[00:00:00] Speaker 04:
Our last case for argument today is Gonzales v. Education, appeal number 23-2001.

[00:00:08] Speaker 04:
Mr. Berger, when you're ready.

[00:00:14] Speaker 04:
Okay, thank you.

[00:00:17] Speaker 01:
So the issue before the court today is what is the proper measure

[00:00:24] Speaker 01:
of a conduct unbecoming charge.

[00:00:27] Speaker 00:
Of which?

[00:00:27] Speaker 01:
Of a conduct unbecoming charge, which is the only narrow issue in this proceeding.

[00:00:36] Speaker 01:
We have a situation, especially when you have a good faith actor.

[00:00:42] Speaker 01:
We know that the findings of fact in this case are not disputed.

[00:00:51] Speaker 01:
We know that

[00:00:54] Speaker 01:
These parties, both spouses, had an order of protection imposed for a number of months.

[00:01:04] Speaker 01:
There were two exceptions in order of protection, both dealing with physical proximity to each other, one of which dealt with well, when they dropped off and picked up a five-year-old child, they were allowed to be within 100 feet of each other.

[00:01:22] Speaker 02:
And so did Mr. Gonzales seek further amendments to the protective order to allow for direct communications for the purposes?

[00:01:30] Speaker 01:
No.

[00:01:30] Speaker 02:
No.

[00:01:30] Speaker 02:
Let me finish the question just to keep the record straight, but I think I know your answer is going to be good.

[00:01:35] Speaker 02:
Yeah, yeah.

[00:01:35] Speaker 02:
Did Mr. Gonzales seek further amendments to the protective order to allow for direct communications for the purposes of facilitating pick-up and drop-off?

[00:01:43] Speaker 01:
The answer is no.

[00:01:45] Speaker 01:
Never happened.

[00:01:47] Speaker 01:
So we have this record, as is.

[00:01:50] Speaker 01:
And so the two parties themselves sorted it out on their own.

[00:01:55] Speaker 00:
Isn't the real question here whether the protective order is enforced later on?

[00:02:02] Speaker 00:
The agency here, of course, is not the criminal court that would be enforcing, you know, having your client suffer for violation.

[00:02:10] Speaker 00:
They are applying this order for their purposes to decide whether conduct and returning exists.

[00:02:16] Speaker 00:
Correct.

[00:02:17] Speaker 00:
So the literal reading of the order, there are 5025 communications, text messages, right?

[00:02:26] Speaker 00:
That's correct.

[00:02:26] Speaker 00:
So you say to yourself, hey, that looks bad.

[00:02:29] Speaker 00:
So the question is, are there any exceptions?

[00:02:32] Speaker 00:
Right?

[00:02:33] Speaker 00:
That's the question.

[00:02:34] Speaker 00:
And the agency has taken, if it wants to, it can read the order to create exceptions, right?

[00:02:41] Speaker 00:
And so here what happened was that the OIG, when it did its investigation, looked at the 5025 and said, hey, let's see if we can break this down any other way, because your client had said he thought he had right to communicate whether it was on drop-off or canceling.

[00:03:01] Speaker 01:
Right.

[00:03:02] Speaker 01:
That's correct.

[00:03:02] Speaker 00:
He said it was an analysis.

[00:03:04] Speaker 00:
When they ran the analysis, they came up

[00:03:06] Speaker 00:
With 1,472 communications, I think that's the number, isn't it?

[00:03:11] Speaker 01:
Approximately, yes.

[00:03:12] Speaker 00:
Oh yeah, it's exactly 1,472.

[00:03:13] Speaker 00:
The board says 1,400.

[00:03:17] Speaker 00:
The spouse initiated over 1,700 communications.

[00:03:21] Speaker 00:
And so the real question is, was there an exception?

[00:03:26] Speaker 00:
The client said he thought there was, but probably thinking it was insufficient.

[00:03:30] Speaker 00:
But actually, the OIG person,

[00:03:36] Speaker 00:
testified that they dropped over necessary and proper, were the words.

[00:03:42] Speaker 00:
Necessary and proper exceptions for both the drop-off and the cancel.

[00:03:47] Speaker 01:
That's correct.

[00:03:49] Speaker 00:
And so what I understand your position is that you thought perhaps that maybe AJ looked at the situation and said, I heard the testimony in a case from Jackson, who was the OIG official.

[00:04:06] Speaker 00:
And Jackson said it's necessary and proper to have these incidental exceptions.

[00:04:12] Speaker 00:
So RG ran the numbers and they came up and said rather than 1472, that we're not the number exception.

[00:04:18] Speaker 01:
Correct.

[00:04:20] Speaker 00:
And the age of that one was, well, that's a nice number.

[00:04:25] Speaker 00:
But unfortunately, it's arbitrary.

[00:04:27] Speaker 00:
It is arbitrary.

[00:04:28] Speaker 00:
Well, it's arbitrary because it does, but it does is it assumes that all text and federal messages were in the time zones.

