[00:00:00] Speaker 04:
Next argued case is number 16-27-12, United States Capitol Police against the Office of Compliance.

[00:00:08] Speaker 04:
Ms.

[00:00:09] Speaker 04:
Sendian.

[00:00:21] Speaker 01:
Good morning.

[00:00:22] Speaker 01:
May it please the Court?

[00:00:23] Speaker 01:
My name is Kelly Sendian.

[00:00:24] Speaker 01:
I represent Petitioner, United States Capitol Police.

[00:00:28] Speaker 01:
The Office of Compliance Board of Directors made the same mistake the hearing officer made in this case.

[00:00:35] Speaker 01:
It found that the department violated the Congressional Accountability Act without identifying any evidence supporting this conclusion, because there is none.

[00:00:46] Speaker 01:
Today I'll talk about three things the board did wrong.

[00:00:51] Speaker 01:
First, the board determined that protected activity was a motivating factor

[00:00:56] Speaker 01:
in the department's treatment of Officer Contos.

[00:01:00] Speaker 01:
Second, the board determined that the department did not show that it had a legitimate reason for the discipline.

[00:01:10] Speaker 01:
Third, based on a number of factual findings the board made, it found that the department's reason for disciplining Officer Contos was pretextual.

[00:01:22] Speaker 01:
The board's decision is fundamentally unreasonable.

[00:01:26] Speaker 01:
because there is nothing in the record supporting these conclusions.

[00:01:33] Speaker 01:
The importance of this case.

[00:01:34] Speaker 06:
Are the three issues that you raised sort of interconnected?

[00:01:37] Speaker 06:
Let me explain why I tend to see it that way.

[00:01:43] Speaker 06:
The action that was taken against the Mr. Consos, is that how you pronounce it?

[00:01:49] Speaker 06:
That is correct.

[00:01:50] Speaker 06:
The action was taken because he was absent without leave.

[00:01:54] Speaker 02:
That is correct.

[00:01:55] Speaker 06:
That was the thing he did wrong.

[00:01:58] Speaker 06:
We have a hearing examiner's conclusion that he was not absent without leave, as a matter of fact.

[00:02:06] Speaker 02:
That is correct.

[00:02:07] Speaker 06:
The hearing officer says he was not absent without leave.

[00:02:09] Speaker 06:
He 1301ed or whatever.

[00:02:11] Speaker 06:
That was all approved.

[00:02:13] Speaker 06:
Officer Law came in, served the whole period, was paid for the whole period.

[00:02:18] Speaker 06:
There weren't any gaps.

[00:02:20] Speaker 06:
So he wasn't absent without leave.

[00:02:23] Speaker 06:
So the hearing examiner and then the board says, well, if he wasn't absent without leave, he can't be disciplined for being absent without leave because he wasn't absent.

[00:02:34] Speaker 06:
So why did they discipline him?

[00:02:37] Speaker 06:
Couldn't have done it because he wasn't absent on leave.

[00:02:41] Speaker 06:
Well, it must have been for some other reason.

[00:02:43] Speaker 06:
So they look and they say, well, look what happened.

[00:02:46] Speaker 06:
So you have to have a reason for having the discipline, right?

[00:02:52] Speaker 06:
And he can't discipline for being absent without leave because he wasn't absent.

[00:02:56] Speaker 06:
So what was it?

[00:02:57] Speaker 06:
And they say, well, it must have been that it's his protected disclosures that he made.

[00:03:05] Speaker 06:
What else?

[00:03:06] Speaker 06:
And then they say, well, the people who gave the discipline, the police, they don't have any other explanation.

[00:03:14] Speaker 06:
So what's your explanation?

[00:03:17] Speaker 06:
Why was he disciplined?

[00:03:19] Speaker 06:
Because he can't be disciplined.

[00:03:21] Speaker 06:
for being absent without leave.

[00:03:23] Speaker 06:
That's a fact finding that was made.

[00:03:26] Speaker 06:
And it seems to me there's substantial evidence to support that fact finding, because law showed up.

[00:03:33] Speaker 06:
And it would be against the law to pay him for a full period of time, be totally against the law if he didn't do it.

[00:03:42] Speaker 06:
And so I don't understand why the agency imposed the discipline.

[00:03:47] Speaker 01:
Thank you, Your Honor.

[00:03:48] Speaker 01:
The agency imposed the discipline because Officer Konzost was absent without leave, which is defined by the agency's policies as not... But what do you do with the fact finding that he was not absent?

[00:04:00] Speaker 06:
He wasn't absent.

[00:04:01] Speaker 06:
If anybody was absent without leave, it was Mr. Law.

[00:04:05] Speaker 06:
That's it.

[00:04:06] Speaker 06:
Not Mr. Koska.

[00:04:09] Speaker 01:
We would disagree with that, and here's the reason why.

[00:04:11] Speaker 06:
How could you disagree with that?

[00:04:13] Speaker 06:
He got a substitute.

[00:04:14] Speaker 01:
He got a substitute.

[00:04:15] Speaker 06:
All the cases you've cited, 18, 19, 20 cases, there are plenty of evidence of officers who were 1301 who didn't show up on time, and they got disciplined, not the person for whom the person stood in.

[00:04:29] Speaker 01:
So there are several points that addressed your question.

[00:04:31] Speaker 01:
The first is that Officer Konzos was, in fact, absent without leave.

[00:04:36] Speaker 01:
That is, he was ordered to report for duty following his regular shift, which ended at 7 AM.

[00:04:42] Speaker 01:
He failed to report at that time and left.

[00:04:44] Speaker 06:
It was excused.

[00:04:46] Speaker 01:
No, he was not excused.

[00:04:47] Speaker 01:
He was told to report for duty.

[00:04:49] Speaker 06:
We're talking across each other.

[00:04:54] Speaker 06:
The way this works, as I understand it, is a hearing officer takes evidence and makes findings a fact.

[00:05:01] Speaker 06:
And then the board reviews those findings a fact.

[00:05:04] Speaker 02:
That is correct.

[00:05:05] Speaker 06:
And my understanding is that we reviewed a finding of fact is substantial evidence.

[00:05:11] Speaker 02:
That is correct.

[00:05:11] Speaker 06:
Right?

[00:05:12] Speaker 06:
And so the data points that were argued as substantial evidence in support of no absent without leave was there's a 1301.

[00:05:24] Speaker 06:
Is that the right number?

[00:05:26] Speaker 02:
That is the form.

[00:05:27] Speaker 02:
Correct.

