[00:00:00] Speaker 03:
The final case for argument is 24-1820, Cruz versus DHS.

[00:00:10] Speaker 00:
May I please record?

[00:00:11] Speaker 00:
Lorenzo Palomar, Stockbrook.

[00:00:13] Speaker 00:
I'm representing Edwin Cruz, the appellant, who's here present in the courtroom.

[00:00:18] Speaker 00:
We are appealing a magic system protection ward decision

[00:00:23] Speaker 00:
that contradicts the very essence of the case history of this court with respect to personal matters.

[00:00:32] Speaker 00:
My client never violated a rule, never violated a law.

[00:00:39] Speaker 00:
My client did have an extramarital affair prior to Mr. Baquero, who was temporarily his supervisor, who had

[00:00:52] Speaker 00:
and continue to have an extramarital relationship with the same female officer.

[00:01:02] Speaker 00:
Unfortunately for my client, the relationship had already ended.

[00:01:10] Speaker 00:
It was no longer in existence.

[00:01:12] Speaker 00:
In the record and in our appendix, you can see that

[00:01:20] Speaker 00:
During the alleged now stipulated relationship, my client's reviews were exceeding expectations.

[00:01:30] Speaker 00:
Not only had he received the highest honor DHS has ever conveyed upon a civil servant,

[00:01:37] Speaker 00:
which was the Eagle Award.

[00:01:38] Speaker 00:
He also had an exemplary military career retiring as a major.

[00:01:44] Speaker 03:
I appreciate everything you're saying, but the charges were the charges and they were sustained and there was conduct on becoming a supervisor.

[00:01:51] Speaker 00:
Yes.

[00:01:52] Speaker 03:
There was misuse of government property.

[00:01:54] Speaker 03:
And there was use of government property for other than official purposes.

[00:01:58] Speaker 03:
So you've got to demonstrate to us, I think, how the merit systems protecting the ordinance judgment sustaining those charges aired.

[00:02:07] Speaker 00:
Because the opinion does not say how.

[00:02:09] Speaker 00:
Because first and foremost, the conduct on becoming the basis of this court president in various cases is that conduct that is private in nature

[00:02:21] Speaker 00:
is often seldom or sufficient to remove an individual from civil service.

[00:02:28] Speaker 03:
Do we have cases where it was someone in a supervisory capacity having that relationship as opposed to just someone having an extramarital affair on the outside?

[00:02:41] Speaker 00:
Well, come or come becoming, it has to deal with the agency.

[00:02:46] Speaker 00:
This nothing that he did had to do with the agency.

[00:02:50] Speaker 00:
The use of folds!

[00:02:52] Speaker 01:
the agency in the in the in the in the in the in the in the in the in the in the in the in the in the in the in the in the in the in the in the

[00:03:20] Speaker 01:
a potential nexus to the agency, doesn't it?

[00:03:23] Speaker 00:
But it never happened, Judge.

[00:03:25] Speaker 00:
It never happened.

[00:03:26] Speaker 00:
That's a composition.

[00:03:28] Speaker 03:
Well, that's a different charge, though.

[00:03:31] Speaker 03:
What never happened?

[00:03:32] Speaker 03:
I mean, there's no dispute on that.

[00:03:34] Speaker 00:
When I cross-examined the deciding officer of the agency, and it's in the record, I asked her if anything of the functions that my client was supposed to do or the purpose of the agency

[00:03:51] Speaker 00:
which is to protect our borders.

[00:03:52] Speaker 00:
Did illegal agents come in?

[00:03:54] Speaker 00:
Obviously, it was not.

[00:03:56] Speaker 00:
Did contraband come in?

[00:03:58] Speaker 00:
Obviously, not.

[00:04:00] Speaker 03:
So what's your view of the law here, that if they needed to show that somehow the actual work was?

[00:04:10] Speaker 00:
The efficiency of the service mandates that, Judge.

[00:04:12] Speaker 03:
It has to be.

[00:04:14] Speaker 03:
Isn't the fact that a supervisor is having an extra relationship with his employee, I think this is what Judge Hughes was suggesting, have ramifications for the workforce and the orderly workforce?

