The purpose of this directive was to establish policy and assign responsibilities when a CBP employee was arrested for an "on-duty or off-duty misconduct." Even though they are not considered 24 hour law enforcement agents.
According to Article 4B (1) of the Collective Bargaining Agreement (CBA): "Management officials of the Service retain the right to determine... internal security practices of the Service; and in accordance with applicable laws and regulations - (1) hire, assign, direct, lay off, and retain employees in the Service, or to suspend, remove, reduce in grade or pay or take other disciplinary action against such employees;...."
Incident to an arrest, CFR 550.162 Payment provisions allows management to reduce an employee's Administratively Uncontrollable Overtime (AUO).
In other words, there are a whole lot of policies and directives in place to "punish" the CBP employee before and after his or her case is adjudicated where there involves an arrest. Constitutional guarantees are thrown out the window.
For example, a Border Patrol Agent (BPA), in "good faith," reported to El Cajon Border Patrol Station (ECJ) Management about his contact with California Highway Patrol (CHP), where this BPA was detained and NOT arrested. Management quickly responded to this BPA's good faith gesture with confiscation of his Agency-issued firearm, badge, and credentials, even though there were "...insufficient grounds for making a criminal complaint." He was placed on administrative duties and decertified AUO, which amounts to about 25% automatic pay reduction based on the grounds of the arrest. This does not take into account the alleged misconduct or the civil, criminal, and administrative action pending adjudication. Management will prolong and drag out the administrative process and will contend that this action was not punitive in nature and was the consequence of one's own actions and that management had no control over the duration of said proceedings after the arrest.
Arbitrators have ruled in the Union's favor many times citing Article 32G in the CBA. Management's executive arms are the Office of Inspector General (OIG) and the Office of Internal Affairs (OIA), each playing a significant role in fighting corruption within the ranks of CBP. OIG will take criminal complaints from the Joint Intake Center (JIC) and review the complaints for criminal prosecution. If they do not meet criminal threshold guidelines, they are sent to OIA for administrative adjudication. This is where management gets "two bites at the apple." All the while BPA's linger, wondering about their fate, when these proceedings can last a few years without AUO.
So let's get back to the arrest. Let's suppose, the BPA had a "life," a wife, a family, a house payment, bills, and ..., I think you get the picture. Then let's also say, his AUO was dramatically reduced because of the arrest. Also, what if that BPA was found NOT Guilty by a jury of his peers in a court of law? Do you think because he was found NOT Guilty that the Agency would immediately allow that BPA to get back to work? No. Administratively this BPA is still held responsible, when he has lost his wife, his family, foreclosure of his house, and facing complete bankruptcy and possible termination. Does management care? No. How much is enough? U.S. Border Patrol statistically has the highest rate of suicide, and some wonder why.
When does management place the proper use of discretion and common sense to the forefront of their leadership skills? Almost never, because they are being directed by their superiors to be the "bad cop." Of course, there are times when managers have looked past the Table of Offenses and Penalties (TOP) and have demanded the warranted reduction in punishment for BPA's who deserve a "fair shake." These same managers who have shown common sense are also directed, when it is not in their authority, to cover for their superior's decisions.
You see, it is stacked up against the BPA on purpose.