[00:04:36] Speaker 00:
role for that purpose.

[00:04:38] Speaker 01:
That's correct.

[00:04:38] Speaker 00:
Which is irrational.

[00:04:40] Speaker 00:
It also seems that all the communications outside the zone were not for communication for that reason.

[00:04:46] Speaker 01:
That's correct.

[00:04:46] Speaker 00:
And that's irrational.

[00:04:48] Speaker 00:
And the notion that you were only text or communicated about picking up the child during the times that you were picking up is irrational.

[00:04:55] Speaker 01:
Correct.

[00:04:56] Speaker 00:
Right.

[00:04:57] Speaker 00:
So my view is that the AJ was correct as a matter of the agency having

[00:05:03] Speaker 00:
decided for itself that it was going to be an agreement to allow these incidental communications.

[00:05:10] Speaker 01:
I agree.

[00:05:12] Speaker 00:
Page 159, this is when we really asked... Is this all in the record?

[00:05:25] Speaker 01:
Yes.

[00:05:26] Speaker 04:
This is all in page 159.

[00:05:28] Speaker 00:
If you look at page 159, this is

[00:05:33] Speaker 00:
I'm sorry, Your Honor.

[00:05:47] Speaker 04:
His testimony?

[00:05:52] Speaker 04:
Yes.

[00:05:52] Speaker 04:
This testimony that's being cited now

[00:05:59] Speaker 04:
is it in your briefs?

[00:06:02] Speaker 00:
I'm characterizing your argument.

[00:06:06] Speaker 00:
The presiding judge is correct.

[00:06:08] Speaker 00:
This argument that there was an interpretation by the agency of his agreement, you didn't present that.

[00:06:14] Speaker 01:
No.

[00:06:15] Speaker 01:
Well, the concern is the final order at the board, they're the ones that impose that arbitrary argument.

[00:06:23] Speaker 04:
I'm just asking you if you presented this argument.

[00:06:26] Speaker 01:
Not the argument that the OIG

[00:06:29] Speaker 01:
did, because I consider that to be irrelevant.

[00:06:32] Speaker 01:
It's the final board says.

[00:06:35] Speaker 01:
The final board says, oh, well, every day between 4 and 6 PM, you guys can communicate.

[00:06:44] Speaker 01:
And every Wednesday and Sunday.

[00:06:46] Speaker 04:
Let me interrupt you for a minute.

[00:06:47] Speaker 04:
What about where the board says, first, there's 5,025 communications.

[00:06:55] Speaker 04:
The administrative judge erred by not interpreting the protective order

[00:07:00] Speaker 04:
correctly.

[00:07:02] Speaker 04:
And there aren't the exceptions that the administrative judge thought were there.

[00:07:08] Speaker 04:
And then they say, I might have the language wrong, but there's something like

[00:07:14] Speaker 04:
at least even assuming, I think, was the language, even assuming that we were to take out these communications, there's X communications left.

[00:07:26] Speaker 04:
So why is it, because the board relied on the 525 and then said, even assuming multiple times, why isn't that the board just saying, hey, our frontline answer is there are 5,025

[00:07:45] Speaker 04:
times when they didn't follow the protective order, and then we're going to make others like belt and suspenders back up arguments, even assuming that we take out these communications, there's still so many left.

[00:07:58] Speaker 01:
Because it doesn't meet the elements of the charge.

[00:08:01] Speaker 01:
The charges come up on becoming.

[00:08:04] Speaker 01:
There's an intermediate step, and that is, OK, you violated the order.

[00:08:10] Speaker 01:
more than one thousand four hundred times.

[00:08:13] Speaker 01:
The spouse is calling one thousand seven hundred times.

[00:08:15] Speaker 01:
You violated the order one thousand four hundred times.

[00:08:19] Speaker 01:
Okay.

[00:08:19] Speaker 01:
He's not charged with violating the order.

[00:08:21] Speaker 04:
No, but my question is why can't we interpret the board's opinion to say you violated the order five thousand twenty five times?

[00:08:30] Speaker 04:
Oh.

[00:08:30] Speaker 04:
That's because there's still a reading.

[00:08:32] Speaker 04:
They could have.

[00:08:33] Speaker 04:
Okay.

[00:08:33] Speaker 00:
They could have because you know why when the order is categorical there's no contact.

[00:08:38] Speaker 00:
Your arbitrary and capricious argument, right?

[00:08:42] Speaker 00:
That's correct.

[00:08:44] Speaker 00:
Depends upon the board having used the 1372 as the reason for the preponderance evidence.

[00:08:54] Speaker 01:
That's right.

[00:08:54] Speaker 00:
That's right.

[00:08:55] Speaker 00:
So the real question is, when you read the board's opinion, you're saying, well, which of the causal text was the board relying on for preponderance evidence?

