Customs Accused of Abusing Power Whistleblowers
claim reports shredded, drug-bust records made up.
American City Business Journals Inc.
One Hispanic U.S. Customs Service inspector stationed
along the nations 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.
Its 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
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) didnt want the union to get their hands on them (the briefing
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
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 supervisors 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 papers
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 youre 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
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 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
Its 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
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
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. Its 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
Murphys 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 dont operate that way, Murphy
added. They (Customs employees) are getting their due process.
Thats 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.
Customs facing spate of cases filed by Hispanic
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
. 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 Services 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
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
Tonkin adds, though, that the U.S. Attorneys
Office has already informed him that they plan to appeal the U.S. District
Court judges 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 agencys 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 courts
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 Sandovals 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 Sandovals attorney, David Spivak of Ross, Rose
& Hammill in Beverly Hills, Calif. Last week, the U.S. Attorneys
Office in San Diego and Spivak stipulated to a final amended judgment in
Sandovals 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 agencys 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
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