[00:05:27] Speaker 06:
There's a 1301 policy.

[00:05:28] Speaker 06:
It's consistent.

[00:05:29] Speaker 06:
If somebody else steps up to serve your stint, then you're

[00:05:35] Speaker 06:
that this officer was told he could 1301.

[00:05:38] Speaker 06:
In fact, a 1301 happened.

[00:05:44] Speaker 06:
A man named Law came and served.

[00:05:47] Speaker 06:
And there was like an 18 minute or 20 minute gap in the time between when he signed in and when he should have been for a full thing.

[00:05:57] Speaker 06:
But there's no argument.

[00:05:59] Speaker 06:
He was paid the full amount of time.

[00:06:01] Speaker 01:
He was paid for the time in which he worked.

[00:06:03] Speaker 01:
And so let me back up for a second and again.

[00:06:06] Speaker 06:
He was paid for the full.

[00:06:08] Speaker 06:
He didn't have a deduction for the 29 minutes.

[00:06:12] Speaker 01:
He was paid from the moment he clocked in, which was at 729 AM.

[00:06:17] Speaker 01:
But let me back up and address the points that you've raised.

[00:06:20] Speaker 01:
The issue here is whether or not for those factual findings, the Office of Compliance Board of Directors and the hearing officer had substantial evidence supporting those findings.

[00:06:31] Speaker 01:
The first issue, what's missing from the hearing officer and the board's conclusions is, number one, Officer Konzos was, in fact, absent without leave.

[00:06:41] Speaker 01:
There's a policy that defines what that requirement is.

[00:06:44] Speaker 01:
If you do not report for duty at the time, date, and place ordered without the consent of a supervisor, you are considered absent.

[00:06:52] Speaker 06:
The absent without leave time period is 18 minutes.

[00:06:54] Speaker 06:
It's the absolute... You need to tell me that, because I need to know what... There was a substitute, Mr. Law, who came and served.

[00:07:03] Speaker 01:
Eventually, a substitute came into work, Officer Conzos, to shift.

[00:07:08] Speaker 06:
That substitute stated... What was the time period for the eventual?

[00:07:11] Speaker 01:
I'm getting to that.

[00:07:12] Speaker 01:
The substitute specifically stated he did not work, he did not report for duty until 8.15.

[00:07:17] Speaker 01:
That is, he clocked in at 7.29 a.m.

[00:07:21] Speaker 01:
but did not report for duty at the capital division until 8.15.

[00:07:24] Speaker 05:
Well, that's because the doors didn't open until 8.15.

[00:07:28] Speaker 01:
That's incorrect, Your Honor.

[00:07:29] Speaker 05:
That is correct or incorrect?

[00:07:31] Speaker 01:
That is incorrect.

[00:07:32] Speaker 01:
So Officer Law was assigned a post when he eventually did report for duty.

[00:07:38] Speaker 06:
When you say it's incorrect, that fact was in the gemish of all of the evidence.

[00:07:43] Speaker 06:
Did you challenge that fact in front of the board after the hearing examiner?

[00:07:47] Speaker 01:
We did.

[00:07:49] Speaker 01:
One of the issues that was raised by the board and by the hearing officer was that at 7.15 AM, it was OK for Officer Konzos to leave his post because his next post wouldn't have been until 8.15.

[00:08:02] Speaker 01:
That is not what Officer Konzos testified to.

[00:08:05] Speaker 01:
Officer Konzos specifically said he assumed his next post would be building control, which is a post.

[00:08:12] Speaker 01:
It just happens not to be a stationary post.

[00:08:15] Speaker 01:
It's a mobile post.

[00:08:17] Speaker 01:
And so for that reason, because it's not stationary, he described it as a quasi-break.

[00:08:22] Speaker 05:
Can we go back to the post... he... Officer Law clocked in at 729.

[00:08:28] Speaker 01:
He did.

[00:08:29] Speaker 05:
So what was he doing between 729 and 815?

[00:08:34] Speaker 01:
All that we know is that Officer Law clocked in at 729 at the U.S.

[00:08:39] Speaker 01:
Capitol Police's headquarters, which is about a quarter of a mile

[00:08:43] Speaker 01:
away from the Capital Division, where he would have reported to work.

[00:08:47] Speaker 05:
Let me ask a different question.

[00:08:49] Speaker 05:
Let's say that Officer X is assigned to work a certain shift.

[00:08:55] Speaker 01:
Yes.

[00:08:56] Speaker 05:
And then Officer X gets an email saying, OK, we know you don't feel like you can make that shift.

[00:09:03] Speaker 05:
So I'm telling you now that Officer Y will be fulfilling that shift.

[00:09:09] Speaker 05:
And then Officer Y shows up.

[00:09:11] Speaker 05:
30 minutes late for that shift.

[00:09:15] Speaker 05:
Who is responsible for the fact that the first 30 minutes of that shift there was no officer there?

[00:09:22] Speaker 05:
Officer X or officer Y?

[00:09:24] Speaker 01:
Officer X and here's why.

[00:09:26] Speaker 05:
The department has presented evidence that... Can you point me to something in the record that shows as a matter of capital police regulation policy standard operating procedure

[00:09:41] Speaker 05:
Officer X is on the hook after he's been told that Officer Y is going to be fulfilling the shift, that it's still Officer X that is responsible for Officer Y's tardiness to the shift.

[00:09:57] Speaker 01:
Yes.

[00:09:58] Speaker 01:
The department presented evidence that it has disciplined officers in just the situation you described.

[00:10:03] Speaker 01:
That evidence is located at appendix 785 and 799.

[00:10:08] Speaker 01:
In both of those cases,

[00:10:10] Speaker 01:
an officer believed he had a person coming in to work his shift as a substitute, but he entered into a private agreement.

[00:10:18] Speaker 01:
In other words, just as you described, receiving some sort of communication.

[00:10:21] Speaker 05:
Well, this one wasn't a private agreement between law and consuls.

[00:10:29] Speaker 05:
It was an email from somebody else in the police department.

[00:10:34] Speaker 01:
Another officer.

[00:10:34] Speaker 05:
And let's say that

[00:10:36] Speaker 05:
It's also clear from the record that Sergeant Floyd knew about this reassignment of the shift from consos to law.

[00:10:47] Speaker 01:
Let's be clear.

[00:10:48] Speaker 01:
Only a department official has the responsibility for reassigning a shift.

[00:10:56] Speaker 01:
So even though the department allows substitutes to work for other employees.