[00:04:25] Speaker 03:
And the agency would not be allowed to say, no, you can't have relations with your supervisors because you would argue that it doesn't affect the efficiency of the service?

[00:04:35] Speaker 00:
From the record, you can withdraw from the fact that this other officer was five or six levels below him, my client, and he had no direct or indirect supervision of this person.

[00:04:50] Speaker 03:
Well, I don't know what that means.

[00:04:51] Speaker 03:
If you're five levels above someone, then you even have

[00:04:54] Speaker 03:
more authority over that person.

[00:04:57] Speaker 03:
There may have been people in between, and he had authority of this person to this person to this person.

[00:05:04] Speaker 03:
It's chain of command, right?

[00:05:06] Speaker 00:
It is chain of command, of course, but he was not in any way associated with the reviews of this employee.

[00:05:16] Speaker 03:
But he could have been if he had wanted to, because he was up in the chain of command.

[00:05:19] Speaker 03:
He had more authority than anyone else.

[00:05:23] Speaker 00:
But are we firing a civil servant because of something could have happened that never happened, Judge?

[00:05:27] Speaker 00:
That's the question for this court.

[00:05:30] Speaker 00:
And I submit to you that it never happened.

[00:05:32] Speaker 01:
Well, the charge wasn't that he gave her unfavorable positive reviews or benefited in some way.

[00:05:39] Speaker 01:
It was conduct unbecoming.

[00:05:41] Speaker 01:
And so it's the conduct itself, the relationship.

[00:05:46] Speaker 00:
Conduct unbecoming has been

[00:05:48] Speaker 01:
rule i i i get what you're arguing that i've never seen a case of ours that said an agency can't discipline a superior subordinate relationship you have plenty of cases that talk about employees on the same level or not in the chain of command that's a different thing but that's exactly what i brought to the agency

[00:06:13] Speaker 00:
considering officer, which was Ms.

[00:06:15] Speaker 00:
Durst.

[00:06:16] Speaker 00:
She could have downloaded chapter 45, demoted him.

[00:06:20] Speaker 00:
And we wouldn't be here.

[00:06:23] Speaker 00:
She could have demoted him.

[00:06:25] Speaker 00:
She had the authority.

[00:06:26] Speaker 00:
She didn't do it.

[00:06:28] Speaker 00:
She terminated him from civil service.

[00:06:31] Speaker 00:
So she had on the title of chapter 45, she could have demoted him.

[00:06:37] Speaker 00:
And we wouldn't be here.

[00:06:38] Speaker 00:
But they applied Chapter 75, and they removed them from service.

[00:06:42] Speaker 00:
And what's really intrinsic here is that Mr. Macero, who was having the same affair, and now we have a love triangle, was there temporarily.

[00:06:55] Speaker 00:
And if my client would have positioned for us that seat, he would have exceeded anything that

[00:07:05] Speaker 00:
The charging officer on the accusing supervisor on a temporary basis was to be able to compete with a job offering at the agency.

[00:07:18] Speaker 00:
And that's all intrinsic in this evidence here.

[00:07:22] Speaker 00:
So my argument is,

[00:07:26] Speaker 00:
The opinion of the court does not support even their own standards under Douglas versus Veterans Administration.

[00:07:35] Speaker 00:
The opinion does not articulate any reason other than it's harsh, but it's reasonable.

[00:07:44] Speaker 00:
And that concludes it.

[00:07:45] Speaker 00:
You don't destroy a 20-year civil servant performance with these types of awards.

[00:07:56] Speaker 00:
on the speculation.

[00:07:57] Speaker 00:
It never happened.

[00:08:00] Speaker 00:
It simply did not happen.

[00:08:03] Speaker 00:
There was an ulterior motive here.

[00:08:05] Speaker 00:
It's intrinsic in here.

[00:08:07] Speaker 00:
I've been working for this case now for almost five years.

[00:08:11] Speaker 00:
So I tried the case at the American system.

[00:08:15] Speaker 00:
I responded to the agency.

[00:08:18] Speaker 00:
And my letters are all in the appendix.

