[00:00:33] Speaker 03:
Okay, our next case is number 17-22-31, Boss versus DHS.

[00:01:10] Speaker 03:
Mr. Baranek.

[00:01:13] Speaker 04:
Yes, Your Honor.

[00:01:23] Speaker 04:
Good morning.

[00:01:24] Speaker 04:
May it please the court.

[00:01:25] Speaker 04:
My name is Michael Baranek on behalf of the Appellant Leonard Boss.

[00:01:29] Speaker 04:
In his appeal of Arbitrator McDowell's decision mitigating Appellant's 15-day suspension to a 10-day suspension,

[00:01:37] Speaker 04:
As the court knows, this case is about constitutional due process.

[00:01:41] Speaker 04:
There really is only one issue in this appeal, whether the arbitrator failed in addressing appellant's constitutional due process argument in favor of just addressing the contractual due process argument.

[00:01:52] Speaker 04:
As the court knows under laudermon essential element of due process, that the employee be on notice of not only the charges against him, but an explanation of the employer's evidence against him.

[00:02:03] Speaker 02:
Can I ask a question?

[00:02:04] Speaker 02:
Because your appendix sites don't seem quite right.

[00:02:06] Speaker 02:
So I want to make sure I've got the facts addressed here.

[00:02:09] Speaker 02:
So these three documents are all part of the same manual.

[00:02:12] Speaker 02:
Is that right?

[00:02:13] Speaker 04:
No, Your Honor.

[00:02:14] Speaker 04:
There's three different documents.

[00:02:16] Speaker 02:
All right.

[00:02:16] Speaker 04:
There's two that are legacy INS documents from the Department of Justice, and there's one document that's from the custom service or the legacy custom service as part of the Department of Treasury at the time.

[00:02:25] Speaker 02:
OK.

[00:02:25] Speaker 02:
So they all talk about sort of what the standards are, correct?

[00:02:30] Speaker 04:
They talk about

[00:02:31] Speaker 04:
that agency, the legacy agency's interpretations of the AUO rules that were in place at the time.

[00:02:37] Speaker 04:
Back in one from 1975, one from 1997, all of them predate the creation of CBP.

[00:02:44] Speaker 02:
But there's nothing in there that actually mentions Mr. Voss or talks about his behaviors.

[00:02:54] Speaker 02:
They're simply just background material relating to the standards, right?

[00:02:59] Speaker 04:
There are materials regarding each of those agencies, legacy agencies, interpretations of the AUO rules.

[00:03:05] Speaker 04:
Nothing specific to Mr. Boss, correct?

[00:03:07] Speaker 02:
And you didn't argue, as I understand it, that those documents relate to anything other than charge one.

[00:03:14] Speaker 02:
Is that right?

[00:03:15] Speaker 04:
Correct.

[00:03:16] Speaker 02:
But your argument is that even if charge one is ignored, it still infects the entire process?

[00:03:21] Speaker 04:
I believe so.

[00:03:21] Speaker 04:
Under the court's constitutional due process case law, if the arbitrator found

[00:03:28] Speaker 04:
constitutional violation of his due process rights, then the arbitrator or the board was required to set aside the discipline in its entirety in order for a constitutionally correct due process procedure to be in place.

[00:03:42] Speaker 03:
So you're agreeing that these three documents are not new and material evidence with respect to the other two charges?

[00:03:52] Speaker 03:
Correct.

[00:03:52] Speaker 04:
Not in relation to the other two charges, but definitely new and material.

[00:03:56] Speaker 03:
Why can't we consider it on a charge by charge basis?

[00:03:59] Speaker 03:
What case says that if it's not new and material evidence with respect to a charge, the fact that there was another charge as to which it was new and material means that you have to have a new procedure.

[00:04:15] Speaker 04:
I don't believe this court nor the Supreme Court has sanctioned such an approach where you look at due process on a charge by charge basis.

[00:04:22] Speaker 01:
Do you have any law that you can rely on for analogous areas of the law for that position?

[00:04:29] Speaker 01:
For example, in criminal context where there might be multiple different charges and there's a due process violation on one but not others, would that require a retrial on all charges?

[00:04:41] Speaker 01:
Do you know?

