[00:00:24] Speaker 04:
The next case is Bradford-Bidnick versus the Department of Justice, 2015-31-69.

[00:00:30] Speaker 04:
Mr. Maycomber, you are ready.

[00:00:52] Speaker 00:
Thank you, your honor.

[00:00:53] Speaker 00:
May it please the court.

[00:00:54] Speaker 00:
My name is Michael Maycomber.

[00:00:55] Speaker 00:
I represent the appellant in this matter, Bradford Bidnick.

[00:00:58] Speaker 00:
There's two issues on appeal that really need consideration today, the first being the Giglio impairment and the agency's misinterpretation of the Giglio standard in determining the reasonableness of the penalty, as well as the harmful procedural error that was conducted below.

[00:01:13] Speaker 00:
With respect to the first argument, the agency has a burden to establish in sustaining any kind of misconduct.

[00:01:20] Speaker 00:
First, they have to establish that the misconduct occurred, that there's a nexus to the actual job duties of the individual, and that there's a reasonableness to the penalty, that the penalty is proportionate to the offense here.

[00:01:31] Speaker 00:
Here, when the agency reached the ultimate issue as to the reasonableness of the penalty in removing Mr. Bidnick from federal employment, it erred by misinterpreting the Giglio standard.

[00:01:43] Speaker 00:
The administrative judge and the MSPB continue to follow that same misinterpretation of the case law

[00:01:49] Speaker 00:
in finding that the nature and seriousness of the offense warranted removal in this case.

[00:01:54] Speaker 04:
Now, what is giglio impairment, which I must say I haven't seen before.

[00:01:59] Speaker 04:
But apparently, it affects the ability of this individual to testify and have his credibility accepted because of his past actions.

[00:02:13] Speaker 00:
A giglio impairment is, I guess, a term of art used by the agency's Department of Justice, United States Attorney's Office to refer to a federal law enforcement officer that has some sort of giglio impeachment evidence in their record that has to be turned over to the defense.

[00:02:33] Speaker 00:
It's an extension of Brady versus Maryland there, that exculpatory and impeachment evidence has to be turned over to the defense in a criminal prosecution.

[00:02:42] Speaker 03:
However, not... You're impeaching the character of the witness, is that the idea, rather than anything related to the specific case that's under review?

[00:02:51] Speaker 03:
Is that correct?

[00:02:52] Speaker 00:
Exactly.

[00:02:53] Speaker 03:
It has to deal with... And so the idea is that the witness would be subject to an unhappy cross-examination.

[00:03:03] Speaker 03:
Is that what's going on here?

[00:03:05] Speaker 00:
That is... Yes, that is what's going on here.

[00:03:08] Speaker 00:
But it is not just any impeachment.

[00:03:10] Speaker 00:
The case law and even the United States attorney's own policy states that it has to be that type of evidence that will have a substantial likelihood of affecting the accuracy of the witness's testimony.

[00:03:22] Speaker 00:
Not all impeachment evidence is going to affect the credibility of the officer.

[00:03:26] Speaker 00:
We can assume there is a sliding scale of possible impeachment evidence.

[00:03:31] Speaker 00:
You have a criminal conviction for perjury on one end of the scale, which is going to be pretty much impossible to overcome.

[00:03:37] Speaker 00:
And you might have simple little things like traffic tickets, administrative actions, things of that nature, which could be disclosable.

[00:03:44] Speaker 00:
But it may have absolutely no reliability as to the accuracy of that officer's testimony.

[00:03:49] Speaker 04:
Isn't that within the discretion of the agency?

[00:03:52] Speaker 00:
I disagree, no.

[00:03:53] Speaker 00:
I think it's actually in the discretion of the United States Attorney's officer.

[00:03:57] Speaker 00:
The case law is very clear.

[00:03:59] Speaker 00:
That determination rests with the prosecutor.

[00:04:02] Speaker 00:
It's a balancing.

[00:04:03] Speaker 00:
The agency is not in a position to evaluate that.

