September 18, 2023
AFGE is urging members of Congress not to repeat the same mistakes they made a few years ago.
What happened at Ft. Gordon is a reminder why we need a union.
AFGE has recently won two cases in which two civilian police officers at Fort Gordon, Ga., had been wrongfully terminated. Thanks to AFGE District 5 Legal Rights Attorney Stephan Caldwell’s superb representation, the Merit Systems Protection Board (MSPB) ruled against the Army on both cases. Here’s what happened:
Retaliation against a whistleblower
Officer Anthony Cobb is a civilian officer with the Department of Emergency Services (DES) and an Army veteran. He was removed in February after blowing the whistle on the hiring and promotion practices at his facility. Specifically, Cobb, who was also the local’s vice president of the garrison at the time, questioned the hiring and promotion of an officer who had been charged with larceny at Ft. Benning before he came over to Fort Gordon.
While the base was investigating why a police officer was hired with a criminal larceny charge, they also targeted Officer Cobb, accusing him of getting that information from the ALERTS system, a criminal database that police officers have access to, to write a letter to the base general. That allegation was debunked because the information was already circulating about this officer in October 2019. During the investigation, the Army also charged him with a lack of candor even though they had told him during the investigatory interview if he didn’t want to answer any question at any time, he didn’t have to answer. They decertified Officer Cobb from the Individual Reliability Program (IRP) which led to the second charge of failure to maintain a condition of employment.
AFGE appealed his case to the MSPB, and after a tough hearing, an administrative judge found that the agency did not meet its burden to prove lack of candor, and the agency had no reasonable basis to decertify Officer Cobb from the IRP for the failure to maintain a condition of employment charge. The AJ reversed the removal in its entirety.
Officer Troy Thomas is a civilian officer with DES and an Army veteran. DES accused him of 27-day timecard theft and removed him in 2019 without conducting a full investigation to find out if that was really the case. The local steward at the time was Anthony Cobb. He did an initial investigation and immediately found that the supervisor had put in the wrong schedule which negated 21 of the 27 days in the charge. Nevertheless, the agency moved forward with the charge. Not surprisingly, at a hearing, the arbitrator found that the agency’s evidence was not sufficient – it did not even interview Officer Thomas, his supervisor, or look at training or leave schedules. The arbitrator ordered Officer Thomas to be reinstated.
In January of 2020, in the agency's second attempt to remove the officer, the agency did another investigation and charged him with 8 days of time-card theft using the same evidence from the Arbitration in 2019 – even though they also found no intent to defraud on the officer’s part but negligence. They also faulted supervisors and the lack of Standard Operating procedures regarding timekeeping. The union presented evidence accounting for the eight days of the officer. The agency removed him, anyway, decertified him from IRP and moved him to a non-police role. Our union filed an unfair labor practice (ULP) on the IRP decertification after the agency told us the case was not grievable.
Unbeknownst to the union, the agency was also coordinating a special criminal investigation with the U.S. Attorney's Office Southern District of Georgia, specifically focused on Officer Thomas's eight days for time-card theft. The agency rescinded the second removal notice, believing the U.S. Attorney would criminally prosecute the officer.
But that didn’t happen because they found no criminal intent and only found negligence on Officer Thomas’s part. What happened instead was very damaging to the agency. They found 18 other officers, each having from 400 to 1800 hours of unsupported time in their timecards.
“Most embarrassing is that about 7 Supervisors were on the list, one of them being Officer Thomas's supervisor,” said AFGE Attorney Caldwell. “Plus, the criminal investigation again showed no SOPs in DES for timekeeping, no leave form retention policy, no internal controls to check supervisors.”
After all the investigation by multiple people, the agency tried to fire the officer for the third time. They charged him with the same eight-day timecard theft and failure to maintain his employment certification. Our union filed an appeal with the MSPB. The agency initially maintained that the IRP decertification was unreviewable, but quickly turned over all the documents relating to why Officer Thomas was decertified from the IRP. After the administrative judge lectured the agency counsel on the case law concerning agency created reliability programs, the judge also poked the agency with a fact from a previous investigation that the chief of guards had 447 unsupported hours with fraud indicators but received only a warning, not removal.
The judge found no fraud but only negligent timekeeping on Officer Thomas’s part. He reduced the removal to 15-day suspension.
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