[00:08:21] Speaker 00:
And this does not rise to the level of conduct on becoming an officer.

[00:08:29] Speaker 00:
On becoming an officer is if you commit a violation of law.

[00:08:36] Speaker 00:
It's even on the record.

[00:08:38] Speaker 00:
The other husband and this other officer had a marital incident where the other officer threatened to use the government-issued firearm.

[00:08:49] Speaker 00:
We don't know, it's not before the court.

[00:08:52] Speaker 00:
But that's conduct on becoming.

[00:08:55] Speaker 00:
My client didn't do that.

[00:08:58] Speaker 00:
So the use of cell phones, they did not identify a single call that my client used for purposes.

[00:09:08] Speaker 00:
Yes, there is a policy on cell phones and it's not prohibiting the use of private

[00:09:16] Speaker 03:
And what about government property?

[00:09:18] Speaker 03:
That was undisputed, right?

[00:09:21] Speaker 00:
He kissed her in the garage, just like the other officer did.

[00:09:25] Speaker 03:
Wasn't there a conference room involved, too?

[00:09:27] Speaker 00:
Well, it was Lee's property, not government property.

[00:09:32] Speaker 00:
It was Lee's.

[00:09:32] Speaker 03:
Oh, so we can make that distinction even though the government has to go over it?

[00:09:35] Speaker 00:
No, I'm not asking the court to make that distinction, Judge.

[00:09:37] Speaker 00:
I'm not asking the court to do that.

[00:09:40] Speaker 00:
It was always Lee.

[00:09:43] Speaker 00:
jurisdiction issues with leaving lease property.

[00:09:47] Speaker 00:
But the thrust of the matter is that the opinion of the Merit System Protection Board, which my understanding has always been, and I've been working with this agency probably for 10 or 15 years already, that it is to protect the civil servant from a broad

[00:10:10] Speaker 00:
agency disparities.

[00:10:13] Speaker 00:
And this is the space that's before you.

[00:10:16] Speaker 00:
My client did not.

[00:10:18] Speaker 00:
He's always upheld.

[00:10:20] Speaker 00:
Because if his conduct don't be coming, it should have been brought up when his reviews came to me.

[00:10:29] Speaker 00:
Not two years later, after it's all been terminated,

[00:10:37] Speaker 00:
And now the other guy continues, and he's my client's boss temporarily.

[00:10:44] Speaker 00:
So I really don't know what to say other than that the opinion speaks for itself.

[00:10:52] Speaker 00:
It's conclusory.

[00:10:55] Speaker 00:
It's my opinion bias.

[00:10:57] Speaker 00:
It does not consider this court's precedence.

[00:11:01] Speaker 00:
and utilizes the standards set forth by Douglas versus veteran administration in no way, shape, or form.

[00:11:09] Speaker 00:
All the court says, well, well, it's harsh.

[00:11:12] Speaker 00:
It's reasonable.

[00:11:13] Speaker 00:
That's not.

[00:11:13] Speaker 00:
That's a conclusory statement of law.

[00:11:18] Speaker 00:
And the court, in my opinion, had to go beyond that and say, why is it reasonable?

[00:11:25] Speaker 00:
It never did that.

[00:11:29] Speaker 03:
Why don't you save with the remainder of your bottle.

[00:11:32] Speaker 03:
Thank you.

[00:11:33] Speaker 03:
Thank you.

[00:11:43] Speaker 03:
You can help me pronounce your name.

[00:11:45] Speaker 04:
Of course.

[00:11:47] Speaker 04:
Good morning, Your Honors.

[00:11:48] Speaker 04:
I'm Vijaya Serampudi.

[00:11:49] Speaker 04:
I'm here for the respondent, the Department of Homeland Security.

[00:11:52] Speaker 04:
May it please the court.

[00:11:55] Speaker 04:
The MSPB decision should be affirmed for three reasons.

[00:11:58] Speaker 04:
First, Mr. Cruz's arguments attempting to cast doubt on the board's decision do not counter the substantial uncontested evidence that supports all three charges of misconduct.

