[00:00:20] Speaker 04: All right, the next case before the court is case number 153143, Sharp versus the EPA. [00:00:28] Speaker 04: It's a case arising from a decision by the Merit Systems Protection Board. [00:00:33] Speaker 04: Mr. Letts, you want five minutes for rebuttal? [00:00:35] Speaker 01: Yes, Your Honor. [00:00:36] Speaker 04: Okay, you can proceed. [00:00:40] Speaker 00: Thank you, Your Honor. [00:00:41] Speaker 00: May it please the Court, my name is Jeff Letts. [00:00:43] Speaker 00: I present the petitioner, Taylor Sharp. [00:00:45] Speaker 00: This is an indefinite suspension case in which the only allegation of a crime occurred in 1996. [00:00:50] Speaker 00: That was 17 years prior to the imposition of the indefinite suspension. [00:00:56] Speaker 00: This court has looked at indefinite suspensions in Dunnington and Morrison. [00:01:00] Speaker 00: In Dunnington, there is a four-pronged test to evaluate an indefinite suspension. [00:01:05] Speaker 00: And first and foremost is the intent to protect the public and agency personnel. [00:01:10] Speaker 00: In this case, [00:01:12] Speaker 00: The crime occurred in 1996. [00:01:13] Speaker 00: There had been 17 years of no problem of the public being protected or agency personnel being protected. [00:01:20] Speaker 00: So with a 17-year history of no problem, there certainly wasn't an issue of an indefinite suspension in 2013. [00:01:26] Speaker 04: What do you mean a 17 years of no problem? [00:01:30] Speaker 04: There were violations of community supervision, correct? [00:01:33] Speaker 00: There were never any proven violations, Your Honor. [00:01:35] Speaker 00: Never. [00:01:36] Speaker 04: Well, there were charged violations, and he then consented to an extension of the supervision, correct? [00:01:41] Speaker 02: That's correct. [00:01:43] Speaker 02: Does the length of time of that prior crime matter here? [00:01:48] Speaker 02: Yes, I think it does, Your Honor. [00:01:49] Speaker 00: It matters on several levels. [00:01:51] Speaker 00: Like I said, the first issue is the indefinite suspension. [00:01:54] Speaker 00: In other words, there's been a criminal indictment, and there's been an accusation that a court has determined there's reasonable cause for the crime that's been committed. [00:02:03] Speaker 00: The issue is to protect the public and the agency personnel at that time before the facts are known. [00:02:09] Speaker 00: In this case, the facts were known in 1997 when he signed a judicial confession and said, here's what I did. [00:02:15] Speaker 00: I admit I did this crime last year. [00:02:17] Speaker 00: At that point, to me, there's no issue for indefinite suspension at that point in time. [00:02:22] Speaker 00: So yeah, I think there is a gap. [00:02:23] Speaker 00: And in particular, in this case, he was off probation in 2007. [00:02:26] Speaker 00: He wasn't on probation in 2013. [00:02:29] Speaker 04: Was it 2007 or 2012? [00:02:31] Speaker 04: 2007, Your Honor. [00:02:32] Speaker 04: His counsel argued in the [00:02:35] Speaker 04: criminal case that it was 2012. [00:02:36] Speaker 00: And the council, quite frankly, missed another point they could have used. [00:02:41] Speaker 00: If you look in the appendix at A66, the law at the time, there was only a 10-year limitation on how long it should be in community supervision. [00:02:50] Speaker 00: That was changed on September 1st of 1997, but that didn't apply to this case. [00:02:56] Speaker 00: So under the law in Texas, it was 2007. [00:02:59] Speaker 00: So like I said, that's at A66 and A67. [00:03:04] Speaker 04: But at the time, the agency is looking at this. [00:03:07] Speaker 04: The agency has a charge of violation. [00:03:11] Speaker 04: It had consents to extension of supervision. [00:03:16] Speaker 04: And there was no dismissal at that point based on this underlying interpretation of Texas law, whether it's yours or it's criminal counsel's underlying interpretation of Texas law, correct? [00:03:30] Speaker 00: I think the law speaks for itself, Your Honor. [00:03:33] Speaker 00: The agency could have done the research. [00:03:36] Speaker 00: It's the Criminal Code of Texas, and it's clearly stated