Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

The Treasury Inspector General for Tax Administration (TIGTA) issued a report that criticizes the Internal Revenue Service (IRS) for dragging its feet in processing whistleblower claims. The report follows up on TIGTA's 2009 report and found, "deficiencies in the IRS’s internal controls and timely resolution of whistleblower claims." Now, three years later, the IRS still has "not fully and adequately" addressed those concerns. Meanwhile, last August the General Accounting Office (GAO) issued a report making recommendations for improvements at the IRS Whistleblower Office. IRS management has promised to implement those recommendations and make a report by October 12, 2012.

In 2009, TIGTA found that the Whistleblower Office was tracking its inventory on three different systems. In response, the IRS had employees manually transfer the data to a single system. However, the IRS did not audit the data to discover and reconcile errors. IRS management responds that no errors have been identified.  Readers may wonder, though, if that is because no one looked for errors. IRS management did not allow the TIGTA direct access to the information system, even though the 1978 law creating the TIGTA gives it "authority to access all records, reports, audits, reviews, documents, papers, recommendations, or other material . . .." The 2009 report identified 1,973 claims for which TIGTA wanted to review the tracking data.  Without direct access to management's database, TIGTA could not determine how many of these claims are correctly logged into the information system.

Also, TIGTA found that the Whistleblower Office has not yet fully developed standards for timeliness in processing claims.  When management trained the staff at the Whistleblower Office, it did not instruct them to check the date a claim was received. According to TIGTA, this point "is critical when reporting business results to internal and external stakeholders."

I find it interesting that the report's chart on page 8 shows that the IRS has no standards for how long it should take to acknowledge receipt of a claim, or for issuing rejection letters to whistleblowers. Under "Steps in the Claims Process," the chart does not even have a line for actual issuance of awards. This blog editor is aware of only one award the IRS has actually made.

The Tax Relief and Health Care Act of 2006 created the mandatory IRS whistleblower award program for tips that lead to recoveries of over $2 million. As a result of the program deficiencies at the Whistleblower Office, the program "is not as effective as it could be" in assisting tax enforcement, reducing the gap between the taxes due and the taxes collected, and in "maintaining the integrity of the voluntary tax compliance system."

The new report is called, Improved Oversight Is Needed to Effectively Process Whistleblower Claims.

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Last week the U.S. Department of Labor's Inspector General's office issued a report finding that most of the Department's whistleblower investigations are flawed. The IG's office reviewed investigative files of the Occupational Safety and Health Administration (OSHA) which has responsibility to enforce the employee protections of 17 federal statutes. It found that OSHA dismissed 77% of the whistleblower complaints. In 21% of cases, the complainant withdrew the complaint, either with or without a settlement. That left 2% of cases in which OSHA found the complaint had merit. This is not a rate that would encourage employees to come forward with concerns that might provoke retaliation.

The study examined a sample of the files for compliance with eight essential components of an investigation. These components are things like interviewing the complainant, documenting that interview, asking for witnesses, interviewing the witnesses, visiting the site, allowing the complainant to respond to the employer's claims, and conducting a closing conference. “These elements are essential to the investigative process to ensure that complainants receive appropriate investigations,” the report states at page 3. Compliance with these standards ranges from 54% (conducting face-to-face visits, or a site visit) to 85% (holding a closing conference). The IG concluded that 80% of the investigations failed to meet one or more of the eight essential elements. 

Unfortunately, the IG's office did not record how many of the sampled investigations actually met all eight standards, but instead estimated the overall compliance from the measures for each of the eight components. To do this, the IG used an “unbiased point estimator.” This type of estimation assumes that compliance with any one of the eight components is not correlated with any of the others. In fact, I suspect that an investigator who cuts corners on one component is more likely to cut corners on the others as well. This effect would tend to concentrate the errors into a smaller number of overly-flawed investigations. Anyway, the IG concluded that the odds are 90% that OSHA's overall error rate in whistleblower investigations is between 72 and 87 percent.

Also, readers should be aware that the IG studied only those OSHA investigations that were concluded between November 1, 2008, and October 31, 2009. These months include the last months of the Bush Administration and the first months of the Obama Administration. The Obama Administration's appointment to head OSHA, Dr. David Michaels, was not confirmed by the Senate until December 3, 2009 – after the period covered by this study. So, this study really reflects the performance of the OSHA whistleblower program under the prior administration.

Dr. Michaels has responded to the IG report, and to the recent report of the General Accounting Office (GAO). My colleague, Lindsey Williams, posted that report here. Dr. Michaels' response recognizes that OSHA's Whistleblower Protection Program has been weak, and needs improvement. Indeed, Dr. Michaels made a speech last Spring on the importance of improving the Whistleblower Protection Program. He announced then that he was launching a “top-to-bottom” review of that program with an eye toward making its performance match the public purpose it serves.

