Weaknesses in the Disciplinary Process Affected CBP’s Ability to Hold Agents Accountable
CBP's failure to act sooner to impose discipline on employees after senior leaders became aware of the "I'm 10-15" Facebook group, the lack of agency-specific disciplinary guidelines, and the inconsistent punishments it applied all weakened CBP's ability to hold agents accountable for their misconduct.
In overturning CBP's decision to remove two Border Patrol agents, arbitrators noted that CBP did not impose consistent penalties on other employees for the same or similar offenses.[62] For example, in comparing statements made by agents who received different discipline, one arbitrator wrote, "[I]t is hard to see much daylight between ‘Fuck the whole country of Honduras' and ‘#fuckmuslims' or ‘"#fuckislam.'"[63] The agent who posted the first statement received only an eight-day suspension, four days of which were held in abeyance, but CBP planned to remove a second agent who posted the latter statement. The arbitrator reduced the latter agent's punishment from removal to suspension with time served.
CBP did not have specific disciplinary guidelines for social media misconduct, which contributed to inconsistent penalties. The Table of Offenses and Penalties used by CBP did not include specific recommended penalties for the types of misconduct displayed on the Facebook page.[64] Without those guidelines, officials selected penalties they saw to be logical and relevant. One arbitrator found that the deciding official:
did not explain why he deviated from the most plausible Sections in the Table of Penalties that would apply to the grievant's conduct. Instead, it states that he simply chose to turn to another Section so as to justify his penalty determination, and that that is an abuse of discretion.[65]
On December 9, 2020, following the Committee's release of documents demonstrating the need for disciplinary reform as well as the OIG's recommendation,[66] CBP updated its Table of Offenses and Penalties to include recommended penalties for social media misconduct in three offense categories: discriminatory behavior, disruptive behavior, and ethical and integrity-related offenses.[67] This revision will make it easier for the Discipline Review Board and deciding officials to determine and justify their penalties for future social media misconduct.