[00:04:07] Speaker 04:
The prosecutor who is the one... If the agency doesn't want to run the risk, that discretion will be exercised by the prosecutor to ruin the case of the agency.

[00:04:17] Speaker 00:
As I indicated before, yes, there's risk.

[00:04:20] Speaker 00:
Any type of misconduct could create risk.

[00:04:23] Speaker 00:
If we were to accept the agency's arguments as true, any misconduct would become a giglio impairment for any federal law enforcement officer.

[00:04:31] Speaker 00:
You have a single instance of being AWOL, that could affect your credibility.

[00:04:35] Speaker 00:
You can't follow the agency's own policies.

[00:04:36] Speaker 03:
Ultimately, the decision is that of the prosecutor.

[00:04:41] Speaker 03:
But don't you think the agency has some interest in making sure that its investigators are more or less free of harmful cross-examination?

[00:04:59] Speaker 00:
I think the agency certainly has an interest at that point in time.

[00:05:01] Speaker 00:
But like I said before, there are varying degrees of impeachment evidence.

[00:05:06] Speaker 00:
There's a myriad of job duties that a criminal investigator that could handle that this type of evidence would have absolutely zero impact on their federal law enforcement career.

[00:05:15] Speaker 00:
And to bar a federal employee from this type of work for the rest of their career based upon a single inconsequential incident is inequitable in this nature.

[00:05:28] Speaker 00:
And that's where we get back to Douglas.

[00:05:30] Speaker 00:
The agency's decision, the deciding official indicated that given the severity of this offense, all other factors as considered by Douglas will have no bearing.

[00:05:40] Speaker 00:
That the individual, that Mr. Bidnick's potential for rehabilitation is not even relevant based on the facts of this single incident.

[00:05:49] Speaker 00:
And that was an error in this case.

[00:05:52] Speaker 00:
Mr. Bidnick has a decision, and as referenced in the decision itself and the testimony of the deciding official.

[00:05:58] Speaker 00:
He has a very distinguished history of federal employment, working with law enforcement agencies.

[00:06:02] Speaker 00:
He even presented exemplary letters of recommendation from numerous witnesses in the proposal stage.

[00:06:09] Speaker 00:
He's a marine reservist.

[00:06:11] Speaker 00:
He's got an unblemished history, no disciplinary actions whatsoever.

[00:06:15] Speaker 04:
But he cheated on an exam.

[00:06:17] Speaker 00:
And the single charge against him was there was a single violation of the agency's honor code policy.

[00:06:23] Speaker 00:
And that was the charge that was sustained below.

[00:06:28] Speaker 00:
And that may have been misconduct as determined by the agency and the administrative judge, but that should not be so severe as to end the Douglas analysis altogether.

[00:06:39] Speaker 04:
Sounds like a weighing that happens.

[00:06:41] Speaker 00:
Exactly.

[00:06:42] Speaker 00:
And that's what Douglas considers.

[00:06:43] Speaker 00:
It's a weighing.

[00:06:44] Speaker 00:
And here, the agency went too far.

[00:06:47] Speaker 00:
Their weighing was completely unreasonable, given the facts and circumstances of this case, based on the incorrect interpretation of Giglio.

[00:06:54] Speaker 03:
Do I remember seeing something in the record or somewhere that a violation of the trainee honor code had a specific remedy spelled out?

[00:07:05] Speaker 03:
You got thrown out of the training program?

[00:07:08] Speaker 00:
No.

[00:07:09] Speaker 03:
Am I mistaken about that?

[00:07:10] Speaker 00:
If you look at the honor code, which is set forth in the supplemental appendix, it discusses a range.

[00:07:16] Speaker 00:
And it goes from, I believe, an informal counseling to removal.

[00:07:21] Speaker 00:
Exactly what Douglas considers.

[00:07:24] Speaker 00:
It is a range of penalties that are available there.

[00:07:27] Speaker 00:
And what this court and what the MSPB should have done is take a look at this and said, you know what, your interpretation of number one, the nature and the seriousness of the offense, which case law said that is one of the most important factors we look at in this balancing, was incorrect.

