IN THE MATTER OF

MIGUEL CONTRERAS AND THE U.S. CUSTOMS SERVICE

TO THE DECIDING OFFICIAL

MS. AWILDA VILLAFANE

SPECIAL AGENT IN CHARGE

WRITTEN REPLY IN OPPOSITION TO PROPOSED SUSPENSION

I respectfully submit this written reply in opposition to the proposed suspension of Miguel Angel Contreras (AContreras@), Senior Criminal Investigator. The proposed suspension is based on one charge, AMaking false statement to your supervisor@ with one specification, and then I discuss mitigation factors. I am here to argue that he is not guilty of the allegations of making false statements to his supervisor set forth in the Treasury=s Office of Inspector General (OIG) Report of Investigation (ROI). I welcome this opportunity to speak for agent Contreras. He has a strong and a compelling case, one that is based on the facts, in the record, on the law, and on the Constitution. But first and foremost, agent Contreras= defense is based on the ROI itself. I urge you to read the ROI, its accompanying exhibits and every single document related to the file. You will see agent Contreras make painful, difficult admissions, beginning with his acknowledgement under oath that he is the one who hung the picture of the dead informant on the door. You will see that agent Contreras was truthful.

And after reading, seeing, hearing and studying the evidence for yourself, not relying on what someone else says it is, not relying on someone else's description, characterization or paraphrase of the agent's testimony, I believe that you will conclude that what agent Contreras did and said to his supervisor was not unlawful and that you must not suspend him from duty and pay for twenty (20) calendar days.

I plan to divide my presentation into three parts: First, to tell you how really poor this ROI is legally, structurally and constitutionally, and to argue that it falls well below the most basic, minimal standards and should not be used to discipline and suspend this agent. Second, to directly address the various allegations. Third, to give you a few larger thoughts to contemplate in response to some of the frivolous allegations and charges of misconduct which have been filed against agent Contreras. At the conclusion, you will have had much more than 100 percent of your minimum daily requirements for managing, for which I apologize.

The only specification contained in the proposed letter accuses agent Contreras of having given the following statement to SAIC Thomas P. Rybczyk (ARybczyk@), quote:

AOn or about March 17, 1999, you hung a picture of a dead confidential informant on a door in the Office of Internal Affairs, El Centro, California, the office you were assigned to at the time of the incident. On or about April 1, 1999, your supervisor Thomas Rybczyk, Special Agent in Charge (SAIC) Office of Internal Affairs, Long Beach, California telephoned you to discuss the picture. Rybcyk asked you who hung the photograph and you stated that you did not know. On May 6, 1999, you were interviewed by the Office of the Inspector General, Department of the Treasury, and you admitted hanging the picture. Therefore, the statement you made to SAIC Rybczyk was false, and was made with the intent to deceive and/or mislead the Agency. This allegation concerns two subject areas: first, when agent Contreras told his supervisor that he did not know who had hung a picture; second, when he testified under oath about his statement to his supervisor. The ROI outlines other proposed allegations of misconduct that the agent also allegedly committed. Those allegations were rejected by the Discipline Review Board (DRB), and there were very many good reasons for the DRB to take that action.

Those allegations have been dismissed, and you must not allow Customs to revive them. On May 31, 2000, they tried to do that. The proposing official, Anthony V. Mangione (AMangione@) mixed up and merged three sets of issues: 1) allegations Athat Contreras threatened Peterson by hanging an enlarged photograph of an IA confidential informant (CI) who had been beaten and shot to death;@ 2) allegations that AContreras made a false statement to his supervisor when he told his supervisor that he (“Contreras”) did not know who hung the picture on the door of the IA office;@ and 3) allegation that APeterson alleged a relationship between Contreras and a family member who was an associate of the AFO (Arellano-Felix Drug Trafficking Organization). This alleged family relationship heightened his fear of Contreras.@ These are very different matters. And I think the result was confusing and also unfair to agent Contreras. You will notice that the first and second subject areas correspond to, coincide and overlap with the allegation of making a false statement. This represents a kind of double charging that you might be familiar with if you've either been a prosecutor or a defense lawyer. Once the defendant is charged with the core offense, secondly, the defendant is charged for denying the core offense under oath.

BACKGROUND FACTS

The investigation of this matter includes the Report of Investigation from special agent Jose L. Llanas (ALlanas@) of the Office of Inspector General, U. S. Department of the Treasury, dated September 22, 1999. A review of this material shows that the core facts are not in genuine dispute.

Contreras is a seasoned officer, with extensive internal affairs experience. He has served the Agency with distinction for 12 years (Contreras joined Customs in 1988). At the time of the events in question, Contreras served as the Resident Agent in Charge, Office of Internal Affairs, in Calexico, California. Contreras though was conducting federal criminal corruption investigations in 1984 as a criminal investigator with the U.S. Immigration & Naturalization Service (“INS”) and the INS’ Office of Professional Responsibility (“OPR”).

All of the events in question took place on March 17 and April 1, 1999. On March 17, 1999, while conducting a legitimate law enforcement function, agent Contreras posted a picture of a dead confidential informant ("CI") on the door of his former office during his tenure as the Resident Agent-in-Charge, Office of Internal Affairs, El Centro, CA. Shortly after, Senior Special Agent Eric Peterson (APeterson@) stated under oath; that he saw Investigative Assistant Luis Urquidez (AUrquidez@) entering and leaving his office space carrying with him the picture in question. Peterson also under oath told Treasury=s OIG agent Llanas that AUrquidez stated that he was going to return the photocopy to the location where he found it@ A review of Peterson=s written and oral statement clearly described by inference that Urquidez is the person who hung up the picture the second time. The assertion that Urquidez hung up the picture is further affirmed when Senior Special Agent Jose Luis Aguirre ("Aguirre") under oath wrote: "I took down the photo copy....."

The Office of Inspector General ("OIG"), U.S. Department of the Treasury initiated an internal criminal investigation against Contreras after Peterson filed a complaint with the Office of Internal Affairs, HQ, regarding the following allegations: 1) that Contreras threatened Peterson by hanging an enlarged photograph of an IA confidential informant who had been beaten and shot to death; 2) that Contreras was the one who hung up the picture on the IA office door; and 3) that Peterson alleged a relationship between Contreras and a family member who was an associate of the Arellano-Felix Drug Trafficking Organization (AFO). This alleged family relationship heightened his fear of Contreras.

On or about April 1, 1999, Contreras received a phone call from Rybczyk who was acting as the SAC, Internal Affairs - West, Long Beach, CA and asked him about the picture. At the beginning of their conversation, Rybzcyk asked: Awho put it up there?@ Contreras not knowing who had hung up the picture the second time, answered truthfully that he did not know. Contreras also assumed that Rybczyk was conducting already an internal criminal investigation.

One of the most uncomfortable situations that workers encounter as federal employees is being subjected to questioning by management officials about misconduct that they allegedly committed. Much like any other citizen charged with a crime, employees have the "right to remain silent" if they are being interviewed about matters which could incriminate them.

Evidently, Rybczyk knew that Contreras was already the target of an IG criminal investigation but yet, failed to give him the required warnings at the initial stages of the interrogation. Contreras knew that if he was being questioned about alleged misconduct, that before he answered any questions, the agency must give him assurance that his answers will not be used in a criminal prosecution. This means the agency must provide him with notice which clearly informs him that the information he was asked about will not be used in any subsequent criminal proceeding against him. If the agency fails to give him this notice, than he was not obligated to answer its questions. This notice is required so that a federal employee is not faced with a dilemma of "both answering and thereby subjecting himself to the possibility of self-incrimination, or of avoiding giving such help to the prosecution at the cost of his live hood. See Kalkines v. United States, 473 F.2d 1301, 1394 (C1.Ct.1973). If the agency does provide the requisite notice, i.e., inform Contreras that his answer will be used only for administrative purposes, then Contreras must answer the questions asked. Failure to answer or cooperate in the investigation under those circumstances may lead to discipline, including removal.

Contreras' assertion that Rybczyk conducted an investigative criminal interrogation on April 1, 1999 is compunded by the fact that senior special agent Matthew Issman candidly stated under oath, "Later on that same day, Eric Peterson asked me about the photograph, and I told him that RAC Contreras had put the photograph up on the door. Peterson asked me how I knew this, and I said that I saw him hang it there. Peterson did not know why the photograph was up there, as we had no informant-related problems or issues going on at the time”

Update: As of this publication of date of July 24, 2009, Mattt Issman, whose complete name is Matthew L. Issman, is the Assistant Inspector General for Investigations, U.S. Department of the Treasury’s Office of the Inspector General. After, I was rotated to the Office of Investigations, U.S. Customs, I was told that Issman and Ronald Wood whom I hired as GS-1811-13 from the Federal Law Enforcement Training Center, had been discriminating against my two former administrative assistants who were Hispanics, one was a young man former GI who got wounded while on active duty in the military and disable. My understanding is that Issman went to Customs IA-HQ and Wood got promoted as a group supervisor, GS-1811-14 with the Customs’ Office of Investigation. The RAC (Wood’s boss) later told me that he did not think Wood deserved to be a supervisor and that he wanted to disapprove his first one year probationary period as a supervisor. Unfortunately Wood’s mentor was Kyle “Bully” Barnette and the RAC was overruled. Years later, Wood became the active ICE, SAC El Paso, TX when he and Kenneth Cates, the ICE SAC Dallas, TX were involved in a local bar brawl where girls lap dance etc. Both Cates and Wood who allegedly were intoxicated got involved in some heated argument with the bar employees. The entire incident was captured by videotape. The local police was called. Next, I heard that both, Cates and Wood retired. End of update.

Issman further writes: "Sometime during the first week of April, I had a telephone conversation with Peterson (I was in Washington, DC on a 30 day TDY assignment). Peterson advised me that he had heard that SAIC Thomas Rybczyk had asked RAC Contreras about the photograph, and that allegedly RAC Contreras had denied having knowledge of who put up the photograph. Peterson also advised me that he had been called into RAC Contreras' office regarding this matter, and that RAC Contreras had denied hanging up the photograph when asked by Peterson."

Special agent Sandra L. Macadoff wrote on her Memorandum of Investigation on April 16, 1999, "Issman stated that he had recently heard that Thomas Rybcyzk, Special Agent-in-Charge, had asked Contreras about the photograph, and Contreras denied being the one who hung it up in the office. Issman stated that if that is the case, it is false, because he saw Contreras hang up the photocopy of the picture."

