Border Agency Axes Top Lawyer for Whistleblower Complaint
General Counsel Fired for Not Being “Collegial” in Reporting Waste and Abuse
Washington, DC — The federal agency responsible for wastewater treatment and flood control projects on the U.S.-Mexico border ousted its General Counsel just three days after he reported waste, fraud and abuse to oversight agencies, according to legal briefs filed today by Public Employees for Environmental Responsibility (PEER). The agency’s termination letter stated that the lawyer was fired for being less than “collegial” in writing legal opinions protesting violations by top agency officials.
Robert McCarthy, General Counsel for the United States Section, International Boundary and Water Commission (USIBWC), with headquarters in El Paso, Texas, had cautioned the agency about financial abuses, including a $220 million Recovery Act flood control project which threatened the safety of millions of border residents. McCarthy’s legal opinions also warned about improper expenditures, illegal manipulation of payrolls, secret surveillance of USIBWC employees, and other abuses.
On July 28, 2009, McCarthy informed Bill Ruth, the holdover USIBWC Commissioner appointed by President Bush, that he had disclosed these concerns to the Office of Special Counsel, State Department Office of Inspector General (OIG), Office of White House Counsel and the Government Accountability Office. Three days later, Ruth ordered McCarthy’s termination. Ruth’s removal letter cited McCarthy’s legal memoranda, stating the memos demonstrated McCarthy’s “continued failure to support me…in a constructive and collegial manner … [which] leaves me no other recourse.”
Ironically, on the day he fired McCarthy, Ruth submitted testimony to Congress in which he boasted “We have made implementing the Recovery Act a top priority and are pleased to report that we are moving forward quickly, efficiently and with an unprecedented level of transparency and accountability…the public is encouraged to report instances of waste, fraud and abuse to the Department of State OIG.…”
Today, on McCarthy’s behalf, PEER has filed a whistleblower retaliation complaint with the Merit Systems Protection Board (MSPB) demanding his immediate restoration.
“We expect government lawyers to uphold the law, not compete for Miss Congeniality,” stated PEER Counsel Christine Erickson who filed the complaint. “Documents in this case show a rogue agency acting without regard for law, regulation or even common sense.”
Among McCarthy’s disclosures was that USIBWC planned to build “cosmetic” levees along the Rio Grande in order to give the appearance of flood control while leaving residents vulnerable to seasonal inundation. In Presidio County, Texas, the agency planned to patch up structurally deficient levees damaged by a previous flood, with full knowledge that the repairs would not withstand even a minor flood, and that the levees themselves are located on unstable ground. In Hidalgo County, the agency planned to divert flood control funds to subsidize building a border barrier.
PEER has previously labeled the USIBWC the worst agency in the federal government, pointing to, among other things, a 2005 State Department Inspector General report which concluded that “Internal management problems have engulfed USIBWC, threatening its essential responsibilities for flood control and water management in the American Southwest.”
“Under Bush appointees, the USIBWC has become a bureaucratic basket case desperately in need of external intervention,” said PEER Executive Director Jeff Ruch, noting that his group has been contacted in the past few weeks by several current and former agency employees reporting similar problems. “Not only is the appointment of a new Commissioner long overdue but this tiny agency should be put under the State Department’s management control to prevent these fiascos from recurring.”