[00:07:42] Speaker 00:
You erred at that point in time in trying to understand Giglio.

[00:07:46] Speaker 00:
At that point, this should have been sent back when you consider all of the other evidence that shows the potential rehabilitative effects

[00:07:52] Speaker 00:
of Mr. Bidnick in this case.

[00:07:54] Speaker 03:
Well, now, you started out noting that a conviction for perjury would clearly be a giglio, giglio, giglio.

[00:08:05] Speaker 00:
I think it's giglio.

[00:08:07] Speaker 03:
A giglio-type problem.

[00:08:10] Speaker 03:
Why wouldn't a, quote, conviction, well, I'll use that loosely, why wouldn't a conviction for cheating

[00:08:19] Speaker 03:
have the same quality as a conviction for perjury.

[00:08:24] Speaker 00:
Like I said before, I think it is a sliding scale.

[00:08:27] Speaker 03:
I use the criminal conviction for perjury as... I understand it's a sliding scale, but why aren't they within the range of the slide?

[00:08:37] Speaker 03:
Given cheating isn't that different from perjury, is it?

[00:08:41] Speaker 00:
I think if you look at the deciding official's own testimony, he indicates that it is generally the agency's policy to follow the concept of progressive discipline, first warning, second warning, things of that nature.

[00:08:51] Speaker 00:
Here, you know, this is certainly the potential for giglio evidence.

[00:08:55] Speaker 00:
It may be discoverable in a criminal proceeding, but that doesn't mean it is necessarily going to impair the officer's testimony in the proceeding.

[00:09:03] Speaker 00:
As I said before, there are a lot of job duties that criminal investigators handle

[00:09:07] Speaker 00:
that would have absolutely no bearing on this type of evidence.

[00:09:10] Speaker 00:
And the judge, in a district court criminal conviction or criminal case, may properly exclude that evidence, but it's not the agency's determination.

[00:09:19] Speaker 00:
That is the determination, first, of the prosecutor as to whether or not that information is, in fact, disposable.

[00:09:24] Speaker 00:
And second of all, whether or not it's even admissible.

[00:09:26] Speaker 00:
And that's the judge's determination at that point in time.

[00:09:29] Speaker 00:
I think the second problem we have here is the harmful error analysis.

[00:09:32] Speaker 02:
And the agency...

[00:09:34] Speaker 02:
We're looking, what is the standard view?

[00:09:36] Speaker 02:
Aren't we looking at whether there's substantial evidence to support the board's findings in this case?

[00:09:42] Speaker 02:
I mean, so the question is whether there's substantial evidence to support the board's view that he is giglio impaired or that he could be giglio impaired.

[00:09:51] Speaker 00:
My understanding is whether or not, for the substantial evidence standard, is whether or not there's substantial evidence to support the underlying charge.

[00:09:59] Speaker 00:
And at the board level, it's a preponderance of the evidence.

[00:10:01] Speaker 00:
Unfortunately, in review, it's at the substantial evidence standard, which, as you can see from our briefs, we're not arguing that here today.

[00:10:08] Speaker 00:
The preponderance of the evidence standard, the board satisfied, and that lesser evidentiary burden of substantial evidence, whether or not the misconduct occurred, that is the review here.

[00:10:20] Speaker 00:
For the harmful procedural error analysis, we need to look at

[00:10:23] Speaker 00:
One, was there procedural evidence, procedural error?

[00:10:26] Speaker 00:
And two, would it have affected the outcome of this case?

[00:10:30] Speaker 02:
Don't we have cases that say that the board's not required to look at every Douglas factor?

[00:10:35] Speaker 02:
Certainly.

[00:10:36] Speaker 02:
And so what's the difference here?

[00:10:38] Speaker 00:
The difference here is, as I indicated before, the first factor is one of the most important factors.

[00:10:45] Speaker 00:
And that's what it is.

[00:10:46] Speaker 00:
Douglas sets forth 12 or 13 factors.

[00:10:48] Speaker 00:
Number one is the nature and the severity of the action.