in there. [00:03:40] Speaker 00: So the fact that he consented to it doesn't change the law. [00:03:44] Speaker 00: The law is it's 10 years. [00:03:45] Speaker 00: If the agency had done, in my opinion, it's due diligence, it would have known that. [00:03:49] Speaker 04: And you're saying the agency can't proceed on the facts as law enforcement presented [00:03:55] Speaker 04: present them to the agency? [00:03:56] Speaker 00: I think under Dunnington, they have an obligation to do more than that. [00:03:59] Speaker 00: And in this case, it's a matter of law. [00:04:01] Speaker 00: Just do the research. [00:04:02] Speaker 04: So they have the obligation to do research even when the employee doesn't raise the question. [00:04:08] Speaker 00: I think so. [00:04:10] Speaker 00: Absolutely. [00:04:10] Speaker 00: The ignorance of the law is no excuse. [00:04:13] Speaker 00: The whole prosecutorial system in Dallas and the defense bar just fell asleep on this one. [00:04:19] Speaker 00: The statute is clear. [00:04:20] Speaker 00: It's 10 years to maximum. [00:04:22] Speaker 00: And it was changed in 1997 to have one five-year extension. [00:04:26] Speaker 00: And that's where it would have gone in 2012, which you pointed out, Your Honor. [00:04:30] Speaker 00: So under either interpretation, they're wrong. [00:04:33] Speaker 00: And like I said, the law is clear. [00:04:34] Speaker 00: It's 2007. [00:04:35] Speaker 00: But even if you got the one extension, that ended in May of 2012. [00:04:40] Speaker 00: So I think there is an obligation under Dunnington to do some research. [00:04:44] Speaker 04: Even though Sharp never raises the issue when Sharp himself thought he was still under community service. [00:04:49] Speaker 00: That's correct, Your Honor. [00:04:50] Speaker 00: The law is the law. [00:04:52] Speaker 00: They didn't do any research on this point. [00:04:54] Speaker 00: And the other issue gets to you that you also raised is the allegations. [00:04:58] Speaker 00: They're not allegations of any crimes. [00:05:01] Speaker 00: And that's where I think the respondent's case falls apart. [00:05:04] Speaker 00: The allegations, probation violations, are not crimes. [00:05:07] Speaker 00: So you go back to your question. [00:05:08] Speaker 04: But the probation violations could have resulted in, at least based on the law as everyone believed it existed at the time, could have resulted in [00:05:21] Speaker 04: incarceration based on the original charges, correct? [00:05:24] Speaker 00: But I don't think that's the issue of the indefinite suspension as I read Dunnington. [00:05:27] Speaker 00: The point is to protect the public and agency personnel when there's been an allegation of a serious crime. [00:05:34] Speaker 00: The allegation of the crime was in 1996. [00:05:36] Speaker 00: There's been no problem for the next 17 years. [00:05:39] Speaker 04: But he didn't get a sentence and then community supervision after he served a sentence. [00:05:46] Speaker 04: What he got was [00:05:48] Speaker 04: You participate in this community service in lieu of imprisonment. [00:05:52] Speaker 04: But if you violate it, you go to prison. [00:05:55] Speaker 00: You can't. [00:05:55] Speaker 00: There's a hearing itself. [00:05:57] Speaker 00: There's a hearing itself. [00:05:58] Speaker 04: And all they had to have is reasonable cause to believe that he could be imprisoned. [00:06:01] Speaker 04: I mean, they certainly had reasonable cause to believe he had committed a crime at one point, correct? [00:06:06] Speaker 00: 1996. [00:06:06] Speaker 04: Right. [00:06:07] Speaker 04: And at the time that all of these events occurred, that they had reasonable cause to believe that he could go to prison [00:06:16] Speaker 04: based on the probation violation. [00:06:18] Speaker 00: I don't think there is reasonable cause. [00:06:19] Speaker 00: When the law is clear, he wasn't on probation, hadn't been for six years. [00:06:23] Speaker 00: And under the statute, as it is today, it was one five-year extension. [00:06:29] Speaker 00: And that was 2012. [00:06:32] Speaker 00: So under either scenario, there was no reasonable cause. [00:06:35] Speaker 00: And like