[00:09:08] Speaker 00:
If you read, if you look at page A54, you'll walk through the brief, but in the board's opinion at A54, the board says, based on the foregoing, and the foregoing is excitation to the OIG data, based on the foregoing, we find that it is approved by preponderant evidence that the parent violated the particular more than 13,000 times as charged in specification three.

[00:09:38] Speaker 00:
That's correct.

[00:09:39] Speaker 00:
Classification 3 charged 5,025 connections.

[00:09:43] Speaker 00:
So the question is, when I say more than 1,400 times, do they mean that they're saying 1,472 as defined by OIG, or do they mean 5025?

[00:09:56] Speaker 01:
They meant the 1,400.

[00:10:02] Speaker 01:
They did not mean the 5,000.

[00:10:04] Speaker 01:
How do we know that?

[00:10:08] Speaker 01:
The board itself subtracted by 2000.

[00:10:12] Speaker 00:
The board did all the math, but that same math was the math that was done by the AJ.

[00:10:19] Speaker 00:
And the board earlier in its opinion said the AJ, we disagree with the AJ, the AJ was wrong.

[00:10:27] Speaker 00:
Let me ask you this question.

[00:10:29] Speaker 00:
To you, would you say it's at least ambiguous as to whether the board was saying

[00:10:35] Speaker 00:
more than fourteen hundred times as fourteen seventy-two or as opposed to five twenty-five absolutely absolutely they subtracted arbitrarily subtracting uh... seventeen hundred twenty-nine communications from the spouse to my client well the point here is but here's what they say but even though the order says

[00:11:00] Speaker 01:
No contact.

[00:11:01] Speaker 01:
That's kind of her.

[00:11:02] Speaker 01:
No contact.

[00:11:03] Speaker 01:
Okay, let's accept that.

[00:11:05] Speaker 01:
But the board is saying, you know what, nevertheless, we're going to give you some assignment for contact.

[00:11:11] Speaker 00:
So they say, what do you think?

[00:11:13] Speaker 00:
The board never says those words.

[00:11:16] Speaker 00:
The board sets the arithmetic up.

[00:11:19] Speaker 00:
And then the board says, more than 13 here.

[00:11:22] Speaker 00:
Now, that means on this base of this record, it can only mean two things.

[00:11:27] Speaker 00:
It either means 1,472 or it means 5,025.

[00:11:31] Speaker 00:
No, it's 1,472.

[00:11:32] Speaker 00:
So it means one of the two.

[00:11:35] Speaker 01:
Yes.

[00:11:36] Speaker 00:
Don't argue with me, sir.

[00:11:39] Speaker 00:
If you look at, and I say, more than 1,400 pounds as charged in specification three.

[00:11:49] Speaker 00:
Well, on page 854.

[00:11:51] Speaker 00:
On page 854.

[00:11:54] Speaker 00:
That's the key decision.

[00:11:55] Speaker 00:
There has to be

[00:11:57] Speaker 00:
preponderant evidence, right, in this case, of violations of the order in order to sustain the charge, preponderant evidence.

[00:12:06] Speaker 00:
The board has plotted and said we need preponderant evidence.

[00:12:10] Speaker 00:
So the board is even choosing when it says more than 1,400 times.

[00:12:15] Speaker 00:
When you look back at the opinion, it has referred to 1,472.

[00:12:19] Speaker 00:
It's also referred to 1,400.

[00:12:23] Speaker 00:
So what I'm saying is that it makes a difference

[00:12:28] Speaker 00:
whether we read just to say more than 1,300 is 1,472 or 5,025.

[00:12:34] Speaker 00:
If it's 5,025, your case is over.

[00:12:38] Speaker 01:
if it's focused on the two hundred which you didn't reserve yes it's a little bit for correct so i think you're going to see three uh... it looks as it was still one thousand four hundred seventy two communications that originated from the appellant that's outside of the scope of the protected orders exceptions

[00:12:58] Speaker 01:
That is the charge.

[00:13:01] Speaker 04:
Can I ask you something?

[00:13:01] Speaker 04:
What do I do with the language that says, even if, for the purposes of our analysis, we subtracted 1729?

[00:13:08] Speaker 04:
I mean, they're talking about even if, not showing that they are in fact doing it.

[00:13:17] Speaker 01:
The answer to that is that the board found the client, Gonzales, acted in good faith.

[00:13:28] Speaker 00:
In other words, he had no malicious intent?

[00:13:32] Speaker 00:
What you have to understand is when a decision goes from the agent to the fair board, whether it's printed by the individual or printed by the agency, it's a brand new case.

[00:13:50] Speaker 00:
And the board is free to do whatever it wants, with no exception, if there is a demeanor-based credibility call.

[00:13:58] Speaker 00:
by the OJ, which we are based on.

[00:14:01] Speaker 00:
If there is a Geneva base, then the full board has to accept that unless they find good reason not to.

[00:14:11] Speaker 00:
I understand that point.