[00:10:52] Speaker 00:
The deciding official, the administrative judge, the board said the nature and seriousness of this offense was so egregious that we're not even going to consider the rest of them.

[00:11:00] Speaker 00:
There's case law out there that says you do not have to do a formalistic analysis of all 12 factors.

[00:11:05] Speaker 00:
There is a balancing of those.

[00:11:07] Speaker 00:
But because the agency and the administrative judge and the board incorrectly interpreted Giglio, they didn't do a proper weighing at that point in time.

[00:11:16] Speaker 00:
They didn't look at any of these other factors, such as his federal history,

[00:11:21] Speaker 00:
his potential for rehabilitation, his clean record, all of those things should- The key might be whether they correctly interpreted Giglio.

[00:11:29] Speaker 02:
Excuse me?

[00:11:29] Speaker 02:
I mean, if we disagree with you on whether they correctly interpreted Giglio, then you might agree that there wasn't any need to consider the other factors because there couldn't be rehabilitation.

[00:11:43] Speaker 00:
Even that, I disagree.

[00:11:45] Speaker 00:
I think with respect to the rehabilitation aspect,

[00:11:47] Speaker 00:
To say that just because of a single violation of an honor code policy that this employee has zero potential for rehabilitation over the course of their entire federal career, I think we could imagine a situation 15 years down the road, 20 years down the road, 30 years down the road, that that employee could easily have been rehabilitated.

[00:12:04] Speaker 00:
And I go to more of the comical side of things, but it may not even take that long.

[00:12:09] Speaker 00:
You know, we look at Mr. Binnick's prior history here.

[00:12:12] Speaker 00:
He's got a history with law enforcement.

[00:12:14] Speaker 00:
He's got a history as being a marine reservist.

[00:12:16] Speaker 00:
He's still a marine reservist.

[00:12:18] Speaker 00:
There's never been any disciplinary history whatsoever with respect to his federal career.

[00:12:25] Speaker 04:
Mr. McCormick, you wanted to reserve rebuttal time?

[00:12:29] Speaker 00:
I did.

[00:12:31] Speaker 04:
You can continue if you'd like.

[00:12:32] Speaker 00:
The last issue I just wanted to touch upon, and I want to at least save the three minutes,

[00:12:37] Speaker 00:
With respect to the agency's own policy, the policy with regards to referral to the Office of Professional Responsibility or Internal Affairs Division, this is exactly why we have that check measure in place.

[00:12:48] Speaker 00:
To jeopardize a federal law enforcement officer's career based on a judgment of just one individual as opposed to conducting a full investigation, that's why we have the policy.

[00:12:57] Speaker 00:
And if you read the agency's policy, it was not discretionary.

[00:13:00] Speaker 00:
They must have referred that case to OPR and they did not do that here.

[00:13:05] Speaker 04:
We will give you a full three minutes.

[00:13:08] Speaker 04:
Mr. Long for the government.

[00:13:25] Speaker 01:
Thank you, Your Honor.

[00:13:26] Speaker 01:
May it please the Court.

[00:13:27] Speaker 01:
The choice of penalty here is committed to ATF sound discretion.

[00:13:30] Speaker 01:
There's been no Mr. Biggs cheating.

[00:13:34] Speaker 01:
was a serious violation of ATS special agent training honor code.

[00:13:38] Speaker 01:
It's been clearly documented.

[00:13:39] Speaker 01:
This court has held law enforcement officers to higher standards of honesty and integrity.

[00:13:43] Speaker 01:
That's Watson and the other cases cited in our brief.

[00:13:46] Speaker 01:
The honor code signed by Mr. Bidnick states that persons aspiring to become ATS special agents must exhibit the highest level of personal conduct and integrity.

[00:13:54] Speaker 01:
It specifically prohibits cheating.

[00:13:55] Speaker 01:
The citing official noted in his decision to remove Mr. Bidnick, cheating violates the honor code, which speaks to an employee's integrity.

[00:14:02] Speaker 01:
Mr. Biggit was fully aware of the seriousness and consequences of cheating.

