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by Shaw, Bransford & Roth, P.C.
March 9, 2010
Although only one of five misconduct charges was sustained, the Justice Department's removal of a correctional officer was reasonable, the Federal Circuit ruled last week. In this case, a correctional officer at the Metropolitan Correctional Center (MCC) in New York, New York, was removed from his position on November 29, 2006. The removal notice contained five charges: (1) misuse of the correctional officer's Bureau of Prisons credential; (2) possession of an altered government credential; (3) failure to report an outside contact between the correctional officer and an associate of an inmate; (4) carrying a concealed weapon under the Law Enforcement Officer Safety Act of 2004 without the agency's acknowledgment, and (5) engaging in outside employment without the agency's approval. The warden of the MCC sustained all five charges against the correctional officer, prompting him to appeal to the U.S. Merit Systems Protection Board.
The MSPB Administrative Judge (AJ) sustained only one of the five charges against the correctional officer: the failure to report an outside contact. The circumstances relating to this charge involve a second job that the correctional officer held providing security for recording artists at a company called Koch Entertainment. An MCC inmate, Barry Williams (a.k.a. "Strobe"), who worked in the music industry and with people at Koch, sought the correctional officer out after hearing of their mutual connection to Koch. Another officer at the prison introduced the two, but warned the correctional officer to be careful because the inmate and the correctional officer knew some of the same people.
On June 2, 2006, Strobe called an intern at Koch, Chris, and asked him to give the correctional officer a package of t-shirts and compact discs. Chris then called the correctional officer and told him that Strobe wanted him to have a package, though Chris did not tell the correctional officer what was in the package.
The court said that it is undisputed that the correctional officer failed to report this telephone call from Chris about an unknown package to his supervisors, despite a requirement in the agency's Standards of Employee Conduct that such contacts must be reported, in writing, as soon as practicable. This reporting requirement was also covered in the agency's annual training. In the days following the call, the correctional officer did not attempt to inform anyone that he had been told about an unknown package from an inmate, even though he could have talked to a duty officer or left a note. The correctional officer testified at his Board hearing that he saw the matter as "no big deal," and he thought, "Maybe I'll get around to [reporting] it, maybe I won't. We'll see what happens when I get to work." After the hearing, the AJ ruled that the agency's removal penalty was "within the limits of reasonableness." The correctional officer subsequently appealed to the Federal Circuit.
The Federal Circuit began its opinion by explaining that, on appeal, the correctional officer did not challenge the failure to report charge - he simply argued that the penalty imposed was disproportionately harsh. However, the Federal Circuit determined that under the circumstances of this case, the Board did not err in sustaining the agency's decision to remove the correctional officer. The Federal Circuit stated that the MCC's warden considered the correctional officer's "solid record" at the agency, but nevertheless felt that other factors - the seriousness of the offense, the repeated training, the warning from the other officer, his status as a law enforcement officer, and the effect of his conduct on his supervisor's confidence in his performance abilities - supported the removal action.
The appeals court went on to say that as for the fact that the Board affirmed the removal despite sustaining only one of the five charges against the correctional officer, remand on the penalty issue may be appropriate in some such cases where the nexus between the charges brought by the agency and the penalty imposed is severed. However, the Federal Circuit explained, when the agency makes clear before the Board that the agency itself would have imposed the same penalty on the basis of the sustained charges that it chose on the basis of the combined charges, the nexus is not severed and the agency's chosen penalty is entitled to deference. Here, the Federal Circuit continued, the MCC's warden testified that he would have terminated the correctional officer on the failure to report charge alone because it was "very serious" and affected "the safety and security of all the people in the institution."
Accordingly, the Federal Circuit sided with the agency, affirming the removal action.
The case is Davis v. Department of Justice, U.S. Court of Appeals for the Federal Circuit, No. 2008-3202, March 3, 2010.
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