I said, what I want to focus on is I don't think going to prison is what triggers an indefinite suspension. [00:06:43] Speaker 00: The indefinite suspension is when there's been the allegation of a serious crime, which was 1996. [00:06:48] Speaker 00: And until we find out what exactly happened, we're on the side of protecting the public or agency personnel. [00:06:55] Speaker 04: But it wasn't an allegation. [00:06:56] Speaker 04: Didn't he admit to the crime? [00:06:58] Speaker 00: In 1970, he signed a judicial confession and admitted to it. [00:07:02] Speaker 04: And he also understood that a violation of community supervision could result in imprisonment based on that admission. [00:07:09] Speaker 00: Yes. [00:07:10] Speaker 00: Yes. [00:07:11] Speaker 00: If he was still on probation. [00:07:13] Speaker 00: Like I said, in this case, he wasn't. [00:07:16] Speaker 00: But the point is, you're protecting the public and the agency when we don't know. [00:07:20] Speaker 00: And what I'm offering the court is, when he signed that judicial confession in 1997, we know exactly what he did. [00:07:27] Speaker 00: If the agency wanted to take removal action based on that, it had every reason to, if they found nexus. [00:07:35] Speaker 00: That's a third consideration here in Dunnington, which we'll get to. [00:07:39] Speaker 00: But at that point, the agency knew he did it. [00:07:42] Speaker 00: He inappropriately touched a minor. [00:07:44] Speaker 00: That's a second-degree felony in Texas. [00:07:46] Speaker 04: But at that point, they didn't have reasonable cause to believe that he was going to go to prison. [00:07:49] Speaker 00: But the reasonable cause to leave the prison is not what drives it in terms of protecting the public or the agency. [00:07:56] Speaker 00: The point is, when the first crime happens, the fact he might go to prison, to me, is meaningless. [00:08:03] Speaker 00: We knew in 1997 what he did. [00:08:05] Speaker 00: If the agency says, [00:08:06] Speaker 00: We can't have you on our roles because you did this. [00:08:10] Speaker 00: Like Dunnington, he was a border patrol officer, and he had unsupervised access to kids and women doing his job. [00:08:18] Speaker 00: We're going to fire you for that. [00:08:19] Speaker 00: The fact he might go to prison doesn't protect any public interest, doesn't protect the public at all. [00:08:25] Speaker 00: That's not what a definite suspension is for. [00:08:27] Speaker 00: It's to protect you when there's been the allegation of a serious crime until we know what happened. [00:08:32] Speaker 00: In this case, we know exactly what happened back in April of 1997. [00:08:35] Speaker 00: And there was no further investigation of what he did. [00:08:38] Speaker 00: So there's no point in indefinite suspension. [00:08:40] Speaker 00: At that point, once the facts are known, the agency needs to make a decision to remove the employee or not. [00:08:47] Speaker 00: The indefinite suspension is when that first comes up with the crime itself. [00:08:50] Speaker 00: Is it that serious? [00:08:52] Speaker 00: Is it a connection to your job? [00:08:54] Speaker 00: In this case, there is no connection. [00:08:55] Speaker 00: He works for a scientific agency which monitors air pollution and water pollution and soil contamination. [00:09:02] Speaker 00: He had no contact with children. [00:09:03] Speaker 02: The agency found that there was nexus, that there was a connection to the job because the supervisors, his supervisors, lost trust and confidence in him. [00:09:13] Speaker 02: That's how they made the connection. [00:09:16] Speaker 00: You would all do respect, Your Honor, in every adverse action that is said by agency personnel. [00:09:22] Speaker 00: In this case, the incident happened in 1996. [00:09:25] Speaker 00: You had 17 years of no problem. [00:09:28] Speaker 00: He was a good employee. [00:09:29] Speaker 00: He had a good record. [00:09:32] Speaker 00: So to just say that 17 years after the fact, I don't think Nexus, there's ways to prove it. [00:09:41] Speaker 00: Here, there's 17 years of proof there was no problem related to his conduct back in 1996. [00:09:47] Speaker 00: So the fact that