[00:11:01] Speaker 05:
What do you mean by an official?

[00:11:03] Speaker 05:
A sergeant is not an official?

[00:11:04] Speaker 01:
An official is anyone above the sergeant level and above.

[00:11:07] Speaker 01:
So we make a distinction between officials, which are our management personnel, and our officers.

[00:11:15] Speaker 05:
So the fact that Sergeant Floyd knew about this reassignment doesn't matter?

[00:11:21] Speaker 01:
I would say that the fact that Sergeant Floyd at some time learned that someone was supposed to be coming in for Officer Konzos is irrelevant.

[00:11:29] Speaker 01:
They were waiting for someone to show up for Officer Konzos so that they can then switch out those two officers.

[00:11:36] Speaker 01:
There is no evidence in the record that at any time anyone said to Officer Konzos, you may leave.

[00:11:43] Speaker 01:
As a matter of fact, Officer Konzos admitted that no one gave him that.

[00:11:46] Speaker 05:
I see you getting into your rebuttal, but let me just ask another question.

[00:11:50] Speaker 05:
that the warning letter was issued, and for grounds for the warning letter, there was no accounting for the fact that officer law, in fact, fulfilled the shift.

[00:12:03] Speaker 05:
Maybe he was a little late, but there's no discussion, no explanation, no weighing of that fact in terms of whether or not there was an absence without leave.

[00:12:13] Speaker 01:
Sure.

[00:12:13] Speaker 01:
Because the question before Captain Bollinger, the official who issued the written warning

[00:12:18] Speaker 01:
was whether or not Officer Consoles was absent without leave at the time he left.

[00:12:24] Speaker 01:
That would be at 7.15 AM.

[00:12:26] Speaker 01:
There's no question that he was.

[00:12:28] Speaker 01:
And for that reason.

[00:12:30] Speaker 05:
When you say there's no question that he was, you're assuming the conclusion when you say that.

[00:12:35] Speaker 01:
Let me explain.

[00:12:36] Speaker 05:
The whole question is, was he absent without leave?

[00:12:39] Speaker 05:
Now we have to figure out, OK, what are the facts that might support that conclusion?

[00:12:44] Speaker 01:
Here are the facts.

[00:12:44] Speaker 01:
And it's undisputed in the record.

[00:12:47] Speaker 01:
He was ordered to stay.

[00:12:48] Speaker 01:
He said he was not going to stay.

[00:12:50] Speaker 01:
He was told he can 1301 it away.

[00:12:53] Speaker 01:
He left before any substitute arrived, and no one at any point told him he could leave at 7 15 AM.

[00:13:01] Speaker 01:
There's absolutely nothing in the record that suggests that an officer can determine when he wants to leave without receiving the consent of a supervisor to do so when he has been ordered to work.

[00:13:13] Speaker 01:
That's why I say that he was absent without leave

[00:13:17] Speaker 01:
And there is no facts that dispute those facts.

[00:13:21] Speaker 01:
Beyond that, officer law was not working at the time that Officer Konzos left.

[00:13:27] Speaker 01:
So for that reason, the question before Captain Bollinger was whether or not, at 7.15 AM, Officer Konzos was absent without leave.

[00:13:37] Speaker 01:
And based on the evidence of the record, including evidence that showed.

[00:13:40] Speaker 06:
And just for the record, for how long was he absent without leave, just so I know in my own mind?

[00:13:46] Speaker 01:
He would have been absent without leave from the time that he left at 7.15 AM to the time that officer law reported, which would have been 8.15 AM.

[00:14:01] Speaker 05:
So if officer law had shown up at 7.16 AM, then Officer Comsos would have been AWOL for one minute?

[00:14:11] Speaker 01:
Absolutely.

[00:14:12] Speaker 01:
This is a law enforcement organization.

[00:14:14] Speaker 01:
We cannot have a situation where officers just clock out and leave their posts without notifying anyone and leaving that post vacant.

[00:14:23] Speaker 01:
That is not allowed in our department.

[00:14:26] Speaker 01:
And that's why he was disciplined for being absent without leave.

[00:14:29] Speaker 04:
Well, then what is the relief that you are requesting?

[00:14:33] Speaker 01:
We are requesting that the decision of the board be vacated for the very reason

[00:14:38] Speaker 01:
that the evidence in the record does not support the conclusions that the board rested on.

[00:14:44] Speaker 01:
Specifically, the board determined that Officer Konzos' protected activity of raising bargaining units' members' concerns about the additional duty drafts was a motivating factor

[00:14:58] Speaker 01:
in the department's treatment of Officer Konzos.

[00:15:00] Speaker 06:
Do you believe it was absolutely clear in the charging documents that he was absent without leave for one hour as opposed to absent without leave for an entire shift?

[00:15:12] Speaker 01:
So the charging documents do not specifically say for what period of time that Officer Konzos was absent without leave.

[00:15:19] Speaker 01:
But that's because it's irrelevant to the department.

[00:15:22] Speaker 01:
To the department, it's whether you reported at the time, place,

[00:15:26] Speaker 01:
and location that you were required to report to.

[00:15:31] Speaker 01:
It's undisputed that Officer Konzos did not.

[00:15:35] Speaker 04:
OK.

[00:15:36] Speaker 04:
Let's hear from the other side, and we'll save some rebuttal.

[00:15:46] Speaker 04:
Mr. Uhlman.

[00:15:48] Speaker 03:
May it please the court.

[00:15:50] Speaker 03:
Before you is a decision from the Office of Clients Board of Directors

[00:15:54] Speaker 03:
This is an entity created by Congress, composed of five lawyers from across the United States, experienced in the area of labor and employment law, who decide these cases.

[00:16:05] Speaker 03:
They are charged with maintaining labor peace in the legislative branch.

[00:16:10] Speaker 03:
And they have a lot of discretion, not only in determining what a violation is, but the facts regarding it.

[00:16:18] Speaker 03:
The interesting thing about this statute is it actually gives priority to the hearing officer, and that the board

[00:16:24] Speaker 03:
is subject to the same standard of review as this court is.

[00:16:27] Speaker 03:
In other words, they cannot overturn a hearing officer's decision if it is supported by substantial evidence.

[00:16:33] Speaker 03:
So they, again, when they looked at this record, I think what you see before you was a very carefully crafted decision that thoroughly examines the evidence, that considers the applicable law, and reaches a conclusion.

[00:16:47] Speaker 06:
If we cut to the chase, it now appears that the offense here was being absent without leave for a one-hour period.