[00:14:13] Speaker 00:
I still hope on the point to say the question is whether or not the board's failure over the US is ambiguous as to which

[00:14:23] Speaker 00:
of great texts and calls that rely on defying for prior evidence.

[00:14:29] Speaker 00:
1472.

[00:14:30] Speaker 04:
What about the language in the order, I mean, at page 852 at the bottom where they say, you know, we ruled the agency that the language of the protective order is clear, and the administrative judge improperly interpreted the protective order and its exceptions

[00:14:46] Speaker 04:
And then goes on to say that the protective order, top of the next page 53, clearly and unambiguously sets forth the stay away.

[00:14:54] Speaker 04:
The proposal notice documented the high volume of communications that violated the protective order.

[00:15:00] Speaker 04:
And the proposal notice doesn't have these exceptions that we're talking about today.

[00:15:06] Speaker 04:
And so how is this not a holding from the board that they're holding all 5025 to be violations of the protective order?

[00:15:16] Speaker 01:
Well, because if you analyze their opinion from page 51 on, they've already excluded, they've accepted basically the administrative judge's ruling that only approximately 1,400.

[00:15:34] Speaker 00:
I don't see that.

[00:15:36] Speaker 00:
And we're sure you can't say that, because we don't know even if the premises of this analysis.

[00:15:42] Speaker 00:
But that's what we're saying, even if we take it out.

[00:15:46] Speaker 02:
in particular, in appendix page fifty-four, it talks about a lot about decision to sustain specification three of the conduct on becoming a federal law enforcement officer charge in the charge itself.

[00:16:05] Speaker 02:
We may not address the agency's arguments on, et cetera, et cetera.

[00:16:08] Speaker 02:
And then when we go back to look at specification three,

[00:16:14] Speaker 02:
is referring to the 5,025 records, right, specification 3 on Appendix Page 109.

[00:16:19] Speaker 02:
So I think that it correlates and actually supports up someone that I thought Judge Sturr was just asking about.

[00:16:28] Speaker 01:
Well, I feel that the final board, since they're part of the whole administrative process,

[00:16:34] Speaker 01:
They certainly could modify and criticize what the agency's done.

[00:16:39] Speaker 01:
So if they modified that proposal, and they were only upholding 1,472 communications, then we're bound by that.

[00:16:48] Speaker 04:
That is the question, is what were they upholding?

[00:16:51] Speaker 04:
Is it 5,025?

[00:16:53] Speaker 04:
And I understand your position.

[00:16:54] Speaker 04:
I don't know how you can, I don't know.

[00:16:56] Speaker 04:
Do you have any further questions?

[00:16:57] Speaker 04:
No.

[00:16:58] Speaker 04:
Why don't we hear from the government, and you can have some time to think about that.

[00:17:08] Speaker 04:
Ms.

[00:17:09] Speaker 04:
Koenig.

[00:17:12] Speaker 00:
Would you help us out in trying to decide on page 54 of the Board's decision?

[00:17:18] Speaker 00:
Do you have it with you?

[00:17:19] Speaker 05:
I do, yes.

[00:17:20] Speaker 00:
Okay.

[00:17:21] Speaker 00:
When you say violated, propounded evidence violated the paper more than 1,400 times.

[00:17:28] Speaker 00:
So, did they really mean to say 5,025?

[00:17:35] Speaker 05:
Your Honor, I think that if you look to page 50 and 51 of the appendix, I think that the board's decision can be read to have sustained.

[00:17:48] Speaker 00:
Can you show the footnote on section page 53?

[00:17:52] Speaker 05:
Yeah, I do, Your Honor, but I'm looking specifically at page, the top of page 51.

[00:17:59] Speaker 05:
where the board says, we find that the agency proved specification three and the charge of conduct on becoming a federal law enforcement officer by preponderant evidence.

[00:18:11] Speaker 05:
And again, specification three, as also indicated on page 51, specification three alleged that

[00:18:20] Speaker 05:
between those two time periods, or between this time period, there were 5,025 records of communication.

[00:18:27] Speaker 05:
It's the last paragraph of page 51 of the appendix.

[00:18:32] Speaker 05:
It says Specification 3 alleged that there were 5,025 records of communication in violation.

[00:18:39] Speaker 00:
My only question is where this ambiguity arises from the fact that the agency referred

[00:18:47] Speaker 00:
more than 1,400 times, they don't say 5,025.

[00:18:54] Speaker 05:
As Judge still pointed out a minute ago, the beginning of the paragraph about 1,472 communications starts off

[00:19:03] Speaker 05:
even if for the purpose of our analysis we subtracted these other communications, there are still a minimum of over 1,400 that do in fact violate the protective order and even considering these exceptions, which the

[00:19:22] Speaker 05:
The board found were limited exceptions.

[00:19:25] Speaker 05:
There is no exception for communication regarding picking up the child.

[00:19:30] Speaker 00:
That exception is only- There is certainly no exception.

[00:19:33] Speaker 00:
What are we doing with the testimony by Jackson?

