Customs Accused of Abusing Power “Whistleblowers claim reports shredded, drug-bust records made up.”

American City Business Journals Inc.
January 22, 2001
Bill Conroy

One Hispanic U.S. Customs Service inspector stationed along the nation’s southwest border describes the work environment at the federal agency as being similar to the plot of “Animal Farm” - a 1945 satire of Stalinism penned by George Orwell.

Paraphrasing a passage from the book, the inspector says that when it comes to opportunity within Customs: “Everyone is equal. It’s just that some are more equal than others.”

The bite of that comment underscores the frustration felt by many Hispanic Customs investigative agents and uniformed inspectors, according to a number of agency employees interviewed by the Business Journal. The employees asked that their names not be used in print because they feared Customs management would retaliate against them.

Along with the charges of inequities in the workplace, sources within Customs also have stepped forward to blow the whistle on what they claim are startling examples of abuse of power within the federal agency.

The sources allege that Customs management has a policy of shredding records used in disciplinary actions in order to keep those documents away from union officials.

In addition, the sources allege that drug-seizure reports were fabricated by a Customs inspector supervisor in South Texas in the wake of a joint law enforcement operation.

The records being shredded are called “briefing papers,” according to legal documents obtained by the Business Journal that detail the practice.

The briefing paper provides members of Customs’ Disciplinary Review Board (DRB) with, among other facts, a synopsis of the case against an employee, proposed charges, the range of potential penalties as well as the disciplinary history of that employee.

“Once we get through the DRB process, the briefing (papers), we put those in a shredding bin. ... We have been told that after the (disciplinary review) board has made its presentation, you collect them back (the briefing papers) and then put them in the bin,” states a Customs employee-relations specialist in a legal deposition taken last Fall as part of an employee disciplinary hearing. “I have been told they (Customs management) didn’t want the union to get their hands on them (the briefing papers).”

Drug-seizure reports

In a separate matter, sources within the federal law enforcement agency allege that a Customs inspector supervisor in Laredo created false drug-seizure reports in the Treasury Enforcement Communications System (TECS) using the names and social security numbers of Customs inspectors - making the reports read as though the inspectors had written the narratives themselves.

These false narratives, or offense reports, were allegedly generated following a joint Customs/U.S. Border Patrol operation called Triple Edge that took place about a year ago. According to the sources, the supervisor allegedly falsified as many as 16 drug-seizure records for the purpose of embellishing the supervisor’s record. The fabricated Customs seizure reports, the sources claim, were based loosely on actual drug seizures carried out by Border Patrol employees.

When contacted for comment about the document-shredding and seizure-falsification allegations, Jim Michie, director of media services for U.S. Customs, said he would look into it. However, Michie failed to provide the Business Journal with a comment prior to the paper’s deadline.

Richard Pauza, media spokesman in Customs’ Laredo office, also declined to comment, other than to say, in relation to the drug-seizure falsification allegation, that “what you’re talking about is very sensitive.”

The allegations of misconduct, along with other issues promoting a hostile work environment - such as alleged inequities in discipline, promotions and overtime pay - have prompted about 150 Customs inspectors and other agency employees in South Texas to come together and retain an attorney. The attorney, Denis Downey of Brownsville, says he plans to file a lawsuit in federal court on behalf of the 150 Customs employees seeking redress of those workplace grievances.

Downey says the parties to the litigation are primarily Hispanic Customs inspectors. However, he says the plaintiffs also include others within Customs who have employment-related grievances.

“The plaintiffs involved are Customs employees in South Texas, from Laredo to San Antonio to Brownsville,” Downey says. “The lawsuit will involve claims of discrimination, unfair discipline and promotions, and overtime pay policies - all issues related to a hostile work environment.”

However, at least one attorney familiar with federal employment law says Downey is likely to have a hard time getting his case heard in federal court without first going through the Equal Employment Opportunity (EEO) system, an administrative legal process that can take years.

The Fallout

The case to be filed by Downey is similar to a class-action EEO lawsuit filed on behalf of some 250 current and former Hispanic Customs investigative agents. That case is now pending before an administrative judge in Washington, D.C.

The attorney representing the agents in the case, Thomas Allison of Washington, D.C.-based Hughes & Bentzen, says the alleged policy of shredding briefing papers, “even if it is limited to just that set of documents, can have serious implications on promotion and disciplinary matters.”

“It’s a problem if they are destroying those documents, because they are destroying proof,” Allison adds. “We are going to bring this matter up before the judge and ask for a hearing on the document shredding.”

Jim Watkins, media spokesman for the National Treasury Employees Union (NTEU), which represents uniformed Customs employees such as inspectors, says the union is “very concerned about the shredding of documents.”

“When we go into a case involving allegations of disparate treatment, these documents (the briefing papers) are relevant information and should be made available,” he adds. “It’s hard to believe they are shredding them.”

Colleen M. Kelley, national president of NTEU, adds that “if there is a spin being put into these briefing papers to prejudice a case, then it surely would be a major concern.”

“If we were involved in a case where we knew this was going on (documents being shredded), we would do everything we could do legally to stop it,” Kelley adds. “We plan to talk to Customs about this allegation, and then decide what we should do next. Clearly, nothing should be shredded that is used in a case.”

In a previous interview with the Business Journal, Dennis Murphy, assistant commissioner of Customs’ Office of Public Affairs, said some “people do not want the (legal) process to go forward as it should, and instead are trying to do things publicly through a newspaper.”