[00:16:55] Speaker 06:
So why was the officer not absent without leave in that one hour period?

[00:17:02] Speaker 03:
So the question is, is there evidence in the record supporting the board's conclusions, which I think there is.

[00:17:08] Speaker 03:
What do you see, first of all?

[00:17:09] Speaker 06:
What is the evidence in the record to support the conclusion that he was not absent without leave for that one hour period?

[00:17:20] Speaker 03:
You begin with the charge, which was he was absent without leave.

[00:17:25] Speaker 03:
and you look at the investigation that was conducted, the explanation initially offered by the Capitol police is that there was a thorough investigation done and that they reached that conclusion.

[00:17:35] Speaker 06:
What the investigation... I don't understand, Oliver.

[00:17:38] Speaker 06:
Can't you just become very factual to the point?

[00:17:40] Speaker 06:
I think the argument today has highlighted, isolated exactly what it is that the Capitol police were saying, is there was a one-hour time period when your shift wasn't met.

[00:17:51] Speaker 03:
First of all, there is insufficient evidence in the record for that because

[00:17:55] Speaker 03:
The investigation, there was a sham investigation done.

[00:17:58] Speaker 03:
There was no investigation.

[00:17:59] Speaker 06:
Forget whether there was an investigation.

[00:18:01] Speaker 06:
I'll just take the facts, the core facts.

[00:18:05] Speaker 03:
The core facts are?

[00:18:07] Speaker 06:
That his shift ended at seven or seven fifteen?

[00:18:11] Speaker 03:
Seven o'clock, yes.

[00:18:12] Speaker 06:
Seven o'clock.

[00:18:13] Speaker 06:
He left at seven fifteen.

[00:18:15] Speaker 03:
After being relieved by an officer.

[00:18:18] Speaker 04:
By being relieved by... After, but his relief didn't turn up?

[00:18:21] Speaker 03:
No, that's not true.

[00:18:22] Speaker 03:
The station he was at,

[00:18:24] Speaker 03:
The reason why he stayed, his shift was over at 7 o'clock.

[00:18:26] Speaker 03:
He stayed to 715 because an officer came in to relieve him.

[00:18:30] Speaker 03:
That's why he left.

[00:18:30] Speaker 04:
Well, there was a gap, was there not, of at least 15 minutes when nobody was there?

[00:18:36] Speaker 03:
No, not at the shift that he was in.

[00:18:38] Speaker 03:
He was ordered to report to another station.

[00:18:43] Speaker 03:
And the evidence was that not a block clocked in at 729, but because there was no station to report to at 729, because the

[00:18:52] Speaker 03:
The CVC, the visitor center, doesn't open until 8.30.

[00:18:58] Speaker 03:
The only place they have to report to is at 8.15, which is when they start the screening.

[00:19:02] Speaker 04:
Let's look at this period between 7.15 and 7.29.

[00:19:05] Speaker 04:
Neither officer was present.

[00:19:10] Speaker 04:
Isn't that right?

[00:19:12] Speaker 03:
Whether there was another officer present, we don't know.

[00:19:15] Speaker 04:
We're talking about these two.

[00:19:17] Speaker 03:
We know what these two are, but because there was no investigation, because the officer who did the investigation never acknowledged that there was a 13-1-4.

[00:19:24] Speaker 04:
Well, the record is full of the position, undisputed as far as I could tell, that at least between 7-15 and 7-29, this position was not filled.

[00:19:37] Speaker 03:
Again, certainly there's evidence that law clocked in at 7-29.

[00:19:42] Speaker 03:
And at 715, consuls clocked out.

[00:19:45] Speaker 03:
But because there was no one.

[00:19:46] Speaker 04:
And that's not disputed.

[00:19:47] Speaker 04:
And again, where in the record I couldn't find it anyplace does it say that even though one clocked out at 715, the next one in at 729, they overlapped somehow?

[00:20:02] Speaker 04:
I don't think that's a matter in dispute, that there was no overlap.

[00:20:07] Speaker 03:
Well, what I do know is that what Sergeant Floyd, when he approved

[00:20:10] Speaker 04:
We're just talking about what's in the record.

[00:20:13] Speaker 03:
Right.

[00:20:13] Speaker 03:
What's in the record is that Sergeant Floyd was OK.

[00:20:17] Speaker 03:
He knew the law was going to be late.

[00:20:19] Speaker 03:
And he told Lieutenant McBride that when he asked the question whether there was any manpower need, he said, I'm OK.

[00:20:27] Speaker 03:
I'm good.

[00:20:28] Speaker 03:
So whatever this 15 minute gap was, it doesn't seem to have, certainly it was not the reason that the discipline was issued.

[00:20:35] Speaker 05:
Is there any evidence in the record that someone, whether it's Sergeant Floyd or anyone else,

[00:20:41] Speaker 05:
told Officer Konzos at 7 or 715.

[00:20:46] Speaker 05:
Yeah, it's OK for you to go now.

[00:20:49] Speaker 03:
There is no evidence, but there's also no.

[00:20:51] Speaker 05:
So now there's no evidence.

[00:20:53] Speaker 05:
And now we know that Captain Bollinger, who concluded that Officer Konzos was AWOL starting at 715, 716,

[00:21:06] Speaker 05:
Maybe it doesn't matter whether or not officer law ever showed up at a later point in time because of the fact that at that moment in time, Officer Konzos walked out the door knowing that there was no one to replace him.

[00:21:23] Speaker 03:
The evidence of the record, at least from Officer Konzos, was that no one ever calls into the sergeant.

[00:21:32] Speaker 03:
If you have a substitute that's replacing you,

[00:21:35] Speaker 03:
you don't call your superintendent and say, can I leave at the end of my shift?

[00:21:38] Speaker 03:
I mean, no one has ever done that in the history.

[00:21:41] Speaker 03:
And certainly, no one has ever been disciplined for that.

[00:21:43] Speaker 03:
There is no record of anyone ever being disciplined for leaving your shift at your scheduled time, knowing that there's a qualified substitute that's going to handle the unscheduled shift that you had been suddenly given.

[00:21:55] Speaker 03:
So that's what the evidence shows.

[00:21:57] Speaker 03:
And I think that's what the board relied on and the hearing officer relied on to say, this is pretext.

[00:22:04] Speaker 03:
The reason you gave in the command discipline was not true.

[00:22:07] Speaker 03:
I mean, you didn't look even to see whether there was a qualified substitute, even though your policy says he could qualify substitute.

