U.S. Office of Special Counsel  1730 M Street, N.W., Suite 218  Washington, D.C. 20036-4505

U.S. OFFICE OF SPECIAL COUNSEL FINDS BORDER PATROL INTERNAL CRIMINAL PROBES DEFICIENT

FOR IMMEDIATE RELEASE - 5/27/05
CONTACT: Cathy Deeds, 202-254-3607, cdeeds@osc.gov

      WASHINGTON—The U.S. Office of Special Counsel (OSC) today transmitted to President Bush and the U.S. Congress investigative reports substantiating serious whistleblower allegations that U.S. Border Patrol agents and employees engaged in extensive kickback and fraudulent reimbursement schemes at the Douglas, Arizona Border Patrol Station (Douglas Station) from January 2000 through April 2002.

      The Department of Homeland Security (DHS) substantiated allegations that the kickback and fraud schemes involved numerous Border Patrol Agents and several Supervisory Border Patrol Agents. Reports prepared by DHS also purported to exonerate the Border Patrol management of any wrongdoing. After reviewing information provided by the whistleblowers and the agency’s reports, the Special Counsel concluded that DHS failed to consider key substantive information rendering the inquiry inadequate and unreasonable.

      In January 2000, Border Patrol detailed numerous agents to Douglas Station as part of “Operation Safeguard.” The whistleblowers, Larry E. Davenport and Willie A. Forester, former Border Patrol Agents, alleged that both Supervisory Border Patrol Agents and Border Patrol Agents detailed to Operation Safeguard were involved in kickback and fraudulent reimbursement claims in relation to their lodging expenses. The whistleblowers also alleged that Border Patrol managers, to include those at regional headquarters, were aware of these improper activities but refused to take any action.

      OSC discovered in November 2003 that despite the existence of a report substantiating these allegations, agency leadership decided not to take disciplinary action against the agents involved. Given the seriousness of the wrongdoing alleged, OSC referred the matter to former Secretary of Homeland Security Thomas J. Ridge for formal investigation and a report on November 23, 2003.

      On March 23, 2004, after repeated delays, Secretary Ridge submitted a report to OSC. The Secretary’s report cited 45 instances of proposed disciplinary action. The report also recommended additional training for managers, supervisors and front-line agents, and the development of improved procedures for reviewing reimbursement claims. It did not, however, address the whistleblowers’ allegations that management personnel were involved in and or tolerated the wrongdoing at issue. In addition, the investigation upon which the Secretary based his report did not include interviews with the whistleblowers.

     OSC determined that the Secretary’s report was deficient because the agency failed to address the issue of management’s involvement and neglected to interview the whistleblowers. In response to OSC’s concerns, DHS agreed to prepare a supplemental report.

      DHS’s supplemental report, prepared by the Office of Internal Affairs for U.S. Customs and Border Protection (CBP), was based on interviews with management employees in the chain of command for Douglas Station, Arizona. Upper-level management uniformly minimized their knowledge of and involvement in the kickback and fraud scheme. On the basis of such statements, the Supplemental Report purports to exonerate management personnel, concluding that “[c]orrective Action on their part would have been difficult since they did not know the improprieties were taking place.” Again, the agency failed to interview the whistleblowers despite their long-standing contention that they had knowledge and evidence of extensive wrongdoing by at least 16 management officials and despite OSC’s recommendation that they do so. For a second time, OSC concluded that the agency’s findings were unreasonable.

      Owing to the sheer numbers involved, it stretches credulity that 45 employees at a single Border Patrol station engaged in a kickback and fraud scheme for a number of years and warranting severe discipline without the knowledge of management. Investigators for DHS and CBP appear to have exerted little effort to follow up on evidence identified by the whistleblowers that would call into question the statements of its management personnel let alone provide adequate explanation for why they did not do so. As a result, the Special Counsel concluded that DHS’s investigation of management appeared to be pretextual and, at best, lacked thoroughness.

      The Special Counsel Scott J. Bloch stated: “Given the failure of Border Patrol investigators to follow up on evidentiary leads possibly indicating management knowledge or involvement in the illegal kickback conspiracy and their apparent refusal to interview the whistleblowers, both agency reports must be viewed as deficient. By failing to conduct a thorough review from the beginning and relying on faulty advice from the personnel office in deciding not to discipline law enforcement personnel engaging in criminal activity, there is a real risk of creating the appearance of a whitewash. Integrity and transparency in government command a higher standard, and more needs to be done to thoroughly investigate this matter.”
 

• OSC Analysis of DHS Report

• OSC Transmittal Letter to the President
   

The U.S. Office of Special Counsel (OSC) is an independent investigative and prosecutorial agency and operates as a secure channel for disclosures of whistleblower complaints. Its primary mission is to safeguard the merit system in federal employment by protecting federal employees and applicants from prohibited personnel practices, especially retaliation for whistleblowing. OSC also has jurisdiction over the Hatch Act and the Uniformed Services Employment and Reemployment Rights Act. For more information please visit our web site at www.osc.gov or call 1-800-872-9855.