DoD IG says low funding partly to blame for delayed whistleblower investigations

The Pentagon’s acting inspector general told Congress Wednesday a chronic underfunding of his office played a major role in the extensive delays surrounding its investigations into whistleblower reprisal claims, the average one taking about 300 days during 2015.

That’s down from 526 days the year before, but still far in excess of the 180 day target in federal law. Whistleblower advocates and the Government Accountability Office have pointed to the need to wrap up those investigations quickly, since long delays can leave employees who have valid complaints in terrible work environments, and conversely, unjustified complaints can leave the alleged reprisers’ careers in extended limbo.

Glenn Fine, the principal deputy DoD IG who’s performing the duties of the inspector general in the absence of a Senate-confirmed leader said his office had internally reallocated funds to beef up its whistleblower reprisal investigations directorate from a staff of 28 in 2010 to 54 as of this year, but that the IG’s overall budget has been flat and unable to keep up with the growth of the Defense Department’s workforce and the accompanying uptick in whistleblower claims. There were 284 reprisal complaints in 2005; the IG projects it will receive 1,600 this year.

“We are doing more with less, and I believe we ought to grow commensurate with the Department of Defense. If they’re growing, we should grow, if they’re constricting, we should constrict,” he said. “If we had simply kept pace with them, we would have 500 more employees, and we would be able to do these investigations with more resources rather than giving our investigators more and more cases to work on. I think that would inure to everybody’s benefit.”

Fine’s comments came in the context of a House Oversight and Government Reform Committee hearing in which the IG’s office was under fire for, at various different moments, either pursuing cases too zealously or sweeping too many of them under the rug.

In the latter category, members and outside watchdog groups are concerned about the extremely low number of whistleblower reprisal complaints the DoD IG manages to substantiate.

Its latest semiannual report to Congress shows the office closed 350 complaints in the first half of 2016 but confirmed only one case of reprisal. Moreover, it dismissed 305 of those cases without investigating them.

And according to longer-term statistics compiled by the Project on Government Oversight (POGO), the IG substantiated just one percent of the cases it received from uniformed military members between 2011 and this year, and dismissed 86 percent of those cases without full investigations.

“We were surprised that this rate was more than double that for the military service IGs, who are generally considered to be less independent,” said Mandy Smithberger, the director of POGO’s Strauss Military Reform Project. “And frankly, things are bad for most DoD whistleblowers. The IG substantiated only seven out of over 1,300 complaints it received from civilian employees. Those rates are about half of what we’ve seen for federal employee whistleblowers at the Office of Special Counsel. We’re concerned about that, because it seems to send the message that there aren’t really any credible whistleblowers that have been reprised against.”

POGO, however, credited the DoD IG for transparency because it publishes its whistleblower reprisal investigation statistics in public reports, a measure few other federal IG offices take.

Fine disputed the group’s conclusions though, saying the IG did not actually dismiss 86 percent of its cases: some of them, he said, were referred to the Army, Navy and Air Force IGs. He did not seek to defend the DoD IG’s low rate of substantiated cases.

“Our job is to follow the facts wherever they lead,” he said. “We’re going to get criticized from both sides: You’re either doing a whitewash or you’re doing a witch hunt; you’re a junkyard dog or a lapdog. We often get those competing criticisms in the same case. We can’t let any of those deter us. We take each case on its merits and follow them through, and it is a challenging task.”

On the “witch hunt” side of the ledger, lawmakers invoked the case of Rear Adm. Brian Losey, accused of retaliating against whistleblowers while he was the commander of special operations forces in Africa. Losey later rose to become the top commander of Navy SEALs despite a DoD IG investigation that dragged on for nearly five years and that ultimately concluded he’d run afoul  of whistleblowing laws.

Although the Navy disagreed with the IG’s conclusions, senators in the bipartisan Whistleblowers Caucus accused Losey of being a “serial retaliator” and successfully blocked his promotion to two-star admiral, effectively ending his career.

“Over the course of the five investigations of acts of reprisal by Rear Adm. Losey, the DoD IG was in blatant violation of military law and United States code,” said Rep. Ryan Zinke (R-Montana), who is also a former SEAL commander. “The law clearly states that the DoD IG is required to complete their investigations in 180 days or less. Unfortunately four out of the five investigations completed by the DoD IG were in complete disregard for this 180 day deadline.”

That’s not strictly true, Fine pointed out. The 180 day figure only obliges the IG to let commanders and the complainant know that an investigation is underway and it won’t be finished within that timeframe. But until recently, the DoD IG hadn’t even been doing that.

Fine said that has changed because of upgrades to the IG’s computerized case management system that will now alert its staff when a case is approaching the 180-day threshold.

That change came about after the Government Accountability Office flagged major problems in the DoD IG’s practices for response to whistleblower complaints in separate reports in 2012 and 2015. Among other problems, GAO pointed out that DoD and the military services have different terminologies and procedures surrounding different stages of whistleblower reprisal investigations – leading to confusion about whether a case was actually “investigated” by the time the records made their way into the DoD IG’s centralized Defense Case Activity Tracking System (DCATS).

Fine said his office has already resolved 15 of the 18 recommendations GAO it made in its prior reports. But aside from standardizing processes between the DoD IG and the military component IGs, GAO says the IG’s office still needs to find a way to track whether Defense components have taken corrective action on the complaints it’s substantiated.

Separately, the Project on Government Oversight Reform says it has received numerous complaints from inside the DoD IG’s office that would seem to question that office’s role as an independent watchdog, including that Henry Shelley, the IG’s general counsel illegally destroyed files in a whistleblower reprisal case under investigation by the Office of Special Counsel.

“This is only the latest allegation of many that Shelley engages in a systemic practice of improperly interfering with and undermining personnel investigations,” Smithberger said. “In 2008, we raised concerns about Shelley’s efforts to overturn substantiated findings of anti-Semitism against an Army engineer at the behest of the Army, and raised concerns again last year about his unusually active role in watering down findings that then-Secretary of Defense Leon Panetta improperly provided classified information to Zero Dark Thirty filmmakers.”

“Mr. Shelley adamantly disputes those allegations,” Fine said. “He came to me, and instead of sweeping this under the rug, I decided we needed an independent investigation.”

That investigation is now being conducted by the Justice Department inspector general.

“We’ll take it wherever it leads,” he said. “I think it’s unfair to think he’s guilty before the investigation is done, but it’s also important to investigate it. It’s difficult, but that’s what you have to do, and that’s what we did in this case.”

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