[00:22:14] Speaker 06:
To me, it comes back to the question of whether or not, in this time period, the question was, was he absent without leave?

[00:22:22] Speaker 06:
And is there substantial?

[00:22:24] Speaker 06:
Obviously, the hearing examiner and the board concluded he was not absent without leave.

[00:22:28] Speaker 06:
So they're listening to the evidence about,

[00:22:30] Speaker 06:
What you're saying is there aren't any written requirements.

[00:22:33] Speaker 06:
You're not required to be signed out.

[00:22:35] Speaker 06:
Once you know somebody's coming, it's OK to leave.

[00:22:39] Speaker 06:
They knew somebody was coming.

[00:22:40] Speaker 06:
The sergeant knew somebody.

[00:22:42] Speaker 06:
So that's your view of the substantial evidence to support the conclusion, right?

[00:22:46] Speaker 03:
That's correct.

[00:22:47] Speaker 06:
And the other side is coming in now and saying, well, on this specific point,

[00:22:51] Speaker 06:
They're trying to make me believe that there are requirements, and that if you leave without being told it's okay to leave, then you're AWOL.

[00:23:01] Speaker 03:
And I think that point was very much in dispute during the hearing, and I think the way the hearing officer resulted is that it's not the way it works.

[00:23:08] Speaker 03:
that you're not required to call out.

[00:23:10] Speaker 06:
To your knowledge, are there any written requirements that say if you're being substituted 1301, you may not leave your position until you are granted permission to leave by sergeants or higher?

[00:23:24] Speaker 03:
There is nothing in writing about that.

[00:23:26] Speaker 03:
In fact, there were no written requirements that really deal with these last minute substitutions.

[00:23:31] Speaker 05:
Yeah, I thought the 1301 policy applies

[00:23:36] Speaker 05:
It's only contemplating situations where you learn about your new assignment to some shift more than 24 hours ahead of the beginning of the shift.

[00:23:46] Speaker 05:
And so for Officer Konzo's situation where he learned about it an hour before the new shift started would necessarily fit within the 1301 policy as it's expressed.

[00:23:59] Speaker 05:
Is that right?

[00:24:00] Speaker 03:
I think it's fair.

[00:24:00] Speaker 03:
I think the record established that the right to qualify

[00:24:04] Speaker 03:
substitution exists even on these last minute substitutions.

[00:24:08] Speaker 03:
But there isn't any established procedure in terms of when you have to get the form in or anything like that.

[00:24:13] Speaker 03:
That's what the policy has to deal with, that if you know well in advance, then you have to get the form in within 24 hours.

[00:24:20] Speaker 06:
And in this case, there was an actual 1301 papered up after the fact.

[00:24:25] Speaker 06:
But it was papered up so that the record shows that there was a substitute who served.

[00:24:29] Speaker 03:
That's correct.

[00:24:30] Speaker 03:
That's correct.

[00:24:35] Speaker 03:
If you have nothing further.

[00:24:37] Speaker 04:
OK.

[00:24:37] Speaker 04:
You've left a little time for your colleague.

[00:24:48] Speaker 04:
Are you directing us in a different direction?

[00:24:52] Speaker 00:
I would like to, but I would also just like to take a minute and perhaps go back to Judge Chen's hypothetical.

[00:24:58] Speaker 00:
And so then I'll go in a different direction if that's OK.

[00:25:01] Speaker 00:
All right.

[00:25:01] Speaker 00:
Use your time as you see fit.

[00:25:03] Speaker 00:
All right.

[00:25:03] Speaker 00:
Thank you, Your Honor.

[00:25:05] Speaker 00:
Good morning, and may it please the court.

[00:25:07] Speaker 00:
My name is Sarah Falman, and I'm honored to be here today to represent the intervener, the United States Capitol Police Labor Committee.

[00:25:14] Speaker 00:
And before I turn to the importance that this case has for the Labor Committee, I would, as I mentioned, like to address Judge Chen's hypothetical.

[00:25:23] Speaker 00:
And in that, he said, what happens if Officer X is assigned, Officer Y is then going to step in, but Y shows up late.

[00:25:30] Speaker 00:
and counsel for the Capitol Police stated, oh, it would be Officer X's fault.

[00:25:33] Speaker 00:
Well, the record evidence is clear.

[00:25:35] Speaker 00:
And the hearing officer considered this evidence that that's not true.

[00:25:40] Speaker 00:
And if you look at it.

[00:25:41] Speaker 04:
And they say it's his fault if he leaves the station totally unguarded.

[00:25:47] Speaker 04:
And as you know, these are difficult times that we live in.

[00:25:51] Speaker 04:
And there was at least that period from 715 to 729 when there was no one

[00:25:58] Speaker 04:
guarding this station.

[00:25:59] Speaker 04:
I think that's undisputed.

[00:26:01] Speaker 00:
Well, if you looked, if you look to the two examples that I'm going to point you at, which are at APPX.

[00:26:06] Speaker 04:
Let's talk about this case.

[00:26:08] Speaker 00:
Okay.

[00:26:09] Speaker 00:
Well, here, but this, it has a direct relevance here because in those instances, the post went completely unmanned.

[00:26:15] Speaker 00:
And what the Capitol police did is they ended up disciplining the officer who had agreed to be the substitute.

[00:26:22] Speaker 00:
not the officer who had arranged for the substitute.

[00:26:25] Speaker 04:
Because he didn't wait for his substitute to appear.

[00:26:28] Speaker 00:
But if you look also at the record and the numerous 1301s that have been admitted into evidence, there is no evidence in the record that shows that officers have to wait and do a kind of man-to-man exchange.

[00:26:41] Speaker 00:
The general practice is just as Officer Konzos followed.

[00:26:45] Speaker 00:
You have a substitute arranged, you assume that substitute is going to comply with what they have promised, the Capitol Police they will do,

[00:26:52] Speaker 00:
and show up.

[00:26:53] Speaker 00:
And so when Officer Konzos checked out at 715, he had been told that he had a proper substitute.

[00:27:00] Speaker 00:
The department knew by seven o'clock Lieutenant McBride had confirmed with Sergeant Floyd that he knew he had a substitute coming in.

[00:27:08] Speaker 00:
And so I would submit that on the evidence that the hearing officer considered, Officer Konzos followed the procedures that were required by the Capitol Police and so could not have been AWOL.

[00:27:21] Speaker 05:
Is it your view that officer law was AWOL from 7 a.m.

