Washington, DC — A major test of whether the Obama administration will protect whistleblowers is arising out of an obscure border agency which fired its General Counsel just three days after he reported waste, fraud and abuse, according to an appeal filed today with the Merits Systems Protection Board by Public Employees for Environmental Responsibility (PEER). The agency, the United States Section, International Boundary and Water Commission (IBWC), based in El Paso, Texas, has hired the nation’s top union-busting law firm to defend its actions, costing taxpayers approximately $100,000 thus far, at rates ranging up to $450.00 an hour.
Robert McCarthy, the IBWC General Counsel, had warned the agency about an array of financial abuses, including a $220 million Recovery Act flood control project which threatened the safety of millions of border residents. McCarthy also reported improper expenditures, illegal manipulation of payrolls, secret surveillance of IBWC employees, and other abuses to the Office of Special Counsel, State Department Office of Inspector General, Office of White House Counsel and the Government Accountability Office.
On July 28, 2009, McCarthy informed Bill Ruth, the holdover IBWC Commissioner appointed by President Bush, that he had disclosed these concerns to oversight agencies. Three days later, Ruth ordered McCarthy’s termination. Ruth’s removal letter cited McCarthy’s repeated warnings, stating the memos demonstrated McCarthy’s “failure to support me…in a constructive and collegial manner....”
On April 9, 2010, an administrative judge upheld McCarthy’s termination finding that McCarthy’s whistle blowing “coincided, either by chance or by design” but were not the cause of the removal. On behalf of McCarthy, PEER is asking the presidentially-appointed Merit System Protection Board (MSPB) to reverse that ruling, as a matter of law, and restore McCarthy.
“In this case, Robert McCarthy was told orally and in writing that he was being fired because he raised legal violations, safety concerns and rampant misconduct. If he is not protected by the Whistleblower Protection Act that law is a dead letter,” stated PEER Senior Counsel Paula Dinerstein, noting that in addition, several key documents were admitted as evidence even though computer metadata showed they were backdated and, therefore, falsified.
For its defense in the whistleblower case, this summer IBWC retained the high-dollar law firm Jackson Lewis LLP, which specializes in “union avoidance” or “preventive labor relations.” Documents obtained by PEER under the Freedom of Information Act reflect nearly $100,000 in billings by the firm, at rates ranging from $375.00 to $450.00 per hour. There are several tens of thousands of dollars more in billings that PEER is still seeking. PEER is still trying to learn whether the IBWC accounts used to pay the firm came from Recovery Act funds.
“The irony here is that by reporting waste, fraud and abuse, Robert McCarthy induced his agency to waste even more taxpayer funds,” commented PEER Executive Director Jeff Ruch. “The larger issue is whether anyone in the Obama administration is paying attention to what this small but pivotal agency is doing.”