On April 23, 1999, Rybczyk told the OIG agents that "he received a call which he believes was from Laureen Cremin (ACremin@), Acting Division Director, IA Headquarters, USCS, Washington, D.C. Rybczyk said that Cremin told him that she had become aware that a photograph of a dead informant was hanging on the door of the IA office. Rybczyk said that Cremin stated that Eric Peterson, Special Agent, IA, USCS, El Centro, California, felt threatened by the photograph." Rybczyk undoubtly was also told that Contreras was seen hanging the picture on the door. However, he failed to properly address this important question in his own written affidavit.

On May 6, 1999, Contreras provided a sworn statement to OIG agents regarding this incident. In part, Contreras stated:

"Regarding the phone conversation I had with SAC Tom Rybczyk in reference to the photocopy in question, when he asked me if I knew "who put it up there," I hesitated before I answered. I did not know whether he was conducting an investigation - so I told him I did not know. When he called me and asked about this matter I wasn't prepared to answer anything, without recalling everything that occurred on the day of the incident. It was not my intention to mislead and/or lie to my supervisor."

Rybcyzk engaged in an unauthorized criminal internal investigation when he conducted an investigative interrogation on Contreras. The proposed adverse action notice by the agency charges Contreras with making a false statement to his supervisor. The agency decided to propose this adverse action after the agency reviewed the Treasury's OIG's ROI which outlined information gathered during a criminal investigation where Contreras was the target and subject of the investigation.

On April 1, 1999, Rybczyk was not Contreras' supervisor. Rybczyk was acting as the Special Agent-in-Charge for the West Region in Long Beach, CA, while Contreras was the Resident Agent-in-Charge in Calexico, CA and under the jurisdiction and supervision of the acting Special Agent-in-Charge for the Southwest Region, San Diego, CA. The fact that Rybczyk was not Contreras' supervisor on April 1, 1999, only compounded Contreras' confusion and fears that Rybczyk was indeed conducting an investigative interview. Contreras' only option at the time when Rybczyk asked him point blank who had hung up the picture, was to limit his answers and to answer truthfully what he knew. The truth is that Contreras did not know how to answer without incriminating himself in what he perceived as an ongoing criminal interrogatory. Further, everything that Contreras stated to Rybczyk was factual and accurate.

Further, as previously stated, the picture had been removed once after Contreras posted it on the door. When Rybczyk asked Contreras who had hung up the picture, Contreras understood the question as to who hung the picture the second time. Contreras is familiar with Rybczyk's interrogative techniques. In 1996, while Rybczyk was assigned to the Miami, FL IA office, he was detailed to investigate an incident where an Office of Investigations manager was accused of misconduct in El Centro, CA. Contreras and his then supervisor Charles "Shep" Harrison ("Harrison") felt that they too were the subjects of the investigation because of the way Rybcyzk conducted his interviews. Harrison and Contreras were advised they were only witnesses in this matter by Rybczyk. However, Contreras and Harrison were under a different impression. Harrison stated that as far as he was concerned, Ahe was also the target of the investigation.@ (Note: in 1999 or 2000, Rybczyk who had been under investigation himself for disclosing federal criminal grand jury corruption investigation to the Customs’ assistant commissioner for the Office of Internal Affairs was given two options: immediately retire, or be federally indicted on corruption related charges)

Contreras had a legitimate reason to do what he did when he hung up the picture, the first time, on the IA office door. He was merely trying to gather intelligence information to pass onto the Tucson IA office. Contreras was conducting an official law enforcement function when he posted the picture on the door. Further, Contreras was conducting an official investigation when he asked Aguirre if he knew who the controlling agent of the informant was. However, Aguirre answered “NO” to Contreras= question. Aguirre lied to Contreras because he knew exactly who the informant was. Aguirre stated under oath, "On March 17, 1999, I arrived at the Office of Internal Affairs, Calexico, CA (OIX/CA) and observed a photo copy of a ex-confidential informant (CI) SA-14-CX, who was tied, beaten, ridded with a A.K 47 (223 round) and shot in the head with a .45 cal pistol. Allegedly, on or about 12/ 1994, the CI was killed with two other Mexican Nationals in Mexicali, Mexico for providing corruption information to OIA/CX agents."

How someone who denied knowing the dead informant, knew so much as to describe the type of weapons and ammunition used to murder him? Aguirre also knew that Senior Special Agent Newton Phillips (APhillips@) had been the controlling agent. However, he decided not to come forward with this information and assist Contreras. Had Aguirre been truthful, Contreras would have never displayed the picture on the door because there would have been no material motive to do so. Contreras was merely trying to find out if anyone knew who the controlling agent of the dead informant was. Aguirre not only lied to his supervisor, but also obstructed an ongoing criminal investigation.

On April 16, 1999, Aguirre provided a false statement under oath when he fabricated the following lie: "I proceeded to asked (sic) Contreras for the second time if he had placed the photo copy on the front door. Contreras stated, "No I didn't". I responded, "Did you know he was our CI" RAC Contreras stated, "Yeah, I know." I then stated, "Yes you did put it up there, didn't you." RAC Contreras responded, "Yeah, I did." I stated to RAC Contreras "You know, he was shot because he sang like a bird." RAC Contreras responded, "Yeah, yeah (acknowledging with his head) he was singing like a bird." RAC Contreras laughed and stated, "Yeah, that is what happens when people talk." I asked RAC Contreras why he placed the photo copy on the front door, but refused to answer me." Further, Aguirre stated that Cota and Urquidez were present and heard Contreras articulating these comments. However, under oath, Cota and Urquidez stated they did not witness Contreras' alleged statement .

A review of the ROI and supporting documents only paint one picture in this whole scenario: that Rybczyk, Peterson and Aguirre may have conducted an unauthorized internal investigation on Contreras in direct violation of prescribed agency's policy, rules and regulations. Peterson and Aguirre in furtherance of their malicious agenda to discredit Contreras' reputation may have "crossed the line" and they themselves became liars and perjurers when providing false statements to the U.S. Attorney's Office, Customs IA and Treasury's OIG and may have themselves obstructed Contreras' ongoing investigation.

In sum, the core fact is: that Contreras did not make a false statement to Rybczyk. This is the only specification of AMaking a false statement to your supervisor@ contained in the letter of proposed suspension.

ANALYSIS

Miguel Angel Contreras did not make a false statement to his supervisor

The short answer to the charge against Contreras is that he did not make a false statement to his supervisor. The Discipline Review Board found that the agency proved this charge by preponderant evidence. This was an error. To sustain an allegation of misrepresentation, an agency must show, by preponderant evidence, that the employee in question supplied incorrect information, and that he did so knowingly, with intent to deceive or mislead the agency. See Dangerfield V. U.S. Postal Service, 77 M.S.P.R. 678, 683 (1998). Here it is not clear from the record that the information that Contreras provided to Rybczyk was incorrect as of the time of their April 1, 1999 telephonic conversation. When Rybczyk contacted Contreras regarding the posting of the picture in question, Contreras believed Rybczyk was conducting an investigative criminal interrogation when asked him who had hung up the picture. Further, the picture had been removed and re-posted on the door by an unknown person. Contreras did not know who took the picture down the first time and who hung it up the second time. The question was compounded by the fact that Contreras was of the opinion at the time that Rybczyk was not acting within his chain of command. At the time of their conversation, Rybczyk was acting as the Special Agent-in-Charge, West Region, Long Beach, CA. Contreras was the Resident Agent-in-Charge and under the jurisdiction and supervision of the Special Agent-in-Charge, Southwest Region, San Diego, CA.

It is also unclear whether the statement Contreras made to Rybczyc was false and with the intent to deceive and/or mislead the agency. Contreras did not intend to deceive or lie to Rybczyk when he was asked who hung up the picture. Contreras merely did not know how to answer the question. He did not know who posted the picture the second time. Contreras did not know whether Rybczyk was conducting a criminal investigative interrogation or simply Afishing@ for incriminating statements from Contreras so the agency would charge him once again with frivolous allegations of misconduct. It is the policy of the U.S. Customs Service that if an employee, who is being interviewed by a person of authority, reasonably believes that he/she may be subject to disciplinary action as a result of his/her statements, the employee must be given his/her warning rights. Contreras reasonably believed that Rybczyk failed to give him his rights as prescribed by Customs policy.

The agency=s evidence on this matter, however, is inconsistent

In the notice of proposed suspension, the agency attached the Material Relied Upon consisting of a Report of Investigation (AROI@) issued on September 2, 1999, by the Office of Inspector General, U.S. Department of the Treasury under case number C99-0358. The ROI contained numerous sworn affidavits submitted by witnesses who had different Aagendas@ and Aspecial interest@ in this matter. Aguirre provided false statements under oath when he fabricated a conversation that never took place. Urquidez stated under oath that: "I did not remove the picture or touch the picture in any manner." Peterson stated that he saw Urquidez holding the picture. Further, Contreras was the subject of two separate investigations consisting of three allegations: 1) threats to his subordinate Eric Peterson; 2) making a false statement to his supervisor; and 3) having a distant cousin married to an alleged reputed assassin linked to a drug trafficking organization. Of noteworthy importance is the sworn statement provided by Aguirre which contains false statements of facts.

The report of investigation is incomplete and Aone-sided.@ Accordingly, a fair report from the Treasury's OIG would, inter alia, provide all exculpatory evidence, assess the credibility of witnesses in terms of bias, reason to falsify, prior inconsistent statements, etc., and draw reasonable inferences. A fair report would identify shortcomings in the investigation itself, including any excesses, mistakes, errors in judgment, or impermissible tactics. A fair report would demonstrate that every possible effort had been made to identify all possible exculpatory evidence, and that all such evidence had been given appropriate weight. And a fair report would address honestly and answer truthfully the following question: did Contreras make a false statement to Rybczyk with the intent to deceive and/or mislead the agency? Unfortunately, the ROI failed to answer this critical question and the agency once again decided to humiliate and slander Contreras.

Further, why were allegations #1 and #3 included in the ROI when the OIG investigation did not substantiate these charges? Regarding allegation # 3, records maintained by the Treasury=s OIG reflect that this allegation was already investigated under OIG Region Case Number 98-1-164, which was opened on 1/21/98 and closed on 5/28/98. The Treasury=s OIG records reflect the ROI was submitted to the agency for administrative action in August 1999. The date stamped on the ROI itself reflects the date of September 2, 1999. The inconsistency of the agency=s evidence renders its version less credible than that of Contreras. See Uske v. U.S. Postal Service, 60 M.S.P.R. 544, 557 (1994) (the Board need not defer to the administrative judge=s findings where they are contrary to the weight of the evidence). Moreover, even if Contreras did provide incorrect information to the agency, the agency has not submitted any evidence, and the circumstances do not warrant an inference, that Contreras provided such information with the intent of misleading the agency. See Gonzalez v. Department of the Air Force, 51 M.S.P.R. 646, 653 (1991) (a mere incorrect statement is insufficient to constitute misrepresentation).

