Senate Panel Rips FBI Execs For Retaliation
During recent testimony before the U. S. Senate Judiciary Committee, FBI Associate Deputy Director Kevin Perkins had a bizarre, nonchalant reaction to what he should have taken as a pointedly accusatory question from Chairman Charles Grassley. Grassley asked Perkins, "can I have your commitment that the FBI will not take adverse action against (FBI) Special Agent Kiper for his testimony here today?" Perkins' lack of reaction was awkward, revealing he didn't grasp the deep distrust of FBI management inherent in Senator Grassley's question. FBI executive management was under fire in public view at this Hearing, and Perkins seemed oblivious. Former FBI Unit Chief Richard Kiper had testified earlier in the day about a clever, underhanded FBI management trick called Loss of Effectiveness Orders (LOEs). Senator Grassley's Hearings are providing insight into how FBI executives punitively use LOEs to retaliate against agents for reporting mismanagement, waste, fraud and abuse. Clearly the powerful Chairman of the Senate Judiciary Committee did not trust FBI executive management to do the right thing regarding Agent Kiper without getting Perkins' assurance under oath.
Judiciary Committee Senators are grilling FBI executives about failures to protect line level brick agents from retaliation after those agents earnestly reported waste, fraud or abuse in FBI programs. Embarrassingly, since executives can not get it done on their own, the Senate is considering taking the extraordinary step of introducing legislation that will force FBI management to stop retaliating against employees who report abuses to management. As the tenor of the Hearings demonstrates, several Judiciary Committee senators are tired of excuses and foot-dragging by FBI executives on this retaliation issue.
Agents who lump FBI Whistleblowers into one pot of inept malcontents should view the video of the Hearing testimony found here:
Listen to what your fellow brick agents are saying under oath about retaliation and abuse. Enablers who label all whistleblowers as "conspiracy theorists," should either put-up or shut-up. And, by the way, regardless of what the enablers think, the fact is that a large group of powerful U.S. Senators are convinced FBI management is retaliatory and vindictive when employees raise legitimate criticism. Reports issued by the General Accountability Office (GAO) and the DOJ Inspector General have echoed Judiciary Committee findings.
The FBI's "Carve Out"
Whistleblower laws were imposed on almost every executive branch agency. The FBI was able to gain a legislative, "carve-out" granting it special treatment along with a small number of other esoteric federal agencies such as the Postal Regulatory Commission, the Panama Canal Commission, and the Tennessee Valley Authority. At every other executive branch agency, employees can report mismanagement, waste, fraud and abuse directly to their supervisor. In exchange, the employee is automatically protected from retaliation for their report. The carve-out manipulated for the benefit of the FBI greatly limits who in the FBI can receive employee complaints. The carve out lists only nine FBI officials that can receive them and the report must be made directly to the official. This dramatically reduces the effectiveness of employees being able to quickly and somewhat informally address issues at the lowest level, such as with their direct supervisor. Worse, if an FBI employee doesn't report the waste, fraud or abuse directly to one of the specified nine officials listed in the carve-out, every member of FBI management is then automatically immune from the reporting employee claiming retaliation against them for making their original report. The FBI has repeatedly misused this retaliation loophole, which is the focus of Senator Grassley's Hearings. But the true deviousness of the "carve out" is that eight of the nine acceptable receiving FBI officials are so high ranking, that it is nearly impossible for a line level employee to make a protected report. For example, the FBI Director and the Attorney General are listed as two of the nine. Combine the FBI's insistence that employees follow the chain-of-command, requiring employees communicate first to direct supervisors on most issues, with not plainly informing employees that they aren't protected against retaliation when reporting through that chain-of-command, and you get a system easily manipulated by FBI executives.
FBI management has repeatedly been caught playing this immunized retaliation game which goes like this: An employee makes a complaint of waste, fraud or abuse to their supervisor or their supervisor's boss (usually an ASAC or Unit Chief). Management, instead of looking into the report, dismisses and takes note that the reporting employee's criticism is a threat to certain managers' careers. Management then targets the reporting employee and retaliates against them by taking adverse personnel action, such as denying them promotion, TDY's, etc. Many times FBI management has isolated and ostracized the employee or reassigned and placed them under increased scrutiny. The employee points out that the adverse action against them is obviously retaliatory for their having reported the waste or abuse. They produce years of Outstanding ratings on their performance reviews and show that immediately after their mismanagement report they came under intense scrutiny without warning. Management responds to the employee that they don't have to address any claim of retaliation. Managers tell employees that it doesn't matter even if retaliation is occurring. Since the employee didn't make their original waste, fraud and abuse complaint specifically to one of the nine acceptable FBI officials, the employee is barred forever from linking management's adverse action against them to their original report! A GAO study found that "DOJ closed the majority of (retaliation) complaints (they) reviewed within one year, generally because the complaints did not meet DOJ's threshold regulatory requirements. The most common reason … "was because the complainants made their disclosures to individuals or offices not designated in the regulations".