[00:27:26] Speaker 05:
to 7.29 a.m.?

[00:27:27] Speaker 00:
Unfortunately, there was no investigation into officer law.

[00:27:31] Speaker 05:
But just logically spinning out the fact pattern based on what you just said.

[00:27:36] Speaker 05:
Why wouldn't officer law be considered AWOL?

[00:27:40] Speaker 00:
Logically spinning that out and looking at the discipline that the Capitol Police has issued to officers in the past, it appears that officer law would have been the one to have been under investigation.

[00:27:50] Speaker 00:
And I think that brings us to why we're here today, and that it wasn't officer law.

[00:27:55] Speaker 00:
It was Chairman Consos.

[00:27:57] Speaker 00:
And why was it Chairman Consos?

[00:27:59] Speaker 00:
It was Chairman Consos because he communicated directly with then-Police Chief Dine about the problems that exist for Capitol Police officers when they are held over.

[00:28:11] Speaker 04:
Maybe that's why, but we really need to answer the question of whether it's appropriate.

[00:28:19] Speaker 04:
This Capitol Police, that is an extraordinarily responsible position.

[00:28:24] Speaker 04:
And for a person to walk away before the replacement arrives is something that you can't shrug off, no matter what else, no matter what rationale one looks for in the relationships and the concerns who tell us in the briefs that he's complained about the system of being asked to work.

[00:28:47] Speaker 04:
two consecutive shifts.

[00:28:50] Speaker 04:
Whether that was the reason perhaps the statement was being made has nothing to do with what happened.

[00:28:58] Speaker 04:
The question is, we know what happened.

[00:29:01] Speaker 04:
We know there was this 15-minute period at least where the position was unfilled.

[00:29:08] Speaker 04:
The question is, is there any authority to discipline the person who lets that happen?

[00:29:16] Speaker 04:
And you say no.

[00:29:17] Speaker 00:
I say no.

[00:29:18] Speaker 00:
I say under the way the Capitol Police implements the 1301 program in practice for these emergency holdovers, which is different from when you have more than 24-hour notice, it is a different situation.

[00:29:31] Speaker 00:
And the way the Capitol Police has in the past treated these situations, the way the officers have a system designed where they can find these very fast 1301 substitutes,

[00:29:43] Speaker 00:
that what Officer Konzos did was not against Capitol Police procedures and should not have subjected him to discipline.

[00:29:50] Speaker 04:
And I think the hearing officer had to... Well, why isn't that for the Capitol Police to decide?

[00:29:55] Speaker 00:
We had a two-day hearing where a hearing officer heard all of the information from the Capitol Police and heard the information from Officer Konzos and found, based on what he heard, that Officer Konzos simply was not AWOL.

[00:30:10] Speaker 00:
And we're here today.

[00:30:11] Speaker 00:
We have to give that

[00:30:12] Speaker 00:
some deference if there is any substantial evidence in the record and I think what we've been through showing that Officer Konzos had relief arranged.

[00:30:20] Speaker 00:
His supervisor knew the relief was arranged.

[00:30:22] Speaker 00:
His relief appeared.

[00:30:24] Speaker 00:
His relief was paid for the entire shift.

[00:30:26] Speaker 00:
All of that evidence is frankly more than substantial and supports the hearing officer's well-reasoned decision that Officer Konzos was not AWOL and because he was not AWOL

[00:30:38] Speaker 00:
that supports a finding that his protected union activity was a motivating factor in the department's actions.

[00:30:46] Speaker 05:
Is there some kind of regulation or policy within the Capitol Police you know of where these shifts, transfers happen all the time?

[00:30:54] Speaker 05:
One officer gets off a shift, a new officer comes on the shift.

[00:30:59] Speaker 05:
Is there any kind of regulation or policy that says before any

[00:31:05] Speaker 05:
officer leaves his shift, he has to see with his eyeballs the new guy coming in before he can walk away from, even though his shift has ended.

[00:31:17] Speaker 00:
To my knowledge, there is no such policy, and the hearing officer actually considered over 75 different 1301s, these forms, that were not fully completed for emergency situations like this, and that the United States Capitol Police had never had a problem with.

[00:31:33] Speaker 00:
Forms that were submitted after the fact,

[00:31:35] Speaker 00:
forms that weren't signed by all parties, forms that didn't have final supervisor approval.

[00:31:40] Speaker 06:
The fact is this issue... What you're really saying is, in your view, is that there is not a turn square corners military set of rules that are firmly enforced in every case, especially in these instances where somebody's being told as they walk off a shift, you have to get somebody else.

[00:31:56] Speaker 06:
So it's casual.

[00:31:58] Speaker 06:
There probably are gaps.

[00:32:00] Speaker 00:
Correct.

[00:32:01] Speaker 06:
There probably are.

[00:32:02] Speaker 06:
In your view, if we're worried about

[00:32:03] Speaker 06:
making certain that the post is always occupied.

[00:32:08] Speaker 06:
The flaw is in the casualness of the lack of turning square corners requirements by the agency.

[00:32:15] Speaker 00:
And Officer Kanzas in his capacity as chairman had been in contact with the chief of police to try and work out and try and figure out a way to address this issue and it had never been addressed.

[00:32:24] Speaker 00:
The only time the Capitol Police has come down on an officer for

[00:32:29] Speaker 00:
this kind of casual daily, almost daily 1301 occurrence is, we think, quite notably the day that the chairman decided to raise the issue again with the chief of police.

[00:32:41] Speaker 06:
Of all the examples that were cited in the 1301s, the punishment was to hold out either to somebody who didn't get a 1301 substitute or to a 1301 substitute who didn't show up on time.

[00:32:53] Speaker 00:
that's correct is that correct that is correct in the two examples that on miss indian pointed out at seven eighty five and seven ninety nine in both of those examples there was absolutely a p p x uh... seven eighty five and seven eighty nine uh... in both of those examples nobody came in there was absolutely no evidence that an actual thirteen oh one had been arranged in contrast here where officer law did arrive and work the shift

[00:33:23] Speaker 06:
If there were a system in place where there was a written requirement that says you may not leave your being a substance coming in 1301 process, but it is you may not leave your post until you are signed out by an office.

[00:33:47] Speaker 06:
Can you cite that?

[00:33:48] Speaker 06:
Is there a regulation to that effect?

[00:33:50] Speaker 01:
There is no specific regulation stating that you may not leave your post until you are signed out by another officer.

[00:33:58] Speaker 01:
There is a specific regulation stating that an officer who is assigned additional duty must work that additional duty unless specifically excused by the department.