In response to the GAO report, OSHA last month added a requirement in its Management Action Plan (MAP) to check on the Whistleblower Protection Program when conducting audits of field offices. OSHA is also revising its Whistleblower Investigations Manual to add requirements for supervisors to provide guidance and oversight in investigations and settlement discussions. OSHA is also developing a roster of whistleblower experts that investigators and their supervisors can call upon.

The IG's report is the subject of a press release by Public Employees for Environmental Responsibility (PEER), and articles released by Government Executive, FairWarning and the Washington Times (which called the report “little-noticed”).

 

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U.S. Department of Transportation Inspector General Calvin Scovel III issued a letter of commendation to Steve T. Mackey, a former bridge manager for Metro's Silver Line extension to Dulles Airport.  According to a story in today's Washington Post, Dulles Transit Partners overruled Mackey's concerns and decided to use 11 foundations abandoned in the 1970's without testing them to determine if they could bear the weight of the planned rail bridge over Interstate 66.  Mackey reported his concerns to Scovel's office which led to federal safety intervention to obtain the testing Mackey recommended.  Mackey has since left the Dulles Transit Partners and works for an area engineering firm. Scovel's letter states, "Engineers shall hold paramount the safety, health and welfare of the public. Your actions exemplify this ethic and are a credit to you and your profession." If the Silver Line bridge had been built without testing, a latent defect could have led to catastrophic failure at a time when the bridge was under increased load -- such a a crowded train during rush hour traffic.  We add our thanks to Steve Mackey.

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Nerve gas monitors were inoperative from 2003 to 2005 at the U.S. Army's Blue Grass Army Depot, near Richmond, Kentucky. This week, Public Employees for Environmental Responsibility (PEER) released a 2006 Army Inspector General's report that made this finding.  The failure of the monitors might never have come to light if it wasn't for Donald Van Winkle, a chemical weapons monitoring operator at Blue Grass.  After he tried and failed to get management to correct the problem, he was forced to file a complaint with the Inspector General.

In other findings, the Army's Inspector General confirmed Van Winkle's concerns that:

•  Leak detectors were improperly removed from inside the igloos holding highly lethal VX nerve gas;
• As a result, from September 2003 to August 2005 (after Van Winkle came forward), Blue Grass had no means, other than visual observation, to determine whether the odorless, colorless nerve gas was seeping from the rockets in which the agent is stored; and
• These changes were contrary to Army protocols and safety standards but only minor disciplinary action was taken against the responsible managers.

The Army resisted releasing the Inspector General's report for three years citing an ongoing criminal investigation.  Now the Army is resisting PEER's requests for information about the status of that criminal investigation.

“At Blue Grass, the Army was flying blind in protecting its chemical weapons stockpile,” stated PEER Senior Counsel Paula Dinerstein on the organization's web page. “Incredibly, the Army’s attitude appears to be that since no workers or civilians were killed then no harm no foul.”

 

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Last week, I blogged about the recent critical GAO report which found that Congress and the Administration have not done enough to implement oversight of the $700 corporate bailout bill that was passed in October. Well, after weeks of foot-dragging, the Senate has finally voted to appoint former New York Prosecutor Neil Barofsky to the position of Inspector General of the Troubled Asset Relief Program (TARP) -- the program responsible for doling out all of that money.
 

This is a good first step, but much more needs to be done. As this exceptional article in the Washington Post reports, IG's serve at the pleasure of the president, and some have been notoriously loyal to the administration. Further, the IG will not be effective unless he can get credible information about illegal or wasteful spending from employee whistleblowers who can speak up without fear of retaliation. That's why the most important piece of this, and any oversight effort, is a strong whistleblower law. Congress should pass one immediately.

DIGG this article here

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This morning, the AP released a story detailing the failure of the Department of Defense Inspector General's (DoD IG) office to perform it's two essential functions: (a) protect military whistleblowers and (b)investigate their claims. As one whistleblower in the story says: "They are supposed to serve as the conscience of the Department of Defense. And they're not." The AP used Freedom of Information Act Requests and interviews with whistleblowers and advocates to determine multiple shortcomings:

 

• Although DoD IG received over 3,000 whistleblower claims over the past six years, it found no wrongdoing by the military over 90% of the time.

• 73% of the cases were closed after only a "preliminary review."
   
• A confidential survey of the workers and managers in DoD IG found that the workforce was "demoralized and ambivalent." and that one-third of the employees there were described as "disaffected.

Revalations of this kind would be of concern in any agency or area of government, but this story is particularly worrisome. We know that the men and women serving our country in the military witness countless acts of fraud, waste, abuse, and much worse (think Abu Ghraib). The size of the Defense Budget, and the volume of lucrative government contracts to private corporations in recent years (see Bunny Greenhouse), has increased the need for oversight and whistleblower protection for military employees. Further, military whistleblowers are often more vulnerable to retaliation, and they often have no recourse whatsoever if their claim is rejected by the DoD IG.

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