Constitutional Law

Rep. Issa protests 'whistle-blower' demotion

By By The Associated Press

WASHINGTON ? The Department of Homeland Security demoted a senior career employee who confidentially complained to the agency's internal watchdog that political appointees were improperly interfering with requests for federal records by journalists and others.

The chairman of the House committee investigating the alleged interference told the Obama administration that the demotion "appeared to be an act of retaliation." GOP Rep. Darrell Issa of California, who leads the House Oversight and Government Reform Committee, also said the treatment of the whistleblower had impeded the committee?s investigation.

"Obstructing a congressional investigation is a crime," Issa said.

The department said it had done nothing wrong.

Issa urged Homeland Security Secretary Janet Napolitano to remind employees about their rights and whistle-blower protections and to make agency managers "aware of the consequences for retaliation against witnesses who furnish information to Congress."

He accused the administration of improperly demoting Catherine Papoi, the former deputy unit chief in charge of the Freedom of Information Act. His charge raised the stakes in the broad congressional inquiry into President Barack Obama's promises to improve government transparency.

"Denying or interfering with employees' rights to furnish information to Congress is against the law," Issa wrote in a five-page letter obtained by the Associated Press. "Federal officials who retaliate against or otherwise interfere with employees who exercise their right to furnish information to Congress are not entitled to have their salaries paid by taxpayer dollars."

The department said Papoi was not technically demoted because she never lost pay or benefits. Yet Papoi's new boss, Delores J. Barber, took over Papoi's title and moved into Papoi's office.

Papoi, who has a law degree, earns between $99,628 and $129,517. Under the federal employment system, a demotion usually involves loss of a pay grade.

Papoi, who applied for the new position ultimately awarded to Barber, is on leave. The department said a panel of career employees recommended Barber over Papoi. The political appointee whom Papoi had accused of illegal behavior, chief privacy officer Mary Ellen Callahan, chose Barber for the job in December.

Issa said during a congressional hearing today that he would ask for Papoi to be reinstated because he believed she was "demoted in violation of the spirit" of the whistle-blower law.

The department responded to Issa's complaints in a letter that listed what it said were 11 factual inaccuracies by Issa and complained about "unfounded allegations of bad faith and a breach of legal ethics."

"The department has not taken any retaliatory action against employees that have provided information to your committee," wrote Assistant Secretary Nelson Peacock.

Issa disclosed in his letter that Papoi complained confidentially to the inspector general in March 2010 that the department, under a directive signed by Callahan, had illegally sidetracked hundreds of requests from journalists, watchdog groups and others for federal records to top political advisers. The advisers wanted information about those requesting the materials.

In some cases, the release of documents considered politically sensitive was delayed, according to more than 1,000 pages of e-mails subsequently obtained by the AP, which wrote about the practice last summer.

The e-mails did not show political appointees stopping records from coming out. But they did show acute political sensitivities that slowed the process.

Career employees were ordered to provide political staff with information about the people who asked for records ? such as where they lived and whether they were private citizens or reporters ? and about the organizations where they worked. If a member of Congress sought documents, employees were told to specify Democrat or Republican.

The AP reported that the inspector general's office had conducted interviews to determine whether political advisers acted improperly, but its findings have not been made public nearly one year after Papoi's complaints.

"I knew full well I could be jeopardizing my career, but I have to be able to sleep at night," Papoi told the AP in an interview.

Peacock, the assistant secretary, said the agency was not aware until Issa's disclosure that Papoi was the one who had complained about her bosses to the inspector general in March 2010. Papoi accused political appointees of "breaking the law by knowingly and intentionally delaying and obstructing the release of agency records" under the Freedom of Information Act.

At a Senate Judiciary Committee hearing this week, Sen. Charles Grassley, R-Iowa, said, "It would seem obvious that the political vetting process at the Department of Homeland Security that was uncovered by AP violates both the president's and the attorney general's orders."

Grassley said he had asked inspectors general at dozens of executive branch agencies to investigate whether other parts of the administration were conducting similar political reviews of federal information requests.

A senior Justice Department official in charge of Obama's openness policy, Melanie Pustay, told senators on March 15 that "if the statements in the (AP) article are true, it would be very serious, and we would have very serious concerns with that."

She said Justice Department rules make clear that the identity of the person requesting records shouldn't affect whether the government provides information. She acknowledged that political appointees in the Justice Department are told about information requests "for awareness and management purposes, and that's all."

Issa says administration lawyers also believe Papoi has been secretly providing information to congressional investigators, who interviewed Papoi with her private lawyer on March 3.

In the interview, Papoi criticized political appointees in Napolitano's office.

The department said Papoi was notified about her new boss's hiring on Jan. 10, the same week in which Issa has acknowledged his investigators began obtaining materials that raised new questions about the agency's political reviews.

Peacock said the department lawyer "merely pointed out the chronology ... regarding the hiring process and the investigation."

Issa said Papoi was told on March 4, the day after meeting with investigators, that Barber would begin as her new boss on March 14 and that she needed to vacate her office before March 10.

"By notifying Ms. Papoi of her less desirable office assignment and diminished job responsibilities the day after she appeared before the committee, the department created the appearance of retaliation against a witness," Issa wrote. "The department's decision to marginalize the FOIA Office's most senior career official after two years of record performance is hard to countenance."

The department said Papoi's previous boss was, in fact, the most senior career official in the FOIA unit.

The AP obtained Issa's letter during Sunshine Week, when U.S. news organizations promote open government and freedom of information.

Full post as published by First Amendment Center on March 16, 2011 (boomark / email).