[00:34:10] Speaker 01:
That's in both the CBA and it's in the, the Spotify substitute policy.

[00:34:14] Speaker 06:
Okay, I understand you're supposed to serve your, if you're told

[00:34:17] Speaker 06:
you have a shift you're supposed to do.

[00:34:19] Speaker 06:
And there is in place a system for allowing for substitutes.

[00:34:24] Speaker 06:
Is that correct?

[00:34:25] Speaker 01:
There is.

[00:34:25] Speaker 01:
But that system intuitively has built in a process by which the officers choosing to or electing to transfer their shift to another person must get consent to do that.

[00:34:39] Speaker 01:
So as part of the substitution.

[00:34:42] Speaker 06:
Is there a requirement that says the consent has to be in writing?

[00:34:47] Speaker 06:
before the shift occurs?

[00:34:49] Speaker 01:
There is a process by which it can be in writing.

[00:34:52] Speaker 01:
Is it required?

[00:34:54] Speaker 01:
I don't believe there's any evidence that it is required.

[00:34:58] Speaker 06:
You see where I'm coming from.

[00:35:00] Speaker 06:
We've now learned an awful lot about what went on.

[00:35:03] Speaker 06:
We've finally narrowed it down to a very narrow time frame in question.

[00:35:08] Speaker 06:
And from the point of view of your adversary and from the ministry, from the hearing officer,

[00:35:14] Speaker 06:
There seemed to be some evidence that the system for allowing the substitutes is sort of relaxed.

[00:35:20] Speaker 06:
I mean, it's not turned square corners with written requirements at every point along the way.

[00:35:26] Speaker 06:
And that, in fact, here, he was offered, he said, you may 1301 this if you want.

[00:35:34] Speaker 01:
Right?

[00:35:34] Speaker 01:
That's just repeating what's already in the agreement.

[00:35:38] Speaker 06:
But he was told, a sergeant told him he could get a substitute.

[00:35:42] Speaker 01:
That's true.

[00:35:43] Speaker 01:
But that's exactly what the CBA spells out for any officer.

[00:35:48] Speaker 01:
At any time, they can get a qualified substitute.

[00:35:50] Speaker 06:
And a substitute was obtained not by Cosgrove.

[00:35:54] Speaker 06:
Somebody else found the substitute, right?

[00:35:56] Speaker 06:
Mr. Law?

[00:35:57] Speaker 01:
Mr. Ford.

[00:35:58] Speaker 06:
Officer Ford.

[00:35:59] Speaker 06:
And he's a Sergeant Ford?

[00:36:01] Speaker 06:
He's an officer.

[00:36:02] Speaker 06:
Officer.

[00:36:03] Speaker 06:
But his sergeant knows this is going on.

[00:36:06] Speaker 06:
Before law shows up, a sergeant knows that this process is underway.

[00:36:11] Speaker 01:
The sergeant is aware, at the time, the evidence shows that at some point the sergeant became aware that another officer was supposed to be coming in for officer consoles.

[00:36:20] Speaker 06:
And that's before he showed up.

[00:36:21] Speaker 01:
That's before officer law showed up.

[00:36:25] Speaker 01:
That's part of what Lieutenant McBride's investigation uncovered.

[00:36:29] Speaker 01:
However, that does not in any way excuse officer consoles from leaving his post at 715.

[00:36:37] Speaker 06:
that an officer at some point is supposed to arrive.

[00:36:41] Speaker 06:
There is a requirement that he has to work it.

[00:36:49] Speaker 01:
And so getting a promise from another officer that somebody is supposed to be coming in and not having that essential consent piece

[00:36:57] Speaker 01:
handled before leaving is what the problem is in this case.

[00:37:01] Speaker 06:
And in the cases you cited to us where there's a glitch, if somebody who has agreed to come in and serve, they're the ones that get penalized if they don't come in on time.

[00:37:13] Speaker 01:
Only when there is a 1301 form that is completed and signed.

[00:37:17] Speaker 01:
Because once you have that, that means that the responsibility for working that shift has been transferred to the substituting officer.

[00:37:26] Speaker 01:
I've identified two cases in which an officer entered into a private agreement, much like officer condos, to have somebody work for them.

[00:37:34] Speaker 05:
Does 1301 apply in this circumstance, though, when the notice of the new shift is in less than 24 hours?

[00:37:43] Speaker 01:
So the 1301 policy does require 24 hours in advance to submit the notice.

[00:37:48] Speaker 01:
So for that reason,

[00:37:50] Speaker 01:
that portion of the policy likely does not apply.

[00:37:53] Speaker 01:
However, there is evidence in the record they still use the 1301 process.

[00:37:57] Speaker 01:
And critically here, Officer Konzos was told that he could 1301 it away, which is not what he did.

[00:38:03] Speaker 06:
They're using a process in violation of its own terms.

[00:38:07] Speaker 06:
The term says 24 hours in advance.

[00:38:09] Speaker 06:
So they have a casual system for having substitutes.

[00:38:13] Speaker 06:
They sort of hide the formalistic

[00:38:16] Speaker 06:
1301 into these last minute change situations.

[00:38:21] Speaker 01:
They have a system by which an officer... That's pretty sloppy, doesn't it?

[00:38:25] Speaker 01:
No.

[00:38:25] Speaker 01:
They have a system by which an officer who is drafted for additional duty at the last minute, which is the way our business operates, when something arises that he can still get someone else to work for him if he needs to do so.

[00:38:39] Speaker 01:
And that's the system that was in place here.

[00:38:41] Speaker 01:
But

[00:38:42] Speaker 01:
The critical piece of that is you need consent.

[00:38:45] Speaker 01:
You cannot just walk off a post.

[00:38:48] Speaker 01:
There is no evidence in the record that allows somebody to walk off a post when they haven't gotten consent in advance.

[00:38:56] Speaker 01:
And that's what happened here.

[00:38:57] Speaker 01:
The idea that the sergeants knew that someone was coming in

[00:39:01] Speaker 01:
does not excuse officer consuls for leaving his post at 7 to 10.

[00:39:06] Speaker 06:
If you have a 1301 that was done 24 hours in advance, and so your duty ended at 7 a.m., right?

[00:39:13] Speaker 06:
And it was all signed, sealed, and delivered in advance.

[00:39:15] Speaker 06:
Could the officer leave at 7 a.m.?

[00:39:18] Speaker 01:
Absolutely, because he's transferred his responsibility to the second officer.

