/10/09) The reported facts are taken from the court’s decision.
Weekes had been with the agency for about 17 years when he was removed. Originally four charges were leveled against him. However by the time the Merit Systems Protection Board sustained Weekes’ removal, only one charge was sustained but it was deemed enough to warrant his removal: "conduct unbecoming a CBP Officer," supported by two specifications. (Opinion pp. 1-2)
In effect, Weekes was fired for two incidents involving his interaction with the special agents. In the first, they were interviewing Weekes about an incident in which Weekes had touched the back of a co-worker’s head during a union meeting. The agency apparently believed inappropriate—and adding up to conduct unbecoming—certain comments Weekes made to the special agents during this interview, namely that "they were like FBI rejects and whining little girls" and that "they were like two clowns." (p. 2)
In a second interview with the same two agents about two months later, all went well until the agents indicated they wanted to further interview Weekes the next day about his failure to report his brother, a "removable alien" who had been convicted for possession of a controlled substance. At this point, Weekes apparently put his feet up on the table and said if asked such questions he would just respond "nope, nope, nope." He also reached out and took a copy of his statement from one of the agents. (pp. 2-3) The agency viewed this incident as amounting to conduct unbecoming as well.
The MSPB sustained the lone remaining conduct unbecoming charge based on the above two specifications, stating that as the subject of an investigation, Weekes was "expected to be cooperative and respectful." (p. 3)
Weekes took his case to the Federal Circuit Court of Appeals. However, that court has now sustained the Agency and Board decisions, and Mr. Weekes remains out in the cold. Among other things, Weekes argued to the court that he was at the time of the interviews acting in his capacity as a union official and not as a CBP Officer, that he was on annual leave, and that the second incident occurred after the formal interview was over.
The court was unsympathetic and found Weekes’ several arguments without merit.
As to the argument that Weekes was supposedly on annual leave, the court pointed out that the agency certainly may rely on off-duty behavior as long as the removal of Weekes promoted the efficiency of the service, which the MSPB had specifically found it did since Weekes’ behavior "raises serious questions about his judgment and his ability to exercise self-discipline." (p. 4) Further, the court stated that it is "unconvinced" by Weekes’ argument that once an interview is over that an employee is "free to behave unprofessionally toward those that just conducted the interview." (p. 4)
The bottom line of this case is that two specifications supporting one remaining charge of conduct unbecoming is enough to uphold the firing of this 17-year employee.
Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.