they say that, that's just something they want to say to win the case. [00:09:52] Speaker 04: I mean, how do you say there was no proof? [00:09:54] Speaker 04: There was a probation violation? [00:09:56] Speaker 04: No, no, Your Honor. [00:09:57] Speaker 00: Sorry. [00:09:58] Speaker 00: There was never any proof of probation violation. [00:10:01] Speaker 00: in this case. [00:10:01] Speaker 00: There is no proof of that whatsoever. [00:10:03] Speaker 04: Well, there were serious allegations of a probation violation. [00:10:06] Speaker 04: And instead of going through the hearing, he consented to an extension of his community supervision, which would have been a better result for him than going to prison the first time around. [00:10:17] Speaker 00: Or getting proven to commit the violation. [00:10:19] Speaker 00: I mean, I think in the criminal justice system, and I'm not a criminal lawyer, Your Honor, but that's what you often do. [00:10:24] Speaker 00: I mean, the fact that he stays on this community supervision for another couple of years [00:10:29] Speaker 00: isn't seen as that big a deal. [00:10:30] Speaker 00: Well, you're right. [00:10:30] Speaker 00: There is much more of a risk. [00:10:32] Speaker 00: But there's also the chance he would have proved there was no violation. [00:10:36] Speaker 00: So there is absolutely no proof that he ever violated his probation. [00:10:41] Speaker 00: And the fact he consented to it is a pretty common thing, I think, in the criminal justice system, where people don't go to court and they take something because you don't want to run the risk. [00:10:50] Speaker 00: They didn't prove any. [00:10:50] Speaker 00: There is never any proof of a violation. [00:10:53] Speaker 00: So the point is, the only thing you've got is this 1996 crime, which you did. [00:10:58] Speaker 00: And then you wait 17 years to impose an indefinite suspension. [00:11:02] Speaker 00: And you don't impose an indefinite suspension if you might go to jail. [00:11:06] Speaker 00: You do it before the facts are known. [00:11:09] Speaker 00: So in my opinion, under the facts of this case, in 1997, when he signed that judicial confession, we knew exactly what he did. [00:11:18] Speaker 00: And if the agency said, hey, we find this, and this goes to your point, Judge Raina, this is so egregious that we've lost confidence in you, then they needed to take an action back in 1997. [00:11:29] Speaker 00: The facts have been, in this case, they knew about the issues back in at least 2000 at the very latest. [00:11:36] Speaker 00: So they knew about it for 13 years. [00:11:39] Speaker 00: The indefinite suspension only comes into effect when there's this allegation of a serious crime, which could, and then I think what they're using the word serious is that it could result in imprisonment. [00:11:50] Speaker 00: And then that there is this nexus. [00:11:53] Speaker 00: And like I said, what? [00:11:54] Speaker 00: The statute talks about imprisonment. [00:11:56] Speaker 00: Right. [00:11:57] Speaker 00: Yeah. [00:11:57] Speaker 00: And that's the notice requirement of 7513B1 is what we're looking at there. [00:12:05] Speaker 00: But the point is, there has to be that allegation of a serious crime. [00:12:08] Speaker 00: And going back 17 years, I think that's arbitrary and capricious. [00:12:14] Speaker 04: OK. [00:12:14] Speaker 04: We'll save the rest. [00:12:15] Speaker 04: You'll have three and a half minutes for rebuttal. [00:12:17] Speaker 04: OK. [00:12:17] Speaker 04: Thank you. [00:12:28] Speaker 03: May it please the court. [00:12:29] Speaker 03: The court should affirm the board's decision upholding EPA's indefinite suspension of Mr. Sharp. [00:12:35] Speaker 03: The board's decision was rational and supported by substantial evidence that EPA had reasonable cause to believe that Mr. Sharp had committed a crime for which he could be imprisoned. [00:12:45] Speaker 03: The petitioner argues that there was a 17-year-old offense for which Mr. Sharp was being put on indefinite suspension, but that mischaracterizes the record that was before the agency [00:12:56] Speaker 03: in 2013 when it imposed the indefinite suspension. [00:13:00] Speaker 