[00:39:22] Speaker 06:
So at that point... But just stick with me for a second.

[00:39:24] Speaker 06:
But that's because the formalist at 1301 was complied with in advance.

[00:39:29] Speaker 01:
Absolutely.

[00:39:29] Speaker 06:
So the officer can walk off without being released, without being signed out, and he just can walk off.

[00:39:36] Speaker 01:
I want to be clear.

[00:39:37] Speaker 01:
The officer has been released.

[00:39:39] Speaker 01:
Once a 1301 form is completed, a supervisor has said this post is no longer in response to it.

[00:39:45] Speaker 06:
You're helping me out a lot, because we take this 1301 process into the current setting of this case, where there's no 24 hours in advance.

[00:39:53] Speaker 06:
We don't have a written rule that says, in this circumstance, you can't leave until you're told to leave.

[00:40:03] Speaker 06:
Help me, because we agree that if there had been a 1301 that was signed, sealed, and delivered in advance, the officer can just walk out and say goodbye.

[00:40:11] Speaker 06:
And if the sergeant said, well, the other fellow isn't here yet, you can say, too bad.

[00:40:15] Speaker 06:
That's his problem.

[00:40:17] Speaker 01:
Right.

[00:40:17] Speaker 01:
The critical component here is consent.

[00:40:19] Speaker 01:
A 1301 form is one of the ways one can obtain consent.

[00:40:23] Speaker 06:
So in this setting, a hearing officer, at least, and the board believed that there was a sufficient consent here because the officer was told he could 1301 it.

[00:40:36] Speaker 06:
Somebody was found, not by him, but somebody else.

[00:40:39] Speaker 06:
And they all knew that was going to happen.

[00:40:42] Speaker 01:
Right, going to happen down the road at some point someone was coming in.

[00:40:46] Speaker 06:
But the nature of the consent here will be different than the nature of consent in a true 1301 where the consent is simply by signing the form.

[00:40:53] Speaker 01:
The issue here isn't that Officer Konzos did not have a 1301 form.

[00:40:57] Speaker 01:
So for us, that is not the issue.

[00:40:59] Speaker 06:
What it sounds to me like the issue here was, was there or was there not consent?

[00:41:02] Speaker 01:
That is the issue.

[00:41:03] Speaker 01:
And it's absolutely critical to note that even Officer Konzos acknowledged there was no consent.

[00:41:09] Speaker 01:
He understood after he spoke with his Sergeant McElroy, who assigned him additional duty, even though Sergeant McElroy said, hey, look, you can 13 on one it away, he understood he still had to work.

[00:41:21] Speaker 01:
There is no evidence in the record that when an officer obtains via another officer confirmation that he will be having a substitute come in at some point, that at that point they can leave.

[00:41:33] Speaker 01:
There's simply nothing in the record that supports this.

[00:41:36] Speaker 05:
I'm just curious.

[00:41:37] Speaker 05:
Does the Capitol Police still have the policy where at the last second at the end of someone's shift, the Capitol Police can tell them to stick around and do the next shift?

[00:41:47] Speaker 01:
Absolutely.

[00:41:48] Speaker 01:
It's part of our CBA agreement.

[00:41:50] Speaker 05:
OK.

[00:41:51] Speaker 01:
I'm just curious.

[00:41:52] Speaker 01:
OK.

[00:41:53] Speaker 01:
And let me just touch on that slightly.

[00:41:55] Speaker 01:
The reason why we do this is because there has been identified in the shift coming up that there are gaps in

[00:42:04] Speaker 01:
our ability to secure the capital, which is the number one terrorist target in the world.

[00:42:10] Speaker 01:
And so when we identify gaps, that's why we draft people to work additional duty.

[00:42:15] Speaker 01:
We do it in accordance with the collective bargaining agreement.

[00:42:19] Speaker 01:
So it's been a procedure that's been negotiated with the union.

[00:42:23] Speaker 01:
And that's the procedure by which Officer Konzos was drafted.

[00:42:27] Speaker 01:
There's absolutely no reason that he could not stay and continue working additional duty

[00:42:33] Speaker 01:
as he is required to do by the CBA.

[00:42:36] Speaker 01:
It specifically states that you can only not work additional duty if you're excused.

[00:42:42] Speaker 01:
And there's no evidence that that happened here.

[00:42:45] Speaker 01:
No one at any point said to Officer Conzos, you can leave.

[00:42:50] Speaker 01:
That did not happen.

[00:42:52] Speaker 01:
And when he left, there was no one working in his stead.

[00:42:56] Speaker 01:
That's absolutely not in dispute here.

[00:42:58] Speaker 01:
Moreover,

[00:43:01] Speaker 01:
The board and the FOP stated that there was evidence of 1301s that had been submitted that weren't completed.

[00:43:08] Speaker 01:
Again, the issue here isn't whether or not there was a 1301 completed or not.

[00:43:13] Speaker 01:
We know there was not.

[00:43:14] Speaker 06:
What it tells us is that there is not turning square corners.

[00:43:20] Speaker 06:
It doesn't even tell us that, because frankly those 1301s don't tell us anything beyond the fact that they're incomplete.

[00:43:41] Speaker 01:
We don't know if the substitutions occurred because there was no testimony as to those facts.

[00:43:46] Speaker 06:
We don't know... Well, the fact that the agency accepted them even though they weren't completed and paid people for serving... We don't even know that.

[00:43:53] Speaker 01:
Yeah.

[00:43:54] Speaker 01:
That's my point.

[00:43:55] Speaker 01:
We don't know that.

[00:43:56] Speaker 01:
All we have are forms that show different stages of completion.

[00:44:00] Speaker 01:
We don't know whether they were the final forms.

[00:44:03] Speaker 01:
We don't know that.

[00:44:04] Speaker 01:
We don't know if the substitutions occurred.

[00:44:06] Speaker 01:
We don't know whether the person was given consent or denied consent.

[00:44:09] Speaker 01:
We have no idea what those forms showed, in part because they were submitted two weeks after the hearing occurred, and no evidence was submitted as to their meaning besides the general counsel's own arguments as to what they mean.

[00:44:23] Speaker 01:
That is not substantial evidence.

[00:44:27] Speaker 04:
OK.

[00:44:27] Speaker 04:
I think we have the issues as well as we can.

[00:44:31] Speaker 04:
Thank you all.

[00:44:32] Speaker 04:
Thank you for your time.

[00:44:33] Speaker 04:
The case is taken under submission.