Wednesday, March 28, 2007

A U.S. Customs and Border Protection officer is fighting an order by CBP to resign as an elected member of a Texas city council or be fired, saying the agency — which approved his request to seek office — is violating his First Amendment rights by now forcing him to choose between his job and public service.

CBP Officer Jaime Ramirez, an unpaid member of the nonpartisan Presidio City Council since 2004, has filed a lawsuit against the agency and earlier this month won a preliminary injunction to block the order, pending a court hearing.

U.S. District Judge Gladys Kessler in Washington granted the injunction on March 12, saying in a 14-page ruling the CBP order “could have far-reaching implications for the First Amendment freedoms of government employees throughout the country to participate in a wide range of local, nonpartisan community activities.”

National Treasury Employees Union President Colleen M. Kelley, whose organization brought the suit, called the injunction “an important step forward in a vital case in the continuing battle to protect the free-speech rights of federal employees.”

Ms. Kelley, whose organization represents 150,000 employees in 30 agencies, including 14,000 at CBP, said the preliminary injunction preserved Mr. Ramirez’s right to serve on the council while the court considers the merits of his case. She said the government has until April 12 to answer Mr. Ramirez’s complaint, and the judge will hold an initial conference April 18 to discuss a hearing schedule.

She called the CBP order “an outrageous violation of this officer’s rights,” adding that rather than impede and prevent such community participation, “CBP should be doing all it can to encourage its employees to contribute to their communities in this way.”

While federal employees are prohibited from engaging in some types of partisan politics under the Hatch Act, the city council election in Presidio is a nonpartisan race. The law does not bar employees from becoming candidates for public office in nonpartisan elections.

Mr. Ramirez was ordered in December by Louis Garcia, CBP director of field operations, to resign his council seat and was given until March 15 to comply or resign his job. The order prompted a complaint in January seeking the preliminary injunction, saying if he was forced to resign his seat before the case was resolved, the court could not return him to the council if he prevailed in his lawsuit.

But CBP said it was concerned his service on the council could involve conflicts of interest. It argued that limitations on government employees regarding elected positions did not restrict their First Amendment freedoms and the resignation order was justified since Mr. Ramirez needed to avoid “any appearance of conflict of interest” between his CBP duties and his service on the council.

Judge Kessler, in granting the injunction, said the government was “seeking to bar what the Supreme Court has referred to as core First Amendment activity; namely, his participation in the political process and the civic life of his community.”

She also said the agency had reversed itself on this issue, noting that for at least two years “and probably a lot longer,” CBP had no objection to its employees serving their community in unpaid, nonpartisan political positions. She said CBP failed to give “any persuasive justification for the abrupt change in the agency’s position.”

As a CBP officer in Presidio, Texas, a town of 5,000 residents on the U.S.-Mexico border, Mr. Ramirez inspects vehicles and persons entering the United States from Mexico to ensure compliance with customs and immigration laws. About 700,000 vehicles pass through the Presidio port each year.

Mr. Ramirez was elected to a two-year term in May 2004 after obtaining approval from CBP to run. In 2006, Mr. Ramirez, who had long been active in community affairs in Presidio, sought a second term and was unopposed. He told the court he did not file a request for CBP’s approval to serve a second term because he did not think it was necessary since he had obtained approval in 2004 and, in 2005, had been commended by Mr. Garcia, the director of field operations, for his willingness to serve on the council.

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