03: In 2013, Mr. Sharp had been arrested. [00:13:03] Speaker 03: The police had come to EPA to execute an arrest warrant. [00:13:08] Speaker 03: Upon his arrest, the agency instituted an investigation to determine what was going on with the police coming to their office and looking for Mr. Sharp. [00:13:18] Speaker 03: They learned that Mr. Sharp was on probation, that the state, the DA, district attorney, a criminal prosecutor, [00:13:25] Speaker 03: had filed a motion to revoke his probation, that he was arraigned in front of a magistrate judge, he was held without bond, that the arraignment indicated that there was offense, an offense of probation violation, and it indicated that he read his rights. [00:13:41] Speaker 03: He had the right to counsel. [00:13:42] Speaker 04: But what about the fact that in 1997, he admitted to a crime, and there was the potential for imprisonment because [00:13:55] Speaker 04: any violation of community service could have resulted in that. [00:13:58] Speaker 04: Why wasn't he indefinitely suspended back then? [00:14:02] Speaker 03: This is not directly in the record, but I understand that the agency did not know that Mr. Sharp entered into the judicial confession in 1997. [00:14:11] Speaker 03: My understanding is that they did not find out about that until 2000. [00:14:14] Speaker 03: And he did not have, between 97 and 2000, any kind of misconduct. [00:14:19] Speaker 03: So there was no basis for the agency to take any action at that time. [00:14:24] Speaker 03: However, in 2006, he was given a 60-day suspension for misconduct. [00:14:31] Speaker 04: And then in 2013, was the 60-day suspension for misconduct related in any way to the 1997 conviction? [00:14:41] Speaker 03: No, it wasn't, Your Honor. [00:14:43] Speaker 03: What I was going to say, I'm sorry, was that in 2013, when the agency finds out that he's been arrested, that the state is moving to revoke his probation, it's at that time that they find out [00:14:54] Speaker 03: that in 2007 and 2012, he'd been arrested for other probation violations. [00:15:00] Speaker 03: And he consented to extensions of his probation. [00:15:05] Speaker 03: So in 2013 is when the landscape changed for the agency. [00:15:09] Speaker 03: He might have been an acceptable employee in 2000 when they first found out about it. [00:15:14] Speaker 03: But by 2013, it's not the same story. [00:15:17] Speaker 03: And the probation revocation proceedings were [00:15:21] Speaker 03: there were serious allegations that he was failing to pass a lie detector test. [00:15:26] Speaker 03: And there was the witness statement indicating that he had admitted to the witness to engaging in misconduct and that he wasn't passing the lie detector test on questions about whether he was engaging in an appropriate contact with minors. [00:15:41] Speaker 03: So in 2013, it's not the same facts before the agency as what they had in 2000 when they first learned about the [00:15:50] Speaker 03: judicial confession. [00:15:52] Speaker 04: Do you agree that in Texas a consent to a continuation of community supervision doesn't require an agreement that the probation violations occurred? [00:16:05] Speaker 03: There was nothing in the record to indicate that Mr. Sharp was conceding that the reasons why he was originally arrested in 2007 and 2012 [00:16:17] Speaker 03: was that he was conceding he had engaged in that conduct. [00:16:20] Speaker 03: He did consent to enlarging the periods of his probation. [00:16:25] Speaker 03: But the government's position is that that is not relevant to this court's inquiry as to whether the agency had reasonable cause in August of 2013 to believe that he had committed a crime. [00:16:39] Speaker 03: Because the agency looked at the official Texas court docket and saw that Mr. [00:16:45] Speaker 03: Sharp had consented to the enlargements and saw that he was still on probation. [00:16:51] Speaker 03: And then when Mr. Sharp responded to the agency's notice that they were proposing the indefinite suspension, he never challenged that he wasn't on probation. [00:17:01] Speaker 03: And in fact, his criminal lawyer didn't raise the issue with the Texas Court of Appeals, with