[00:12:10] Speaker 04:
Second, there was substantial evidence to support a nexus between Mr. Cruz's sexual relationship with a subordinate within his chain of command to the efficiency of his duties

[00:12:20] Speaker 04:
as the area port supervisors, and in addition, with respect to the loss of trust and confidence that the agency had with Mr. Chu.

[00:12:30] Speaker 03:
I can't remember the details of this.

[00:12:31] Speaker 03:
There was some discussion in the briefs about this agency policy or guideline or something.

[00:12:37] Speaker 03:
And was that in effect at the time, or did that come into effect afterwards?

[00:12:41] Speaker 03:
And if so, does that matter in this case?

[00:12:45] Speaker 04:
In simple point, it does not matter.

[00:12:48] Speaker 04:
I think you're referring to is the CBP Fraternization with Supervisors policy that was enacted after the disciplinary actions were taken.

[00:12:57] Speaker 04:
That policy was not in place at the time that the disciplinary action was taken by the deciding officials.

[00:13:06] Speaker 04:
So it's really hard to say that you could apply that fraternization policy to a decision that's already been made.

[00:13:13] Speaker 04:
So in terms of the standards of conduct,

[00:13:16] Speaker 04:
It is clear that the CBP standards of conduct does not limit any actions disciplinary, even in off-duty actions, to ones that are enumerated in that standard of conduct.

[00:13:33] Speaker 02:
So the fraternization policy was September of 2023.

[00:13:39] Speaker 02:
It doesn't ban supervisors' subordinate romantic sexual relationships.

[00:13:50] Speaker 02:
It defines subordinate to mean in relation to a direct supervisor.

[00:13:56] Speaker 02:
So if you have levels between, this policy wouldn't even require

[00:14:02] Speaker 02:
of that what it requires of the direct supervisory relationship.

[00:14:09] Speaker 02:
And even as to the supervisory relationship, it says, you've got to let your supervisor know so that we can keep an eye on whether there's an actual effect.

[00:14:21] Speaker 02:
Admittedly, that can't apply in this case.

[00:14:24] Speaker 02:
Doesn't it cast some light on whether the conduct in this case was over penalized?

[00:14:34] Speaker 04:
No, Your Honor.

[00:14:35] Speaker 04:
I think that the policy itself, which I take to be the gist of the other side's argument.

[00:14:40] Speaker 04:
Correct.

[00:14:41] Speaker 04:
No, in this case, Mr. Cruz was the area ports director.

[00:14:46] Speaker 04:
He was the highest ranking official at this port of San Juan.

[00:14:49] Speaker 04:
He had the ultimate stamp.

[00:14:53] Speaker 04:
in terms of any kind of actions taken with respect to employees.

[00:14:58] Speaker 04:
And he's responsible for all the employees, which is found in his position description at tab two of the appendix.

[00:15:05] Speaker 04:
And so even if this policy only relates to direct supervisors, it doesn't diminish the fact that the standards of conduct still says that even if it's not enumerated in a policy, that the agency can still have discretion to find conduct on becoming.

[00:15:21] Speaker 04:
And there's plenty of case law, as Judge Hughes

[00:15:23] Speaker 04:
had said before that supports when a supervisor is having sexual relationships with a subordinate and the agency finds that there's a loss of trust and confidence, that's enough to suggest that this is not an unreasonable penalty.

[00:15:37] Speaker 02:
I should also mention the fact... What's a case that sets that?

[00:15:47] Speaker 04:
De Lozal.

[00:15:49] Speaker 04:
I'm so sorry, Your Honor.

[00:15:50] Speaker 04:
De Lozal.

[00:15:51] Speaker 04:
And that's at?

[00:15:53] Speaker 02:
And is that a direct report case, or what?

[00:15:57] Speaker 04:
Yes.

[00:15:57] Speaker 04:
So it is directly related here.

[00:16:00] Speaker 02:
So.

[00:16:00] Speaker 02:
I'm sorry.

[00:16:01] Speaker 02:
A direct report, I mean.

[00:16:03] Speaker 02:
No.

[00:16:03] Speaker 02:
Direct supervisor.