[00:14:06] Speaker 01:
It's demonstrated by his receipt of the code of conduct and his signing of the honor code.

[00:14:10] Speaker 01:
He also signed the cover of the exam on which he cheated, which stated that, as stated in the standards of performance and code of conduct, any violations of the honor code will result in cheating.

[00:14:18] Speaker 04:
But isn't the question of giglio impairment one for the US attorney?

[00:14:25] Speaker 01:
The question of giglio impairment is decided on a case-by-case basis.

[00:14:30] Speaker 01:
We disagree with Mr. Bignick's assessment of what the U.S.

[00:14:33] Speaker 01:
Attorney's Manual says.

[00:14:35] Speaker 01:
We've quoted in our brief, and it requires prosecutors to take a broad view of materiality and err on the side of disclosing exculpatory and impeaching evidence.

[00:14:44] Speaker 01:
But backing up a little bit, it's important to recognize that the agency is in a position here where it needs to make a decision about its personnel going forward and what this ATF special agent is going to be doing as a criminal investigator in terms of serving warrants, testifying at trial,

[00:14:58] Speaker 01:
and otherwise conducting the duties required of his position.

[00:15:05] Speaker 01:
We don't believe that it is plausible that in no event a prosecutor or a judge would ever find this evidence material toward guilt or innocence.

[00:15:16] Speaker 01:
Simply put, it's impeachment evidence that is likely to come in regularly.

[00:15:21] Speaker 01:
Now, we recognize, as you're suggesting, that it is a case-by-case decision, but ATF needs to make a decision.

[00:15:28] Speaker 01:
the range of possible behaviors that might constitute impeaching evidence.

[00:15:34] Speaker 01:
We can talk about that where we might fall, but this is cheating on a training examination to become a special agent.

[00:15:40] Speaker 03:
Mr. Bidnick had a clean record up to this point.

[00:15:46] Speaker 03:
Yes, Your Honor.

[00:15:48] Speaker 03:
And he's now in training for a new position, is that right?

[00:15:52] Speaker 03:
Correct, Your Honor.

[00:15:53] Speaker 03:
If he had simply been

[00:15:56] Speaker 03:
dismissed from the training program, where would he be now?

[00:16:02] Speaker 03:
Well, Your Honor, if the siting official considered other potential... My question is, let's assume that they had decided to dismiss him from the training program and nothing more.

[00:16:14] Speaker 03:
He would have, what, returned to his old job?

[00:16:17] Speaker 01:
Well, Your Honor, he had changed jobs.

[00:16:20] Speaker 01:
He had assumed a new position under a new occupation.

[00:16:26] Speaker 01:
So I don't think he would have returned to his prior position.

[00:16:30] Speaker 01:
It's a hypothetical.

[00:16:31] Speaker 01:
I'm not certain of the outcome.

[00:16:32] Speaker 01:
But he was hired as a criminal investigator.

[00:16:36] Speaker 01:
He had left his prior work to take that position.

[00:16:39] Speaker 02:
Was he with the agency before?

[00:16:42] Speaker 02:
Or was he?

[00:16:43] Speaker 01:
He was previously with the agency, Your Honor.

[00:16:48] Speaker 01:
But he had applied for it and taken a new position.

[00:16:51] Speaker 02:
Why couldn't he stay with the agency then?

[00:16:54] Speaker 01:
He would have then been required to... He would not have been able to conduct the duties necessary to his position for which he had been hired as a special agent.

[00:17:04] Speaker 03:
He would have needed to... In order to be a special agent, he had to complete the training.

[00:17:10] Speaker 03:
Yes, sir, yes.

[00:17:11] Speaker 03:
But there must be some rule that says if you fail to complete the training, you then revert back?

[00:17:19] Speaker 01:
Well, here he didn't fail to complete the training for...

[00:17:23] Speaker 03:
failure to pass a test or something like that.

[00:17:25] Speaker 03:
Don't argue the merits of whether he did something wrong.

[00:17:29] Speaker 03:
Just answer the question.

[00:17:31] Speaker 03:
The question is, if you don't complete the training satisfactorily, for whatever reason, where do you go then, ordinarily?

