Off-duty Conduct: Violation of a Protective Order, Conduct Unbecoming, and Nexus

By Deborah J. Hopkins, March 26, 2025

Quick facts:

  • Nexus is a requirement in misconduct cases appealed to the MSPB.
  • Off-duty conduct may have a nexus to the workplace, especially when a law enforcement officer engages in potentially criminal offenses.
  • An agency’s trust and confidence in the appellant’s ability to carry out the mission is a crucial consideration in nexus.

Nexus is a topic we’ve written about in this space before. A recent Federal Circuit case involving off-duty conduct by a Department of Education Criminal Investigator highlighted that the agency’s trust and confidence in the employee, as well as negative publicity about the employee’s conduct, remain two of the key ways in which nexus can be proven.

The agency removed the appellant after police got involved following a physical altercation (the case referred to “physical grappling”) at home with his wife and his 16-year-old stepdaughter. Gonzalez v. Dep’t of Education, No.2023-2001 (Fed. Cir. Mar. 14, 2025)(NP). Criminal charges were filed but because the Los Angeles Sheriff’s Department (LASD) had trouble securing witness interviews, the prosecution dropped the case.

The agency’s Quality and Integrity Group (QIC) conducted an administrative investigation into the appellant’s conduct and found that:

… [The appellant] had assaulted his stepdaughter, drove away from the scene under the influence of alcohol leaving minor children unattended, violated the court-imposed protective order by regularly communicating with his wife, and interfered with LASD’s and QIG’s investigations. The Report opined that Mr. Gonzalez’s transgressions do not comport with the standards for character set by the Council of the Inspectors General (“CIG”), which require investigators to possess and maintain the highest standards of conduct and ethics. The Report particularly noted that Mr. Gonzalez’s failure to comply with the court-imposed protective order was a failure to comply with legal requirements, which is also a requirement of the CIG standards.

Id. at 7.

As a result, the appellant was removed based on three charges:

  1. Conduct Unbecoming a Federal Law Enforcement Officer, with five specifications;
  2. Lack of Candor, with three specifications; and
  3. Failure to follow instructions, with one specification.

Id. at 7-8. (I encourage you to read the case for the specific details, of which there are many.)

One of the primary issues in the appeal process was nexus: whether the agency showed by preponderant evidence that the appellant’s conduct impacted the efficiency of the service. The court relied on the deciding official’s unambiguous statement in her penalty analysis:

There is a nexus between the charged misconduct and your position as a Federal law enforcement officer. . . . You are expected to conduct yourself while on-duty and offduty in a manner that does not bring disrepute to yourself or to the agency. . . . You hold a position of public trust; the public expects that you will be trustworthy and act with integrity at all times. At the very least, the public expects that a person sworn to enforce the laws of the United States will also follow the law. . . . Your unbecoming conduct . . . violate[s] one or more of the expectations of Federal law enforcement officers described above. . . . Your failure to comply with a local judge’s protective order for its entire duration violates the expectation that a person sworn to enforce the laws will also follow the law at all times. Your behavior calls into question your ability and willingness to follow lawful orders and legal requirements related to your assigned investigations. . . . “I do not believe that management in OIG can confidently assign casework to you knowing that you engaged in unbecoming conduct, including violating a protective order.”

Id. at 23-24.

The court upheld the MSPB’s decision to remove, relying on the agency’s excellent explanation of nexus and its implication in a number of Douglas factors. [email protected]

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