[00:00:39] Speaker 04:
Next case is Johnny Tolbert versus the Department of Justice, 2015-31-62.

[00:00:47] Speaker 04:
Do we not have Mr. Martin?

[00:00:53] Speaker 04:
If he hadn't signed in, he still hasn't shown?

[00:00:59] Speaker 04:
He's in Arkansas.

[00:01:01] Speaker 04:
Well, we'll hear from the Department of Justice then.

[00:01:21] Speaker 03:
Good morning, Your Honors.

[00:01:23] Speaker 03:
May it please the Court.

[00:01:26] Speaker 03:
The key question in this case is whether the penalty of removal is grossly disproportionate to the misconduct that Mr. Tolbert admitted that he committed.

[00:01:39] Speaker 03:
To make no mistake, this is a grievous misconduct.

[00:01:43] Speaker 03:
If I may, I'd like to set the stage for the transaction that

[00:01:49] Speaker 00:
I think we know all the facts.

[00:01:52] Speaker 00:
And you say it's egregious misconduct.

[00:01:55] Speaker 00:
Well, certainly it would be egregious misconduct if he knew he accepted envelopes with $1,000 collectively in them.

[00:02:03] Speaker 00:
But I didn't read the lower court's opinion as putting all of that onto him.

[00:02:08] Speaker 00:
Nor did I necessarily read even the deciding official below as suggesting that he had found or concluded that Mr. Tolbert knew this was money, right?

[00:02:20] Speaker 00:
This was a bribe.

[00:02:21] Speaker 00:
I mean, it's awful.

[00:02:22] Speaker 00:
But because Mr. Tolbert claimed he thought it was maybe a Christmas card or something small, and I understood the deciding official to say, well, even if that's what you thought, you know you can't accept something at all, period, no matter what it is.

[00:02:38] Speaker 00:
You can't even accept a Christmas card.

[00:02:41] Speaker 00:
And so I guess I have to say, if you accepted a Christmas card, it doesn't seem, would you say, really egregious or something like that, right?

[00:02:51] Speaker 03:
Well, we would disagree with that, Your Honor.

[00:02:53] Speaker 00:
If he accepted a Christmas card, it's really, really egregious.

[00:02:56] Speaker 03:
The rule is plain.

[00:02:58] Speaker 03:
You are not to accept anything from a known associate of an inmate.

[00:03:02] Speaker 03:
It's also worth mentioning that Mr. Tolbert thought the envelopes could contain one of two things, either a Christmas card or a gift.

[00:03:10] Speaker 03:
And then after Mr. Tolbert talked to Officer Velasco, who informed Mr. Tolbert of a potential setup and said, Ms.

[00:03:18] Speaker 03:
Lario may try to give you a gift,

[00:03:20] Speaker 03:
Mr. Tolbert said, well, that just happened.

[00:03:23] Speaker 03:
And so Mr. Tolbert acknowledged that the envelopes could contain a gift.

[00:03:28] Speaker 00:
Where did he say that just happened?

[00:03:30] Speaker 00:
Especially to Mr. Velazquez, because I don't actually think that you have the facts right about this case.

[00:03:35] Speaker 00:
So where did he say that?

[00:03:36] Speaker 00:
Where did he say that just happened?

[00:03:37] Speaker 00:
Because it's my understanding he said, I need to go speak to the supervisor, the lieutenant in charge.

[00:03:42] Speaker 00:
My understanding is he didn't tell Velazquez anything about the gift.

[00:03:46] Speaker 00:
It was when he went to the supervisor that he told her about the gift.

[00:03:50] Speaker 00:
Where did he say that just happened?

[00:03:53] Speaker 00:
They're going to represent facts to us.

[00:03:54] Speaker 00:
You better have them right.

[00:03:56] Speaker 02:
And I intend to provide that to you, Your Honor.

[00:04:09] Speaker 02:
Just a moment.

[00:04:21] Speaker 00:
Mr. Velasquez's testimony is at A24, if that helps.

[00:04:37] Speaker 03:
I can find that for you, Your Honor.