[00:04:43] Speaker 04:
I do not know, Your Honor.

[00:04:45] Speaker 04:
focus on the employment aspect, as far as the board case law and this court's case law, as far as the constitutional due process violation.

[00:04:52] Speaker 01:
The way I understand it, our court hasn't addressed this issue, nor has the Supreme Court.

[00:04:57] Speaker 01:
So looking to analogous areas of the law might be helpful.

[00:05:02] Speaker 01:
Did you haven't looked at any other areas of the law?

[00:05:05] Speaker 04:
No, I was focused on this court's case law, which I believe mandates, reversal mandates, the arbitrator at least assessing the constitutional due process violation

[00:05:14] Speaker 04:
before coming to the court.

[00:05:17] Speaker 04:
So I believe the arbitrator was required to at least address the constitutional due process violation, which he didn't.

[00:05:22] Speaker 04:
He focused strictly on a contractual due process violation.

[00:05:26] Speaker 02:
When you look at charges two and three, you don't argue that the Douglas factors were inappropriately applied, assuming the validity of those charges, do you?

[00:05:39] Speaker 04:
No, correct.

[00:05:40] Speaker 04:
The arbitrator, once he dismissed charge one, he was left with charges two and three.

[00:05:44] Speaker 04:
And under the court's case law, the arbitrator was entitled to do his own Douglas factor analysis on those remaining two charges, which is what he did.

[00:05:53] Speaker 01:
Is there anything in the record about how the decision maker came to have these three manuals?

[00:06:00] Speaker 04:
It was unclear from the cross-examination.

[00:06:04] Speaker 04:
It sounded like he was provided with the documents as part of the

[00:06:07] Speaker 04:
a packet of information that was provided to him.

[00:06:17] Speaker 04:
We've got that Appendix 878.

[00:06:19] Speaker 04:
It appears that he was provided that information as a part of the packet of information that was provided to him as opposed to the packet that was given to the appellant.

[00:06:27] Speaker 01:
How is it in ex-party communication?

[00:06:34] Speaker 04:
I don't think there should be a distinction between

[00:06:37] Speaker 04:
in ex parte verbal communication as opposed to somebody providing the documents to the decision maker.

[00:06:42] Speaker 04:
The information is still provided to the decision maker that wasn't given to the appellant in this case.

[00:06:47] Speaker 04:
I don't believe that it requires that there be some type of verbal communication as opposed to any type of documentary communication.

[00:06:55] Speaker 02:
What if the decision maker is sitting in their office and there's an employee manual sitting on their shelf.

[00:07:01] Speaker 02:
Are they allowed to look at the employee manual or do they have an obligation to say

[00:07:06] Speaker 02:
I looked at the employee manual that governs this conduct and so I therefore have to tell the employee that this very thing that might be available to the employee is something I'm looking at.

[00:07:18] Speaker 04:
I believe the design official does have that obligation and in my practice it happens routinely where a design official reviews other material either prior to or after the oral reply and we receive notice of that.

[00:07:31] Speaker 04:
The design official says I'm also considering this information

[00:07:34] Speaker 04:
and gives us the opportunity.

[00:07:35] Speaker 02:
But is it usually information that relates to factual background as it relates to the employee?

[00:07:41] Speaker 02:
Or are you talking about information that simply says, this is what the employee manual provides, for instance?

[00:07:49] Speaker 04:
I've had it in both contexts.

[00:07:50] Speaker 04:
One, where the design official goes out and does additional investigation, where he talks to other people.

[00:07:54] Speaker 04:
Other cases where he reviews other, he or she reviews other agency policies.

[00:07:59] Speaker 04:
Instead, I'm also going to learn

[00:08:01] Speaker 04:
rely on this agency policy or that agency policy and gives us the opportunity to address that additional information.

[00:08:07] Speaker 01:
How is this prejudicial at all to Mr. Boss for the decision maker to look at manuals that explained interpretations of the policies that were violated or alleged to have been violated?

[00:08:21] Speaker 04:
Because in there it has various examples of what is AU will qualify and what is not AU will qualify activity and that information Mr. Boss could have pointed to and said

[00:08:31] Speaker 04:
What I was doing falls under one of these other categories that should have been allowed to claim the AUO for that time period.

