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Destroying a Federal Career for $96

By Susan Smith

Tuesday, October 21, 2008

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Susan McGuire Smith spent most of her 26-year federal government career with NASA, first at NASA Headquarters Office of General Counsel and then at Marshall Space Flight Center, serving as Chief Counsel there for more than 14 years. Her expertise is in government contracts, ethics, and personnel law. Ms. Smith has a J.D and a B.A. degree from the George Washington University. Her publications include Practical Ethics for the Federal Employee.

A border patrol agent fired in connection with shoplifting off duty while shopping with his two children at a Sam's Club store in McAllen, Texas, was not able to persuade the appeals court to overturn his removal. (Borrego v. Department of Homeland Security, C.A.F.C. No. 2008-3094 (nonprecedential), 10/15/08) The facts summarized below are as reported by the court's opinion.

When store security observed Borrego shoplifting about $96 worth of goods, he was arrested and charged with a class B misdemeanor (theft) under Texas criminal law. (Opinion p. 1) Borrego, who at the time was an 8-year employee with Department of Homeland Security (DHS) serving as a Senior Border Patrol Agent, admitted to the shoplifting. The criminal charge was later dropped, but the agency's discipline review board initiated his removal for "conduct unbecoming a border patrol agent." (p. 2)

Borrego appealed to the Merit Systems Protection Board. The Administrative Judge concluded that the agency had made its case, there was a nexus between the shoplifting misconduct and the efficiency of the service, and removal was reasonable under the circumstances. (p.2)

In reaching its decision to sustain the MSPB, among other things the appeals court did not buy Borrego's argument that he had actually been removed for lying under oath and that the agency did not prove that charge. The court pointed out that the charge was, in fact, conduct unbecoming, that Borrego had admitted several times under oath—including as part of his MSPB hearing—that he had committed the shoplifting, and therefore there was plenty of evidence to support that charge. (p. 2)

Borrego made several other procedural arguments, none of which moved the court. In short, he remains fired. (pp. 3-4)

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Readers' Comments

  • i think the punishment was way to harsh . a 14 day vacation without pay and ethics training and report traing to co-workers is better. Yes, i feel we let politicians and others get away with a lot and lower level employees get fired. TREAT everyone the same PLEASE, ALL LEVELS OF GOVERNMENT. Murd...
    Posted: November 3, 2008 11:56 AM
  • I am a retired from a non-federal agency (now working for HUD). I have seen people throw away careers for less. Stupid people do stupid things... There are two schools of thought on this issue, but suffice to say: law enforcement is held to a higher standard, that is a fact....
    Posted: October 27, 2008 11:40 AM
  • It's clearly stated in the Table of Offenses for this offense. We have enough problems without another bad apple rising through the ranks only to steal at a greater percentage later. This is a character flaw that will most likely manifest itself later in worse ways as he/she rises through the ranks....
    Posted: October 25, 2008 2:04 PM

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