The agency must prove that Contreras made an official statement; that the statement was false; that Contreras knew it was false when he made it; and that he made it with intent to deceive. The false official statement specification has been previously referenced.

This allegedly false statement was made during an interrogation by Rybczyk that took place two weeks after the events under investigation allegedly occurred. The agency thus is obligated to prove not only that he did, in fact remember the referenced details of events that occurred two weeks prior to the interrogation, but also that when Contreras said he did not know, he knew he was lying and that he lied with intent to deceive Rybczyk.

The question of what constitute the "truth" has challenged philosophers throughout the millennia of recorded history. Although our judicial responsibilities do not force us to engage in philosophical discourse, we are required to determine whether a person accused of making a "false" official statement has uttered words that, under applicable legal principles, can be determined to be untrue for purposes of the law.

In order to prove that a statement is "false" under current federal regulations, the agency must introduce two different types of admissible evidence: First, evidence to prove the content of the statement in question; second, evidence to prove other matter that so clearly contradicts the challenged content of that statement that a rational fact finder would be convinced beyond the preponderance of evidence (civil) and beyond a reasonable doubt (criminal) that the other matter is true and the challenged statement is false.

The content of an alleged false official statement made during an interrogation normally involves a statement as to the occurrence or non-occurrence of an observable set of circumstances. For example, the challenged statement might consist of an alibi, the specific details of an event, a denial that the accused participated in an event, or a denial that the accused participated in the manner alleged. I direct you to Rybcyzk's sworn affidavit which reads as follow:

"Approximately three weeks ago (on or about April 1), I had a telephone conversation with Miguel A. CONTRERAS, RAIC, Internal Affairs, El Centro (Calexico), California. I called RAIC CONTRERAS to inquire about a reported offensive photograph of a dead informant that was alleged to be currently displayed on the door of the Internal Affairs RAIC Office in El Centro. I asked RAIC CONTRERAS if he knew anything about such a photograph. RAIC CONTRERAS stated that a week or so earlier, such a photograph was temporarily posted on the door of the Internal Affairs office. I asked him who put it there, to which he replied he didn't know. I asked him if it was still displayed on the door, and he stated that it was not. He stated to me that Agent Jose L. Aguirre had complained to him about the photograph, and based on Aguirre's complaint he (CONTRERAS) had it taken down. I asked him where the photograph came from, and RAIC CONTRERAS stated that it came out of a case file that was accessible to everyone in the office. According to RAIC CONTRERAS, information from that file had recently been requested by the Tucson, Arizona, Office of Internal Affairs. I do not recall any other issues being discussed during this call. I was satisfied at that point that the photograph was no longer on display, and that no further potential aggravation could occur.

The purpose of my call to RAIC CONTRERAS was to determine if a harassing condition currently existed in the RAIC Office. My call was placed to RAIC CONTRERAS within an hour of receiving notification from Internal Affairs Headquarters that an allegation had been made regarding the alleged photograph. I believe that Ms. Laureen Cremin from Internal Affairs Headquarters notified me and suggested that I immediately take steps to have the photo taken down".

It is interesting to note that Rybczyk capitalized Contreras' name to denote that indeed he is a suspect in a criminal investigation. Rybczyk's description of his conversation with Contreras mirrors to what Contreras wrote on his sworn statement. In any such case, the agency must introduce not only the pertinent content of Contreras' statement, but also additional evidence to clearly contradict his statement. Typically, this second type of evidence consists of facts that, for example, would contradict an alibi, set forth different details of an event, or otherwise counter Contreras' denial. In this case, Rybcyzk never asked Contreras if he was the one who hung up the picture. Instead, Rybczyk asked him who "put it up"?

Based on the conversation that Rybczyk and Cremin had regarding this matter, it appears that Peterson (when he reported Contreras' allegations of misconduct regarding the picture to IA Headquarters) made false statements and lied when he stated that the picture was still hanging on the office door, assuming he told Cremin that the picture was still hanging on the door).

When the pertinent content of Contreras' statement is an assertion that he "does not know" a specific act or details of an event, as in this case, it is not sufficient for the agency to introduce evidence of the occurrence or non-occurrence of the act or event that is the subject of the statement. The issue in this case is the existence or non-existence of memory of the act rather than whether the act itself occurred. Accordingly, the agency in this framework must introduce evidence proving that Contreras did, in fact, have such a clear memory of the act or details of the event in issue that he was obligated to provide that information when asked about it during an official interrogation and/or interview.

We are unaware of any objective test to definitively establish that an individual actually remembered a specific fact when the individual denies memory and/or his frame of mind is distorted by a fear of preconceived notions and confusion. There may well be situations where the agency can offer sufficient circumstantial evidence to prove, for purpose of Contreras' alleged misconduct, that he lied about the existence of this memory or confusion. Such circumstances might include a contemporaneous statement of memory, a subsequent admission that the denial of memory or confusion was a lie, or proof that the matter under inquiry involved an official duty of such significance that it would be implausible for Contreras to not remember the details. We reserve judgment as to whether any such evidence would be sufficient in a particular case.

This, however, is not such a case. The relevant events occurred when Contreras was going through a very traumatic personal experience as a result of his divorce and two weeks prior to his interrogation by Rybczyk. Llanas' ROI indicated that Peterson told him that "he feels that Contreras is capable of making the call because Contreras has just gone through an ugly divorce, and Contreras is under tremendous stress." During questioning, Contreras stated he did not know who hung up the picture. However, he acknowledged why the picture came about and the circumstances surrounding the reasons the picture had to be displayed in the office. During questioning, he was asked who put the picture on the door, and he responded, "I don't know". He was never asked by Rybcyzk if he was the one who put it up, which clearly would have directed Contreras' attention to specific, inappropriate behavior, assuming would it been illegal to display the picture, which here was not the case. Rybcyzk's question was vague and used speculative wording rather than definitive terms. In the context of an interrogation about very serious alleged misconduct and in view of the sequence of the questions, it is understandable why Contreras, who acknowledging the picture and the reasons for being out and on display, was not prepared to speculate as to any other reasons Rybczyk wanted to illicit incriminating statements from him. Further, when Rybcyzk asked Contreras who hung the picture, Contreras did not know which time Rybczyk was referring to. The picture was taken down once and put it back on. Peterson in his own words wrote in part on his affidavit:

"On March 17, 1999, during the morning hours, I observed my office mate, SSA Matt Issman, give RAC Contreras a file (binder). At the time, I did not know of the contents of the file, only that RAC Contreras came into our office space, spoke to SSA Issman and got the file before leaving the office space. Later that day, Investigative Assistant (IA) Luis Urquidez entered my office space which I share with SSA Aguirre and SSA Issman. IA Urquidez carried with him, a Xerox type copy of a photo of what appeared to be a severely beaten man, and asked what the story was" (Emphasis mine).

Peterson continues and writes: "At the conclusion of this conversation, IA Urquidez left our office with the picture. Aguirre followed him and returned with the picture."

Aguirre on his affidavit wrote: "I took down the photo copy and asked Resident Agent in Charge (RAC) Miguel Contreras (who was using the Xerox machine) if he or knows who placed the photocopy on the front door."

A review of Peterson and Aguirre's affidavit clearly demonstrate that the picture was removed by Urquidez the first time. If Aguirre admits that he took the picture down, then we must conclude that Urquidez is the one who hung the picture the second time. Contreras did not mislead or lied to Rybzyk when he was asked who hung up the picture when he answered that he did not know, because Contreras in fact did not know who posted the picture the second time.

In a sworn statement on May 6, 1999, Contreras stated: "when he (Rybczyk) asked me if I knew "who put it up there", I hesitated before I answered. I did not know whether he was conducting an investigation - so I told him I did not know. When he called me and asked about this matter I wasn't prepared to answer anything, without recalling everything that occurred on the day of the incident. It was not my intention to mislead and/or lie to my supervisor." The May 6 statement of Contreras, however, concerned other aspects of the allegations and did not contain any follow-up questions regarding potential discrepancies between the March 17 and April 1, 1999 statements; and there were no inquiries relating to Contreras' denial of memory on May 6.

This case might have come to us in a very different posture. For instance, for reasons that are not apparent from the record, the agency did not charge Contreras with threatening Peterson or any other employee by posting the picture on the door, an act that he acknowledged having committed. Inexplicably, the agency instead chose to focus on Contreras' memory of the details of a different event, charging him with making a false statement when he said on May 6 that he did not know who had posted the picture. The agency for unknown reasons decided not to charge Contreras with allegations #1 and #3 as outlined in the ROI. In fact, the agency failed to mention in their notice of proposed suspension any information as to the legitimacy of Contreras' actions when he was conducting a legitimate criminal investigation. That was the posting of the picture in furtherance of an official law enforcement function. The agency simply introduced the ROI and material relied upon to propose the adverse action, neither of which clearly contradicted Contreras' statement. Further, the agency simply introduced that he "did not know" and/or remember certain details of a lawful event occurring two weeks prior to Rybczy's interrogation that only tangentially was related to an investigation of much serious alleged misconduct, the criminal investigation of corrupt Customs border officials in the Tucson, Arizona area.

Contreras was interrogated by Rybczyk after he was suspected of charges including threatening an employee, which if proven carried a potential lose of his job and live hood. During Rybczyk' interrogation, he asked a question that, in context, reasonably could have been interpreted by Contreras as making a general and speculative inquiry about an ancillary matter occurring two weeks before the interrogation, involving an official duty. Given the circumstances of this case and the context of the specific questions, we are satisfied that Contreras' statement that he did not know or remember certain details is reasonable. At no time during Contreras' subsequent interrogation on July 27, 1999, did the Treasury's OIG agents raise any questions about his denial of memory and subsequent alleged false statement. The agency in its supporting documentary evidence failed to produce testimony that directly would have contradicted Contreras' denial of memory, but it failed to offer such testimony. The agency only produced one witness, Rybczyk to substantiate the false statement allegation.

Rybczyk, who himself was the target of a criminal investigation has some serious credibility problems. At the time Contreras committed this alleged misconduct, Rybczyk was under federal criminal investigation by the FBI or the Treasury’s OIG for disclosing grand jury information to his supervisor, the former Assistant Commissioner for Internal Affairs, who ever since has been indicted for perjury and making false statements. Note: the Assistant Commissioner, who was an African-American, was later found non-guilty by a federal jury trial. We can only speculate Rybczyk's true motives when he placed that telephone call to Contreras on April 1.