[00:04:39] Speaker 03:
I apologize.

[00:04:41] Speaker 03:
I thought I had that at my fingertips.

[00:04:43] Speaker 04:
Well, maybe you can continue with your argument and your associate here.

[00:04:48] Speaker 04:
Your colleague can find it.

[00:04:50] Speaker 04:
But let me ask you, if this was egregious, how could it have been egregious if they'd kept him in his job for six months?

[00:05:00] Speaker 03:
Well, that's an unfortunate fact, Your Honor.

[00:05:03] Speaker 03:
But let me provide some context.

[00:05:05] Speaker 03:
And the preface is by saying this is not in the record.

[00:05:08] Speaker 03:
So I can only surmise why they kept him.

[00:05:11] Speaker 03:
in that position, two facts that are on the record.

[00:05:14] Speaker 03:
For one, after this incident, the bureau placed the inmate, Espinosa, in the special housing unit, and then later transferred him.

[00:05:24] Speaker 03:
The paralegal who handed Mr. Tolbert the two envelopes

[00:05:30] Speaker 03:
only visited that specific inmate.

[00:05:33] Speaker 03:
So after this incident, it was highly unlikely that Mr. Tolbert would ever run into Ms.

[00:05:39] Speaker 03:
Lario while on duty again.

[00:05:42] Speaker 03:
Additionally, Mr. Tolbert's position as a visiting escort officer, he did not have any contact with the inmates.

[00:05:49] Speaker 03:
His job was to escort the visitors into the visiting area after they had already passed through security.

[00:05:57] Speaker 03:
It was another officer who brought the inmates into the visiting area and then a fourth officer who searched the inmates after visitation to make sure no contraband got in there.

[00:06:07] Speaker 04:
How does this answer my question?

[00:06:09] Speaker 03:
Well, because if

[00:06:14] Speaker 03:
It was probably the best place for Mr. Tolbert to be because the agency could keep an eye on him.

[00:06:19] Speaker 03:
He did not have any contact with inmates.

[00:06:22] Speaker 03:
The paralegal was no longer coming to the prison.

[00:06:25] Speaker 00:
But that's true.

[00:06:28] Speaker 00:
You just made the other guy's point, and he's not even here.

[00:06:31] Speaker 00:
That's true.

[00:06:33] Speaker 00:
That actually supports the idea that he shouldn't be fired, right?

[00:06:35] Speaker 00:
Because what you just described is

[00:06:37] Speaker 00:
No worry, no harm, no foul.

[00:06:40] Speaker 00:
Miss Loreo only had contact with this inmate.

[00:06:43] Speaker 00:
He's gone.

[00:06:44] Speaker 00:
So we can leave this guy in place.

[00:06:46] Speaker 00:
There really isn't any more risk.

[00:06:47] Speaker 00:
There's nothing to be concerned about.

[00:06:49] Speaker 00:
He doesn't have direct contact with the inmates.

[00:06:52] Speaker 00:
Well, if all of that is true, then why?

[00:06:54] Speaker 00:
He didn't come back to the prison, right?

[00:06:57] Speaker 00:
That inmate wasn't sent back.

[00:06:58] Speaker 00:
So then why fire him?

[00:07:00] Speaker 00:
If he could, if the only concern was Miss Loreo and this particular inmate, and they're gone, and that justifies keeping him on the job after that and not being worried about him, then why in the world did you fire him?

[00:07:14] Speaker 03:
Well, Your Honor, there's no guarantee that Mr. Tolbert would only be in that position for the rest of his career.

[00:07:21] Speaker 03:
He moved around the prison.

[00:07:23] Speaker 03:
He would have had contact with inmates.

[00:07:27] Speaker 03:
And so

[00:07:28] Speaker 03:
in that position as visiting escort officer, the agency could keep an eye on him and minimize his contact with any inmates.

[00:07:37] Speaker 03:
And so like I said, there was no guarantee that he would be just in that position for the rest of his career.

[00:07:44] Speaker 03:
And it's unclear, too, when the warden decided that he had

[00:07:49] Speaker 03:
that he made the decision that we cannot have this guy be a corrections officer.