the Texas State Court, until 24 days after the suspension was imposed. [00:17:14] Speaker 03: So because in this court's case in Rhodes, the court looks at the facts that were available to the agency at the time that it took the action and doesn't try and base or evaluate the agency's actions on hindsight, which is what the petitioner is asking the court to do here by arguing that he wasn't, as a matter of law, on probation in 2013. [00:17:36] Speaker 04: How do you respond to your friend's argument that actually the agency should have been [00:17:44] Speaker 04: alerted to the fact that it seemed weird that after this 1997 conviction that the supervision was still ongoing, and given such a lengthy amount of time, the agency should have researched Texas law to see whether or not there wasn't some problem with his continued supervision. [00:18:05] Speaker 03: Mr. Sharp was represented by a criminal attorney when he [00:18:10] Speaker 03: appeared and surrendered to the Texas court in August of 2013. [00:18:16] Speaker 03: If it was incumbent upon the agency to do research weeks later in imposing an indefinite suspension, one would expect that his own attorney would have been up to speed. [00:18:29] Speaker 03: A criminal defense attorney would have been aware that his client didn't need to surrender on probation revocation charge, because as a matter of law, his client was not actually [00:18:40] Speaker 03: supposed to still be on probation. [00:18:42] Speaker 03: And I think the government believes it's reasonable for the agency to have relied upon what was in the official court docket in Texas, which showed that he was still on probation and that he consented. [00:18:58] Speaker 02: What do we find in the record evidence about the witness or evidence that Mr. Sharp had engaged in inappropriate conduct [00:19:10] Speaker 02: with a minor while on probation. [00:19:12] Speaker 03: That would be at page A44 of the record, Your Honor. [00:19:16] Speaker 03: It's an email from John Larkin to Susan Chandler, who was the Inspector General agent who conducted the investigation. [00:19:31] Speaker 03: And he cut and pasted an earlier letter that he had sent to Judge Burns. [00:19:36] Speaker 03: So he cut and pasted that into [00:19:39] Speaker 03: an email to Susan Chandler, and she had interviewed him as part of the agency's investigation. [00:19:45] Speaker 02: But she says that he may be engaging in that conduct. [00:19:50] Speaker 02: And also, doesn't the email also show that Mr. Sharp is denied violating his probation? [00:19:58] Speaker 03: It's denied violating, admitting to violations of treatment, but not to probation. [00:20:06] Speaker 03: But it does also say that he had not passed a lie detector test in the last four tries in six months regarding contact with minors to him or to them. [00:20:16] Speaker 03: And then in the second to last paragraph, the witness reports that he, being Mr. Sharp, has admitted to touching the skin of the penis of three boys in sessions with myself and Stacey Dupler. [00:20:30] Speaker 03: And this was a document that the agency relied upon in [00:20:35] Speaker 03: assessing all of the facts that were presented to it when it made the decision to impose the indefinite suspension. [00:20:47] Speaker 03: With respect to the Nexus issue, Your Honors, the agency believed that they had lost, the agency concluded that they had lost trust and confidence in Mr. Sharp because of the 2000, because the 2013 [00:21:05] Speaker 03: probation violation was not just the first time that he had had problems at the agency. [00:21:11] Speaker 03: The agency cited to the prior agreement with Mr. Sharp, the settlement in 2007 that imposed the 60-day suspension on him, as well as their learning that he had twice been arrested or arrested in 2007 and 2012 for probation violations which resulted in the extensions. [00:21:33] Speaker 03: And so the agency lost confidence that Mr. Sharp could, going forward, perform his duties at the agency without further interruption. [00:21:47] Speaker 03: If the court has no further questions, then we respectfully request that the court affirm the board's decision. [00:21:55] Speaker 03: Thank