Posted on September 8, 2004

Border Patrol Agents Fear Coming Retribution

William Finn Bennett, North County Times, Sep. 3

A new policy close to adoption by the Department of Homeland Security will effectively muzzle any dissent within the U.S. Border Patrol by making agents fear for their jobs if they speak to the media, said local and national union officials Friday.

Agent Ron Zermeno, a union official at the Border Patrol’s Temecula office, was the one who informed local media last month that some controversial immigrant sweeps had been stopped by officials in Washington, D.C., triggering a public outcry and a “town hall” meeting that drew nationwide attention.

Zermeno’s candor resulted in management threatening to fire him, he said Friday. Once the new rules go into effect, it would be easier for management to do so, and he will not be so forthcoming with the press, he said.

“With the new changes coming down in the Border Patrol, I fear I won’t have the same protection I do now,” Zermeno said.

A Department of Homeland Security official disputed Friday that the changes would increase the likelihood of agents being fired. The Border Patrol falls under the jurisdiction of the department. Spokesman Larry Orluskie said Friday that the rules on what constitutes a firing offense won’t change under the new policy.

But Richard Pierce, executive vice president for the agents’ union, the National Border Patrol Council, said the new policy calls for a performance-review system that will give management too much power to penalize those who speak out, effectively removing free-speech protections enjoyed by union officials who are Border Patrol agents.

“All they will have to do is look at an agent who is also a union official and is talking to the press and downgrade his performance rating and remove him,” Pierce said.

Under the current system, the appeal process for disciplinary action includes a review by a neutral third-party arbiter. The proposed system would see the final call made by a presidentially appointed board, known as a Merit Systems Protection Board, that is used by many government agencies.

“Under that review board system, 93 percent of the cases currently reviewed are decided in favor of management,” said National Border Patrol Council President T.J. Bonner. Besides, he said, management is “not stupid.”

“They are not going to say we fired him or reduced his pay because he talked to the media,” Bonner said. “(They’ll say,) ‘We did it because his performance dropped,’ or some other excuse that is virtually impossible for the employee to contest.”

An agent who loses his or her job with the Border Patrol would find it nearly impossible to land another job in law enforcement,” Bonner said.

“He’ll be lucky to get a job slinging burgers,” he said.

The threat of a pay reduction or losing one’s job will have its intended effect, he said.

“That’s how you force people to keep their mouth shut — it’s a model that has worked wonderfully for the FBI all these years,” he said.

Zermeno also serves as Temecula shop steward for the National Border Patrol Council. After talking to reporters recently about the agency’s having stopped the June sweeps, a firestorm of protest erupted in Southwest County. The protests resulted in an Aug. 13 visit by Homeland Security Undersecretary Asa Hutchinson to a town hall meeting on Illegal immigration. He faced more than 1,000 angry residents, who grilled him with questions about why more is not being done to stem the tide of illegal immigrants pouring into California.

Because he had revealed the news of the halt in sweeps, Zermeno said, his manager threatened to fire him. And he believes the only reason he still has a job is because the current rules protect him, he said.

Asked about possible intimidation tactics against union officials who go to the media, San Diego Sector Border Patrol spokesman Sean Isham said Friday: “I don’t know of anyone being threatened with losing their job by speaking to the press.”

It’s essential that union officials retain the right to inform the public of internal Border Patrol issues, Pierce said. He cited a recent case, in which two Border Patrol agents spoke out about the lack of security at the U.S.-Canadian Border.

In retribution, Border Patrol officials tried — unsuccessfully — to fire both agents, he said. As a result of their having gone public with the information, the Border Patrol later assigned an additional 1,000 agents to U.S. Canadian border, he added.

“There is a good chance that if the new rules had been in place then, they might not have spoken out,” Pierce said.

A final decision on the proposed policy changes is pending. Homeland Security Secretary Tom Ridge is slated to meet with union officials one last time, on Friday, and the new policy should take effect in mid-October, department spokesman Orluskie said.

Pierce said it’s a near certainty that the changes allowing the agency to muzzle agents will be part of the new agreement. The only hope of preventing that from happening lies with the people, Pierce added.

“People should be notifying their elected representatives and saying this isn’t right — this is America,” he said.