[00:19:44] Speaker 00:
Jackson is an OIG official who is doing the analysis, in your opinion.

[00:19:49] Speaker 00:
And Jackson was asked,

[00:19:53] Speaker 00:
with regard to whether there should be some incidental exceptions.

[00:19:57] Speaker 00:
He wouldn't have actually been found out by becoming an officer just to drop the kid off.

[00:20:01] Speaker 00:
You're familiar with the record?

[00:20:04] Speaker 00:
I am, Your Honor.

[00:20:05] Speaker 00:
So he went on to ask whether, as an incident to the regular exception for drop off, there was a further room for communications.

[00:20:15] Speaker 00:
Would it necessarily be proper?

[00:20:18] Speaker 00:
And the witness said yes.

[00:20:20] Speaker 00:
And then he was asked whether it was necessary and proper to have incidental communication in the counseling.

[00:20:26] Speaker 00:
And again, Jackson said yes.

[00:20:29] Speaker 00:
Do you recall that testimony?

[00:20:31] Speaker 05:
If that's the testimony, was that at 159 of the appendix?

[00:20:36] Speaker 03:
Yes.

[00:20:36] Speaker 05:
Which is not in the joint appendix.

[00:20:37] Speaker 05:
Pardon me?

[00:20:38] Speaker 05:
But I believe that testimony is correct.

[00:20:41] Speaker 00:
But tell me the record.

[00:20:41] Speaker 00:
I mean, I'm reusing you from the transcript of the hearing.

[00:20:44] Speaker 00:
It's not in the Joint Appendix.

[00:20:55] Speaker 05:
It's not in the Joint Appendix.

[00:20:58] Speaker 00:
Not at all?

[00:20:59] Speaker 05:
I don't believe that particular passage is.

[00:21:02] Speaker 05:
Some of the testimony is.

[00:21:03] Speaker 04:
Just so you know, if you want to know for later purposes, Ms.

[00:21:06] Speaker 04:
Jackson's testimony is at page 180.

[00:21:08] Speaker 05:
180, okay.

[00:21:10] Speaker 00:
180?

[00:21:13] Speaker 00:
I think.

[00:21:14] Speaker 00:
Well, Jackson, this is cause and effect.

[00:21:16] Speaker 00:
Jackson testified for quite a while.

[00:21:19] Speaker 00:
And so Jackson is testifying.

[00:21:23] Speaker 00:
Jackson was, of course, also asked whether there's anything literally in the order that probation services are built.

[00:21:31] Speaker 00:
Right?

[00:21:32] Speaker 00:
So it's clear that there's no question that the order itself has no exception for incidental communication.

[00:21:40] Speaker 00:
No question about that.

[00:21:42] Speaker 00:
The question is whether or not the agency chose to create an exception when the witness testified that it was necessary and proper for there to be some communication on drop-off and on counseling.

[00:21:58] Speaker 05:
The board in its decision was found that the language of the protective order was clear and did not provide for the broad exceptions that the appellant has argued for in this case.

[00:22:11] Speaker 04:
Did the deciding official find the same thing?

[00:22:15] Speaker 04:
What was the deciding official's view on the exceptions to the protective order?

[00:22:20] Speaker 05:
The deciding official or the agency, I think I believe it was the deciding official, also found that the

[00:22:30] Speaker 05:
found that the language of the protective order itself was clear.

[00:22:34] Speaker 05:
The protective order is in the record at appendix 187, and it provides for no communication exception.

[00:22:44] Speaker 05:
OK.

[00:22:45] Speaker 00:
And so, you know, I'm just curious.

[00:22:53] Speaker 05:
The agency, I think, in trying to understand the likely nature of this large number of communications, had drawn these lines about pickup and drop-offs and about the communications relating to counseling.

[00:23:09] Speaker 05:
And in drawing these lines, determined that a number of these communications, over 1,400 of them, were outside this reasonable

[00:23:23] Speaker 05:
these reasonable timeframes for communication and child pickup.

[00:23:28] Speaker 05:
But the administrative judge, I think, was looking to the fact that we don't know the nature of the communications.

[00:23:35] Speaker 05:
The QIG and the Inspector General Report investigating this conduct is not reading the communications or listening to transcripts of the communications that Mr. Gonzalez has with his life during this period of time.

[00:23:50] Speaker 05:
That investigation, which analyzes the Communications Appendix 164, really concludes that it's unlikely, improbable, that these communications related to child pick-up and

[00:24:11] Speaker 05:
to counseling, even if you were to read in a broader exception, which we all agree the plain language of the protected order does not support.

[00:24:20] Speaker 02:
Just so I can better understand what is meant by the order that talks about sustaining specification three.

[00:24:30] Speaker 02:
Are you indicating or is your interpretation that what's meant is sustaining the 5025?

[00:24:37] Speaker 02:
on alleged violations, or is it a lesser number?

[00:24:42] Speaker 05:
Well, Your Honor, I guess I would disagree that they have to explicitly uphold all 525,000 or 1,472.

