[Congressional Record Volume 161, Number 51 (Thursday, March 26, 2015)]
[House]
[Pages H2084-H2091]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MISCONDUCT OF INSPECTOR GENERAL TODD ZINSER, COMMERCE DEPARTMENT
(Ms. EDDIE BERNICE JOHNSON of Texas asked and was given permission to
address the House for 1 minute and to revise and extend her remarks.)
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, the U.S. Congress
relies upon inspectors general, IGs, as a key component of the Federal
accountability community. When IGs themselves engage in illegal,
unethical, or inappropriate behavior, Congress has an obligation to
investigate them.
In the last Congress, the Committee on Science, Space, and Technology
launched a bipartisan investigation of
[[Page H2085]]
the Department of Commerce Inspector General Todd Zinser. The evidence
the committee obtained regarding Mr. Zinser's personal misconduct and
professional mismanagement of his office is overwhelming.
Any one of the multiple issues highlighted in my extended remarks
would be sufficient to justify the removal of this IG. This serious
step is made necessary by the abundant and deeply disturbing evidence
that I am making public today. It gives me no pleasure to provide this
account to the Congress, but I believe it is my obligation to report on
what we have found.
Todd J. Zinser has been the Inspector General of the Department of
Commerce (DOC) since December 2007. Prior to his present post, he
served as Acting IG and Deputy IG at the Department of Transportation's
Office of Inspector General (OIG). He has had a thirty year career in
the federal accountability community.
Our Committee relies on the Commerce IG's office to identify and
investigate issues of waste, fraud, abuse and mismanagement within
agencies under the Committee's jurisdiction, including the National
Oceanic and Atmospheric Administration (NOAA), which encompasses the
National Weather Service (NWS) and National Hurricane Center, as well
as the National Institute of Standards and Technology (NIST). The
Committee also has wide-ranging oversight jurisdiction over all non-
military research and development, which touches upon other components
of the Department of Commerce.
Issues relating to Mr. Zinser's conduct in office first came to the
attention of the Committee in 2012. As some of you may recall, the
Chief Financial Officer at the National Weather Service was removed
after it was found that he had established an improper and illegal
process for moving tens of millions of dollars across appropriated
accounts at NWS in violation of the Anti-deficiency Act. Subsequently,
the then-head of the NWS also retired as a result of this scandal. The
Committee learned of this improper conduct the same way the rest of the
world did: we read about it in the Washington Post on May 28, 2012.
However, Inspector Generals are required by the Inspector General Act
to notify Congress when they become aware of significant problems in
their agency. The Inspector General Act of 1978 as amended says very
clearly that it is a purpose of the establishment of inspector generals
that they are ``to provide a means for keeping the head of the
establishment and the Congress fully and currently informed about
problems and deficiencies relating to the administration of'' that
agency.
That act also directs that ``[e]ach Inspector General shall report
immediately to the head of the establishment involved whenever the
Inspector General becomes aware of particularly serious or flagrant
problems, abuses, or deficiencies relating to the administration of
programs and operations of such establishment. The head of the
establishment shall transmit any such report to the appropriate
committees or subcommittees of Congress within seven calendar days,
together with a report by the head of the establishment containing any
comments such head deems appropriate.'' Mr. Zinser never suggested that
he had followed this provision and there is no evidence that the IG
ever communicated any report to the Secretary of Commerce regarding
ongoing violations of the Anti-deficiency Act within the National
Weather Service.
In this case, Mr. Zinser did not notify our Committee by any means
that NWS had been running a huge, illegal accounting scam. That failure
to notify came as a grave disappointment to me and to other Members of
the Committee. When staff met with Mr. Zinser to understand what had
happened in this case, and the role of his office in the investigation,
they were astonished to learn that in November 2011 the IG had
concluded that a violation of the Anti-deficiency Act had likely
occurred. That meant that the IG went six months without mentioning
this significant matter to the Congress, letting us instead learn of
the issue in the press.
In that meeting with staff, Mr. Zinser disclosed that he had no idea
that his office had received multiple tips regarding financial
misconduct at NWS. He admitted that his office had actually misplaced
some of these allegations. The Commerce OIG received its first of
several Hotline complaints about this issue in June 2010. Mr. Zinser
also claimed he had no idea that his audit staff were conducting an
examination of these allegations until a memorandum on the topic--
eleven months in the making--hit his desk on November 18, 2011. It
seemed impossible that, with his years of experience, he would have
established a system for receiving whistleblower tips that could
actually lose those tips. It also seemed impossible that he could not
know that his staff was conducting a ``preliminary audit'' on matters
involving possible illegal activity by one of the top officials at the
NWS.