[00:16:04] Speaker 02:
No, Your Honor.

[00:16:05] Speaker 02:
And that's.

[00:16:06] Speaker 02:
I'm sorry.

[00:16:06] Speaker 02:
What is the case?

[00:16:08] Speaker 04:
It's Doe v. De Lozal.

[00:16:12] Speaker 01:
Do you mean Dolezal versus Armand?

[00:16:15] Speaker 04:
Sorry.

[00:16:15] Speaker 04:
Dolezal v. Department of the Army.

[00:16:17] Speaker 04:
Yes, Your Honor.

[00:16:18] Speaker 01:
That's the MSPB case, right?

[00:16:19] Speaker 04:
Yes.

[00:16:20] Speaker 04:
And it was affirmed by the Federal Circuit.

[00:16:22] Speaker 04:
And in that case, this was a second line supervisor who had had a sexual relationship with a subordinate.

[00:16:30] Speaker 04:
And the subordinate supervisor was within that individual's chain of command.

[00:16:36] Speaker 04:
So in that case, the MSPB found

[00:16:39] Speaker 04:
that that relationship in and of itself, that subordinate supervisory relationship, was sufficient to establish a loss of confidence and trust in the supervisor's ability to do their duty.

[00:16:49] Speaker 04:
So it doesn't mean that a direct supervisor is necessary to establish that there is oversight.

[00:16:56] Speaker 02:
And that was a case in which the

[00:16:59] Speaker 02:
the charges involved just the relationship, not additional evidence of essentially an employment-related decision affected by the relationship.

[00:17:15] Speaker 02:
So, for example, unlike the

[00:17:17] Speaker 02:
The case that we had, Robacker.

[00:17:21] Speaker 02:
Robacker was one in which the supervisor actually promised one of the three women involved that he would give her whatever rating he was given for a particular year.

[00:17:36] Speaker 02:
So there was more than just the relationship.

[00:17:39] Speaker 02:
So in this case, what we have is really just the relationship for the, is that right?

[00:17:46] Speaker 02:
Precisely because

[00:17:47] Speaker 04:
Right, just the relationship.

[00:17:49] Speaker 04:
It's the relationship.

[00:17:50] Speaker 04:
I mean, it's, of course, three different charges with respect to the relationship.

[00:17:55] Speaker 02:
Using the phone to... And government facilities to carry out a sexual relationship.

[00:18:01] Speaker 04:
Correct.

[00:18:01] Speaker 04:
And using a phone to further the sexual relationship.

[00:18:04] Speaker 04:
That's correct, Your Honor.

[00:18:09] Speaker 01:
Notably, I just want to- Can I ask you about the phone?

[00:18:12] Speaker 01:
Was there a policy that they were allowed to use their government phones for personal stuff for de minimis reasons?

[00:18:19] Speaker 04:
Yes, your honor.

[00:18:20] Speaker 01:
However- So your distinction is that he couldn't use the phone for an improper reason.

[00:18:27] Speaker 04:
That is correct, your honor.

[00:18:29] Speaker 01:
And the reason that it's improper is because it was too further an affair with the subordinate.

[00:18:35] Speaker 04:
That's correct, your honor.

[00:18:36] Speaker 01:
So if he wasn't having an affair with her, he could have used his phone to call her?

[00:18:43] Speaker 04:
Well, for two reasons.

[00:18:45] Speaker 04:
One, Your Honor, he could have called her as part of his official duties if he had a reason to call her, or call her for a de minimis personal relationship.

[00:18:53] Speaker 04:
The problem here is it's used to further a relationship that is considered as conduct becoming that led the agency to determine... That's why it's an improper use of the government fund.

[00:19:05] Speaker 04:
Correct.

[00:19:05] Speaker 04:
And it's in the standards of conduct on Appendix 50.

[00:19:11] Speaker 04:
It outlines that limited personal use of government computers and office equipment by employees during not-work time is considered to be authorized use of government property if the use involves only minimal additional expense and does not adversely affect the performance of official duties, interfere with the mission of operations of CBP, overburden, or violate any standard of conduct as we have in this case.

