Evidence rules

A federal employee who was recently fired by his agency was able to overturn that decision despite opposition from both his agency and the Merit Systems Protection Board. Here's the scoop.

Todd Haebe, a special agent with the Drug Enforcement Administration in San Jose, Calif., reported to his superiors that Ricardo Ortiz Alcala, a suspected drug trafficker, would be arriving in Portland, Ore., on a morning flight in March 1995. Haebe's report, based on information from a confidential informant, resulted in Alcala's arrest at the Portland airport. He was found carrying 4 pounds of methamphetamine.

Haebe formally reported the incident on a DEA form that he signed April 18, 1995. The authorities arrested Alcala, but later dropped his prosecution due to alleged falsifications in the report.

The DEA's Office of Professional Responsibility then filed charges against Haebe for allegedly making false statements and failing to follow written instructions. The DEA alleged that Haebe never went to the San Jose airport on the morning of March 30, 1995, and never observed Alcala directly. Under the DEA's theory, Haebe relied on the observations of the informant and represented them as his own when he wrote the report. Based on these charges, the DEA fired Haebe on March 14, 1997.

Haebe appealed to the MSPB. The MSPB assigned the case to an administrative law judge, who overturned the DEA's decision to remove Haebe from his position as a criminal investigator and ordered the DEA to reinstate Haebe and provide back pay. Instead of accepting this decision, the DEA filed a petition for review by the full MSPB, which overturned the judge's decision. Haebe then filed an appeal with the U.S. Circuit Court of Appeals for the federal circuit.

As a matter of law, for an agency to sustain a falsification charge, it must prove by preponderant evidence that the employee knowingly supplied incorrect information with the intention of defrauding or deceiving the agency. The DEA merely cited the improbability that Haebe could have made it to the airport in the available time.

The DEA argued that the MSPB did not overturn the judge's determination, but that it simply re-evaluated the evidence. The court didn't buy that. The MSPB said that Haebe's failure to explain why his statements were not incorrect was evidence against him. But the court said, "This rather seems akin to saying that the fact that Mr. Haebe will not confess is a reason to believe him guilty."

Because the MSPB substituted its findings for the judge's findings without sufficiently sound reasons for doing so, the court lowered the boom on the MSPB, ruling that its decision was "arbitrary, capricious and unsupported by substantial evidence," and reversed the decision.

Now, you don't often see language like that in a case involving a fed and the MSPB.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at milt.zall@verizon.net.