At the time, his office only had about 120 employees and misconduct
at the National Weather Service would be a very, very high profile
matter. Even if Mr. Zinser's account is true--and my staff have
gathered significant evidence that Mr. Zinser is actually a
micromanager who has been personally involved in assignments of hotline
complaints and held weekly reviews of ongoing work at the time, back in
2011--such failings suggest an extraordinary lack of personal
engagement in the work of his office and a serious lack of competence
in Mr. Zinser's management of significant, potentially criminal,
allegations.
Most surprising of all the things staff learned in this meeting was
that Mr. Zinser declined to conduct a formal investigation into these
financial improprieties even after he said he became aware of them.
Instead, the IG gave the investigation back to the agency. Given the
vast scope of the financial shenanigans that occurred at NWS over many
years, it is reasonable to question whether others in the agency knew
about this conduct or played some role in allowing it to go on. In
letting the agency essentially investigate itself on this violation of
the law, the IG created a situation where there could have been a
cover-up. In the end, the agency's report on this incident found only
one official--the NWS Chief Financial Officer--to have been responsible
for years of illegal accounting practices.
IGs exist to carry out investigations precisely when allegations of
illegal activity have been made. Members and staff found it impossible
to understand why the IG had failed in what can only be described as a
``core responsibility'' to investigate this misconduct and to keep the
Congress informed. My staff has posed this scenario to several other
IGs who work at agencies in our jurisdiction, every one of them has
said they would never have given such an investigation back to the
agency. Such a decision is inexplicable.
These failures to investigate a violation of law, to inform the
Congress of significant issues at his agency, or to effectively manage
his own office led to doubts among Committee Members regarding Mr.
Zinser's reliability as an IG. As a result, our staff began to examine
the work of Mr. Zinser's office in more detail.
Let me be clear: Mr. Zinser came to our attention because of Mr.
Zinser's own misconduct. We know from sources on other Committees as
well as correspondence he has sent, that he has tried to explain away
our interest in his conduct as the result of former IG staff with an ax
to grind coming to us with false stories, or even that my own Committee
staff are personally hostile to Mr. Zinser. Nothing could be further
from the truth. Mr. Zinser has only himself to blame for drawing our
attention to him.
In the wake of a hearing in which Members heard directly from Mr.
Zinser regarding his mishandling of the NWS Anti-Deficiency Act
violations, my staff began looking into the IG's hotline system. How
could tips involving illegal activity and the potential waste of
millions of dollars get set aside without any action? While the staff
and Members were wondering how this bizarre conduct on the NWS could be
explained, another item in the Washington Post caught our eye. Mr.
Zinser's office was the subject of a whistleblower retaliation
complaint that had been taken up by the Office of Special Counsel
(OSC)--the Federal government's whistleblower protection office.
On December 3, 2012 the Washington Post reported on this case because
the OSC had to take the extraordinary step of issuing instructions that
Inspector General Zinser vacate a gag agreement with the complainants.
This gag agreement, which OSC ultimately found had been essentially
extorted from the complainants, had barred them from communicating
about their experiences in Mr. Zinser's office to the press, OSC or
Congress.
This press account was every bit as shocking as the revelations Mr.
Zinser had made to the Committee regarding his mishandling of the NWS
case. It seemed impossible that an IG, or his top aides, would
establish a gag order to silence former staff from talking to the
press, the OSC, or Congress. That such a gag order was the result of
retaliation for suspected whistleblowing conduct by the former
employees made this situation even more disturbing. By law, IG offices
are to be a safe haven for whistleblowers. That an IG, or his senior
staff, would attempt to punish and silence whistleblowers within their
own office flies in the face of everything we expect of an IG.
This story opened up new lines of communication between
whistleblowers remaining in Mr. Zinser's office and our staff. For the
remainder of the 113th Congress we worked to understand how the office
operated and why so many problems seemed to emerge from the IG's
office. Over time, this initiative expanded from work done solely by
the Minority staff of the Committee to become a fully bipartisan
investigation with participation by the Majority as well. My friend
from Wisconsin, the then-Vice Chairman of the Committee, Representative
Sensenbrenner, was particularly
[[Page H2086]]
important in driving the investigation forward and forging a bipartisan
effort. Mr. Sensenbrenner has a long history of taking action to
protect whistleblowers.