[00:08:38] Speaker 01:
But he could have looked at these manuals as well and made that kind of an argument.

[00:08:44] Speaker 01:
Again, these manuals weren't specific to Mr. Boss's behavior in terms of claim that they're prejudicial, like the kind of thing you'd see in Stone or in Sullivan.

[00:08:54] Speaker 04:
No, but Mr. Boss would have no idea that the design official would give that information any type of weight because

[00:09:00] Speaker 04:
None of those documents were in effect as far as CBP was concerned.

[00:09:04] Speaker 04:
One was a 1975 document from INS.

[00:09:07] Speaker 04:
One, I believe, was a 1997 document from the Customs Service that did not apply to CBP.

[00:09:12] Speaker 04:
So Mr. Boss would have no idea that the deciding official was even going to consider or would consider that type of information.

[00:09:18] Speaker 04:
Otherwise, Mr. Boss could have went to other agencies and tracked down documents from other agencies that don't apply to CBP, but asked the deciding official to consider that information.

[00:09:28] Speaker 03:
What Stone suggests is that the information has to be the kind of information that would prejudice the deciding official.

[00:09:39] Speaker 03:
I'm confused as to how this information is prejudicial even as to charge one.

[00:09:47] Speaker 03:
I mean, I'm not sure that it was correct to say that there was a Stone violation as to charge one.

[00:09:53] Speaker 04:
And that's what goes back to the arbitrator should under the court's jurisprudence be the one to make that initial assessment as far as whether it was new material and whether there was prejudice to Mr. Boss.

[00:10:03] Speaker 04:
That's what the court's case law says as far as the arbitrator in the first instance makes that determination.

[00:10:09] Speaker 03:
Well, we can review it.

[00:10:10] Speaker 03:
Suppose we were to conclude that there was no stone violation as to charge one.

[00:10:15] Speaker 03:
You'd lose, right, at that point?

[00:10:17] Speaker 03:
Correct.

[00:10:19] Speaker 02:
And with respect to charge three, you concede in charge three, right?

[00:10:22] Speaker 02:
Conduct, unbecoming?

[00:10:23] Speaker 04:
Charge two and three, both of those, I believe, were based on a factual determination from the arbitrator.

[00:10:28] Speaker 02:
And you just, your only debate is whether or not the punishment, the crime.

[00:10:34] Speaker 04:
Essentially, that the arbitrator should review the constitutional due process violation.

[00:10:39] Speaker 04:
If it found a violation, he received a new constitutionally correct procedure.

[00:10:45] Speaker 04:
where all of the charges would be able to be addressed based on all of the evidence that the deciding official was going to have in front of them.

[00:10:56] Speaker 03:
Anyone want to say for the rest of your time?

[00:10:58] Speaker 04:
Yes, sir.

[00:10:58] Speaker 03:
Thank you.

[00:10:59] Speaker 03:
OK.

[00:10:59] Speaker 03:
Thank you.

[00:11:03] Speaker 03:
Ms.

[00:11:03] Speaker 03:
Hercher?

[00:11:04] Speaker 00:
May it please the court, the court should affirm the arbitrator's decision in this case because the issue of whether there was a

[00:11:13] Speaker 00:
violation of procedural due process is first a issue on which this court exercises de novo review.

[00:11:21] Speaker 03:
And it is an issue... Does the government concede that there was a stone violation as to charge one?

[00:11:28] Speaker 00:
No, we do not.

[00:11:30] Speaker 00:
There was a violation with regard to the collective bargaining agreement.

[00:11:34] Speaker 00:
That's what the arbitrator found in this case.

[00:11:37] Speaker 00:
The arbitrator

[00:11:38] Speaker 00:
implicitly rejected all of the other arguments that were made, including the argument of about a constitutional violation.

[00:11:47] Speaker 02:
Well, when you say implicitly, the arbitrator just didn't address the constitutional violation.

[00:11:51] Speaker 02:
He said, clearly there's a violation of the collective bargaining agreement, so I'll just wipe out that charge and move on.