Murphy’s comments were made in relation to information that leaked out of Customs in November concerning alleged document destruction. The legal deposition obtained recently by the Business Journal details the specific nature of the alleged document destruction.

“We don’t operate that way,” Murphy added. “They (Customs employees) are getting their due process. That’s how we operate.”

Officials with the League of United Latin American Citizens (LULAC), which has been conducting its own investigation of the document-shredding and drug-seizure falsification allegations, have a different take on the situation.

According to Julie Marquez, spokeswoman for the civil rights group, LULAC has obtained documentation detailing the allegations concerning a Customs inspector supervisor in Laredo creating false drug-seizure narratives in the TECS computer network. Marquez alleges that the bogus seizures were reported to Customs’ Internal Affairs division for investigation nearly a year ago. Yet, to date, Marquez claims the status of the investigation remains a mystery.

“LULAC is extremely concerned about all of the allegations made with respect to document shredding and false reports,” Marquez says. “We are concerned with the shredding of documents in order to keep them away from the union, because this represents a blatant attempt to obstruct the lawful performance of union activities.”

Marquez adds that the alleged drug-seizure falsifications are of particular concern because they have serious implications for defendants charged with crimes related to the seizures.

“We plan to notify the U.S. attorney for the Southern District of Texas as well as judges for the district to put them on notice about this alleged illegal activity by law enforcement officials,” Marquez says. “No one should go to prison because of phony seizures.

“We also plan to ask the federal court to appoint a special master to investigate these allegations of bogus seizure reports. We need to find out how deep this goes and how far reaching this type of activity is within Customs.”

Sidebar

Customs facing spate of cases filed by Hispanic employees

A series of legal cases nationwide are pending against the U.S. Customs Service stemming from allegations that the federal agency has discriminated or retaliated against Hispanic employees. The cases include the following:

. A class-action Equal Employment Opportunity (EEO) discrimination complaint is pending before an administrative judge in Washington, D.C. The case encompasses more than 250 former and current Hispanic Customs agents employed in both the Office of Investigations and the Office of Internal Affairs. The complaint is titled Miguel Contreras et al. vs. Lawrence H. Summers, Secretary, Department of the Treasury. The litigation alleges that the Customs Service’s “policies and practices toward Spanish-speaking agents, specifically regarding how they are assigned, have a negative impact with respect to training, promotion and discipline.”

. In Laredo, a jury in a federal court case last year awarded Customs agent Romeo Salinas $1 million in actual damages after finding the agency failed to promote Salinas in retaliation for prior EEO complaints filed by the agent. Despite the hefty jury verdict, under the law, the statutory maximum Salinas is entitled to recover is $300,000 plus attorneys fees.

Customs challenged the jury award as well as the payment of the attorney fees in the case, according to Salinas’ attorney, Ronald Tonkin of Houston. Tonkin says the government sought to have the award reduced to nominal damages in the range of $10,000.

However, last week, the judge in the case ruled in favor of Salinas, granting him the maximum amount of damages, $300,000, as well as ordering the government to pay $157,000 in attorney fees and $27,000 in costs.

Tonkin adds, though, that the U.S. Attorney’s Office has already informed him that they plan to appeal the U.S. District Court judge’s ruling, once it has been formally entered as a judgment. He says neither he nor Salinas will recover any money in the case until the appeals process has been exhausted.

An attorney in New Orleans, Miguel Elias, is currently handling EEO actions for five Hispanic employees of Customs who work for the Intelligence and Communication Division of the agency’s Office of Investigations. He says one of those employees is a “high-ranking” intelligence officer with Customs. The EEO claims involve charges of discrimination and retaliation, Elias adds.

Ricardo Sandoval, the resident agent in charge of the Customs Office of Investigations in Calexico, Calif., last year won a U.S. Court of Appeals case in which Customs was challenging a lower court’s finding that he had been the victim of discrimination and retaliation. In that lower-court case, Sandoval raised allegations that a neo-Nazi ring was operating inside the Customs Service in San Diego. The case stemmed from an incident in 1992 in which Sandoval’s first-line supervisor ordered him to investigate a complaint that involved a white supervisor assaulting a black officer, court records state.

The final chapter in that case came to a close only recently, according to Sandoval’s attorney, David Spivak of Ross, Rose & Hammill in Beverly Hills, Calif. Last week, the U.S. Attorney’s Office in San Diego and Spivak stipulated to a final amended judgment in Sandoval’s favor totaling about $242,000.

Sandoval now has a second case pending against Customs in U.S. District Court for the Southern District of California in which he alleges that he has been subjected to further retaliation and discrimination in the wake of his first case.

Finally, a group of Hispanic Customs agents who were the targets of a disparaging letter that the civil-rights group LULAC describes as a “racist manifesto” also have retained an attorney and filed EEO complaints. The letter was mailed in Spring 1998 to Customs Commissioner Raymond W. Kelly by an anonymous agent from the federal agency’s El Paso field office. The EEO complaints allege that the Hispanic agents are victims of a hostile work environment and retaliation. In the wake of the investigation into the letter controversy, the Hispanic agents were transferred out of Customs El Paso office. The agent who wrote the letter admitted under oath that he “embellished” and included “false” information in the correspondence sent to Kelly.

Despite those facts, the agent received a “plum duty assignment,” according to LULAC as well as sources within Customs.

Joe Silva, the El Paso attorney who is handling the EEO actions for the displaced Hispanic agents, says he is reluctant to comment on the cases because he fears Customs management will retaliate against his clients.