I want to touch on some of the most outrageous things that we
uncovered during the two years of our work. I may depart from a
chronological treatment in an effort to bring the most disturbing
elements to the attention of the House in the most expeditious way.
For those who wonder how I know what I am saying is true, let me
share a summary of the work our staff engaged in.
The staff interviewed more than 70 officials who have worked for or
with Mr. Zinser, including more than 60 current or former Commerce OIG
employees. The Committee has also obtained thousands of pages of
supporting documentation, court records and other evidence from
informed sources. Most of the material that has informed our
investigation has come to the staff through whistleblowers sharing
materials. Despite two bipartisan document request letters in the last
Congress, Mr. Zinser provided very little responsive material,
particularly to our second request in August 2014 that specifically
focused on the conduct of Mr. Zinser and some of his senior most
officials targeting whistleblowers in his own office.
Coincidentally, and I will discuss this in more detail later, six
days--let me repeat, six days--after Mr. Zinser received the
Committee's bipartisan document request regarding efforts to identify
and retaliate against whistleblowers in his office, he was seen using
his personal hand-cart to remove two bankers boxes of materials from
his office to his car on a holiday weekend. Although we don't know what
was in those boxes, the timing of this removal is extremely suspicious.
Committee staff has built a network of sources that provided
accurate, contemporaneous insights into actions within the office. The
stories and documents these whistleblowers provided paint a deeply
disturbing picture of an IG's office ruled by fear and intimidation,
where unethical conduct is rewarded at the top, while the line staff
are largely prevented from conducting the good work expected of an IG's
office.
Let me start by acknowledging two apparent public successes of Mr.
Zinser's: he produced two reports in 2014 on misconduct at the U.S.
Patent and Trademark Office (PTO) that received extensive press
coverage and inspired a joint hearing by the House Committee on
Oversight and Government Reform and the House Judiciary Committee. Each
of these seeming successes, though, points to core problems in the
credibility of Mr. Zinser and the work of his office.
On July 8, 2014, Mr. Zinser's office released an investigative report
about the conduct of Deborah Cohn, the Commissioner for Trademarks at
PTO. The report found that Commissioner Cohn violated several federal
laws regarding federal officials using their public office for an
individual's private gain (5 C.F.R. 2635.702 and 702(a)), providing
preferential treatment to an applicant (5 U.S.C. 2302(b), and 5 C.F.R.
2635.101(b)(8)), and violating federal ethics violations (5 C.F.R.
2635.501(a)). What was Ms. Cohn's offense? She had intervened in a
hiring decision to assist her daughter's fiance in getting a job.
In September, in the wake of the report, Deborah Cohn announced plans
to retire by the end of 2014. According to her online biography, she
worked at PTO for over 30 years, and retired in January, 2015. At the
time of the release of the report, IG Zinser was quoted in the press as
saying the OIG investigation found Ms. Cohn exerted ``undue influence
in the hiring process'' and ``intervened and created an additional
position specifically for the applicant.'' The Commerce OIG report also
said that beyond the letter of the law, the PTO official's actions
``reflected poor judgment.'' The take away quote for the press: ``As a
long-term senior manager in the federal government, she should have
known about the federal laws governing hiring and should have steered
clear of any appearance of impropriety,'' the report said.
Ms. Cohn was wrong to have intervened in this hiring case in the
manner that she did, but she is to be congratulated for choosing to
retire in the face of these significant findings that called her
judgement into question. But as my staff learned, Mr. Zinser is really
not in a very credible position to lecture anyone on hiring
irregularities.
Mr. Zinser has his own rather astounding record of inappropriate
hiring in the Commerce IG's office. For example, since coming to the IG
post in December of 2007, he personally intervened to save the career
of one of his closest friends as it was imploding at the Department of
Transportation due to mismanagement issues. This person is one of the
same people who ultimately had the OSC complaint lodged against him
that I referenced above. Mr. Zinser also personally intervened to get
his own son's friend an internship position in the OIG and then
directed his senior staff to push the Department of Commerce Security
Office to issue credentials for the young man when a security issue
arose. The friend of Mr. Zinser's son was eventually hired into a
permanent position in the OIG with a starting salary of more than
$42,000.
Most disturbingly, Mr. Zinser hired a woman that substantial evidence
and witness testimony reveals was involved in a ``romantic''
relationship with Mr. Zinser at the time he hired her in August 2010.