The conflicting and false testimony in the ROI and supporting documentation lead us to conclude that some of the witnesses were not completely candid in their testimony, their recollection of events were faulty, or their eyewitness account were inaccurate, such as in the case of Aguirre's perjured testimony and contradictory statement of Urquidez. After reviewing the witness' statements under oath and penalty of perjury and considering the documentary evidence submitted, we are unable to determine whose version of events is the accurate one. Urquidez stated that he "did not remove the picture or touch the picture in any manner." Peterson stated he saw Urquidez holding the picture in Peterson's office space. It was simply not evident to us at this point that some of the witnesses were being untruthful. While we have some serious doubts about all the details of the witnesses' testimony (their claim that Contreras was seen carrying the picture around the office and Issman witnessing Contreras posting the picture on the door), those doubts are not so significant that we would discredit their testimony in its entirety.

We do have substantial doubts; however, about the objectivity of Rybczyk, Peterson and Aguirre, all of whom participated in the decision to propose this suspension, and Aguirre, in particular, whose eyewitness accounts formed the basis for Contreras' demotion and suspension in April 2000. In addition, the documentary evidence submitted by the agency in support of the proposed suspension, indicates that Contreras' purported lying was inextricably intertwined with his alleged threat violation, on which the agency already concluded that the Treasury's OIG has failed to prove it justifiably relied in suspending Contreras.

As noted earlier in this response, Rybcyzk, Peterson and Aguirre's testimonies in the entire case are not necessarily unbiased witnesses. Rybcyzk personally knows that Contreras has reported violations of law, rules and regulations with the Office of Special Counsel, Treasury's OIG and EEOC against certain high ranking Customs officials. He personally knew that Contreras was the agent and principal representative in a certified Customs-wide class action. Aguirre received a notice of proposed indefinite suspension from Contreras in connection with his prior felony arrest for illegal wiretapping. Aguirre has also been the subject of numerous referrals to the Treasury's OIG, and has received several oral admonishments in connection with his job performance by Contreras. Peterson was at odds with Contreras for job performance related incidents. Contreras has counseled Peterson in several occasions for job performance deficiencies and for being for what Contreras, Rybczyk and Contreras’ former supervisor Harrison considered, a "sub-standard" special agent. A former co-worker from Las Vegas, Nevada, considered Peterson lazy, racist and nosy.

The above assertion can only be illustrated by the way Peterson and Aguirre got together and conspired to "bring their supervisor (Contreras) down" by fabricating the threat and initiating the allegation about Contreras being connected by family ties with an associate of a drug trafficking organization headed by the Arellano Felix brothers in the Tijuana, Baja California area. For a long time, Peterson expressed interest in getting relocated to another office at the government expense, and preferably away from the border where he would not be expected to work long hours responding to border related drug seizures. He saw an opportunity to "ring the alarm" to attract attention, hoping to score a "free ride" to another office at his supervisor's expense. It is why, he contacted first Assistant U.S. Attorney Michael Wheat in San Diego, CA and later Wayne Wallace at Customs' Internal Affairs in Washington, D.C. Peterson was simply determined to get what he always wanted ever since he got to Calexico, to get away from "all those Mexicans." In previous affidavits submitted by Contreras in response to Peterson’s bogus allegations of discrimination, Peterson was described as being "a racist", one who cannot tolerate being supervised by a Hispanic supervisor. This is the main reason he decided to live in Pine Valley, CA, 80 miles away from the Calexico IA office, and not live in the Imperial (Calexico) county where the population is predominantly Hispanic.

It is sad that the agency decided to fall for Peterson's games when decided to go after Contreras and continue its retaliatory practices against an honest and hardworking career federal law enforcement officer. It is also very suspect that Peterson's alleged threat complaint against Contreras took extraordinary priorities by both the Office of Internal Affairs and the Treasury's OIG. Why when Contreras reported to the Treasury's OIG via Customs' IA channels that Peterson's close friend Phillips, who worked under Contreras in Calexico, sent a confidential informant to the Mexicali area in Baja California, Mexico to look for "dirt" on Contreras was never investigated?

The informant reported to Senior Special Agent James Lawson ("Lawson"), a subordinate agent of Contreras that Phillips had given him a picture of Contreras for the purpose of linking him to Armando "El Loco" Duarte, the alleged associate of the Arellano Felix brothers. The informant was directed to go down into Mexico to ask and show Contreras' picture to scores of drug traffickers for the only purpose of gathering "dirt" on Contreras and further tarnish his reputation. To Contreras' knowledge, no follow-up by either Customs IA or the Treasury's OIG was ever conducted. If the informant story is true, we can think of a number of criminal law and agency regulation violations that Phillips committed when he sent the informant into Mexico on this "secret mission," not counting that Contreras and his family lives were put in jeopardy by the informant displaying his picture in Mexico. Let's not forget that Contreras was the Resident Agent-in-Charge of an office's whose primary enforcement priorities were the investigation of border corruption in the Calexico, CA area. Further, the agency had an obligation to determine the extent of any potential threat into the life of Contreras and his family. However, the agency failed to fulfill its mission and responsibilities. Instead, the agency opted to get even with Contreras once and for all, that is to perfect another bogus charge of misconduct with the hope that may be this time, Contreras will surrender and resign.

Contreras reported the Phillips serious misconduct to the Treasury’s OIG who in turn, referred back the allegation to Customs. Later, an internal affairs agent called Contreras and asked him about the incident. The agent told Contreras that Phillips had denied all allegations. Once again, another complaint filed by Contreras was “brushed under the carpet.

Moreover, the agency failed to proffer the testimony of other more objective witnesses who might have provided relevant and probative evidence regarding Contreras' alleged lying. The issue in this case is not whether Contreras is guilty of threatening his employees by the posting of the picture of a dead informant on the door. The issue, moreover, is not whether he made a false official statement when he answered that he did not know who posted the picture on the door, the agency had the opportunity to charge him for making several potentially contradictory statements, but chose not to do so.

Instead, the issue is whether, under the circumstances of this case, Contreras made a false official statement under agency rules of conduct when, in response to a vague and speculative question, he said that he could not remember certain specific details of a bona fide law enforcement activity that occurred two weeks before an official inquiry into relatively much more serious misconduct. Based on a review of the notice of proposed adverse action and supporting evidence, we have determined that the agency failed to introduced evidence upon which a rational independent fact-finder could conclude that Contreras' statement to Rybczyk was false. Thus the evidence is legally insufficient to sustain Contreras' alleged misconduct.

Of importance to note, in mid 1999 Contreras was interviewed by former Assistant U.S. Attorney Ruth Cohen ("Cohen"), U.S. Attorney=s Office, Las Vegas, Nevada, and former legal counsel Paul Turkin ("Turkin"), Office of Associate Chief Counsel, U.S. Customs Service, San Diego, California, regarding Contreras scheduled deposition in the Newton Phillips civil lawsuit against the U.S. Customs Service. Pursuant to the Hentorn and Giglio disclosures, Contreras reported to both Cohen and Turkin that he had been the subject of an investigation by the Treasury=s OIG regarding the charges outlined in the proposed adverse action (suspension of 20 days).

Contreras advised AUSA Cohen that one of the issues involved was an allegation that he lied to Rybczyk. After learning the basics, Cohen was very surprised to hear this and stated: Alying over what....lying over nothing!@ - making reference to the posting of the picture of the dead informant on the door. Cohen stated that she did not understand as to why Customs and the government would investigate something like this. Further, AUSA Cohen stated that it is no wonder why the U.S. Customs Service keeps getting sued. Other comments made were to the effect that if a Customs special agent criminal investigator feels threatened by the sight of the picture of a murdered dead person; he or she has no business in being in law enforcement.

In sum the accusations made against Contreras are neither clear nor specific and appear to be duplicitous, a matter which we already have established.

Although this is an administrative proceeding, Contreras is entitled to all of the protections provided to him under the U.S. Constitution, the Federal Rules of Criminal Procedure, the Federal Rules of Civil Procedure, the Code of Federal Regulations, the Rules of Policy and Procedure of the U.S. Customs Service as well as the Federal Rules of Evidence. The acceptance of Peterson's frivolous complaint and allegations and the subsequent conduct of the agency and the numerous investigations by the Treasury's OIG shock the conscience of a reasonable person. This was a miscarriage of justice.

The U.S. Customs Service is required to follow it=s own Rules of Policy and Procedure, other Regulations, and to follow what it has established through custom and usage in cases that involve the same or similar circumstances that are presented by this case.

It is impossible to ascertain what the U.S. Customs Service has done, how it has handled other case that involve the same or similar circumstances and whether the Service is applying the same standard to all employees or if it is involved in disparate treatment of Hispanic special agents unless and until the questions addressed by Contreras in this response are fully answered by the appropriate authorities.

Peterson made very serious accusations against Contreras in the affidavit that he gave to the Treasury's OIG agents and to the agency. The accusations included a very detailed list of conclusions that, he, Peterson, reached and that involved a lot more than the question of Awho hung the picture of the dead confidential informant on the door.@

We are herewith requesting any and all investigations, conducted by the Service, into the veracity of the accusations and conclusions made by Peterson including, but not limited to, the following:

That Contreras had a family relation, through marriage with a distant cousin, of, who was suspected of Aperhaps@ being involved as AHit Men@ and who possibly may have been a member of a group of certain individuals who were suspected of dealing in narcotics.

That Contreras had both the ability and the predisposition of committing Murder and of being capable of the additional crime of solicitation of murder.

That Contreras had hung the picture of the dead confidential informant as a Athreat@ to Peterson.

How Peterson came to be in possession of a confidential E-mail between Contreras and his (Contreras=) supervisor?

What was the content of the conversation between Aguirre and Peterson that led Peterson to feel that the photocopy of the dead CI was meant as a threat to him, personally, and also to his family?

The Customs’ policy, rules or regulations relied upon by Peterson that required Contreras to disclose the subject of what Contreras was investigating, in his official capacity as Resident Agent in Charge (RAC), to Peterson. Contreras was Peterson’s supervisor and was not required to answer or give an explanation to a subordinate employee as to why the picture was being displayed Contreras was conducting an official investigation (assisting the Tucson’s Office of Internal Affairs).

How it came to be that Peterson had knowledge of the contents of an affidavit that another agent had given to the Regional Complaint Center in an investigation conducted in 1999?

How it was that Peterson was able to relay, in his affidavit to IA, the contents of a conversation that an EEO officer allegedly had with Rybczyk, who incidentally, is the same person who initiated the report which is now the subject of this case?

