[00:00:00] Speaker 04: snow versus interior. [00:00:01] Speaker 04: Mr. Miller, whenever you're ready. [00:00:04] Speaker 03: Good morning. [00:00:04] Speaker 03: May it please the court? [00:00:06] Speaker 03: Devin Miller on behalf of the petitioner. [00:00:08] Speaker 03: Your Honor, I am comfortable submitting on the briefs on this case. [00:00:13] Speaker 03: My intention for this time is to answer any questions the court may have, if any. [00:00:19] Speaker 04: Is it your contention that police officers or officers can perform [00:00:26] Speaker 04: do anything they want on duty as long as there are no missed calls and they respond to whatever is necessary so everything else is okay as long as that happens? [00:00:39] Speaker 03: No, Your Honor, no. [00:00:41] Speaker 03: I fully understand and I'm sure my client would acknowledge that he made poor choices and I also respect the agency's desire to [00:00:52] Speaker 03: for lack of a better term, have a right to ship and have their officers conduct themselves in a professional manner. [00:00:59] Speaker 03: If anything, I think this is a unique case in the manner that these allegations were learned of. [00:01:07] Speaker 03: Nonetheless, I also understand my client admitted to what he did. [00:01:12] Speaker 03: If that is what it is, that is the basis for these charges. [00:01:15] Speaker 03: And more so, I believe our brief was to the point of the penalty. [00:01:21] Speaker 03: And as to the issue of weather removals within the tolerable limits of reasonableness, on that point that I certainly understand that there are issues with my client's conduct nonetheless. [00:01:33] Speaker 03: This is not a more traditional case, so to speak, of he did not respond to a call because he was engaged in one of these activities or his firearm or ammunition were, say, [00:01:45] Speaker 03: stolen and are now on the street using a crime, something of that nature, that these were not discovered because he otherwise did not perform his duties as he was asked. [00:01:57] Speaker 04: So you're saying the alternative should have been what, a demotion, a suspension for a protracted period of time? [00:02:03] Speaker 04: And do you have any comparable cases which suggest that that's an appropriate penalty in this circumstance? [00:02:10] Speaker 03: I do not have any cases to point to on that front, Your Honor. [00:02:15] Speaker 03: Like I said, this is somewhat of a unique case. [00:02:17] Speaker 03: I believe our position would be a demotion and or a suspension of a considerable length, something less than removal. [00:02:25] Speaker 00: I don't remember. [00:02:26] Speaker 00: Did the deciding official look for what you might call comparables or not? [00:02:34] Speaker 03: I believe there were none found within, at least within the agency's purview. [00:02:41] Speaker 03: I do not believe so. [00:02:44] Speaker 04: Okay. [00:02:45] Speaker 04: Why don't we hear from the government. [00:02:46] Speaker 04: Thank you. [00:02:52] Speaker 01: Good morning, Your Honor. [00:02:54] Speaker 01: May it please the court, now that I am asking on behalf of the government, like the petitioner, the government is content to rest on its briefing unless the panel has any questions for us. [00:03:02] Speaker 02: I just have one. [00:03:03] Speaker 02: You write, and I think I agree, but you write a page four junior brief. [00:03:09] Speaker 02: It can be self-evident that certain employee conduct inherently degrades work performance. [00:03:15] Speaker 02: Inherently degrades work performance. [00:03:19] Speaker 02: But it seems like, at least in the briefing, the appellant was arguing that maybe there's not sufficient evidence of nexus here. [00:03:27] Speaker 02: We don't know what potential [00:03:32] Speaker 02: duties he failed to perform when he was doing things that he should have been doing when he was on duty. [00:03:45] Speaker 02: inherently degraded. [00:03:47] Speaker 02: Do we have any cases? [00:03:48] Speaker 02: Is there anything you could cite to support that, other than just its own self-evidence? [00:03:54] Speaker 01: Certainly, Your Honor. [00:03:55] Speaker 01: Well, the administrative judge at Appendix Page 18 cited the MSPB case Ravey, Department of the Army, for the proposition that there was a sufficient showing of nexus between an employee's conduct and the efficiency of the service when the misconduct or action involves on-duty misconduct. [00:04:11] Speaker 01: So in this case, his misconduct hit the behavior he engaged in [00:04:15] Speaker 01: while on duty was itself, like I just said, had a court while he was on duty. [00:04:22] Speaker 01: And so that, at least according to the MSRB, when this kind of a court is on duty, there is sufficient nexus there. [00:04:29] Speaker 01: But this court, as also in Parker v. US Postal Service, 819 F. [00:04:33] Speaker 01: 2nd, 1113, said there was a direct connection to the efficiency of the service when the petitioner admitted doing something, in this case was dealing drugs, while he was at work. [00:04:42] Speaker 01: And so he was presumably still doing his job, but he was also engaging in this misconduct while he was on work. [00:04:49] Speaker 01: And this court said that that was a sufficient nexus. [00:04:52] Speaker 01: So at least with regard to the first three charges, regarding behavior while he was on duty, the fact that he occurred on duty was itself sufficient to prove a nexus. [00:05:02] Speaker 04: Thank you. [00:05:03] Speaker 04: So this case has nothing to do, because they're in the old days, so this is dated for me, but I know there was some litigation and a number of decisions, namely involving IRS employees, where the IRS in its regulations and in its manuals gets to police off-duty misconduct. [00:05:20] Speaker 04: The theory being that the country has to have confidence in people in the IRS, and so if they do stuff, even off-duty, that reflects, and people know they're IRS agents, that reflects badly on them, that can be the cause for efficiency of the service complaints. [00:05:37] Speaker 04: That's not this case, right? [00:05:38] Speaker 04: This case doesn't rest on off-duty misconduct. [00:05:42] Speaker 01: Correct. [00:05:42] Speaker 01: There's no off-duty misconduct alleged. [00:05:44] Speaker 01: Even some of the on-duty misconduct [00:05:47] Speaker 01: that was charged and or at least there were specifications supporting each of the first three charges. [00:05:53] Speaker 01: The administrative judge went through each one of the specifications in a very nuanced manner and said, looking for some of these specifications, I'm going to find that there wasn't sufficient nexus or there wasn't a basis for adverse agents action, even though what the [00:06:08] Speaker 01: petitioner did was, you know, distasteful, so to speak. [00:06:13] Speaker 01: The court said, well, you know, they should have done its poor judgment, but there's not sufficient justification for the agency to take adverse action. [00:06:20] Speaker 01: So in this case, the answer to your question is yes, Your Honor. [00:06:22] Speaker 01: All of the misconduct occurred on duty, with the exception of the gun charges, the charges related to him failing to secure his service revolver. [00:06:32] Speaker 01: So those were obviously off duty, but [00:06:34] Speaker 04: That's separate, but I assume every all the requirements of requiring to take care of your firearm Involve off-duty taking care of the firearm as well, right? [00:06:44] Speaker 01: That's correct. [00:06:44] Speaker 03: That's exactly right I know I have additional time again. [00:07:00] Speaker 03: I would submit unless there any further questions I [00:07:04] Speaker 04: Thank both sides. [00:07:05] Speaker 04: The case is submitted.