MSPB Held That the Mere Existence of an Open Agency Investigation Into Alleged Misconduct of a Federal Employee Does Not Serve as Cause for Taking or Continuing an Adverse Action Against the Employee

In this case, the Appellant, George Camaj, was a Deportation Officer with U.S. Immigration Customs Enforcement (ICE) at its Field Office in New York. On February 4, 2009, Camaj was charged with a criminal complaint in district court of accessing the Treasury Enforcement Communications System (TECS) without authorization. The complaint was based on an investigation, which found that Camaj had committed the alleged misconduct.

On February 13, 2009, the agency proposed to indefinitely suspend Camaj for a crime for which a sentence of imprisonment might be imposed. The agency then issued a decision to indefinitely suspend Camaj.

On August 13, 2009, Camaj entered into an Agreement for Pretrial Diversion (PTD) with the U.S. Attorney's Office. As part of the PTD agreement, Camaj agreed that the prosecution of his criminal offenses would be deferred for 6 months in exchange for his acceptance of responsibility for his conduct and agreement to complete the PTD program. On September 8, 2009, the criminal complaint against the appellant was dismissed without prejudice on the basis that the prosecution was being “deferred” under the terms of the PTD agreement.

By letter dated February 22, 2010, the U.S. District Court Pretrial Services Agency notified an Assistant U.S. Attorney, that Camaj had complied with the terms of the PTD agreement, and that it was therefore recommended that the pending charges be dismissed. After the criminal charges against Camaj were dismissed, the agency proceeded to investigate Camaj regarding alleged misconduct apart from the incidents referred to in the criminal complaint and the PTD agreement. Camaj filed an appeal on March 10, 2010 and alleged that the agency had continued his indefinite suspension for an unreasonable period of time after the criminal case was dismissed.

The agency removed Camaj on November 16, 2010, on charges of conduct unbecoming a law enforcement officer and misuse of an official government database, which included 133 specifications of unauthorized TECS access. Camaj re-filed his appeal for the continuation of the indefinite suspension to the MSPB on November 29, 2010. The AJ reversed the agency’s decision to continue the indefinite suspension beyond October 8, 2009. In reaching that decision, the AJ found that the criminal charges had been resolved on September 8, 2009 and that 30 days was a “reasonable amount of time for the agency to investigate and effect the disciplinary action against the appellant.” The agency filed a petition for review.

The MSPB decided whether the agency was permitted to continue the indefinite suspension of Camaj after resolution of criminal charges where the agency provides advance notice of possible administrative action in the suspension proposal or decision notice and takes action within a reasonable time of the conclusion of the criminal proceedings. On appeal, the Agency argued that its delay in terminating Camaj’s indefinite suspension was reasonable.

The MSPB found that an agency must provide reinstatement to the date of the resolution of criminal charges if it fails to implement an adverse action within a reasonable time. Here, the agency did not issue a notice of proposed removal until May 19, 2010, nearly 3 months after resolution of the criminal charges. The MPSB found that in order to determine whether the agency was permitted to continue the indefinite suspension beyond February 22, 2010, “we must determine whether the delay would have been reasonable had the agency instead elected to pursue an adverse action based solely on the conduct that formed the basis of the criminal charges.”

The MSPB held that the Department of Homeland Security's three-month delay in terminating the indefinite suspension of Camaj after his criminal charges were resolved was not reasonable. The MSPB considered that DHS's investigation preceded the filing of the criminal complaint against Camaj that was based on results of same investigation. The MSPB also considered that Camaj admitted to that same conduct in entering pretrial detention agreement and further agreed that his admissions could be used in any administrative proceeding. Therefore, the MSPB determined DHS already had all information needed to commence adverse action proceedings when criminal charges were resolved. Therefore, the MSPB found that it would not have been reasonable for the agency to wait until May 19, 2010 before proposing an adverse action based solely on that same conduct. The MSPB ordered the agency to reinstated Camaj effective February 22, 2010, the dated the Assistant U.S. Attorney recommended that the pending charged be dismissed against Camaj.

The case is Camaj v. Department of Homeland Security, 119 M.S.P.R. 95 (2012). The entire decision can be found here.

 

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