How it was that Peterson felt Athreatened@ when he did not learn of what had happened to the confidential informant, who was the subject of the photocopy, until after he had two conversations with Aguirre on March 17, 1999 and March 18, 1999, even though he states that Aguirre was in possession of the subject photocopy?

Peterson states in his affidavit that it was after he concluded that Aas there are no informant related issues that are ongoing in the OIX/CX office at this time, I perceived the display of this photo(copy) to be a threat to me at this time.” (Emphasis mine)

Was there a lawful informant related activity going (a federal corruption criminal investigation) on at the office that was being conducted by Contreras?

Would the fact that there was an ongoing informant related activity going on, at that time, made difference in the perception of Peterson and was this issue investigated?

Are there any time sheets or work load sheets that would show if Agents such as Aguirre and Peterson had anything to do other than to gossip with each other about their immediate supervisor Contreras?

These are very serious charges which the U.S. Customs Service, undoubtedly, investigated. Please provide any and all reports that have been made regarding these issues and serious accusations.

If no investigations were conducted into the accusations made by Peterson, please provide us with any and all documents as to who made each and every, all and singular the names and supporting documents of the official or officials who made a decision not to investigate the accusations made by Peterson.

Also requested herein is a request for information of any disciplinary action or actions that have been taken against Peterson as a result of the false accusations and criminal allegations that he made against Contreras. If no investigation was conducted; explain the reason (s) there were no action taken against Peterson?

Has any investigation or disciplinary action been taken against Aguirre as a result of the fact that he lied in his affidavit, in this case, when he obstructed the ongoing criminal investigation his supervisor Contreras was conducting at the time?

In sum, the record in this case and the agency rules and policies support the strong view that Contreras did not make a false statement with the intent to deceive and or mislead the agency. We therefore find that the agency has failed to prove that Contreras lied to Rybczyk.

The disciplinary action thus should be dropped in its entirety.

Mitigation and the Douglas factors

Although we hope you are persuaded that no misconduct occurred, we must of course account for the other possibility. Contreras thought he was handling the situation properly, but he accepts the fact that the Discipline Review Board disagrees. This has been an extremely humbling experience for Contreras. We implore you to approach the punishment decision with an understanding that Contreras is ready, willing, and able to learn from his mistakes. Law enforcement is his life. He will gratefully accept criticism that helps him do his job better.

If the only one specification is sustained, it will be necessary for you to determine the appropriate punishment, taking the Douglas mitigation factors into consideration. As we hope you will agree, the Douglas mitigation factors apply with great force here, making the proposed 20 days suspension entirely inappropriate. Contreras is a highly-skilled, hard-working Customs employee, and his suspension would not Apromote the efficiency of the service.@ We now address each Douglas factor in turn.

1. The nature and seriousness of the offense, and its relation to the employee=s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.

As explained above, there is no serious dispute about the core facts, but there is a substantial doubt as to whether Contreras= conduct amounted to Amaking a false statement to his supervisor.@ If you conclude that a false statement with the specific intent and knowledge to deceive the agency occurred, you should nevertheless take into account that it was a very Aclose call.@ The first Douglas factor requires the punishment to fit the egregiousness of the misconduct. Here, Contreras did not intend to violate the Agency=s falsification rules. Indeed, he thought he was acting in accordance with the policies cited above. Thus, if a violation is established, it must properly be viewed as a Atechnical@ or Ainadvertent@ offense, which makes lighter punishment appropriate.

Similarly, there is no evidence whatsoever that the offense was committed maliciously or for gain, or was ever repeated.

As to repeat violations, it is important to note that Agency policies endorse Aprogressive discipline@ in this specific area. The U. S. Customs Service Table of Offenses and Penalties indicates that for inadvertent, careless, or deliberate misstatements or misrepresentation in completing officials documents calls for a written reprimand up to removal for the first offense. For the second offense and subsequent offenses, the penalty is 14-day suspension up to removal.

Since Contreras has not repeated the problem, punishment on the lowest level of severity is appropriate.

2.  The employee=s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.

As Resident Agent in Charge, Contreras occupied a supervisory position. He was in a position requiring the frequent exercise of sound judgment. As explained in William Kavanaugh=s statement, Aone of his best traits was that he did not require constant guidance after he was given an assignment. He was able to use independent judgment to get the job done.@ (Kavanugh’s statement relates to several years before when Contreras was a GS-1811-12 working in South America) On February 23, 1993, Michael W. Feikes, District Counsel, U. S. Customs Service, Detroit, Michigan, described Contreras , quote: Aas honest and trustworthy. I know this is the reputation he carries in the office and I believe that it is the reputation he carries in the community.@

3.  The employee=s past disciplinary record.

Contreras contends that the agency improperly considered his prior formal discipline when proposing his twenty day suspension. Regarding his October 1988 seven (7) day suspension, Contreras while employed with the Bureau of Alcohol, Tobacco & Firearms asked his supervisor for authorization to take his wife with him while on temporary assignment to the Santa Ana, CA office, where he was to assist that office in an undercover assignment. His supervisor approved his request but told him to make sure the case agent in Santa Ana, CA used his own personal vehicle when transporting Contreras and his wife from the airport to the hotel. Contreras conveyed this to the case agent who stated he would use his own private vehicle.

However, because the case agent drove an undercover government-owned vehicle to transport Contreras and his wife, he believed the case agent used his own private vehicle. A year later, during an annual office inspection, the ATF case agent (in an attempt to have his ATF RAC disciplined) informed that his supervisor had authorized the transportation of Contreras and his wife, knowing that he was using an undercover GOV. In sum, the case agent (the agent who reported the incident) received a 45 day suspension, his supervisor was demoted and relocated to another office and Contreras received the seven (7) day suspension. Rather than appealing his suspension, Contreras left ATF. (ATF management appreciated Contreras’ high performance with his high volume of criminal prosecutions and convictions, ATF recommended a monetary award equal to the loss of income during the suspension. Contreras does not remember if he received such an award because he left ATF) Contreras believes that only the above referenced disciplinary action may be used to support the reasonableness of the proposed penalty.

As to the other two disciplinary actions, the October 1994 two (2) day suspension is under appeal and is part of Contreras= certified class action which is currently under litigation with the U.S. Equal Employment Commission in Washington, D.C., while the April 2000 demotion and fifteen-(15) day suspension, is under appeal with the Merit Protection Board. The agency committed an harmful error when considered prior disciplinary actions that are subject to ongoing proceedings to propose the twenty (20) day suspension. See Maria A. Gregory v. United States Postal Service, U.S. Court of Appeals for the Federal Circuit, No. 00-3123, decided on May 15, 2000. Thus, prior disciplinary actions that are subject to ongoing grievance proceeding may not be used to support the reasonableness of a penalty.

In light of the above the agency committed a harmful error in considering Contreras= past disciplinary record. The proposed notice of suspension refers to a past disciplinary record. Thus, the enhancement of the proposed penalty is inappropriate on this basis. In 1999, Contreras received a proposed letter of removal and the same two day suspension was used to enhance the proposed penalty of removal. The fact of the matter was that Contreras had filed a class action complaint of discrimination and harassment; had filed individual EEO complaints of non-selection; and had reported gross criminal misconduct by specific Customs management officials. The U.S. Customs Service and the U.S. Treasury’s Office of Inspector General tried numerous times to make a case by conducting malicious and trumpeted internal investigations with two objectives in mind; obtain a criminal indictment and conviction or getting him fired.

4.  The employee=s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.

This is a very strong factor for Contreras. From humble beginnings as a migrant worker, Contreras has risen to a position of respect and recognition in federal law enforcement. After starting his career as a corrections officer and police officer in the 1970s, he joined the federal sector in 1981 and never looked back. He has been with the Customs Service since 1988, when he became a Special Agent in El Centro, California. In 1992 he became Senior Special Agent in Detroit, Michigan. In 1995 he continued as Senior Special Agent in Yuma, Arizona. From 1995 through May 1999, he served as Resident Agent in Charge back in El Centro. Most recently, he was transferred as Group Supervisor back to Yuma. Given where he started, this is a very impressive career path. Since April 2000, he has been working as a senior special agent assigned to the Office of Investigations in Yuma, Arizona. In despite of all of the adversities that he is being confronted with, Contreras continues to excel in what he knows best, conducting effective federal law enforcement investigations and representing the U. S. Customs Service as a model employer

A copy of Contreras= curriculum vitae is attached, and it reflects a vast array of certifications, awards, honors, commendations, and special accomplishments. He received two Special Act/Service Awards in 1997 alone. He belongs to more than a dozen professional honor societies and associations. He is certified as a Diplomate of the American Board of Law Enforcement Experts. He is a Certified Protection Professional, a Certified Fraud Examiner, a Certified Security Supervisor, and Certified Protection Officer.

As to performance and capabilities, it is notable that Contreras was rated as a perfect A100" in September 1998 with respect to his application for the position of Special Agent in Charge, grade GS-1811-15 for Internal Affairs in Long Beach, California. He was rated Asuccessful@ (the only positive rating permitted) on his most recent annual evaluation. His supervisor at the time of the incidents at issue (“Rybczyk”) praised Contreras as a Abright and energetic first-line supervisor [who] has provided effective and focused supervision over both investigative personnel and investigative processes.@

Other Customs managers (now retired) also praise Contreras. Velasco (retired Customs Director of Internal Investigations, HQ-IA) describes Contreras as Acapable and an asset to the Customs Service.@ Edwrad Mederos (retired Customs’ Regional Assistant Commissioner for Internal Affairs) testifies that Contreras is Aan excellent employee@ whose work is characterized by Aprofessionalism and commitment to his work.@

Cavanaugh states that Contreras impressed him as hard-working employee who tackled assignments right away. Kavanaugh also praises Contreras for his Aenergy and good decision-making,@ and the fact that Ahe was able to use independent judgment to get the job done.@ Kavanugh sums up his views as follows: Contreras Awas and is a good investigator, honest, and dependable and an asset to the U. S. Customs Service.@ In February 1993, Special Agent in Charge Rodney C. Tureaud when he was Contreras, immediate supervisor in Detroit, Michigan stated: AThe U. S. Customs Service requires all of its employees to have good character and integrity, and Contreras demonstrated both character and integrity while conducting criminal investigations and in conducting his personal affairs.@ Dr. Kenneth E. Christian, when recommending Contreras for a doctoral program in criminal justice studies with a concentration in security management wrote: AI have known Miguel both as an undergraduate and as a graduate student. He has always been diligent student who performed well even while working full-time. I can only support what the late Dr. Robert C. Trojanowicz, Director of the School of Criminal Justice said about Miguel. AMiguel [Contreras] is an outstanding person in every respect. He is highly motivated, intelligent and dedicated to higher education.@ On May 15, 1991, John P. Luksic, Assistant Regional Commissioner for Enforcement wrote: Contreras, AYour performance and dedication have been exemplary and are a large part of the reason why a major money laundering organization was neutralized. Your efforts and accomplishments are a credit to yourself and the entire Customs Service.@ In 1994, Douglas R. Ray, Resident Agent in Charge, Bureau of Alcohol, Tobacco & Firearms, Santa Ana, California testified:

AI would like to bring to your attention the outstanding performance of Special Agent Miguel Contreras during a recent undercover investigation conducted by this Post of Duty. Despite his own pressing investigative matters and other demands of his time, Agent Contreras volunteered to come to Santa Ana, California and assist us on a very significant investigation. Through skillful control of the informant and by directing the informant in the proper manner, three separate Astraw man@ purchases were made at a Federally license firearms dealer, who by conservative estimates was selling between 300 and 400 firearms per month that ultimately were delivered to Mexico.