you. [00:22:01] Speaker 00: couple things. [00:22:02] Speaker 00: When we talk about what was available to the agency back in August and September of 2013, I read at my point earlier that the Texas Code of Criminal Procedure was available to the agency, and if they had done just some fundamental research, they would have found out that the probation had ended in 2007, and even if the one [00:22:24] Speaker 00: time extension of five years was legal, which it wasn't. [00:22:28] Speaker 00: That would have ended in May of 2012. [00:22:30] Speaker 00: And there was no chance to believe he would be imprisoned for any of this. [00:22:35] Speaker 00: The other thing we just talked about is that document A-44, we reject that in its entirety. [00:22:42] Speaker 00: And if there was any validity to that, he would have been charged again criminally. [00:22:46] Speaker 00: And there'd be another issue. [00:22:47] Speaker 00: So he absolutely adamantly [00:22:51] Speaker 00: refuses to accept any validity of that. [00:22:53] Speaker 00: And as I've stated, if that were true, I think there would have been criminal charges pressed against him. [00:22:59] Speaker 00: There weren't criminal charges because that was baseless. [00:23:02] Speaker 00: When we talk about the Nexus here, once again, this is a scientific agency. [00:23:07] Speaker 00: He had no contact with children from 1992 when he started the agency through this. [00:23:12] Speaker 00: There was never any contact. [00:23:13] Speaker 00: So when Dunnington talks about [00:23:15] Speaker 00: sufficient relationship to the employee's duties in the agency to promote the efficiency of the service. [00:23:20] Speaker 00: There's no connection at all. [00:23:21] Speaker 00: There's nothing like Dunnington. [00:23:22] Speaker 00: Dunnington is clear. [00:23:24] Speaker 00: He had unsupervised access to minors. [00:23:25] Speaker 00: Here, he had no access to minors. [00:23:28] Speaker 00: And the point I've been trying to make is you've got 17 years of proof. [00:23:31] Speaker 00: There's never been a problem again. [00:23:33] Speaker 00: Sometimes people make mistakes and they learn from them. [00:23:35] Speaker 00: That's what you have in this case. [00:23:36] Speaker 00: He made a horrible decision in 1996. [00:23:39] Speaker 00: He paid for it and never had any allegation of criminal activity since then. [00:23:44] Speaker 00: So we're now coming up on now 20 years of no allegations of criminal activity. [00:23:50] Speaker 00: And certainly back in 2013, like I said, there was not that reasonable cause of the crime had been committed when the only crime was 1996. [00:23:59] Speaker 00: I think the 17-year gap does make it arbitrary and capricious. [00:24:04] Speaker 00: And especially in this case, he admitted in 1997. [00:24:07] Speaker 00: So to me, like I said, the agencies should have at that time, either in 97 or if they didn't know about it till 2000, [00:24:14] Speaker 00: He said, hey, we don't trust you anymore. [00:24:17] Speaker 04: Did he go in and tell the agency in 1997 that he was having these criminal crimes? [00:24:23] Speaker 00: Judge, that is not in the record, and I can speculate if you want me to, but I'd be speculating based on snippets of conversation. [00:24:32] Speaker 00: I think he told us first-line smooth bars with nobody else, but that's a poor recollection on my part. [00:24:38] Speaker 00: Please don't take that. [00:24:39] Speaker 00: Yes, sir? [00:24:39] Speaker 02: Was this information divulged or come to light [00:24:43] Speaker 02: after the decision of the indefinite suspension had been made? [00:24:46] Speaker 00: I don't understand the question, Your Honor. [00:24:48] Speaker 02: The question about the potential violation of the probation and his failure to take a lie detector test, did all that come to light after the decision for the indefinite suspension had been made? [00:25:02] Speaker 00: No, it was before. [00:25:03] Speaker 00: That's when they initially put out a warrant for his arrest by a magistrate in mid-August [00:25:10] Speaker 00: On the 22nd, he found out about it and surrendered himself. [00:25:13] Speaker 00: And that's why they padded the arrest warrant