[00:19:34] Speaker 04:
So that is correct, Your Honor.

[00:19:38] Speaker 02:
Just remind me, what's the standard of conduct that was violated?

[00:19:42] Speaker 04:
So the agency identified that they had the loss of confidence and your ability to act in accordance with ethical and professional standards.

[00:19:52] Speaker 04:
They cited to the integrity section 3.1.

[00:19:54] Speaker 04:
Right.

[00:19:55] Speaker 02:
But isn't that all about a little bit of a hard time understanding why that's the standard of conduct?

[00:20:02] Speaker 02:
You lose confidence because there's a violation of some conduct.

[00:20:08] Speaker 02:
So what's the standard of conduct?

[00:20:11] Speaker 04:
It's the integrity to the mission.

[00:20:15] Speaker 02:
How do you know that this reflects a lack of integrity?

[00:20:21] Speaker 04:
Well the agency need not go so far as to show that

[00:20:26] Speaker 04:
that there's some specific action.

[00:20:28] Speaker 04:
That's, I think, some of what the appellant is asking for this court to reach and ask the board to go forth and find specific identified activity.

[00:20:39] Speaker 02:
I'm just trying to isolate what is underneath all of this.

[00:20:44] Speaker 02:
Everything here is.

[00:20:46] Speaker 02:
for goodness sake, he should have known better.

[00:20:49] Speaker 02:
And he really, seriously should have known better, because in an employment context, in a hierarchical relationship, even with many rungs in the ladder between the two of them, you just can't do that, because the agency is not going to monitor effects that it may never see, but that may be real.

[00:21:08] Speaker 02:
Full stop.

[00:21:09] Speaker 02:
And then everything else just follows from that.

[00:21:12] Speaker 02:
That is correct.

[00:21:15] Speaker 02:
Even though that was kind of not written down anywhere, this is kind of just the accumulated message of a number of MSPB decisions.

[00:21:29] Speaker 04:
Yes, and decisions.

[00:21:30] Speaker 02:
And then apparently, apparently,

[00:21:33] Speaker 02:
revised downward in September of 2023 in the fraud organization policy, where this is not actually banned.

[00:21:41] Speaker 02:
You just need to let everybody know, not everybody, the supervisor.

[00:21:44] Speaker 04:
Well, I do want to clarify something about that CBP fraud organization policy.

[00:21:48] Speaker 04:
It isn't just a reporting requirement, as if you need to report you have some kind of business conflict.

[00:21:53] Speaker 04:
There is a whole set of procedures in that fraternization policy that outline what must be done, because it presumes there's a conflict of interest when the supervisor and a subordinate have a sexual relationship.

[00:22:05] Speaker 04:
And the agency has to take three distinct actions in order to mitigate any potential conflict of interest.

[00:22:11] Speaker 04:
That's all outlined in the policy itself.

[00:22:14] Speaker 02:
But it doesn't say.

[00:22:16] Speaker 02:
If there is a supervisor subordinate, sexual or romantic relationship, you're fired.

[00:22:28] Speaker 04:
It will instruct the agency must either remove the supervisor from that chain of command

[00:22:35] Speaker 04:
Or the individual can be followed through.

[00:22:39] Speaker 02:
But not if the supervisor, the one involved in the relationship, takes all the steps to make his supervisor aware, et cetera.

[00:22:49] Speaker 04:
Correct.

[00:22:49] Speaker 04:
But the policy also does say that

[00:22:51] Speaker 04:
each situation will be evaluated on an individual basis.

[00:22:54] Speaker 04:
And that removal may be appropriate based on the misconduct.

[00:22:58] Speaker 04:
So it doesn't totally outline.

[00:23:00] Speaker 01:
So in this circumstance, if they had self-reported and the agency said there's no place to transfer the supervisor to because he heads the whole office, and the same for the employee because she works in this office, then could the agency either

[00:23:19] Speaker 01:
Could the agency remove him?

[00:23:22] Speaker 04:
Yes, Your Honor.

[00:23:23] Speaker 04:
I believe that is correct, that the agency could remove him, obviously establishing a nexus with respect to conduct on becoming as they did here in terms of loss of trust and confidence.