As the investigation progressed, the licensee Acontracted@ with Agent Contreras to perform a murder for hire. Through successful cooperation with the Santa Ana Police Department, this aspect of the investigation was perfected.

I would like to point out that Agent Contreras had never been involved in this type of investigation, but he was by his own skill and initiative able to illicit the proper statements and admissions from the licensee to establish a case for state prosecution.

The case resulted in outstanding press from both the Los Angeles Times and the Orange County Register when the licensee and two salespersons were arrested. All three defendants have pled guilty in Federal court to the resulting charges. The United States Attorney, an experienced criminal attorney, commented favorably to me concerning the thoroughness of the investigation and outstanding work of Agent Contreras."

Agent Contreras always responded promptly when called upon through all facets of this investigation and he displayed the attitude and conduct of a seasoned professional. He is a credit to his Post of Duty and the agency as a whole.@

Contreras during his professional career has attained the respect and admiration of his peers and supervisors.

When Contreras took over the Calexico IA office (OIACX), the workforce was in immense disarray. The office moral was very low. An identifiable factor contributing to this problem was the hostile environment that permeated the office. One of his immediate goals was the identification of the problem (s), develops strategies and implements positive changes. Under the old administration, the OIACX had no representation with the San Diego-based Border Corruption Task Force (BCTF). Agents of the OIACX were used informally creating the impression that they were being used as "bagmen" for the BCTF, a task force headed by the FBI. The OIACX had not produced, independently and on its own, a single and viable prosecutable investigation. This situation was ostensible caused by external as well as internal factors.

The OIACX was not part of the BCTF because all task force representative agencies were based in San Diego. As to the internal factors, Contreras attributed the problem to three agents. One of the three agents was very hostile and aggressive. This agent was considered to be anti-management whose own agenda was to disrupt and polarize the office. To make matters worse, he was what Contreras and other supervisors considered to be, a substandard agent with almost twenty years of Customs working experience. Because these agents were in constant battle among themselves, the hostile environment within the office was ever present. This hostility subsequently was transferred to the rest of the staff. Once, a representative of an outside agency visiting the office commented that the office needed to bring a group of human relation professionals to help develop team-building concepts and to become a better group. He was correct. The office was in complete turmoil. The whole Customs Service knew that big internal problems and conflict existed at the OIACX. Before Contreras took over the office, teams of HQ and regional fact-finding high level personnel, to include the Assistant Commissioner for Internal Affairs surveyed the office regularly in an attempt to identify and resolve the problem. However, nothing was done to resolve these inter-office problems.

It took Contreras almost 16 months to solve the problem and implement new and positive changes. Under his leadership, the three agents in question were transferred for the good of the Service, and one investigative assistant resigned. The OIACX, and the local FBI and DOJ's Office of the Inspector General established their own BCTF based in El Centro, CA. The OIACX under Contreras leadership played a very important role in the recruitment and selection of senior special agents and support personnel. To make sure quality personnel was recruited for El Centro, CA, Contreras made sure that prior-selection and hiring screening mechanisms were followed between the SAC, HQ and OIACX offices. As to prosecutable investigations, the OIACX in November 1997 perfected a criminal case where twenty-nine individuals were arrested, including one Customs inspector for bribery, corruption and Immigration laws related offenses. The OIACX initiated the investigation and was the leading agency. Contreras was the supervisor in charge overseeing this very significant corruption investigation.

Besides the above referenced organizational changes, and after recognizing that he had an immense task in his hands and that ultimately he was to be the person responsible to successfully direct the operational activities of the OIACX, Contreras took immediate steps to correct what he considered organizational deficiencies within the organization. In an attempt to dispel the myth that internal affair=s investigations were merely a housekeeping chore or minor administrative responsibilities within the Customs Service, Contreras implemented changes based upon the conviction that the ultimate mission of IA was not "business as usual" but an important management function. Contreras knew that attitude change had been critical to the professionalism in the IA field because it had created opportunities for personal growth and had attracted highly qualified individuals, as evidenced by the latest hiring of competent and experienced agents with extensive OI experience.

Another area of concern that Contreras faced was the labeling of IA agents that they were a "bunch of zealots, Gestapo type of headhunters" whose ultimate objective was to harass Customs employees and to open and conduct internal investigations without merit. Contreras recognized that too often IA agents operated in an authoritarian fashion and that they were often regarded with disfavor if not outright hostility by many other Customs employees. This was in part because information about IA activities was sometimes needlessly restricted and an atmosphere of distrust developed. In many earlier programs there was not little constructive cooperation between IA and other management areas nor was there sufficient attention given to increasing productivity by reducing costs and employing appropriate technology.

Contreras knew that in the many progressive Customs entities where the attitude toward IA by top management had changed and the importance of the function had been recognized, the types of programs described above were no longer acceptable. Top management representatives were demanding that modern management techniques were to be used. Frequently the idea of efficient and professionally IA investigations were being required, and the value of systems approach, was being recognized as the method to be used in developing and managing an effective IA program.

Under Contreras' leadership and support of his subordinates, Contreras and the OIACX made tremendous progresses. The office maintained outstanding relationships with local and district Field Operations and OI personnel, and with other Federal, state and local entities. Contreras assigned an agent from his staff to give "Integrity and Bribery Awareness" seminars to all new Customs Inspectors at Calexico. He also assigned an agent to serve as the domestic and foreign IA liaison. Contreras periodically conducted IA presentations to both law enforcement and business entities. He regularly met with other agency heads to promote the IA mission and to explain the IA mission statement and to discuss whatever investigative business was in their respective agendas.

The total assessment of the OIACX before Contreras' departure was that of a well-managed office that was effectively performing its Customs mission in support of national enforcement priorities. The SAC/Southwest in assessing the current OIACX's mission performance declared that national investigative priorities set forth in the OIA plan have been effectively addressed, especially in administrative areas. In January 1998, the SAC when recommended Contreras for admission into a graduate program with the Scarman Centre for the Study Order at the University of Leicester wrote:

"Contreras is a bright and energetic first-line supervisor. He is currently assigned as the officer-in-charge (Resident Agent in Charge) of a small (10-person) office located in El Centro, California. In his capacity as a supervisory U.S. Customs Agent, he has provided effective and focused supervision over both investigative personnel and investigative processes. He is a capable analyst who is able to rapidly discern patterns, trends, and key issues related to complex investigations. He is fluent in English, but is also a native Spanish speaker. His bilingual capability is particularly useful in a community such as El Centro, California, which is characterized by a high density of Spanish speaking permanent residents as well as transients.

Contreras is keenly interested in a self improvement and educational process. He is receptive to new ideas, and is a catalyst for change in his own office. He is not rigid in his perspectives, but rather is interested in understanding all the dimensions of a particular problem. He is an avid reader, and is particularly interested in organizational change and organizational dynamics.

I would highly recommend Contreras for a graduate-level program in a business or public administration related discipline. I believe that he has the communications skills, analytical ability, and inner drive to accomplish a graduate program on one of these areas. Contreras is also highly accomplished and trained in the area of security management. He is a member of the American Society of Industrial Security (ASIS) and is continuously seeking growth and learning in this critical-sensitive field. Any program that would combine security management and business practice would be most appropriate and beneficial for Contreras"

Due to budgetary constraints and other organizational factors not within the control of Contreras, he was not able to attend Customs sponsored supervisory and managerial training to prepare him with the tools to effectively manage and supervise his office ( Contreras was only authorized to attend the mandated basic Customs Supervisory Training Seminar). However, this did not prevent him from seeking on his own, the education and training required of first-line supervisors who are expected to excel. Similarly, he accumulated many management related textbooks so if a particular problem develops and he was not sure what to do, either he consulted with his supervisor and/or he looked up in his own private library the particular subject or topic in question.

To continue with the SAC's positive assessment of his office, Contreras made sure that threat analyses were current in priority enforcement program areas. These threat analyses were used as a tool in deciding resource allocation. The OIACX was deemed to have been productive in all priority enforcement programs with prosecution of high quality violators, and in the completion of quality administrative investigations and submission of red books on a timely manner proving the allegation (s) and/or exonerating employees.

Under Contreras' leadership, the OIACX forwarded information to other OIA offices that resulted in the initiation of several criminal cases while being actively involved in several current ongoing multi-agency task forces. In recognition of the high level of dedication to duty, the OIACX personnel diminished the hardships associated with the areas within the OIACX jurisdiction and persevered in the development and pursuit of investigations. The OIACX continued to be a vital element in the enforcement effort of the Office of Internal Affairs. The enforcement personnel assigned to the OIACX continually displayed a positive attitude while performing an array of hazardous tasks associated with bribery and narcotics interdiction. This positive attitude, an ardent performance of duties, and heightened degree of professionalism all combined to enhance the reputation of this highly successful law enforcement unit.

In sum, Contreras has attained a record of outstanding accomplishment that merits favorable consideration in the determination of punishment.

5.  The effect of the offense upon the employee=s ability to perform at a satisfactory level and its effect upon the supervisor=s confidence in the employee=s ability to perform assigned duties.

There is no indication that Contreras is unable to continue his excellent work for the Agency. The incident presented unique complications that are extremely unlikely to recur. Contreras remains ready, willing, and able to uphold the Agency=s strict controls regarding release of confidential information. As to his supervisor=s confidence, Contreras continues to receive satisfactory periodic and annual performance evaluations from his supervisors, even after the incident in question, strongly indicating that Contreras had retained the respect and trust of his supervisors. Contreras also maintains and draws the respect and admiration of his former subordinates which often refer to him as "boss" or "commander", even though they know that Contreras is no longer a supervisory criminal investigator and their supervisor. Moreover, Contreras' co-workers often ask him basic operational and administrative related questions because they still have confidence in Contreras abilities to effectively supervise a workforce.