[00:17:41] Speaker 03:
I'm just asking a factual question.

[00:17:47] Speaker 03:
I'm not certain the answer to the question.

[00:17:49] Speaker 03:
OK, that's a fair answer.

[00:17:50] Speaker 03:
You don't know the answer to it.

[00:17:52] Speaker ?:
OK.

[00:17:54] Speaker 01:
So Mr. Bidnick has pointed out a number of pieces of allegedly mitigating evidence that the agency supposedly ignored.

[00:18:02] Speaker 01:
In fact, the deciding official considered Mr. Bidnick's mitigating evidence.

[00:18:09] Speaker 01:
He prevented his past work history, his lack of discipline, and the effect of his cheat hands ability to perform.

[00:18:15] Speaker 01:
All of these things were considered by the agency.

[00:18:18] Speaker 01:
It's true that at the hearing,

[00:18:20] Speaker 01:
The deciding officials testified they did not find Mr. Bidnick's potential for rehabilitation to be particularly relevant, but he did consider the evidence that had been put forward by Mr. Bidnick.

[00:18:30] Speaker 01:
The gigolo concerns, as I've already said, are real here.

[00:18:35] Speaker 01:
It's, of course, a prospective analysis, but the agency should be able to exercise its discretion.

[00:18:40] Speaker 01:
We cite in our brief to the non-precedential decision, Rivera v. Social Security Administration.

[00:18:45] Speaker 01:
The facts in that case are very similar to the situation of cheating on a training examination.

[00:18:50] Speaker 01:
This court upheld the penalty again in an unprecedented situation.

[00:18:59] Speaker 01:
In sum, Mr. Binnick created a situation here where there's a very strong likelihood that his testimony would be subject to impeachment.

[00:19:05] Speaker 01:
It would have made little sense for ATF to allow Mr. Binnick to begin work as a criminal investigator, knowing fully well that the U.S.

[00:19:11] Speaker 01:
attorney would be unlikely to accept him as a witness, and his testimony would be subject to take.

[00:19:16] Speaker 01:
With respect to harmful procedural error, there was no error.

[00:19:19] Speaker 01:
The chief of the ATF Special Agent Academy was not required to refer Mr. Bidnick's case to the Internal Affairs Division.

[00:19:28] Speaker 01:
The Code of Conduct sets forth the consequences of cheating.

[00:19:31] Speaker 01:
It states that employees may be removed from the Academy and terminated from federal service due to honor or integrity violations.

[00:19:38] Speaker 01:
It further states that special agent trainees who violate the Code of Conduct may receive disciplinary action ranging from informal counseling to dismissal as determined by the chief of the ATF National Academy.

[00:19:49] Speaker 04:
You said the referral to the IAD was discretionary?

[00:19:53] Speaker 01:
Yes, Your Honor.

[00:19:56] Speaker 01:
And more to the point, perhaps, there's been no showing that any procedural error, if there were some, which we, of course, maintain there was not, was harmful.

[00:20:04] Speaker 01:
Mr. Binnick has the burden on that point.

[00:20:06] Speaker 01:
He claims that an investigation would have revealed inconsistencies within the witness's stories, resulted in a completely different penalty.

[00:20:13] Speaker 01:
We've seen no showing what inconsistencies would have been revealed.

[00:20:18] Speaker 01:
And the administrative judge and the board considered all the evidence on that issue presented by Mr. Bidnick and found his arguments without merit.

[00:20:30] Speaker 04:
Thank you, Mr. Long.

[00:20:32] Speaker 04:
Thank you.

[00:20:32] Speaker 04:
Mr. McCumber has a couple of three minutes of rebuttal.

[00:20:39] Speaker 03:
Mr. McCumber, help me understand something.

[00:20:41] Speaker 03:
You made the argument to derange

[00:20:45] Speaker 03:
decision that could have exercised discretion.

[00:20:48] Speaker 03:
In evaluating whether the agency and then the board's affirmance of the decision to dismiss, I'm curious as to what the options before the deciding official were.