was because they had taken past lie detector, they were to participate in group counseling, and they were to procure supervision. [00:25:22] Speaker 00: So they knew about that way prior. [00:25:25] Speaker 02: Wouldn't that be evidence that could lead the agency to have a loss of trust and confidence in you? [00:25:31] Speaker 00: If it was valid, but it wasn't valid, Your Honor. [00:25:33] Speaker 00: He contested every point. [00:25:35] Speaker 01: When was it discovered it wasn't valid? [00:25:36] Speaker 01: It was after the decision had been made, right? [00:25:39] Speaker 00: Well, the point is, there's no proof that they occurred. [00:25:42] Speaker 00: There's allegations, but they're only allegations. [00:25:45] Speaker 00: And he denied all of them. [00:25:48] Speaker 00: And if that motion hadn't been successful, he would have had the opportunity to prove them. [00:25:53] Speaker 00: In the community supervision of vacations hearing, it's preponderance of the evidence. [00:25:58] Speaker 00: And they were gearing up for that if the motion wasn't successful. [00:26:01] Speaker 00: But the motion was successful because the judge realized the criminal supervision had passed. [00:26:07] Speaker 00: So he was going to contest every one of those. [00:26:08] Speaker 00: And there was no proof that any of them were ever valid. [00:26:11] Speaker 00: But that still gets to the point. [00:26:13] Speaker 00: The only allegation of a crime was 1996, not anything in 2013 or 2012 or 2007. [00:26:20] Speaker 00: They were not allegations of crimes. [00:26:22] Speaker 00: And that's what Dunnington, as I read, Dunnington requires is that allegation of a crime. [00:26:27] Speaker 00: would trigger this. [00:26:29] Speaker 00: And I think the only confusion is, do we know what happened or not? [00:26:34] Speaker 00: And once we do know, and in this case it was 1997, it was a matter of public record that he admitted to it. [00:26:41] Speaker 00: This is public records that they found out. [00:26:43] Speaker 00: They could have found out years ago. [00:26:45] Speaker 00: In 2000, this Susan Chandler, the IG agent, looked it up and knew all about the case and told the division director. [00:26:53] Speaker 00: And they knew about it back in 2000. [00:26:56] Speaker 00: And if they didn't do anything in 2000, [00:26:59] Speaker 02: Is he still on suspension? [00:27:04] Speaker 00: No. [00:27:04] Speaker 00: That suspension ended initially on November 21st. [00:27:08] Speaker 01: So what's the status now? [00:27:12] Speaker 00: The status of the HAL is the judge suspended throughout the case on October 31st. [00:27:22] Speaker 04: And the motion to throw it out wasn't filed until three weeks after the indefinite suspension. [00:27:27] Speaker 04: The motion to dismiss, the motion to throw it out, as you say, was not filed until three weeks after the indefinite suspension. [00:27:36] Speaker 00: Two weeks, maybe, Your Honor, somewhere there. [00:27:38] Speaker 00: The indefinite suspension, I think, occurred on the 12th of October. [00:27:41] Speaker 00: I think the motion was about the 25th of October, and the judge ruled on it on the 31st of October. [00:27:47] Speaker 00: So the judge threw it out and said, yeah, community supervision is passed. [00:27:50] Speaker 00: They kept him on suspension until November 21st. [00:27:54] Speaker 00: Uh, then we appealed to the board and the board said, you know, there's a separate issue here. [00:27:59] Speaker 00: When the judge threw it out and the board's case law, and this was case law in Rhodes and Richardson, you should have terminated the suspension on about October 31st. [00:28:08] Speaker 00: The agency has been doing that. [00:28:09] Speaker 00: They just issued a check last week that I think that that part of the suspension from November 1st to November 21st is probably now history. [00:28:20] Speaker 00: And we were left with the indefinite suspension from [00:28:24] Speaker 00: October 12th to October 30th or November 1st. [00:28:28] Speaker 00: So that's the issue on the suspension itself. [00:28:32] Speaker 04: Okay. [00:28:32] Speaker 00: Thank you so much. [00:28:33] Speaker 04: The case will be submitted.