[00:07:55] Speaker 00:
Yeah, it must not have been made when they gave him a commendation, right?

[00:07:59] Speaker 00:
Because in between the time when this happened and then the time when he was finally removed, he actually received a commendation from his supervisors, right?

[00:08:07] Speaker 00:
So it must be that the warden didn't decide on that day, the day he got a commendation, that he can't be doing this job anymore.

[00:08:14] Speaker 00:
That must not have been the day that he made the decision.

[00:08:19] Speaker 03:
Well, that commendation covers time before the incident as well.

[00:08:23] Speaker 03:
And we're not disputing that Mr. Tolbert was a good corrections officer.

[00:08:28] Speaker 03:
It's just this one incident overshadowed that in the importance of.

[00:08:34] Speaker 00:
And the commendation came after this one incident, correct?

[00:08:39] Speaker 03:
The commendation was issued after the incident.

[00:08:42] Speaker 00:
And it covered the time period which included the incident.

[00:08:45] Speaker 03:
It would appear to, yes.

[00:08:47] Speaker 00:
So his conduct was so egregious, and yet we gave him a commendation for a period of time during his work which included the egregious conduct.

[00:08:59] Speaker 03:
The one incident, correct.

[00:09:02] Speaker 04:
Was the commendation for general performance or for another specific performance?

[00:09:09] Speaker 03:
It's just a general commendation, Your Honor.

[00:09:15] Speaker 03:
I believe the one that Mr. Tolbert was referring to is at A396 of your record.

[00:09:23] Speaker 03:
It's for your dedication and hard work at the federal detention center in Miami, Florida.

[00:09:27] Speaker 03:
You are greatly appreciated.

[00:09:30] Speaker 03:
It's A396.

[00:09:31] Speaker 01:
The quote for that just happened.

[00:09:33] Speaker 01:
I see it at A62.

[00:09:35] Speaker 01:
There's a hearing transfer page at 188 morning 10 where Tolbert is testifying on examination.

[00:09:45] Speaker 03:
Yes, thank you, Your Honor.

[00:09:48] Speaker 03:
So in Mr. Tolbert's own words, Mr. Polanski.

[00:09:51] Speaker 01:
Can you just tell us, you know, he seemed to be a highly regarded employee for a very long time.

[00:09:57] Speaker 01:
And it seemed like he's got one blemish.

[00:10:01] Speaker 01:
Obviously, the Bureau believed that was a very serious blemish.

[00:10:05] Speaker 01:
Can you describe why?

[00:10:08] Speaker 01:
his taking this envelope, this unknown envelope, so corrupted him for the rest of his career that he had to be terminated?

[00:10:18] Speaker 03:
I would defer to the warden's analysis on that or refer the court to the warden's analysis.

[00:10:23] Speaker 01:
Can you present that and translate it for us on why we should understand that this is, I don't know, some type of cardinal sin?

[00:10:32] Speaker 03:
Sure.

[00:10:33] Speaker 03:
It's the risk of compromise.

[00:10:35] Speaker 03:
It's the risk that if you do it once,

[00:10:38] Speaker 03:
Your integrity has been compromised, and you may do it again unless we take care of this situation.

[00:10:45] Speaker 03:
The warden made that determination.

[00:10:47] Speaker 03:
He had 29 years of experience.

[00:10:49] Speaker 03:
The warden did.

[00:10:49] Speaker 03:
He's seen this before, seen this type of situation before.

[00:10:55] Speaker 03:
In his considered judgment, Mr. Tolbert had been compromised and could not be trusted to perform his job as a corrections officer.

[00:11:11] Speaker 04:
Anything further, counsel?

[00:11:15] Speaker 03:
If the board has no further questions, we would just pass the court to affirm Robert Giddes' decision for the reasons discussed today and then I'll brief you.

[00:11:23] Speaker 04:
Thank you very much.

[00:11:24] Speaker 04:
We'll take the case under review.

[00:11:25] Speaker 03:
Thank you.