[00:24:55] Speaker 05:
525,000, right?

[00:24:56] Speaker 05:
Yeah, sorry, 525,000.

[00:25:02] Speaker 05:
Yes.

[00:25:03] Speaker 04:
The Long v. Social Security case that we cited in the brief, your talks of proving that the substance of this investigation... The problem with this is the problem with what you're saying is that... I mean, that's a fine answer, and that's your answer, but the point is that if we can discern what the board was holding, then the arbitrary and capricious argument doesn't have less.

[00:25:30] Speaker 02:
Correct, yes.

[00:25:31] Speaker 04:
But if we can't discern,

[00:25:32] Speaker 04:
then there's something to it.

[00:25:34] Speaker 04:
So what do we do with that?

[00:25:36] Speaker 04:
But it's your view that we don't have to make that determination.

[00:25:40] Speaker 04:
But I don't know that I agree with you on that.

[00:25:42] Speaker 05:
OK.

[00:25:42] Speaker 05:
Well, Your Honor, I believe that the board's finding on 51 saying that the agency proves Specification 3, which we all, I think, agree, Specification 3, the specific language of Specification 3 was that there were 5,025 communications in violation of the protective order.

[00:26:00] Speaker 00:
Sure, but they go on specifically on page 54, then, to identify with very preponderant evidence.

[00:26:08] Speaker 00:
So when you say the language on the top of page 5, right, doesn't answer the question because of the broader look.

[00:26:18] Speaker 00:
And they said over here on page 8, more than 1,400.

[00:26:24] Speaker 00:
If they had literally meant what they said on page 51, they would have said not more than, they would have said 5,025 times.

[00:26:35] Speaker 00:
So my question is, isn't there some possibility of a little ambiguity here?

[00:26:42] Speaker 00:
You have to have the must-be for pondering evidence.

[00:26:49] Speaker 00:
And the question here is very clear.

[00:26:52] Speaker 00:
Was it 1,417 preponderant offenses, or were there 5,025?

[00:27:01] Speaker 00:
And when the board has given crudest to the 1,372 by citing the RIG run-up for that number, when they say more than 1,300, what are they trying to tell me?

[00:27:17] Speaker 00:
Well, that's my job, because if they told me $5,024, I know exactly what to do.

[00:27:24] Speaker 00:
If they told me $1,472, there may be something else they need to do.

[00:27:30] Speaker 00:
And in cases in the past where there's been some ambiguity or a lack of clarity in their decisions, where it matters for the life of a former government employee, we've remanded the case, both presidential and non-presidential, and asked the board to explain.

[00:27:47] Speaker 00:
Would that be inappropriate in this case?

[00:27:51] Speaker 05:
Your Honor, I believe it would be unnecessary in this case.

[00:27:54] Speaker 00:
If it was unnecessary, would it be inappropriate?

[00:27:58] Speaker 05:
I think it would be inappropriate to ask them to tell us which they meant.

[00:28:10] Speaker 05:
Well, I think the outcome of that would be

[00:28:16] Speaker 00:
It's really easy.

[00:28:17] Speaker 00:
If the board made 5025, we'd show it right back in New York Minute, 5025 shoot.

[00:28:23] Speaker 00:
Well, Your Honor, I believe that the board has already decided.

[00:28:25] Speaker 04:
And that's what you believe they've said.

[00:28:27] Speaker 04:
But you said they've already decided it.

[00:28:29] Speaker 04:
Why?

[00:28:29] Speaker 04:
For the reasons you gave us, or do you have additional reasons?

[00:28:33] Speaker 04:
No, Your Honor.

[00:28:33] Speaker 04:
Is 50 just 50 and 51, or is there more?

[00:28:36] Speaker 05:
No, I believe that it's 50 and 51 where they uphold specification three and then go on to say,

[00:28:44] Speaker 05:
that even assuming language and where they're discussing the exceptions to the protective order and how broadly they could be or not be construed.

[00:28:51] Speaker 05:
I think that the board here has found, held specification three, and I think that there is substantial evidence in the record that Mr. Gonzalez has never disputed the 5,000 communications.

[00:29:06] Speaker 04:
I'm sorry.

[00:29:07] Speaker 04:
I want to ask you one thing before I forget about it, which is there's this 4 to 6 PM time frame.

[00:29:14] Speaker 04:
that's discussed about and is argued as being arbitrary by Mr. Gonzalez.

[00:29:20] Speaker 04:
Do you know where that comes from?

[00:29:21] Speaker 04:
From my understanding of the record, it may have come from what was reported to the LA Superior Court by Mrs. Gonzalez about what she needed in order to have support for the five-year-old child during this time period where the protective order was in place.

[00:29:39] Speaker 04:
Am I correct about that?

[00:29:40] Speaker 05:
You know, I apologize.

[00:29:43] Speaker 05:
the reasoning behind the four to six time period.