[00:12:01] Speaker 02:
But he didn't really address whether there was a constitutional violation, did he?

[00:12:06] Speaker 00:
We would contend that it's implicit, that there doesn't have to be an explicit, express part of the decision against the constitutional violation.

[00:12:18] Speaker 02:
But more than that... So our case law that says that the arbitrator has to assess the existence of a constitutional violation in the first instance means that they just don't have to say anything?

[00:12:31] Speaker 00:
No, that's not what we're contending.

[00:12:34] Speaker 00:
the arbitrator does make the decision in the first instance on issues that are presented, but in this case it is the burden to obtain a reversal on appeal.

[00:12:46] Speaker 00:
It is the burden of the employee to demonstrate, first of all, that there is evidence in the record that could support a determination of

[00:12:59] Speaker 00:
a constitutional violation.

[00:13:02] Speaker 00:
And what this court needs to ask is, where is that evidence in this record?

[00:13:08] Speaker 03:
Well, does the government contend that there was not a constitutional violation with respect to charge one?

[00:13:13] Speaker 00:
Yes.

[00:13:14] Speaker 00:
That is exactly our argument that there was no constitutional violation at all.

[00:13:19] Speaker 00:
That is what we are contending.

[00:13:21] Speaker 02:
But first, let me just understand your point, though, here.

[00:13:25] Speaker 02:
So are you saying, hypothetically, what if

[00:13:28] Speaker 02:
What if these documents related specifically to other activities of Mr. Boss?

[00:13:34] Speaker 02:
So there were kinds of things that fall squarely within stone.

[00:13:40] Speaker 02:
This is part of the hypothetical.

[00:13:42] Speaker 02:
And they spilled over, or at least arguably spilled over, to all the other charges.

[00:13:48] Speaker 02:
Then you're saying that the arbitrator didn't have an obligation to assess it, and we're supposed to assess it in the first instance?

[00:13:57] Speaker 00:
We have argued in the alternative.

[00:14:00] Speaker 00:
First of all, our first argument is that there is no constitutional violation with regard to charge one or any of the charges or with regard to the penalty because, importantly, the nature of the documents.

[00:14:14] Speaker 00:
As this court has recognized, these are just simply reference documents.

[00:14:20] Speaker 00:
Only two of the documents were introduced at trial, the third

[00:14:24] Speaker 00:
is totally irrelevant, was never introduced into evidence.

[00:14:29] Speaker 00:
The two documents, the first one is the 1997 training guide.

[00:14:37] Speaker 00:
That's in the appendix at pages 149 to 217.

[00:14:41] Speaker 00:
The second document is the three-page custom directive, which is in the appendix at pages 1227 to 1230.

[00:14:52] Speaker 00:
As the deciding official testified with regard to the training guide, it was a reference material.

[00:14:59] Speaker 00:
He said that this is the document that I'm paraphrasing now.

[00:15:04] Speaker 00:
His actual testimony is at page 877.

[00:15:07] Speaker 00:
He said, this is the document that most chiefs utilized.

[00:15:13] Speaker 00:
Everybody refers to it.

[00:15:16] Speaker 00:
When something is discussed about AUO, we go to this document.

[00:15:20] Speaker 00:
It's a reference document.

[00:15:21] Speaker 00:
That's actually the third document, right?

[00:15:23] Speaker 02:
Because the second one's not in the record, as far as I can tell.

[00:15:26] Speaker 00:
I'm not quite sure how you're numbering the documents, Your Honor.

[00:15:31] Speaker 03:
One of the three is not in the record.

[00:15:34] Speaker 00:
One of the documents is not in the record.

[00:15:36] Speaker 00:
It's a three-page excerpt, right?

[00:15:37] Speaker 01:
Excuse me?

[00:15:38] Speaker 01:
It is a three-page excerpt.

[00:15:40] Speaker 01:
The document that's not in the record is a three-page excerpt.

[00:15:44] Speaker 00:
Is that correct?

[00:15:45] Speaker 01:
Yes, it's a three-page document.

[00:15:46] Speaker 01:
How are we supposed to assess that when it's not in the record?

[00:15:50] Speaker 00:
It's the employee's burden to adduce evidence that would demonstrate a due process violation, evidence that could support a finding of a due process violation.

