This story has been updated on July 25, 2019 to reflect additional analysis of Border Patrol supervisory actions.

All eyes are on Customs and Border Protection to make sure it holds accountable the border patrol agents who made jokes about the death of migrants, and racist and sexist comments, among other outrageous comments, in a Facebook group for current and former CBP agents.

CBP announced its Office of Inspector General opened an investigation, which is usually the first step an agency takes before proposing discipline.

Despite all the folklore about how hard it is to fire a federal employee, it happens about 10,000 times every year, and only a tiny fraction of those removed have that decision reversed on appeal. To fire a federal employee for misconduct, an agency must give 30 days notice, and show that misconduct occurred as charged and has a nexus to the employee’s job, and that the chosen penalty is reasonable.

Given this, those border patrol agents who made the comments, and even those who liked or otherwise condoned the conduct, should be worried about keeping their jobs.

Based on media reports, these agents could face generic charges such as conduct unbecoming or inappropriate conduct, as well as more specific charges concerning making racist or sexist remarks, among others.

Specifically with regard to what it calls “integrity related misconduct,” CBP’s directive refers to agents conducting themselves in a manner to “keep the public trust and confidence,” and to avoid actions “affecting the public confidence in the integrity of CBP and of the government.”

The directive also provides that agents will “not make abusive, derisive, profane or harassing statements or gestures, or engage in any other conduct evidencing hatred or invidious prejudice to or about another person on account of race, color . . . national origin, [or] sex.”

In addition, CBP’s guidance specifically states that conduct “on or off duty” may subject an employee to discipline, explaining that employees are “held accountable for their actions and are subject to appropriate disciplinary action when there is a nexus (connection) between their misconduct (on or off-duty) and the efficiency of the service.”

In this case, given that the reported offending comments all seem to involve these agents duties, the agency would likely have no problem meeting its second prong.

Agencies need to consider a number of factors, including the length of an agent’s service and performance on the job, when determining the reasonableness of a penalty.

Here, the seriousness of the misconduct, as well as its public nature, will cut against any leniency in the selection of the penalty. The Merit Systems Protection Board, which adjudicates adverse actions taken against federal employees, has long identified the “notoriety of the offense or its impact upon the agency’s reputation” as one of the specific factors the agency must consider in determining a penalty.

Given that this story is on the front page of most papers across the country, it is likely these officers will, depending on the egregiousness of the particular comments, be looking at severe suspensions or removal from federal service.

In short, it should not be hard for CBP to do the right thing here.

Even if any CBP agent who engaged in making these comments in this Facebook group resigned today, they might not be able to get out with a clean record.

Congress in the 2017 defense authorization bill included a provision that required agency heads to make a permanent notation in an employee’s official file if he or she is subject to a personnel investigation and resigns from government before that investigation is resolved.

While the employee is provided with limited rights to defend themselves, the usual due process afforded is truncated. However, this is still probably a more appealing alternative than waiting it out. If an agent resigns after their removal is proposed, the SF-50 documenting the resignation will indicate that it was “in lieu of removal.”

Moreover, President Donald Trump’s workforce executive orders, which he signed more than a year ago now, prevent agencies from agreeing to “clean record” settlements to resolve any grievances, complaints or appeals. Thus, whereas in the past, agencies often let employees resign if they appealed their removal. This happens all the time in the private sector, but agencies’ hands are tied from doing this now.

While the federal government is not supposed to make an example out of any employee, CBP can certainly send a message that it will not tolerate this conduct by its employees.

Update: Since this article was drafted, news broke that Carla Provost, chief of the Border Patrol, and others in CBP leadership, knew of the “I’m 10-15” Facebook group. In fact, the agency had disciplined employees for inappropriate posts in years past, yet did nothing to end the group.

One of the fundamental factors considered in the federal employee disciplinary process is “the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public and prominence of the position,” meaning those at the top should face harsher sanctions than those in lower level positions for the same or similar misconduct. Those in leadership could also be face additional charges related to their failure to stop the misconduct such as negligence, at best, failure to act in a manner becoming a federal supervisor or failure to carry out supervisory responsibilities.

Debra D’Agostino is a founding partner of the Federal Practice Group. She has nearly twenty years experience in employment law and has represented federal employees in matters before the EEOC, MSPB, the U.S. Court of Appeals for the Federal, Fourth, and D.C. Circuits and the U.S. Court of Federal Claims.  

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