[00:21:04] Speaker 03:
For example, if the deciding official had decided simply to say you're out of the training program,

[00:21:14] Speaker 03:
What would have happened to your client?

[00:21:17] Speaker 03:
Do you happen to know?

[00:21:18] Speaker 03:
He didn't know.

[00:21:19] Speaker 03:
Do you happen to know?

[00:21:20] Speaker 00:
There's a couple of different possibilities to that point.

[00:21:21] Speaker 00:
If the agency were to remove Mr. Bidnick for his inability to complete the training program, that would have been a completely separate charge of misconduct altogether.

[00:21:30] Speaker 00:
That was never alleged here.

[00:21:31] Speaker 00:
The only allegation is a single violation of the honor code policy.

[00:21:36] Speaker 03:
Well, let's assume they found him in violation of the honor code policy, and they decided that the remedy is to remove him from the training program.

[00:21:44] Speaker 03:
Period.

[00:21:46] Speaker 03:
What then?

[00:21:47] Speaker 00:
At that point, it would have depended on what his prior position was with the agency, and I as well am not familiar as to what exactly that position is.

[00:21:53] Speaker 00:
There were certain positions in the federal government that have reversion rights.

[00:21:57] Speaker 00:
I'm not aware of that.

[00:21:58] Speaker 03:
So we don't know what options were actually before the deciding official at that point.

[00:22:02] Speaker 00:
Well, as the deciding official even said, the deciding official didn't even consider any other options.

[00:22:07] Speaker 00:
He looked at the policy.

[00:22:09] Speaker 00:
In his own testimony, he discusses the agency's policy of progressive discipline,

[00:22:14] Speaker 00:
and he just goes to the unreasonable standard of removing.

[00:22:18] Speaker 00:
Thank you.

[00:22:19] Speaker 00:
With respect to a couple of comments here, the agency contends that the penalty is left to the sound discretion of the agency.

[00:22:26] Speaker 00:
That's not correct.

[00:22:27] Speaker 00:
When the agency selects a penalty that is grossly disproportionate, this court, the board, may go back and order a lesser penalty.

[00:22:34] Speaker 00:
There's plenty of cases where the board's gone back and ordered a lesser penalty based upon an inappropriate balancing of the doubtless factors.

[00:22:42] Speaker 00:
So the agency, while they may be entitled to some discretion there, their decision is not ultimate.

[00:22:47] Speaker 04:
It may not be ultimate, but it usually isn't reversed.

[00:22:51] Speaker 00:
It is not always reversed, but there is plenty of cases out there where they have reversed decisions based on a single violation of misconduct there, where the agency selects a penalty that is so grossly disproportionate.

[00:23:02] Speaker 00:
With respect to the policy, I think it's a very important distinction to look at this IAD policy versus the trainee program.

[00:23:10] Speaker 00:
You have a very specific policy that applies to integrity violations and partiality and professionalism.

[00:23:16] Speaker 00:
And then you have a very general policy that applies to trainees, that that may encompass all types of misconduct, being late for work, assaults, you know, any other allegations there.

[00:23:26] Speaker 00:
Now those allegations may rest with the chief here, but you have a very specific policy.

[00:23:31] Speaker 00:
Integrity violations, impartiality and professionalism must be sent to IAD for proper investigation.

[00:23:38] Speaker 00:
There was a clear procedural error, and if you look at the record as a whole, I think there is certainly evidence of harmful error.

[00:23:44] Speaker 00:
The only statements that were taken were from two of the witnesses.

[00:23:46] Speaker 00:
Mr. Bidnick was never given the opportunity at the investigation stage to explain himself, talk to the other witness, the other trainees, and develop that record in a much more detail.

[00:23:57] Speaker 00:
Unfortunately, we don't have that investigation, so we're at a disadvantage when we're looking at the facts to support that harmful error.

[00:24:04] Speaker 00:
Thank you very much.

[00:24:05] Speaker 04:
Thank you, Mr. McComber.

[00:24:07] Speaker 04:
We'll take the case under advisement.