[00:16:06] Speaker 00:
Mr. Boss never introduced that document into the record.

[00:16:12] Speaker 00:
So it's not before the court.

[00:16:13] Speaker 00:
It becomes irrelevant.

[00:16:16] Speaker 01:
Let me ask you.

[00:16:17] Speaker 01:
I was thinking about this, and I was thinking, well, we've got this document, we've got the arbitrator saying that this document, which we don't have a copy of, doesn't relate to the first charge.

[00:16:26] Speaker 01:
So that concerned me a little bit.

[00:16:28] Speaker 01:
But I heard Mr. Boss's counsel say today that they agree that none of the documents relate to the first charge.

[00:16:35] Speaker 01:
So does that resolve the issue, you think?

[00:16:40] Speaker 00:
As I understand it, the arbitrator found, in his opinion, that the documents relate only to charge one.

[00:16:46] Speaker 00:
And there's no dispute.

[00:16:47] Speaker 00:
There's no dispute here.

[00:16:49] Speaker 00:
They're not challenging that factual finding for lack of substantial evidence.

[00:16:54] Speaker 00:
The only issue before the court is whether there is evidence in the record that could support the finding of a violation of Mr. Boss's right to procedural due process.

[00:17:07] Speaker 00:
It's our contention that there is no such evidence in the record.

[00:17:11] Speaker 00:
And therefore, it doesn't warrant a remand.

[00:17:15] Speaker 01:
Why do we not remand back for the arbitrator to make that termination the first instance since the arbitrator did not expressly address this issue?

[00:17:25] Speaker 00:
Because first of all, it's an issue upon which this court exercises de novo review.

[00:17:32] Speaker 00:
Secondly, because it's the burden of the employee to put the evidence in the record and then be able to present to this court

[00:17:42] Speaker 00:
to demonstrate, based on the record, that there could have been a finding of a due process violation.

[00:17:48] Speaker 00:
And that has not been done in this case.

[00:17:50] Speaker 03:
But you're also arguing, aren't you, that even if there was a due process violation with respect to charge one, it didn't infect charges two and three?

[00:18:00] Speaker 00:
Even with respect to charge one.

[00:18:02] Speaker 03:
As we pointed out, these- No, no, but is my statement correct?

[00:18:06] Speaker 03:
that the government argues that even if there were a due process violation with respect to charge one, it doesn't infect charges two and three.

[00:18:15] Speaker 00:
The government argued below, before the arbitrator, that there was no constitutional violation.

[00:18:23] Speaker 03:
Wait.

[00:18:23] Speaker 03:
Why is this a hard question?

[00:18:25] Speaker 01:
Excuse me?

[00:18:26] Speaker 03:
Why is this a hard question?

[00:18:27] Speaker 01:
It's on the last page of your brief.

[00:18:29] Speaker 01:
You have an alternative argument where you say, even if there were a due process violation on charge one,

[00:18:35] Speaker 01:
there isn't a due process violation on charges two and three.

[00:18:39] Speaker 01:
Is that correct?

[00:18:40] Speaker 01:
It's your alternative argument.

[00:18:41] Speaker 00:
That's the alternative argument.

[00:18:42] Speaker 00:
But the court, as I'm pointing out, doesn't need to get there, because there isn't evidence.

[00:18:48] Speaker 03:
Why are you running away from that argument?

[00:18:51] Speaker 03:
You don't like the argument?

[00:18:53] Speaker 00:
No.

[00:18:53] Speaker 00:
I mean, it is an argument we made in the alternative.

[00:18:56] Speaker 00:
But I think the easiest.

[00:18:57] Speaker 03:
You believe it?

[00:18:57] Speaker 03:
Is it correct?

[00:18:58] Speaker 00:
Certainly, we believe it's correct.

[00:19:00] Speaker 00:
And this court, but as I think has already been pointed out,

[00:19:05] Speaker 00:
It's an issue the court has never addressed.

[00:19:08] Speaker 00:
And therefore, we think it's easier just to simply look at the record.

[00:19:13] Speaker 00:
And the record doesn't contain evidence that would support a constitutional violation, even with regard to charge one and even with regard to the penalty.