At that time, she was in the middle of her probationary year as a
candidate for the Senior Executive Service (SES) at an office within
the Department of Commerce. Notified by her managers that she would be
removed from her SES probationary position immediately due to
significant conduct problems, she asked her supervisor if she could
have an extra day because ``Todd Zinser'' would hire her. Mr. Zinser
then personally intervened to have her detailed to his office within
days. This required a frantic push among all levels of his office to
get the paperwork done and signed before her SES position at DOC was
vacated--which would have washed her out of the SES probationary
program.
Witnesses in the Commerce IG's office who had been involved in the
transfer say there was an extreme, personal urgency in Mr. Zinser's
actions to have this employee detailed to his office. In addition, the
Committee has confirmed that Mr. Zinser never contacted this woman's
former supervisors at the other DOC agency where she worked to
ascertain why she was in the process of being removed from her SES
position. This would seem to have been a reasonable action for anyone
hiring a person into an SES position, even more so for an IG who
routinely handles sensitive personal information and criminal
investigations.
The morning before the Department of Commerce ``officially'' approved
her detail to the IG's office, she was provided with a window office,
desk, computer and phone in the Commerce Office of Inspector General,
according to former OIG employees and contemporaneous emails. In the
wake of this effort, the then-Director of Human Resources in the IG's
office e-mailed the Counsel to the IG: ``you can add illegal
appointments to my annual performance discussion. With [Todd's son's
friend] and this one, I am going to be an entire series in the
Washington post [sic].''
Within five weeks of being brought to the OIG on detail, Mr. Zinser
appointed his friend to the position of Assistant Inspector General for
Administration--a SES position that paid $150,000 a year. Subsequently,
Mr. Zinser directly approved three SES Performance Bonuses for her from
January 2011 to October 2012 totaling $28,199.
Let me be clear, I am not making any comment on the qualifications or
skills of the woman hired by Mr. Zinser, and I am attempting to limit
my comments about the broader situation of their relationship out of
sensitivity for the feelings of innocent parties. However, Mr. Zinser's
personal conduct in this case is deplorable. His conduct undermined the
integrity of the SES process and the Federal hiring system more
generally.
It is clear that he hired this intimate friend to do her a favor
given her difficult professional circumstances. No one interviewed by
the Committee staff who worked in the IG's office at the time of her
detail or subsequent appointment believes that she was hired because
there was a pressing need for someone with her skill set. The universal
reaction among the staff was that this behavior was highly irregular,
and right from the beginning there were some in the office who had
knowledge of his relationship with this person. The result was that
rumors began immediately regarding this person's special status.
Witnesses indicate she wielded unusual authority in the office due to
the close nature of her relationship to Mr. Zinser. This is the kind of
personnel action that destroys the effectiveness of an organization and
that IGs themselves often investigate.
The Committee has no more interest in Mr. Zinser's private affairs
than the Congress would have in Ms. Cohn's daughter's fiance. However,
Todd Zinser just as blatantly entangled his personal affairs with his
public duties as Ms. Cohn had done when he used his position of trust
to advance a romantic partner's position. This has created not simply
ethically troubling behavior on his part but potential violations of
federal law. His actions to further the career of a romantic interest
compromises the credibility of the IG and his office to investigate
inappropriate hiring by others, even when justified.
Mr. Zinser's press comment about Ms. Cohn applies to him as well:
``As a long-term senior manager in the federal government, (h)e should
have known about the federal laws governing hiring and should have
steered clear of any appearance of impropriety.'' It should go without
saying that such a statement is even more true of a person who the
Congress has placed in a law enforcement position. The difference
between Cohn and Zinser is that there is no IG to hold Mr. Zinser
[[Page H2087]]
accountable. That is a job for the Congress and the President.
There is one more twist in this tale. In January 2011, an anonymous
complaint about Mr. Zinser's inappropriate hiring of the Assistant IG
for Administration was received by the Council of the Inspectors
General on Integrity and Efficiency (CIGIE). The complaint went to
their Integrity Committee to investigate. On February 22, 2011, CIGIE's
Integrity Committee wrote to Mr. Zinser regarding the complaint asking
that he respond within 30 days. On April 11, 2011, Mr. Zinser provided
a written response completely denying that there was anything improper
in his hiring of this woman. He told CIGIE that he had a critical need
to hire someone with her skills. In the letter Mr. Zinser wrote, ``. .
. her assignment was based solely on business necessity, not on a
personal relationship.''