6. Consistency of the penalty with those imposed upon other employees for the same or similar offenses.

It is not known at this time what penalty, if any, was imposed upon Aguirre for his actions with respect to this incident. More generally, we are not aware of any other Customs employee who has been suspended for twenty (20) calendar days for making a false statement, such as the one of which Contreras is accused of making. Even if suspension occurred in another case, we would question whether Contreras= actions were comparable in terms of intent and the other Douglas factors.

The following Customs employees have been known to having been accused of making false statements and/or perjury: Of course this list is by no means inclusive.

James Kadlec - Supervisory Criminal Investigator, GS-1811-14, Office of Investigations, El Paso, TX. As a Supervisory Criminal Investigator, GS-1811-14, with the Office of Internal Affairs, El Paso, TX, Kadlec almost got indicted by the U.S. Attorney's Office in El Paso, TX for disclosing sensitive investigative information regarding ongoing criminal cases. Instead, Kadlec was reassigned to the IA, Indianapolis, Indiana. In the summer of 1997, Kadlec contacted an IA Customs employee to inquiry about a Title III court ordered interception of wire communication. Kadlec had no part in the investigation nor was he "minimized." The U.S. Attorney's Office in El Paso, TX filed formal complaints with the El Paso IA’s Assistant Special Agent in Charge, Allen Trujillo against Kadlec. On or about November or December 1998, a meeting was held between the following IA managers: Robert W. Weber, Allen Trujillo, Daniel Urbina and James Kadlec. The purpose of the meeting was to brief Weber, who was acting as the IA Special Agent in Charge about an ongoing certified undercover operation. At this meeting, Kadlec stated that a Customs Inspector had been caught on a tape recording accepting bribes. Trujillo (knew Kadlec was lying) asked Kadlec three times if this bribe attempt was actually on tape. Each time, Kadlec replied that the inspector’s voice was on tape. Kadlec's statements regarding the inspector being on tape proved to be totally false. Trujillo attempted to bring disciplinary charges against Kadlec for making a false statement and lying to his supervisor and for the other two above referenced allegations to no avail. Allegedly, IA/HQ refused to forward Trujillo's allegations against Kadlec to the Treasury's Office of the Inspector General in direct violations of Treasury and Customs' policy. As of this date, Kadlec has not been investigated and/or disciplined. Note: On July 22, 2009, Contreras spoke with Trujillo about this incident. Trujillo confirmed the above referenced information and stated that he was ordered by Weber not to take any action against Kadlec. Trujillo stated that he wanted Weber to listen to Kadlec’s lies fir himself but regrets not having created a report in TECS as soon as he discovered that Kadlec was lying.

Sean Mulkearns - Senior Special Agent - Office of Investigations, Las Cruces, New Mexico. Mulkearns authored a letter with false allegations against Hispanic agents assigned to the IA El Paso, TX office. Mulkearns was investigated and a red book was issued charging him with making false statements and slandering the IA Hispanic agents. A Disciplinary Review Board proposed a 30 days suspension. This proposed action was later cancelled and Mulkearns was exonerated from all charges. Allegedly, William Keefer wanted to impose the 30-day suspension but he was overruled by the Office of Chief Counsel.

J. Duncan - Unknown Grade - Supervisory Criminal Investigator - Office of Investigations, Headquarters, Washington, D.C. As a foreign Customs official assigned to an Attaché office, this supervisor was accused and investigated by internal affairs of misconduct involving allegedly voucher fraud, false statements and his wife driving his assigned government-owned vehicle. This supervisor was officially terminated from his employment with Customs and physically escorted out of the Customs HQ building and before Assistant Commissioner for Investigations Ms. Bonnie Tiechler was reassigned to the Office of Field Operations. However, when the new Assistant Commissioner for Investigations, John Varrone took over as the head of the Office of Investigations, he allegedly decided to entirely remove this supervisory=s adverse action record and the supervisor was re-hired back as an employee with Customs.

Robert Tine - Supervisory Criminal Investigator, GS-1811-15, Office of Investigations, Foreign Operations. While he was the Resident Agent in Charge, GS-1811-14 in San Ysidro, CA, Tine while on duty drank alcoholic beverages in excess, while being drunk, he drove his government-owned vehicle and failed to file a leave slip. One of Tine’s subordinate special agents who had been drinking with Tine got arrested the same evening for urinating in public by the San Diego Police Department. A top manager of the Customs’ Office of Investigations reported Tim’s gross misconduct. These allegations were referred to the San Diego IA office for appropriate action by Contreras. Thomas P. Rybczyk was personally apprised of the allegations but he defended Tine’s actions. Unknown to Contreras at the time, but allegedly Tine and Loraine E. Brown were intimately involved. Brown was the former SAC for Internal Affairs then got promoted to be the Customs SAC (SES) Office of Investigations, Los Angeles, CA. During this period, Tine got promoted to Associate SAC, GS-1811-15 and later transferred to a foreign post as a Customs Attaché. Contreras doesn’t believe Rybczyk made the referral to Customs’ HQ-IA or the Treasury’s OIG.

Larry Lotocki - GS-1811-14 - Supervisory Criminal Investigator - Office of Investigations - San Diego, CA. As a senior special agent, GS-1811-13, this agent obtained and served a federal search warrant on the wrong house. The innocent victim resident resisted and was shot by Customs agents. The resident filed and successfully won a lawsuit against Customs. During the civil litigation, the case agent, Larry Lotocky was found by a U.S. District Court judge to have committed perjury in his courtroom. The judge told the U.S. Attorney=s office and Customs officials that he did not want ever see the agent in his courtroom because he was a liar. The SAIC promoted him to a GS-1811-14 because he was no longer effective as a street agent. The Office of Internal Affairs in San Diego, California investigated the perjury allegations. The agent allegedly went unpunished and received a promotion instead. Contreras at one time saw at least one big box with the letters “LOTOCKY” written on the box and placed under Contreras’ then immediate supervisor for internal affairs, Charles “Shep” Harrison. Contreras is of the opinion that Lotocky was not disciplined because his wife was an Assistant U.S. Attorney assigned to prosecute Public Integrity cases.

Tim Wagner - GS-1811-15 - Supervisory Criminal Investigator - Office of Investigations, Miami, FL. As holding the position of Deputy Special Agent-in-Charge in Miami, FL, this supervisory was part of a conspiracy with the former SAIC Miami, Florida to allow 1,000 of cocaine to enter the streets of Miami, Florida. An internal investigation was conducted and the supervisor was found to have lied to Office of Inspector General's investigators. After a lengthy time period, the proposing official proposed only five (5) days suspension. However, the deciding official presented him only with a letter of reprimand. Many Office of Investigations managers spoke on his behalf and influenced the outcome of the disciplinary process.

Thomas McDermott - ES-1811 - Senior Executive Service - Supervisor Criminal Investigations, Director, Domestic Investigations - Office of Investigations - HQ. This supervisor was found to have lied to a U. S. Congressional Committee when testifying under oath regarding Customs matters. Unknown if he was investigated - However, he was later transferred to a foreign office as a Customs Attaché.

Wayne Roberts - GS-1811-15 - Supervisory Criminal Investigator - Office of Investigations. Former Senior Agent Wayne Roberts was promoted to Customs attaché in Caracas, Venezuela despite being the target of a Miami criminal grand jury probe in 1991. He was questioned about his role in the secret removal from the U.S. of a government witness set to testify in the trial of deposed Panamanian leader Manuel Noriega. He was also publicly accused by Customs management of giving false statements about it to his superiors. There were no indictments. Roberts denied that he lied. Roberts was investigated by IA and was subsequently charged internally with "negligent or careless performance of duties where . . . a Customs enforcement function is substantially and negatively impacted,'' guidelines call for at least a 5‑day suspension.

Allegedly other high ranking Office of Investigations and Office of Internal Affairs have lied to internal affairs investigators during integrity investigations concerning misconduct such as adultery, voucher fraud, perjury and other misconduct. In some instances these Customs officials received light sentences that later were reduced to letters of reprimand. In other cases, no action was taken at all. This question of comparable treatment will be explored fully if further proceedings are necessary.

7. Consistency of the penalty with the Table of Offenses and Penalties.

The Agency Table of Penalties is not clear on this issue. Two offenses are listed under Falsification: Inadvertent, Careless, or Deliberate Misstatements or Misrepresentations in Completing Official Documents and Material and intentional falsification. If the charge against Contreras falls within the first category, the range of punishment for a first offense is Awritten reprimand to removal.@ If the latter category applies, the range of punishment is ARemoval.@

Under the unique circumstances presented here, the Agency could treat this incident as a Aviolation of inadvertent and or careless misstatement@ (i.e., perhaps Contreras should have asked Rybczyk to clarify his questioning).

We also note that the Agency Table of Offenses and Penalties endorses Aprogressive discipline@ for most types of infractions, unless the conduct is Aso egregious that a single instance is sufficient to warrant removal.@ Here, Contreras= conduct was not repeated and was not Aegregious.@ Thus, pursuant to the Agency=s endorsement of Aprogressive discipline,@ a 20 day suspension is not appropriate.

As a Resident Agent-in-Charge, Office of Internal Affairs from December 1995 to May 1999, Contreras witnessed IA investigations and Labor and Employee Relations recommendations/proposed disciplinary actions and final decisions for allegations of falsifications that resulted in no action taken/and or employees (supervisory and non-supervisory) receiving minor punishment or no punishment at all. Again, as previously reported, employees who committed other serious misconduct received only written reprimand; and or no reprimand at all. A review of all IA adjudicated cases under case category falsification would reflect that similarly situated employees who committed worse violations received less punishment and/or no punishment at all.

The service however, would argue that under the Commissioner=s new Customs Discipline policy, as outlined on his memorandums dated August 3, 1999 entitled Clarify Guidance on Reporting Misconduct and Crossing the Line; August 5, 1999 entitled Discipline Report; and September 1999 entitled Preserving Our Pride: A Guide to Good Conduct and the Discipline Process that the proposed adverse action recommended for Contreras alleged misconduct is consistent with the Commissioner=s discipline policy.

On May 25, 1999, Michael C. Tarr, Acting Assistant Inspector General For Investigations, Office of the Inspector General, Department of the Treasury gave testimony before the Committee on Finance at the U.S. Senate re: "Hearing on the U.S. Customs Service: Ensuring Effectiveness, Integrity, and Accountability in Customs Operations. Tarr testified:

"Chairman Roth, Members of the Committee, I appreciate the opportunity to discuss with you today the results of our recent investigation at the U.S. Customs Service. On Sunday, December 13, 1998, The Miami Herald published a Special Report entitled "U.S. CUSTOMS: A CULTURE OF FAVORITISM." On December 17, 1998, the Chairman of this Committee, Senator Roth, requested that our office conduct an independent review of the allegations outlined in The Miami Herald article concerning the Customs Service's "ability to effectively assess allegations of mismanagement within the agency, and impose appropriate discipline where warranted."

