her annual performance evaluations by her various supervisors she has consistently described as a dedicated dependable and good employee and a one off incident on experience because i've driven there is there's a there's a gate but there's no i was permitted on there even on the civilian and don't have any credentials really don't have any navy credentials or military credentials you're committed on we did you just drive harding while she's off duty for purpose totally unrelated to her job it's that she went there to get a key for the room where her wedding reception was going to be held that night and she stopped by an officer maybe a police officer and she's charged with driving under the influence of drugs and or alcohol and based on this the navy removes or from federal service now there are three major components to the  question we present to the court we believe there are due process finally sions that they've been preserved in the wrongfully before this court we believe that the navy did not prove sufficient nexus and we believe that the penalty is beyond the bounds of reasonable said there's still no i think the board is broader than that i think it also talks about a central and significant connections with the job in this case  first of all i think there's a demand there's a fair dispute about whether one of them is partings under the influence of because they smelled alcohol on the ground i don't completely agree with you on that if there's a very big dispute that at that site she was pulled over she was under that and so it's a drugs that she admitted that she used cocaine the yes the night before again or yes i understand might not i think what the way i read this president and i still think that this that the government has to show that there was some relationship between the drug use and her actual duties to the same facts are you talking now in terms it's more a nexus question i'm not entirely sure where you move on to the penalty and it connects to the question i asked you about whether the access to the residential area where she was writing is controlled would it be a sufficient nexus if that area were controlled that her having a job at the naval academy would in fact continue to give  access to this area where families were letting the driving under the influence and there my creating a danger forget about the tasks of being a cop well my think th of a federal employee and perhaps it's the same it's related to church use question let's say that a federal employee is driving on the baltimore washington parkway or clara barton parkway or any highway that traverses federal property which is pretty easy to do and in this area is that sufficient nexus sunnyside that it's the drug use question but say that it was simply a drunk driving and alcohol related offense with that with damp found to be in not it's clearly government property but i think that the law is that it is not only against the government property you have to show more than the fact that was government property i mean if i go to the water if i go to a concert on the national you have a much better case that this was just truck driving because the the comparable penalties for people being under the influence of alcohol are far lower here than people using drugs it's really the drug use that that is your client's problem certainly the friend the criminal penalties are bit about that the penalty first of all let's look at reasonable ones and i think that starts with looking at the navy's own paperwork penalties this is what the navy decided is reasonable when somebody uses drugs that's fourteen days suspension to remove no but the matter of simple logic one has to say that removal of the most severe penalty is for the most severe case there has to be  that's not everything in the sense the same significance or years of say what a great a decision maker i think pretty explicitly said was if you start from the illegal drug drug use perspective and that's one starting point but not the only one then you have this range the upper end of which includes removal and then you add in the fact that she was driving under the influence in a residential area you can view that as creating a you know i'm real danger killing people well why does that not it why is that not vicious within the range of discretion to say it's going to be at the upper because you have to look at all the facts and the facts are this far in the stop because a clerk that smelled alcohol on her brow at reported that she happened to drive by police officer who was there for other reasons she was not committing a separate traffic offense she hadn't rolled a stop sign or red light or been speeding there's no allegation that she was driving recklessly there's no right allegation that she was driving negligently if you're saying that per se use is a creates a standing the weather there happens to be an ongoing violation of a traffic law and i think that there are any number of activities there and terribly dangerous but that doesn't do not automatically trigger a maximum had been in charge of her in prior years both of them said she was an exemplary completely per second the supervisor said that when he was asked his recommendation was actually given a last chance agreement not to cheat be removed from man he would have he would have offered a last ship settlement agreement the den than ego and say that he actually be really nervous about her working there because he'd be worried that she would be under the influence or not and on cross but i think in terms of interest again let me talk about exaggerate endangerment because we were talking about that it's the inherent risk involved in drugs and one of the influence in danger man was never noticed in the proposed it is clearly an aggravating sustain a removal based on the extra for the consideration of factors that were not noticed in the proposed and there's no question that there is nothing in the proposal that refers to endanger nothing and yet it is used maybe four or five times in the decision now the other thing that that it's apparent is that the other does factors to address would do it again isn't that why we have laws against drunk driving because the danger well me it seems to me if there's anything that follows as night to day is that drunk driving is dangerous is that wrong well no it's not wrong to prohibit it more than it's worth it not is it not correct to say when you say that somebody has engaged in drunk driving and this is the charge i'm leveling against you that one of the reasons that drunk driving is a bad thing which i am going to punish you for is because it entails inherently dangerous to understand and on any number of factors and when you know in criminal courts the courts look she admitted snorting cocaine village or the misconduct it's clear she admitted snorting with cocaine and being under the influence of drugs or alcohol when operating a motor vehicle that was the testimony from the place officer that she was under the influence of either drugs or alcohol when operating the motor vehicle with regard to the douglas factors the arbitrator  come back to the questions that i started with is this in your view or does the record tell us is her the simple fact that she would continue to be