As I mentioned, no one interviewed by Committee staff who worked in
the Commerce IG's office at the time believes she was hired because
there was a pressing need for someone with her skill set. The position
of Assistant IG for Administration had been vacant in the Commerce OIG
for over two years before it was given to Mr. Zinser's romantic
interest, and numerous former OIG employees recall that Zinser had
refused to fill that position on a number of occasions claiming he did
not see a need for it. Not until his close friend was in desperate need
of a job did Mr. Zinser discover a necessity to fill the post.
In addition, not a single record provided by the Commerce IG in
response to our Committee's July 2014 document request regarding
records related to Mr. Zinser's hiring of this person supports IG
Zinser's declaration to CIGIE that he hired her into the position of
Assistant IG for Administration ``based solely on business necessity,
not a personal relationship.'' There is no contemporaneous record
confirming that Mr. Zinser had been pushing for filling that position
prior to the quick detail of his intimate friend to the office.
In his written response to CIGIE, Mr. Zinser acknowledged that he did
have a personal relationship with his new Assistant Inspector General
for Administration, and that they were ``avid long distance runners and
trained together on a fairly regular basis.'' ``Contrary to the
insinuations of the anonymous complaint,'' he wrote, ``our relationship
is neither romantic nor sexual in nature,'' and while he said there are
no rules ``against maintaining personal friendships with colleagues or
subordinates, to minimize any potential appearance of impropriety, we
curtailed our running together'' after she came to his office. It may
be true that their running relationship was ``curtailed'', but the
staff has convincing evidence that other aspects of their relationship,
more pertinent to the allegation, continued outside of the work place
after her hiring and were ongoing at the time of the CIGIE inquiry.
In his response Mr. Zinser also suggested to CIGIE that the anonymous
complaint they received was from his friend's husband who was
attempting to use the complaint ``as a tool to gain advantage in
divorce proceedings.'' It is true that this woman's husband filed for
divorce in March 2011--the divorce was granted in January 2012--but it
is not true that her now-former husband was the source of the CIGIE
complaint. Despite Zinser's speculation, designed to throw the CIGIE
Integrity Committee off his trail, Committee staff has spoken at length
on multiple occasions to the individual who filed the anonymous
complaint. The complainant is a person in the IG community not related
to either Zinser's girlfriend or her former husband. This counter-
allegation by Mr. Zinser fits with a long pattern of behavior he has
displayed in trying to deflect criticism or questions by making
assertions about the motivations or integrity of those who question or
challenge him.
As to the relationship between Mr. Zinser and his Assistant IG for
Administration, The Washington Post asked Mr. Zinser about it for an
article they wrote about him on July 17, 2014. According to that
article, ``Zinser said there was nothing improper about him hiring a
highly qualified manager who was a close personal friend. He said the
romantic nature of their relationship predated her coming to work for
him.'' Mr. Zinser seems to have forgotten that he told CIGIE that there
was no romantic element to their relationship.
The combination of misleading claims Mr. Zinser made to CIGIE
regarding both his relationship with the close friend he hired and the
``business'' necessity of hiring her into his office appears to be an
intentionally false narrative spun by Mr. Zinser to cover up his own
unethical behavior. CIGIE's Integrity Committee accepted Mr. Zinser's
explanation on April 28, 2011 and closed the complaint without further
investigation. The Integrity Committee was operating in the dark
regarding the extensive evidence my own Committee's staff has obtained
that this hiring was improper and that Mr. Zinser was misleading them
as to the real facts of his conduct.
What have we learned from this case? That Mr. Zinser has corrupted
the Federal hiring process and the Senior Executive Service appointment
process. That Mr. Zinser was willing to make false allegations about
another to avoid having to answer for his own actions. That Mr. Zinser
was willing to mislead the Integrity Committee of CIGIE, a body
established to investigate questionable activities or mismanagement of
IGs. That Mr. Zinser was willing to lecture another senior official for
conduct that is no more disturbing than his own. All in all, this does
not sound like the conduct we should expect from an Inspector General.
We also have learned that Ms. Cohn was willing to act with
accountability for her actions--she retired in the wake of the IG's
report--while Mr. Zinser clings to his position in the face of
substantial evidence that he is not fit to serve.