[00:23:35] Speaker 02:
Was there a determination here that there was nowhere to transfer him to?

[00:23:41] Speaker 02:
I thought it was just, this is sufficiently serious.

[00:23:44] Speaker 02:
You're out of here.

[00:23:45] Speaker 02:
That's correct.

[00:23:45] Speaker 03:
Because they could have demoted him, as your friend suggested.

[00:23:49] Speaker 04:
They could have.

[00:23:49] Speaker 04:
But the deciding official believed that this was a serious action taken by the highest ranking member of the area port director for the Port of San Juan, the highest ranking individual having sexual relationships within the office with a subordinate using government phones

[00:24:09] Speaker 04:
And none of this is contested.

[00:24:11] Speaker 04:
This is in a case where we're not sure whether or not activities happened.

[00:24:15] Speaker 02:
But the argument from the other side, I don't understand to be taking issue with any of the facts, only essentially the agency's decision about just how seriously to take it.

[00:24:32] Speaker 04:
Well, and the standard of conduct does say that for a supervisor, your penalty could be greater than other individuals who may have acted in the same way, because you're held to a higher standard.

[00:24:45] Speaker 04:
And the board, the MSPB, has repeatedly found that when there is a supervisor, they are held to a higher standard of conduct than a regular employee.

[00:24:56] Speaker 04:
And that's particularly true in this case when we're talking about the highest ranking member.

[00:25:01] Speaker 04:
or highest ranking official for San Juan.

[00:25:07] Speaker 04:
And so in this case, we believe that the board's decision should be affirmed.

[00:25:14] Speaker 04:
And if there are no further questions, I would like to submit.

[00:25:23] Speaker 03:
Thank you.

[00:25:23] Speaker 03:
Thank you, Your Honors.

[00:25:32] Speaker 00:
It goes down to notice, opportunity to know what conduct you expect of me.

[00:25:38] Speaker 00:
It goes to the scale of the policy, the public policy of this agency, the scale of disciplinary actions.

[00:25:46] Speaker 00:
It is undisputed.

[00:25:48] Speaker 00:
And I took her deposition, and she was still employed.

[00:25:52] Speaker 00:
Even though they went through great lengths to try to hide on the right to privacy issues, the punishment to the other officer was three days.

[00:26:01] Speaker 00:
suspension so This this was about the agency's failure to Demand the conduct that is not printed That is the basis of knowledge if you're going to hold me to Conduct on becoming I better violate a law I better violate a rule and I better be on notice

[00:26:29] Speaker 00:
Fundamental fairness.

[00:26:30] Speaker 00:
This is what Douglass factors are.

[00:26:34] Speaker 00:
Fundamental fairness.

[00:26:38] Speaker 00:
And that didn't happen in this case.

[00:26:40] Speaker 00:
And the policy that they put together doesn't even prohibit the conduct.

[00:26:45] Speaker 00:
There's not a single call that the agency can call that was used in furtherance of the law affair

[00:26:57] Speaker 00:
from the private phone numbers.

[00:26:58] Speaker 00:
They had the records.

[00:27:00] Speaker 00:
They could have printed the cell phone numbers, but yet they never did.

[00:27:05] Speaker 00:
It was their phone.

[00:27:06] Speaker 00:
They had the cold look records.

[00:27:09] Speaker 00:
They could not point to one call that was related to this conduct on becoming an officer or the use of a facility that was neither damaged, and it was off the time clock.

[00:27:24] Speaker 00:
This was not while they were on duty.

[00:27:28] Speaker 00:
So with that, I rest.

[00:27:31] Speaker 00:
I thank you for the opportunity to come before you.

[00:27:34] Speaker 00:
And we look forward to your review of the case.

[00:27:39] Speaker 00:
And hopefully, you will conclude that this punishment was not called for and that it exceeded the measurements of reasonableness.

[00:27:51] Speaker 00:
Thank you.

[00:27:52] Speaker 03:
Thank you.

[00:27:52] Speaker 03:
We thank both sides.

[00:27:54] Speaker 03:
The case is submitted.