Since this request related directly to the allegations of agency mismanagement and inappropriate disciplinary practices dating back to 1986, the Office of the Inspector General (OIG) concentrated its initial phase of the review on files relevant to the allegations in the article. The purpose of the review was to determine the effectiveness of investigations conducted by the U. S. Customs Office of Internal Affairs; review the basis for the claims of management failure; and assess the application of penalties based upon established policies within the Customs Service.

In further discussions with this Committee, it was requested that we expand the scope of our review to include additional Internal Affairs investigations and address additional concerns regarding employee perceptions of Customs Internal Affairs. We visited Internal Affairs offices in 13 cities and reviewed 395 closed investigations for fiscal years 1997 and 1998. These reviews were conducted to determine if similar deficiencies, as those addressed by The Miami Herald, were also present in other offices. We conducted over 500 interviews of Customs employees concerning the role of Internal Affairs, the application of discipline within Customs, and the fear, if any, of retaliation from management for reporting wrongdoing.

During our review of 50 Internal Affairs files relating to individuals named in The Miami Herald article, we found evidence that Customs Internal Affairs investigators did not exhaust all relevant leads or interview all knowledgeable witnesses that may have substantiated or refuted an allegation. The inadequacies identified during our review suggest that the lack of supervisory review at both the field office and headquarters level contributed to an inferior quality of investigation. We found a number of instances in which Internal Affairs investigations failed to comply with proper reporting requirements stated in the Customs Internal Affairs Handbook.

We identified serious misconduct allegations that were initially referred to Internal Affairs for investigation that were subsequently referred to Customs management for inquiry. We found there are no published directives for conducting management inquiries within the Customs Service and there is no oversight review by Internal Affairs to ensure thoroughness. We also found the use of management inquiries exposed the sources of the allegations, which may tend to erode employee confidence of the Internal Affairs process. We determined that disciplinary penalties were inconsistently applied. Customs inability to equitably administer discipline fosters the perception of favoritism. We found that awards and promotions were issued to employees who were subjects of Internal Affairs investigations. This is a direct violation of Customs policy.

In expanding the scope of our review, we requested Internal Affairs provide a comprehensive and complete report from their automated Case Management System listing all closed internal investigations for fiscal years 1997 and 1998. We determined the Case Management System report did not conform with field office files and, in many instances was inaccurate and incomplete.

We reviewed 395 closed Internal Affairs files and found many of the same problems that we identified in our Miami Herald review. Investigations failed to comply with proper reporting requirements, lacked thoroughness, timeliness, and did not receive quality management review.

During our interviews with over 500 Customs employees, many expressed their lack

of confidence in the Internal Affairs program. Concerns were raised regarding impartiality, confidentiality, and investigative quality. Some employees were fearful of retaliation from management for reporting alleged wrongdoing to Internal Affairs and were concerned that Internal Affairs forwarded too many allegations to management for inquiry.

Our review disclosed that there was no standard policy on the issue of special agent rotation between the Office of Investigations (OI) and the Office of Internal Affairs. However, Customs is currently proposing rotating special agents between OI and Internal Affairs by reassigning the agents within the same geographic area. The OIG believes that this proposal may call into question the objectivity of Internal Affairs agents. In addition, it may give the impression of agents investigating themselves. Objectivity is critical to overall employee confidence and the Customs integrity program.

The problems we found in our review of Customs are issues which the OIG should have identified over the years. Had a thorough oversight process occurred, some of the problems would have been identified sooner, and others less likely to have occurred as a result. We have made some organization and staffing changes during the past year, and we are undertaking other initiatives to re‑establish a firm understanding of the oversight role of the OIG with Customs.

The OIG believes that the challenge of any substantial and long‑lasting change in Customs must be management led and policy driven. We look forward to assisting Customs and sharing the responsibility to bring about the changes necessary.

Chairman and members of the Committee, this concludes my testimony. I would be pleased to answer any questions that you may have at this time."

8. The notoriety of the offense or its impact upon the reputation of the Agency.

There is no indication that the offense was notorious.

9. The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.

The Ato promote the efficiency of the service@ adverse action is one that is based upon credible evidence of misconduct or unsuitability for which the employee is in some way culpable. It requires that the employer establish the misconduct or unsuitability and not merely allege it. It also prevents adverse actions that are arbitrary and retaliatory. It is most often found in connection with grievance machinery that may or may not include the ultimate resolution of disputes through impartial arbitration.

With regard to federally law enforcement operations, the efficiency of the service adverse action provision implies that, when such actions are based in part or entirely upon evidence developed by the law enforcement agency, all enforcement activity must be fair. This requirement has several concrete meanings. First, it means that incidents that lead to an adverse action must in themselves be serious or involve serious misconduct. Second, it means that the disciplined employee must actually be responsible for the misconduct and not have been goaded into it (Entrapment). Third, it means that the matter alleged to constitute the misconduct must have been known to be serious and the violation known to have been misconduct. If, for example, an employee is attempting to leave the office with a package and is challenged by a supervisor, there must be: 1) some rule about package removal, and 2) reasonable behavior by the supervisor. If there is no rule or practice and the supervisor, with no precedent, attempts to prevent the employee from removing the parcel or package and if a quarrel develops between them, the use of reasonable force by the employee to retain the parcel and achieve egress will probably not be construed as a suitable basis for the efficiency of the service, even if there is a rule against fighting. The reason would be that the supervisor arbitrarily attempted to enforce a new and unfamiliar rule or attempted in an arbitrary way, to prevent this particular employee from removing property (The above referenced example and rational can be applied to Contreras' case whereby Customs did not have established guidelines, i.e., policy and regulations outlining procedures when dealing with the interrogation of an employee for the purpose of establishing that an harassing condition is occurring in his/her working environment and while the employee has become the target of an allegation of misconduct, whether criminal and/or administrative.

But if there is a rule, for example, requiring employees to have property passes for the removal of property, as well as the rule against fighting, and if the supervisor challenges the employee who refuses to surrender or permit inspection of the property such conduct by the employee could support a discharge. This would depend, in part, upon what penalty had been specified for violation of the package-pass rule. If the employee not only refuses to surrender or permit inspection of the property, but continues in the dispute with the supervisor and forcibly resists the supervisor=s attempt to take or inspect the parcel, that conduct would probably constitute an unauthorized removal of the package under the property rule.

Two separate considerations are critical to whether a suspension of twenty (days) will be sustained as for the efficiency of the service, even in the second example. The first deals with the rule about property (or anything else for that matter). There is a general requirement that a rule must be: 1) reasonable, 2) within management=s authority to make, 3) property publicized, and 4) uniformly enforced. Thus, if the property rule had just been adopted that morning, or if five other employees had been allowed to leave ahead of the disciplined employee with no challenge to their property, or if the contract specified that employees could remove property without inspection or documentation (not very likely in most circumstances), the employee=s behavior would not support a discharge. Indeed, the supervisor=s behavior might be alleged to be a punishable offense.

The second consideration is that the behavior of the law enforcement organization must, itself, be reasonable in the circumstances. If in our second case, instead of reminding the employee of the rule, the supervisor immediately attempted to capture the property, and the employee reacted to retain it, with the squabble developing into a fight, there would be serious doubt as to whether the altercation or even the departure of the employee with the uninspected property would support an adverse action. Although the employee technically violated the rules, the supervisor=s behavior would be held to be the proximate cause of the fight and therefore not chargeable to the other employee. The supervisor did not wait to determine the employee seriously intended to leave with the property or whether he had momentarily forgotten the rule or was preoccupied. The question of the property=s being removed without a pass or inspection would be very probably get lost or be dropped because of the difficulty of establishing intentions.

The requirement for internal law enforcement procedures is self-evident. First, rules must be unambiguous and must be known to or at least available to the employees. Second, it must be clear that the employee to be disciplined actually violated or intended to violate the rule. Third, the behavior of management, i.e., Intake Desk, Intake Review Group, Labor Employment Relations, Discipline Review Board, Assistant Commissioners and Commissioner, must be shown to have been reasonable in the circumstances. (Note: This writer of Narco News will write a comprehensive report on the corrupt and questionable practices between the supervisor (management) asking a Labor & Employment Relations (LER) Specialist and the agency’s legal counsel who regardless whether the charges have merit or not, LER and Legal counsel fully support management with drafting the disciplinary or adverse charges without first determining the true motive for an employee to go through the disciplinary process).

Of course, if the employee involved had been brandishing a gun and the supervisor had immediately used force to restrain the employee and take the gun away from him, the supervisor=s behavior would very probably be held reasonable even if it later appeared that the gun was a toy or the conduct was a prank. In such a situation of imminent danger, a prudent supervisory staffer eliminates the danger first and resolves issues of blame and purpose later.

11. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.

Contreras has been the subject of the following retaliatory and harrassment practices by certain agency officials: Under the Civil Service Reform Act, Contreras has submitted complaints to the U. S. Office of Special Counsel alleging the following prohibited personnel practices by the United States Customs Service: 1) illegal discrimination; 2) taking or failing to take, or threatening to take or fail to take, a personnel action because of his legal disclosure of information by which Contreras reasonably believed to be evidence of wrongdoing (that is, whistleblowing); and 3) taking or failing to take, or threatening to take or fail to take, a personnel action because of my right to exercise any appeal, complaint, or grievance right, testifying or helping any individual in the excise of any appeal, complaint or grievance; cooperating with or revealing information to an agency inspector general or the Special Counsel; or refusing to obey an order that would require an individual to violate laws;

further, that under the Civil Rights Act of 1964, as Amended, Contreras has been discriminated due to his national origin, to-wit: Hispanic background by his employer, the United States Customs Service, an agency under the auspices of the United States Department of the Treasury and its employees. He filed this complaint in his individual capacity as a Mexican-American employee of Customs. He has been subjected to discrimination in the terms and conditions of his employment with Customs, and to retaliation based on his national origin and for filing EEO complaints. Further he has filed the following complaints of discrimination under Department of the Treasury case numbers:TD-00-4269;  TD-00-4194; TD-07-11-2000; TD-04-21-2000; TD-00-4106M; TD-01-18-2000;  TD-95-0014CR; TD-00-4107; TD-99-4107; TD-98-4137; TD-95-3067; TD-94-3272; TD-98-4017; TD-95-0014C.