The second 2014 PTO report by the DOC IG's office to capture public
attention involved abuse of time and attendance practices. In July
2014, the DOC OIG released a report entitled, ``Review of Waste and
Mismanagement at the Patent Trial and Appeal Board,'' OIG Case 13-1077-
I, U.S. Department of Commerce, Office of Inspector General, Office of
Investigations, July 28 2014. In a memorandum dated the same day,
Zinser wrote to the Under Secretary of Commerce for Intellectual
Property regarding their findings. Mr. Zinser's summary of findings
said, ``Our investigation uncovered waste in the PTAB that persisted
for more than four years (2009-13) and resulted in the misuse of
federal resources totaling more than $5 million. The bulk of the wasted
resources related to PTAB's paralegals, who had insufficient workloads
and considerable idle time during those years.''
According to the July 2014 OIG report as many as 95% of the PTAB
paralegals were involved in the PTO's Patent Hoteling Program (PHP),
the agency's largest telework program.
This apparent successful report takes on a different light when one
realizes that in February 2012 the Commerce OIG released an audit of
the PTO's Patent Hoteling Program that labelled it a great success. The
title of the IG's audit report, ``The Patent Hoteling Program Is
Succeeding as a Business Strategy,'' and news headlines at the time
reporting on the IG's findings described how the IG audit praised the
PTO's telework program: ``Teleworking PTO employees process more
patents, less expensive,'' declared one headline.
It is difficult to know how auditors from the IG's office could have
so completely missed the signs of waste, fraud and abuse that have now
been widely identified in this program. Just as hard to explain is why
Mr. Zinser initially turned these allegations over to the agency to
investigate, just as he had in the NWS financial misconduct case.
Again, there may have been violations of law, and the sums of money
involved were not insignificant.
On November 18, 2014 the House Oversight and Government Reform and
Judiciary Committees held a joint congressional hearing about the PTO's
telework program. During his sworn testimony Mr. Zinser was asked by my
friend, Ms. Lofgren of California, why his office turned the PTAB
investigation back to the PTO. His response was because ``none of those
allegations made specific allegations against specific individuals that
would warrant us opening up a criminal investigation,'' he said.
Mr. Zinser's statement was not accurate, however. One complaint that
the IG's office received on its Hotline in February 2013 identified ONE
DOZEN specific individuals at the U.S. Patent Trial and Appeal Board
(PTAB) by name, including the chief judge of the Board and two
administrators, who were knowingly approving non-production time of PTO
employees, according to the allegation. Despite the fact that
``specific allegations'' were made ``against specific individuals''
this complaint was referred to PTO by the Commerce OIG, which requested
PTO conduct an administrative inquiry.
The Committee has learned that the PTO did a thorough evaluation of
the PTAB time and attendance issues, substantiated the allegations,
concluded that there were problems with time and attendance reporting,
and that steps should be taken to clean up the system with significant
savings possible.
The IG's staff received the PTO's audit report of the PTAB time and
attendance issues, and senior leadership at the IG's office realized
they could not claim the significant monetary savings, in the millions
of dollars, associated with the PTO report because they can only claim
savings associated with their own work. To attempt to take credit for
those savings, the OIG launched an audit that re-did the PTO's work.
That OIG report was released in July 2014 and received widespread media
coverage with story titles such as ``IG uncovers substantial waste at
USPTO, says paralegals `paid to do nothing,' '' and ``This May Be The
Worst Abuse of Federal Telework Ever.'' Thus, to claim savings already
identified by the agency, the IG wasted staff time and resources on a
repetitive audit, and then worked the press to claim the credit for
finding the
[[Page H2088]]
problem. All this while conveniently forgetting that nearly 2\1/2\
years earlier, the IG was praising the very same telework program that
he later said had wasted money during that same time period.
What does this case teach us? That Mr. Zinser was willing to spend
taxpayer dollars to get the credit for saving taxpayer dollars. It also
shows that he was willing to mislead a senior Member of the House
regarding why he had initially passed on carrying out this
investigation. Finally, Mr. Zinser promised to provide documentation in
response to Ms. Lofgren's questions, but in his submission for the
record he went back on that promise by saying he would only provide
those materials if he received a letter from the Chairman of the
Committee.
Identifying savings is important for this IG because, on balance, Mr.
Zinser is one of the least productive IGs in the federal government.
According to the GAO, which is working to report on this office's
productivity based on my request, the average Cabinet-level IGs
recovered $22.64 for each dollar they spent from 2011 to 2013. By
comparison, the Commerce OIG recovered just $4.18 for each dollar it
spent. In addition, 95% of the Commerce OIG's savings came from joint
investigations with other federal law enforcement agencies, and so much
of these savings were claimed on work that may have been led by another
IG or office.