employed by the naval academy regardless of the tasks to be performed something that would give her access to this area where she was driving and if so was that a basis for th connection of a danger to her continued employment or influence if i did all about i think what it would mean to for her to continue to be employed for for the general atmosphere of enforcement of a number of important rules and cook responsibility i think the short answer to your question is jack in the deciding officials decision he specifically referenced that he was unwilling to that's not correct but to answer your question that was part of the decision why they decided to show that's in order to do our job she needed to come on to the facility and he was not willing to give her access to the facility as a civilian he also had the deciding official ways most heavily the nature of the misconduct the seriousness of a misconduct the fact that she was operating a vehicle under the influence of either drugs or alcohol in an area that had military housing in a children's playground this is an area where people were side yes it's true there was no one out there at the time in question other than the police officer agency a full but still this conduct of harris of using illegal drugs and alcohol and then there after clinton to do this and of the drug use that was the key to his decision because mimi didn't really the drug use that was the key to a decision not so much just operating a vehicle under the influence i mean if you look at consistency of penalties if you're relying on operating the influence of think you have a hard time i mean there are they pointed out sailing instructors teaching the naval academy people sailing were suspended for fourteen days well operating under the employer so it can't be operating under the influence of alcohol that was what led to the maximum penalty here it had to be the drug it's all of the circumstances a he i agree that it is essential that if we get legal drugs bought there was as is a deciding official cited in his decision the fact that she came on to the  intentionally draws sure but if you compare that to a sailing instructor teaching sailing under the influence of alcohol that seems far worse than those people got fourteen days suspension because first of all eyes are deciding official stated in his decision and in his testimony he was looking at all of the circumstances what she did here is display extraordinarily bad judgment over you have no disagreement from me on that what i'm worried about is the consistency of the penalties you know i know that i'm working at the age of thirty eight thirty nine which is the deciding officials douglas analysis and i know he says he looked at them but can you show me in the record provided it seems to me that it if he had looked at the seriously he would have considered this to be disproportionate o the in terms of his testimony he testified that they brought one case to his attention he believed it was from january two thousand and nine that he did not regard it as being similar to the circumstances of this case and that he did not rely upon it that was his testimony now with regard to the the testimony that was presented concerning the others and you have any idea what the kids who are so it perhaps can be the incident from january of two thousand and nine which is addressed at page two hundred that of the employer that said but as the cave that's the only case i see where there was a rueful i think two or drugs the i don't see any other similar cases involved where there was a removal for one incident of drug use and my right the other incident that involved a drug you expose from september two thousand and nine that oh i've got another is going to distribute that we have many are certainly comparable cases and what i'd like you to tell me is do any of them involve a combination of illegal drug use and driving a vehicle under the influence  there were eight cases brought to the arbitrators attention two of the cases paid for has already alluded to from january two thousand and nine and september two thousand and nine that involve cocaine cocaine cases the immediate action by the agency was to put the employee on in an indefinite suspension which the agency can do immediately and then go on to take further action and there was the there was a new indefinite suspension followed my resignation in the in the september two thousand and is directly correct the there were four cases involving just cock a whole only they are summarized on page two hundred of the some being under the influence or consuming one incident was consuming beer at a function where the individual was not supposed to be drinking whether they were under the influence or and what supports the ceiling case th jews was so can you describe this failing case i'm not exactly sure but there were four cases involving alcohol that are laid out on page two hundred tw was that she should be given an opportunity to return the only person that decided firmly that she shouldn't be allowed to return to the commons and so is there is a really substantial intentionally when she did a really destroyed me that it may be that there's nothing i can do about it but that if you gave a really short shrift to the fact that she had twenty four years of an assembly mission work record and she made he weighed the factors he noted that she had all these years of service and then online was structured but he was simply not willing to take the chance of any future of misconduct in light of the seriousness of this conduct that she had you have any idea if she was allowed to pluck apply for some kind of discontinued service annuity because we have do you have any idea if she was allowed to apply for every type of like discontinued service annuity you know  i just wondered if you had any idea i don't know the answer to that question i don't know whether it would farai she certainly has all of those years  in case law or practice does the reference to supervisors stop at the immediate supervisors or because the higher ups don't have a personal to perform your job how can you ignore twenty four years of exemplary service and say because of a one off incident i know i suspect i believe we can predict that you're not going to be able to do your job exhibited by two supervisors and the director of food services and there's nothing other than a conclusory saying that i don't have confidence in you and it's you and it's not real that's that's the real point it's not really sane it doesn't make it what the what the the science original settlements hardy's case virtually the same thing you're setting a bad example but what's the rest of the evidence nobody knows about this incident committees don't know about it and we when there was extensive cross examination piloting that the crew supposed under his direction i would say yes it's my it's my understanding that there are learning how to sail teams telling them how to do right now and my own here's what here's the significant thing  says she also overheard you giving incorrect a conflict information from the v h f radio but that's the risk in this case that's the danger there with the the if you want to call it in danger and that's what it comes from you know i mean it's