One of the nine acceptable FBI officials is, "the highest ranking official in an FBI Field Office". The distinction of "Field Office" is significant. This provision effectively expands the nine allowable officials to about sixty-seven officials since Special Agents In Charge (SACs), and a few Assistant Directors would be included. But agents testified that they (wrongly) believed the first appropriate official to contact should be their supervisor, not the SAC. Following the letter of the law engineered into the carve out's trap, the reporting agent would have to complain directly to the SAC without telling their supervisor or their ASAC. FBI culture would label that meeting as disloyal and insubordinate. And FBI executive management raised Senator Grassley's ire for their blatant manipulation of this option in Agent Kiper's case. FBIHQ Divisions aren't considered a, "Field Division", so employees in FBIHQ Divisions don't have the option available of reporting to the "highest-ranking official in a Field Division". Agent Kiper testified he made his waste and abuse complaint to the Assistant Director (AD) of the Training Division, who was the highest-ranking official in Kiper's Division and who outranks most Field Division heads. But the Training Division is not a Field Division. Just after Kiper's report of waste and abuse to the AD, and with fifteen years of previous superior performance ratings behind him, FBIHQ isolated and placed Kiper under investigation! The Bureau suddenly found him deficient, demoting him two pay grades. Kiper complained that the demotion was retaliation for his report of waste to the AD. Executive management dismissed his retaliation complaint without investigating it because the AD, to whom Kiper made his complaint, isn't the highest ranking official in a "Field Division". Nor is an AD one of the acceptable nine officials named in the carve-out! Management stubbornly stuck by these semantics, ignoring logic even when it was pointed out by Senators that an AD outranks a Field Division SAC, and that an AD is the highest ranking official in several FBI Field Divisions.
Michael German testified before the Judiciary Committee that he had been an Atlanta-based FBI Agent, assigned to an Undercover role in a Tampa Division investigation. German "learned the informant in the case had illegally recorded a portion of a conversation between two subjects earlier in the investigation, imperiling any possible prosecution". German reported his discovery to the Supervisor for the Tampa case. According to German's sworn testimony, rather than document the error and move on with the investigation as German suggested, the Supervisor refused to address the matter and then told German to "pretend it didn't happen." Due to the FBI's strict code for respecting the chain-of-command, German ultimately reported the incident in writing via email to his Atlanta Assistant Special Agent-in-Charge (ASAC), who agreed to forward the email to the Tampa SAC. Since German had reported the incident to an ASAC and not, "the highest ranking official in a Field Division", the Bureau was free to take adverse personnel action against him. Supervisors had immunity from any claim of retaliation German might make. Apparently Tampa management circled the wagons quickly and escaped repercussions by instead having German placed immediately under investigation by the Inspection Division for spending $50 without prior authorization. After years of delays, an investigation by the DOJ Inspector General found the FBI had retaliated against German with baseless allegations about the $50 expense. Senator Grassley reported that the Inspector General found that "someone" in the FBI falsified documents during the internal inquiry into the allegation against German, actually using whiteout to hide their mistakes. It was too late for German; he had been isolated and ostracized during the investigation and being very frustrated, he resigned. German testified that the Tampa Supervisor and the ASAC, rather than being held accountable, were rewarded and eventually promoted to SAC positions. German submitted a written statement detailing that for sixteen years he had, "a career of superior performance and an unblemished disciplinary record". That "high-level FBI officials who had nothing to do with (my) original complaint initiated adverse personnel actions against me because they heard I was a whistleblower".
Other incidents of whistleblower retaliation being scrutinized by the Committee include an agent who was isolated and placed alone for long periods among 300 empty desks on a vacant floor of an FBI office even after an independent outside agency had ordered the FBI to take corrective action in the agent's case. A member of an FBI surveillance team recently reported nepotism and program waste and the next day was disciplined. According to press accounts, the surveillance team whistleblower told Senator Grassley his supervisor called him suddenly questioning his use of a government-issued vehicle. The supervisor's questioning occurred immediately after the agent made his nepotism and waste report. The supervisor pulled the whistleblower from duty without explanation. The whistleblower was ordered to report to the office every day, with no work assigned to him. Senator Grassley wrote to Executive Assistant Director (EAD) Valerie Parlave that based on his 30-year experience working with whistleblowers such idling of agents and sudden scrutiny of previously sanctioned conduct are hallmarks of retaliation at the FBI.
Senate Judiciary Committee members are clearly frustrated with the arrogance and dismissive response from FBI executives regarding these issues. Senator Grassley fired off a series of letters to Director Comey, EAD Parlave, and the acting deputy attorney general. He wanted their response about specific incidents of retaliation at the FBI, but he said his letters were ignored. Grassley complained that the FBI ignored a letter questioning the agency's treatment of Agent Kiper, only responding after they realized Kiper was about to testify before the committee. This disrespect for lawful, legitimate oversight of the FBI is unprofessional, insubordinate and an embarrassment. Working agents know what would happen to them if they ignored specific inquiries from FBIHQ. Brick agents should take comfort that they aren't the only folks that FBI executives dismiss as inconsequential when they raise concerns. With the way FBI executive management is treating U.S. Senators, brick agents are in pretty good company!