[00:29:46] Speaker 05:
I think it was the agency's attempt to determine which communications were likely to relate to child pickups.

[00:29:54] Speaker 00:
The third or seventh was in the record, clearly, because those were the typical times when the drop-off occurred, depending on the circumstances.

[00:30:04] Speaker 05:
That I agree with, Your Honor.

[00:30:05] Speaker 05:
I just don't know whether it was specifically from Mrs. Gonzalez's testimony.

[00:30:09] Speaker 00:
I think it came from discussion way back in front of the criminal judge.

[00:30:13] Speaker 05:
Yeah, I don't know where that originated from, but yes, the agency had removed the communications from the analysis.

[00:30:23] Speaker 00:
You want the board to say that the board opinion is absolutely clear that more than 1,300 means 5,025?

[00:30:34] Speaker 05:
I haven't given the preceding analysis at 50 to 50.

[00:30:37] Speaker 00:
So the reason why people wonder?

[00:30:42] Speaker 00:
What they meant?

[00:30:44] Speaker 05:
You know, given that the agency, or that the board, upheld the specification three, which specifically stated that 5025 number, I think the board's decision can be read to... But it does not say performance levels of 5024?

[00:30:59] Speaker 00:
And the only number in the record that correlates to more than 1400 is 1472, correct?

[00:31:09] Speaker 00:
Well, 5,025 is... There's only one number that correlates to 1,300 in the board opinion.

[00:31:19] Speaker 00:
Yes, 1,427.

[00:31:20] Speaker 00:
1,427 is none other than 1,400, correct?

[00:31:25] Speaker 05:
Correct, yes.

[00:31:27] Speaker 05:
But on 51, the board also finds that the agency proves specification three by preponderant evidence.

[00:31:34] Speaker 05:
There's that same finding.

[00:31:35] Speaker 05:
If you're correlating.

[00:31:36] Speaker 00:
That's what I pointed out to you in the very same statement as on 54, when we actually identify the cause that are the preponderant evidence.

[00:31:48] Speaker 05:
Yes, Your Honor.

[00:31:50] Speaker 05:
Thank you.

[00:31:51] Speaker 05:
Yes.

[00:31:55] Speaker 05:
And, I mean, this has been the focus has been on the violation of the protective order.

[00:32:00] Speaker 05:
How do you address the nexus, if your honors have questions?

[00:32:03] Speaker 00:
Would you agree that if the agency wished to interpret the protective order in a different way, it was written they're free to do so?

[00:32:15] Speaker 00:
The agency's not enforcing the order criminally, right?

[00:32:18] Speaker 05:
That's correct.

[00:32:18] Speaker 00:
This isn't about the criminal.

[00:32:20] Speaker 00:
If the agency wanted to cut some slack in these time zones, it was free to do so?

[00:32:24] Speaker 05:
Yes, Your Honor.

[00:32:25] Speaker 05:
I think we've argued that it was not arbitrary and capricious to look to the communications that were specifically outside of certain time periods and contexts.

[00:32:36] Speaker 05:
I guess more time periods.

[00:32:38] Speaker 00:
Well, you know, the argument that it was arbitrary, that the time frames were arbitrary and capricious, you don't respond to that because, as you heard earlier, when you set up those time frames, you're assuming that all texts and calls were in a time frame for that purpose.

[00:32:54] Speaker 00:
and when all the outside aren't.

[00:32:57] Speaker 05:
I think the agency was finding it likely that the ones during that time period were within and outside of it, unlikely to be related.

[00:33:06] Speaker 00:
But again, if they're likely and unlikely, it won't produce proprietary evidence, will it?

[00:33:11] Speaker 05:
Well, I think without, unless you're reading the substance of the communications, there was no other way for the agency to... Well, maybe all I have to do is read them.

[00:33:20] Speaker 00:
They made no attempt to, they hadn't had, the text messages disappear after 30 days.

[00:33:27] Speaker 00:
They were able to get the actual text message of all the phone calls, but they made no attempt to look at them.

[00:33:36] Speaker 05:
Right, because again, all of the, you know... Because they just made no assumptions.

[00:33:41] Speaker 05:
Correct, Your Honor, because they're starting from the assumption that all of the communications violated.

[00:33:45] Speaker 00:
But the tools were available if they wanted to read the text messages.

[00:33:50] Speaker 05:
I assume but don't know for sure that that was the case in this.

[00:33:55] Speaker 00:
Well, I know we have the records carefully.

[00:33:58] Speaker 00:
It is clear that the texts of the Tumon calls were available.

[00:34:05] Speaker 00:
And no attempt was made by anyone in RRG to look at the actual substance of any of the calls or texts.

[00:34:13] Speaker 05:
That's my understanding, Your Honor, yes.

[00:34:16] Speaker 02:
Before we sit down, could you briefly touch on the issue of penalty?

[00:34:20] Speaker 02:
and whether or not the board should have considered Mr. Gonzalez's intentions in terms of the communications in terms of the penalty analysis?

