By Barbara Haga, October 18, 2017

In the last column, I dealt with negligence in medical positions, where perhaps the life and death consequences are somewhat more apparent.  In this column, I will review cases of negligence or careless workmanship in other kinds of positions, including looking at the issue of being “in charge” when things go wrong.

Failing to Complete a Required Records Check

The heading for this case seems innocuous enough, but the consequences of the failure were tragic.  This case also makes another important point – that higher-level officials can be successfully disciplined for failures on the part of their subordinates.  The case is Velez v. Homeland Security, 101 MSPR 650 (2006), aff’d Fed. Cir. 06-3305 (2007).

Velez was disciplined on a charge of negligently performing his duties as a Supervisory Border Patrol Agent, GS-12, in New Mexico.  The following briefly summarizes the events that lead to the discipline.

A subordinate officer (Officer I) working for Velez arrested several illegal aliens and returned to the Border Patrol trailer for processing.  One of those arrested was identified as using another name. One of the names he used was Silerio-Esparza.  Another subordinate officer (Officer II) ran a criminal records check and found that there was an outstanding warrant in Oregon on Silerio-Esparza and there was also a notice to conduct a National Crime Information Center (NCIC) check using the FBI number it provided for the alien.  Officer I followed up with Oregon and determined that they would not extradite Silerio-Esparza; however, the NCIC check was not completed. The supervisor ordered the voluntary release of Silerio-Esparza back to Mexico without having ensured that the additional required check was completed.

The decision notes that within a few months after Silerio-Esparza’s voluntary return to Mexico, he reentered the United States and traveled to Oregon, where he raped two nuns and murdered one of them. The publicity which resulted reflected negatively on the agency and led to an 18-month investigation by the DOJ Inspector General. The OIG’s investigation proved that none of the Agents who processed Silerio-Esparza conducted a FBI NCIC check as required while he was in their custody, and, if they had they would have found that he had a criminal history in the U.S. for thefts, narcotics offenses, robbery, and kidnapping.  He also had two previous deportations from the U.S and a warrant for robbery in Los Angeles. Ostensibly with this information, Silerio-Esparza would not have been released.

The agency’s charge against Velez was negligent performance of his duties in that, contrary to agency policy, he failed to ensure that the Border Patrol Agents who processed Silerio-Esparza had run a FBI NCIC criminal records check on him before Velez granted him a voluntary return to Mexico.  Velez testified that Officer I told him that the records check had been run, but there were no records of radio calls or telephone calls to or from the trailer to request such a check.  Velez acknowledged his awareness of the policy that a FBI NCIC criminal records check must be run whenever a “red-line hit” or “lookout” was obtained from the agency’s criminal information system and of his duty to ensure that the NCIC records check has been run before making any decision on the disposition of an illegal alien.

The judge’s initial decision did not sustain the removal but the Board reinstated it and the Federal Circuit affirmed.  In this case, the supervisor did not have hands-on involvement in the initial situation, but was responsible for ensuring that subordinates acted within the policies established before he took the next step.

Excessive Radiation

This Navy case is an old case but establishes that not complying with safety requirements can still result in a stiff penalty, even if no serious injury actually occurred.  The case, Watkins v. Navy, 29 MSPR 146 (1985), involved a charge of endangering the safety of personnel through carelessness and resulted in a removal by the Agency.  The judge upheld the removal and the Board concurred, but the Federal Circuit reversed the Board’s decision insofar as it upheld the penalty of removal and remanded the case for mitigation of the penalty (Fed. Cir. No. 84-1409 (1985)).  Subsequently, the Board mitigated the penalty.

The facts in the case were that Watkins was charged with exposing himself and a co-worker to excessive radiation in the course of taking x-ray pictures of pipes and fittings on a Navy ship.  While the potential seriousness of the accident was clear, the amount of radiation received was established not to be “medically significant.”  The Board found in reviewing the Douglas factors that the offense was inadvertent and technical and was committed without any intent, malicious or otherwise. It was Watkins’ first offense on an otherwise spotless work and safety record. With regard to the effect of the offense on appellant’s ability to perform, appellant had spent twenty-five years doing this type of work, including five years with the Navy, and the Board found it unlikely that one incident of carelessness would significantly impact his future performance.

Watkins’ supervisor and assistant received only a reprimand and a five-day suspension, respectively, for their involvement in the incident. Watkins was “in charge” of the project at the time of the exposure, so the Board’s decision found that a higher disciplinary penalty than the other two received was appropriate.  However, the Board was not convinced by the agency’s arguments that they had lost confidence in his ability to perform in the future.  The Board wrote that the low penalties handed out to the other employees tended to weaken the Navy’s argument.  Based on this analysis, the Board found the maximum reasonable penalty to be a 60-day suspension.

Although the discipline was more minor in the Watkins case, once again supervisors shared in the responsibility for the failure of the subordinate.  If you will permit me a Shakespearian reference, “Uneasy lies the head that wears the crown” (Henry IV, Part 2, Act 3, scene 1).  Federal supervisors have a right to be uneasy, for they do carry a heavy burden when it comes to the work that their subordinates perform or fail to perform. [email protected]  [Editor’s Note: Compare Barbara’s cases to those in which the agency could not discipline a supervisor for the failings of subordinates because the supervisor lacked actual knowledge of the misconduct, e.g., Miller v. HHS, 8 MSPR 249 (1981) and Prouty & Weller v. GSA, 2014 MSPB 90.]

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