A Second Calling and the First Amendment

First Amendment right? Or conflict of interest?

Jaime Ramirez, a Customs and Border Protection officer in Presidio, Tex., ran for a nonpartisan, unpaid city council seat in 2004 and won. He had no opposition in the 2006 election and remained in office. He had obtained Customs' permission to serve on the council prior to the 2004 election.

Then, last December, the agency reversed its position and ordered Ramirez to resign his council seat. The government said its order would prevent possible conflicts of interest while permitting Ramirez to continue speaking out on civic issues of public interest.

Ramirez balked at giving up his council seat and filed a complaint with the U.S. District Court for the District of Columbia. Judge Gladys Kessler granted him a preliminary injunction this week, sparing Ramirez from choosing between his council seat and his federal job until the merits of the case can be litigated.

"The agency's decision 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," Kessler wrote.

The judge said legal issues raised by the case "are serious, substantial, difficult and doubtful" and require further study.

The National Treasury Employees Union, whose lawyers are representing Ramirez, views the case as important to the free speech rights of federal workers. Colleen M. Kelley, the union president, said that "CBP should be doing all it can to encourage its employees to contribute to their community in this way."

A Customs spokeswoman said the agency "respects the rights of its employees to appeal decisions in regard to their employment." She said Customs and Border Protection cannot comment on cases before courts.

Ramirez, in a telephone interview, said he has lived in Presidio for most of his life and has worked to improve the city by championing construction of water and sewer systems, baseball fields for children and community centers. Ramirez said he resigned as a county commissioner in 2002 when he joined Customs and Border Protection because that position involved partisan politics.

Federal employees are prohibited from engaging in certain types of partisan politics under the Hatch Act, as amended in 1993. The law does not bar employees from becoming candidates for public office in a nonpartisan election.

In the Ramirez case, however, the government said it was concerned that his service on the nonpartisan council could involve conflicts of interest.

As a federal law enforcement officer, Ramirez checks people and cars coming and going to Mexico, the government said. Such duties may create the appearance of a conflict of interest because some of the people cast votes in city council elections and can either elect or reject Ramirez, the government said.

Given the nature of his job, which requires him to scrutinize constituents, the government's argument "is by no means frivolous," Kessler wrote.

But, the judge noted, for two years or more, Customs and Border Protection had no objection to employees serving their community in unpaid, nonpartisan positions and has "failed to give any persuasive justification for the abrupt change in the agency's position."

Kessler said the policy reversal appeared "directly related to simple bureaucratic or managerial shifts," primarily CBP's transfer of such personnel decisions from local field officials to lawyers and supervisors in Washington. The latter, Kessler said, "probably have little or no particular knowledge of local conditions."

Talk Shows

Lyle Carlile, acting director of the Interior Department's Office of Wildland Fire Coordination; Nancy Guerrero, program analyst in the Wildland Fire public affairs office; and David Dash, acting deputy director of the Bureau of Land Management's Office of Fire and Aviation, will be the guests on "FedTalk" at 11 a.m. today on http://federalnewsradio.com and WFED radio (1050 AM).

Jayson Ahern, assistant commissioner for field operations at U.S. Customs and Border Protection, will be the guest on "The IBM Business of Government Hour" at 9 a.m. Saturday on WJFK radio (106.7 FM).

Stephen Barr's e-mail address isbarrs@washpost.com.