Customs vs. the City Councilman

A Customs and Border Protection Officer who has been on the city council for a Texas town was told by the agency to resign his seat because of an apparent conflict of interest. The employee went to court and district court has issued a preliminary injunction in his favor.

A U.S. Customs and Border Protection Officer has won a preliminary injunction against the agency, which at least temporarily keeps the agency from requiring the employee to resign his seat on the City Council of Presidio, Texas. (Ramirez v. U.S. Customs and Border Protection, et al., D.D.C. Civil Action No. 07-65 (GK), 3/12/07)

As a CBP Officer, Ramirez inspects vehicles and persons crossing the border from Mexico. Ramirez was elected to his first two-year term to the non-paid Presidio City Council position in 2004. Before running in the nonpartisan election, he obtained permission to engage in this outside activity in accordance with Customs Directive No. 51735-001A. (Opinion p. 2)

Ramirez stood for reelection two years later, had no opposition, and was seated for another two-year term. He did not submit another request for outside activity approval, apparently believing he was not required to since he already had received approval two years before. (p. 3)

Meanwhile, the agency shifted the responsibility for granting approval of outside employment and activities away from the local directors and into its Headquarters in Washington, D.C. A few weeks after this shift in authority, Ramirez received a letter from his local director ordering him to resign his city council seat, pointing out that that the council position created an actual or apparent conflict of interest, and that Ramirez had only had approval to serve one term on the council. (pp. 3-4)

The agency decision elaborated on the following as conflicts of interest:

  1. both the agency and the city of Presidio were trying to acquire a tract of land that had been seized by the U.S. Drug Enforcement Agency; and
  2. Presidio and the agency have ongoing relationships that present an appearance of a conflict for Ramirez.

Ramirez immediately sought a preliminary injunction from the U.S. District Court in Washington, D.C. to prevent the agency from requiring that he resign the council position, arguing that if he was forced to resign the council position, he could not get it back if he eventually prevails in his dispute with the agency.

Ramirez points out in response to the agency’s conflict of interest concerns that he had promptly recused himself from participating in matters related to the DEA property. The agency concedes this point. Nevertheless they argue that the appearance of a conflict remains and is a legitimate concern.

The district court has now decided to issue the preliminary injunction. In doing so, it weighed the required four factors for making such a decision in Ramirez’ favor. The court found that Ramirez would be irreparably injured if an injunction were not granted; that he has a “substantial likelihood” of prevailing on the merits; that issuing an injunction would not substantially injure the government; and (4) that granting the injunction would “further the public interest.” (Opinion p. 5; citations omitted.)

Here is the court’s summary of its reasoning:

  • “…If a preliminary injunction is not granted, Plaintiff will suffer immediate irreparable harm in that his First Amendment rights of speech and association will be violated by the loss of his sat on the Presidio City Council to which his fellow citizens have elected him by exercising their First Amendment rights;
  • “…Both parties have raised legal issues which are serious, substantial, difficult, and doubtful, calling for more deliberative investigation, analysis, and consideration; and
  • “…There is no evidence that, for the relatively brief period of this litigation, either the Government or the public interest will be harmed by granting this preliminary injunction. Indeed, …the interests of the good citizens of Presidio in having their elected representative continue in office will be fully protected.” (pp. 13-14)

In reaching its decision, the court points to the reversal in the government’s position in Ramirez’s situation. For more than two years the agency did not object to him serving on the city council, having issued administrative approval for him to do so. Now, suddenly, it constitutes the appearance of a conflict of interest. As the court points out, “…it would appear that the reversal in the Agency’s position is directly related to simple bureaucratic or managerial shifts, namely, that the situs of decision making has moved from local Field Operations Directors, who presumably know the conditions in their locality, to lawyers and supervisors in Washington, D.C., who probably have little or no particular knowledge of local conditions.” (p. 10)

The Agency seems to be facing an uphill battle on this one. Round one goes to Ramirez.

About the Author

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.