[00:19:24] Speaker 03:
Specifically, what happens in the criminal context where there is a constitutional violation because the prosecution doesn't turn over exculpatory evidence

[00:19:34] Speaker 03:
and the exculpatory evidence only relates to one of the charges?

[00:19:39] Speaker 00:
Yes, with regard to the criminal context.

[00:19:41] Speaker 00:
In the criminal context, there are often separate criminal counts.

[00:19:49] Speaker 00:
And what happens in the criminal context is it's analyzed in terms of whether there is a constitutional violation that results in a harmful error.

[00:20:00] Speaker 00:
And if there is a harmful error with regard to

[00:20:04] Speaker 00:
a harmful constitutional error with regard to, say, Count A. Count A, on which you were found guilty, is vacated.

[00:20:14] Speaker 00:
That part of the judgment is vacated.

[00:20:17] Speaker 00:
If there is no constitutional harmful error with regard to Count B, and you were found guilty by the jury, that remains in place.

[00:20:26] Speaker 00:
And the case is then

[00:20:28] Speaker 00:
remanded to the district court for appropriate.

[00:20:31] Speaker 02:
That's a bit of an overstatement, because you have to do an assessment as to whether it infects the jury's assessment of the other counts.

[00:20:40] Speaker 02:
Yes, that's where there are separate counts.

[00:20:42] Speaker 02:
But even when there are separate counts, a constitutional violation as to one can infect the jury's consideration as the other, depending on what the constitutional violation is.

[00:20:55] Speaker 02:
Sometimes you can separate it out, sometimes you cannot.

[00:20:59] Speaker 00:
I think that's fair.

[00:21:00] Speaker 00:
I think that's certainly fair.

[00:21:02] Speaker 03:
What happens particularly in the context of exculpatory evidence?

[00:21:07] Speaker 03:
Let's say that there are two charges.

[00:21:10] Speaker 03:
One, a theft taking place on January 20th and a theft taking place on February 1st.

[00:21:16] Speaker 03:
And the prosecution withholds exculpatory evidence that the defendant has an alibi on February 1st.

[00:21:24] Speaker 03:
Does only the February 1st charge get set aside or also the January 20th charge?

[00:21:29] Speaker 00:
If there's only a harmful error with regard to charge A and no harmful error with regard to charge B, two separate charges, then only... But I don't... Maybe you don't know the answer to my question, but I don't think a general answer suffices.

[00:21:44] Speaker 03:
Do you know what happens in that circumstance?

[00:21:47] Speaker 00:
I can provide a citation with regard to what I'm saying about the... If there are two separate charges,

[00:21:53] Speaker 00:
Charge A and Charge B, and guilty verdicts separate.

[00:21:58] Speaker 03:
But as Judge O'Malley points out, in a general manner, the question is whether it carries over or whether it affects the other charge.

[00:22:04] Speaker 03:
And I'm asking a specific question in a context which seems perhaps somewhat similar to this, about withholding his calculatory evidence.

[00:22:14] Speaker 03:
Maybe you don't know the answer.

[00:22:16] Speaker 00:
No, I don't have anything specific to the court's hypothetical.

[00:22:20] Speaker 00:
I do have citations for what I've stated.

[00:22:23] Speaker 00:
with regard to the issue of what's in the record here.

[00:22:27] Speaker 01:
Can you provide those citations for what you've stated?

[00:22:30] Speaker 01:
You said you have citations.

[00:22:32] Speaker 00:
Yeah, but I don't have it with me.

[00:22:33] Speaker 00:
I can provide it to the court.

[00:22:34] Speaker 00:
I'm sorry.

[00:22:35] Speaker 00:
It's a criminal case about harmful error and separate charges, which I found last night.

[00:22:44] Speaker 00:
I should have brought it.

[00:22:45] Speaker 00:
I apologize.

[00:22:46] Speaker 03:
While you're at, why don't you provide the answer to my question.

[00:22:50] Speaker 03:
question as to what happens in the exculpatory evidence context.

[00:22:56] Speaker 00:
No, I don't have that.

[00:22:58] Speaker 03:
I know you don't have it.