[00:34:27] Speaker 05:
Well, Your Honor, the agency did consider the Douglas factors, and I think that especially as part of the potential for rehabilitation, the agency concluded that Mr. Gonzalez's sort of

[00:34:44] Speaker 05:
statements that he wasn't violating the protective order should be actually counted against his potential for rehabilitation.

[00:34:52] Speaker 05:
But I think ultimately the agency concluded and the board upheld that the nature and the seriousness of the offense, especially given his position as a law enforcement officer, as an inspector general employee, and given his non-compliance with the standards for integrity and character, that the removal was the appropriate penalty.

[00:35:13] Speaker 05:
And so unless your owners have further questions, we would ask the court to affirm the Merit Systems Protection Board decision.

[00:35:19] Speaker 04:
OK.

[00:35:19] Speaker 04:
Thank you, Ms.

[00:35:20] Speaker 04:
Coney.

[00:35:22] Speaker 04:
Mr. Grover, you can have two more minutes.

[00:35:24] Speaker 04:
Thank you very much.

[00:35:27] Speaker 01:
Just for clarification, on page appendix 53 of the final order,

[00:35:32] Speaker 01:
in the paragraph on top that starts with, as noted, at the end, the agency identified in the proposal notice 3,201 communications that violated the protective order.

[00:35:47] Speaker 01:
That's where the 3201 comes from, and they subtracted 1,729 that was initiated by the spouse.

[00:35:54] Speaker 01:
So I'm left with 1,472.

[00:35:58] Speaker 01:
And quite frankly, that should clear up the ambiguity.

[00:36:00] Speaker 04:
Where's the proposal notice in the report?

[00:36:03] Speaker 01:
Well, we have to find that in the appendix.

[00:36:05] Speaker 04:
What are you talking about?

[00:36:07] Speaker 04:
I mean, that's what the... So your view is that the proposal notice doesn't have the 5025 number in it?

[00:36:17] Speaker 04:
No, it does that the... Okay, then I did not follow your argument.

[00:36:21] Speaker 01:
Okay.

[00:36:22] Speaker 01:
Just saying that the final board has found that I think is binding

[00:36:27] Speaker 01:
that the proposal notice noted at 3201.

[00:36:33] Speaker 00:
Yes, but that's only when the agency identified.

[00:36:36] Speaker 00:
Yeah.

[00:36:38] Speaker 00:
That's what RIG's analysis was.

[00:36:42] Speaker 01:
I understand.

[00:36:43] Speaker 01:
So that gives more credence to the analysis that only 1,472 communications were at issue here, and that's what they sustained.

[00:36:53] Speaker 01:
And I don't want to lose the force for the trees, because ultimately, the standard is, okay, we have a finding of good faith.

[00:37:00] Speaker 01:
At most, he made a mistake, maybe.

[00:37:02] Speaker 01:
But how does that detract from his character and his reputation?

[00:37:06] Speaker 01:
That's what kind of unbecoming is.

[00:37:09] Speaker 00:
And that's what the agency didn't call it.

[00:37:11] Speaker 00:
What the agency laid out in its proposal to remove a natural woman was that someone who violates a criminal order

[00:37:20] Speaker 00:
is in that faith and ability to comply with orders, to carry out orders, et cetera.

[00:37:27] Speaker 01:
Yeah.

[00:37:28] Speaker 01:
Well, I still say that if somebody is acting with faith and someone has made a mistake, they did not take that into consideration.

[00:37:36] Speaker 00:
Yeah, but, you know, sir, your court was represented by counsel in front of a criminal judge on the hearing.

[00:37:45] Speaker 00:
Your client was clearly concerned about the ability to communicate at or about his father-in-law's daughter.

[00:37:51] Speaker 00:
Right?

[00:37:52] Speaker 03:
Correct.

[00:37:53] Speaker 00:
And he expressed it in front of the judge and said, we need some exceptions.

[00:37:57] Speaker 00:
And the lawyer was negotiating the exceptions.

[00:37:59] Speaker 00:
And the exceptions weren't broad enough.

[00:38:01] Speaker 00:
That's right.

[00:38:02] Speaker 00:
That's right.

[00:38:03] Speaker 00:
It's whatever happened, happened.

[00:38:05] Speaker 00:
Right?

[00:38:05] Speaker 01:
That's correct.

[00:38:06] Speaker 00:
Do you live by your letter or not?

[00:38:09] Speaker 01:
I understand that, but it doesn't mean that his ability to be a law enforcement officer is undermined by making a good faith error.

[00:38:17] Speaker 01:
That's my point.

[00:38:18] Speaker 01:
Thank you.

[00:38:20] Speaker 04:
Thank you.

[00:38:20] Speaker 04:
We thank counsel for the cases submitted.

[00:38:23] Speaker 04:
Thank you, sir.

[00:38:24] Speaker 04:
And we'll be adjourned for the day.