Now, let me return to the story that gave additional momentum to our
investigative activities: the fate of the whistleblower retaliation
case before OSC. As I said, I learned of that case through reading of
it in the press in December of 2012. Much of my staff's subsequent work
was about getting more information regarding that case, which was being
investigated by OSC. Everyone in this institution knows that the
Congress relies on whistleblowers to do our oversight work. IGs are in
the same position: they must be trusted by whistleblowers or they will
not learn of problems in their agency. Congress feels so strongly about
this that there is an entire section in the IG Act, Section 7, which
addresses the role of IGs in receiving allegations and in protecting
whistleblowers from retaliation. The idea that senior officials in the
IG's office would retaliate against whistleblowers is inconceivable,
but that is what the OSC case suggested happened in Mr. Zinser's
office.
To its credit, OSC worked that case very, very diligently. The OSC
issued a report in September 2013 that found Mr. Zinser's two closest
aides--his legal counsel and the Principal Assistant Inspector General
for Investigations and Whistleblower Protection--had engaged in what
amounted to a coordinated effort to gag whistleblowers in the IG's own
office from reporting misconduct to the OSC, the Congress or the press.
The OSC's ``Report on Prohibited Personnel Practices'' concluded:
``In this matter, OSC's investigation uncovered willful, concerted acts
of retaliation that necessitate disciplinary action. Holding management
accountable for engaging in prohibited personnel practices is essential
to assuring employees that they can blow the whistle or engage in other
protected activity without fear of reprisal.''
According to the OSC report: ``The record is also replete with
evidence establishing that PAIGI [Rick] Beitel retaliated against the
whistleblowers by drafting their unfounded failing interim performance
appraisals. . . . The evidence demonstrates that PAIGI Beitel was
motivated to retaliate against the whistleblowers for their engagement
in protected
activity and/or their perceived whistle-
blowing. . . . PAIGI Beitel's behavior is particularly egregious based
on his position as the OIG's expert on whistleblower protection,'' the
OSC determined.
While the OSC could find no ``documentary evidence'' that Mr. Zinser
was involved in the case, every member of Mr. Zinser's staff that the
Committee staff has spoken with who had experience of Mr. Zinser's
management practices indicates that he rarely writes his directions
down, instead relying on face-to-face meetings and oral directions.
These witnesses also indicate that the PAIGI, Mr. Beitel, would never
act on something this significant without clearing it with the IG. This
is the same close, personal friend whose career Mr. Zinser saved by
bringing him in from the Department of Transportation. The two had
worked together since the early 1990s and were perceived by staff
across both IG offices to have a very close working relationship of a
mentor and mentee. In court documents unrelated to their federal
employment Rick Beitel acknowledged that Todd Zinser was his ``close
friend and personal confidant'' and that they routinely socialize with
one another outside of work.
Mr. Zinser took no significant steps to punish either his good friend
Rick Beitel or the other Commerce OIG official after receiving the OSC
report. As a result of the OSC investigation and findings IG Zinser
agreed to take twelve minimal actions, including the destruction of the
coerced ``interim performance appraisals'' the whistleblowers were
forced into signing, Mr. Beitel was removed from ``supervisory'' duties
for one year, both officials were required to take ``performance
counseling,'' and the Commerce OIG was required to hire an ``employee
relations'' specialist.
But two officials who had used their position to threaten to destroy
the professional careers of whistleblowers if they did not agree to gag
orders denying them access to the Congress or the OSC should really not
be in senior leadership positions in any office of the government, and
especially not in an IG's office. That is my strong view, and I am not
alone in thinking so.
After receiving a copy of this report and learning that no
significant punishment had been meted out by Mr. Zinser, all seven
Members of our Subcommittee on Oversight--four Republicans and three
Democrats--wrote to Mr. Zinser on April 1, 2014. The real driving force
in pushing this letter was my friend, Mr. Sensenbrenner. The letter
said that Mr. Zinser should ``immediately terminate'' the two senior
Commerce OIG officials who were found by OSC to have engaged in
prohibited personnel practices against whistleblowers in his office.
Mr. Zinser responded on April 15, 2014, expressing doubts about the
credibility of OSC's work and the legal basis for their findings.
Incredibly, Mr. Zinser reiterated all of the knowingly inaccurate
claims about the whistleblowers--essentially repeating the lies that
OSC had found Mr. Beitel to have concocted to damage their careers and
reputations. OSC thoroughly documented those claims to be
inappropriate, misleading and simply false. Nevertheless, Mr. Zinser
knowingly used those false claims again, further defaming his former
employees.
