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