[00:22:59] Speaker 03:
I ask you to provide it.

[00:23:01] Speaker 00:
Yes, Your Honor.

[00:23:02] Speaker 03:
When you provide the answer to Judge Stolls.

[00:23:05] Speaker 00:
Yes, Your Honor.

[00:23:09] Speaker 00:
Excuse me, but with regard to the direct issue of whether there's evidence in the record that could support a finding that

[00:23:19] Speaker 00:
of a due process violation under this court's decision in the Stone case.

[00:23:25] Speaker 00:
As was pointed out, there's not a ex parte communication here, but also there's not evidence in the record that would support the other two prongs of the Stone test.

[00:23:40] Speaker 00:
Firstly, as we pointed out in our brief, there has to be new and material evidence, and that is looked at

[00:23:46] Speaker 00:
in the context of all of the evidence that was provided to the employee.

[00:23:53] Speaker 00:
In this case, the employee was given the – Mr. Boss was given the full investigatory reports.

[00:24:01] Speaker 00:
Those reports included the November 10, 2010 AUO policy.

[00:24:08] Speaker 00:
That's the policy that was alleged to be violated in Charge 1.

[00:24:15] Speaker 00:
And what that policy said is that AUO hours unrelated to processing suspects or not ordered by the supervisor must be worked in the field except for 15 minutes, which was allowed for completion of administrative duties.

[00:24:34] Speaker 00:
That policy was contained in an email Mr. Boss admitted that he knew of the policy and that it was also given him a copy of the policy.

[00:24:44] Speaker 00:
So there is nothing in these, if the court looks at the two documents at issue, there's nothing in the two documents that could constitute new and material evidence.

[00:25:01] Speaker 00:
There's nothing that's probative of whether Mr. Boss committed the misconduct alleged in charge one.

[00:25:12] Speaker 00:
There's nothing in the documents that makes it more likely than not that he committed the misconduct in charge one.

[00:25:20] Speaker 00:
There's also nothing in the documents that bears on penalties or discipline or whether there should be any penalty at all in this circumstance.

[00:25:36] Speaker 00:
These documents don't meet the part of the stone test

[00:25:41] Speaker 00:
which asks whether the document or the communication is of a type likely to cause prejudice.

[00:25:48] Speaker 00:
These are just merely reference documents.

[00:25:52] Speaker 00:
They're not documents that would, as I said, they're not probative of whether Mr. Boss committed the misconduct alleged in Charge 1, and they're not probative of any, whether there should be discipline at all.

[00:26:08] Speaker 03:
Okay, thank you, Ms.

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

[00:26:09] Speaker 00:
Thank you.

[00:26:14] Speaker 04:
Just briefly, Your Honors, I wanted to address the 2010, quote, AUO policy, close quotes that my colleague on the other side was talking about.

[00:26:25] Speaker 04:
The policy that Council was talking about is an email message from a single patrol agent in charge to that station.

[00:26:32] Speaker 04:
It's not an agency policy.

[00:26:34] Speaker 04:
It was the patrol agent in charge interpretation of AUO.

[00:26:39] Speaker 02:
Why didn't you introduce the three-page document, what the arbitrator lists as number two?

[00:26:44] Speaker 02:
into the arbitration proceeding.

[00:26:48] Speaker 04:
I don't recall why that was not admitted.

[00:26:50] Speaker 04:
The other two documents seem to be more comprehensive than the three-page document that wasn't included.

[00:26:56] Speaker 04:
As far as the documents that were included at appendix page 153 and 154, I believe those documents would be exculpatory in nature towards charge one because at pages 153 and 154 it talks about the employee

[00:27:11] Speaker 04:
decides when to continue AUL as opposed to the email message that counsel just referenced as far as being the agency policy at issue in this case.

[00:27:20] Speaker 04:
So I believe there certainly would be a constitutional due process issue for the arbitrator to address and we would ask that the court remand it to the arbitrator for the arbitrator to address in the first instance.

[00:27:33] Speaker 04:
I know the court is a full docket today if there's no more questions we would submit.

[00:27:38] Speaker 03:
Okay thank you.

[00:27:39] Speaker 03:
Thank you counsel and the case is submitted.