This was not the first time Mr. Zinser had used these false,
derogatory allegations to protect his office from tough questions. On
January 7, 2013, Mr. Zinser wrote a 52 page letter to then Congressman
Frank Wolf, Chairman of the Subcommittee on Commerce, Justice, Science,
and Related Agencies of the Committee on Appropriations. Mr. Wolf had
raised questions regarding the OSC investigation that was then
underway.
Mr. Zinser's letter defended the actions of his two top aides and
reiterated the false allegations they had made against whistleblowers
in the IG's office as if those claims were unshakable truths. For
someone who claimed to OSC that he knew nothing about his aides'
actions, Zinser seemed very comfortable defending their behavior and
attacking the victims.
It is important to note that even after the OSC report found that
there was no merit to any of these allegations, Mr. Zinser continued to
leave his letter to Chairman Wolf up on his public web site,
perpetuating false claims that defamed innocent former employees, and
standing as a warning sign to other whistleblowers that their
reputations were at risk should they challenge Mr. Zinser.
After this spirited defense of his closest staff and his refusal to
take any noteworthy steps to punish them for their significant misdeeds
even in the wake of OSCs findings, Mr. Zinser suddenly changed
direction in August 2014 when he announced that both officials were to
be placed on leave and a decision about termination would be made
within 30 days. In the end, Mr. Zinser's legal counsel was terminated
and his PAIGI--and close friend--was allowed to retire. This was a
dramatic 180 degree turn from his previous public statements about the
actions of these top aides.
Despite his outrageous conduct and botched management choices, Mr.
Zinser was not found by OSC in their 2013 report to have known about
the treatment of the whistleblowers. The OSC, however, was careful to
say they found no ``documentary evidence'' regarding Mr. Zinser's
knowledge of the actions of his two senior most staff. This lack of
documentation saved him from any personal consequences as a result of
the OSC report.
However, I believe it is important to tell my colleagues that Mr.
Zinser had been named in a prior OSC report. That earlier report found
he had personally engaged in retaliation against a whistleblower in his
office. The similarities between the 1996 case and this 2013 case--both
built around a concocted tissue of lies to remove or silence a
whistleblower--are striking enough to suggest that perhaps OSC should
have looked harder for evidence of Mr. ZinserIs involvement in the more
recent case.
The Committee has uncovered a 1996 case in which Todd Zinser, then
the Deputy Assistant IG for Investigations at the Department of
Transportation Office of Inspector General (DOT OIG), personally
retaliated against Mr. John Deans. We have all the relevant filings and
my staff has even spoken with Mr. Deans. Retired from law enforcement
now, at the time of this case Mr. Deans was a former FBI agent working
as a DOT OIG GS-12 Special Agent, criminal investigator. Deans was
assigned to the Denver office, and while there he found what he
believed to be compelling evidence that federal funding for the Denver
International Airport was being illegally redirected to support local
projects.
[[Page H2089]]
Deans briefed Mr. Zinser and two other DOT OIG officials on his case.
Importantly, Deans suggested to others that very senior Federal
officials may have been aware of this possible diversion of federal
funds.
Mr. Zinser travelled to Denver a few days after he learned of Deans'
comments about the potential knowledge of senior Federal officials
regarding this alleged diversion. Soon after, Mr. Zinser flew to San
Francisco to see if the Special-Agent-in-Charge (SAC) of the San
Francisco office of the DOT OIG would be willing to have Deans detailed
to his office. It is not clear what Zinser told the Special Agent in
Charge about Deans but the Special Agent advised Zinser to have an
``impartial investigator'' look into the allegations against Deans.
Instead, Mr. Zinser decided to investigate the Deans matter himself.
Zinser had Mr. Deans transferred to San Francisco, then had him placed
on administrative leave and ultimately had him fired.
In response to Mr. Zinser's actions, Deans appealed to the Office of
Special Counsel (OSC), which supported his complaint that this was
retaliation for his work. OSC sought a stay of the transfer of Deans to
San Francisco. On the same day the Merit Systems Protection Board
(MSPB) ordered that Mr. Deans be returned to his post in Denver, Mr.
Zinser placed Deans on administrative leave.
Todd Zinser's behavior was considered so outlandish by the OSC that
the Office filed a ``Petition for Enforcement'' against Todd Zinser
with MSPB. OSC asked that, ``The [Merit Systems Protection] Board
should order Zinser to immediately assign Deans the duties of his
former GS-12 special agent, criminal investigator, position. Moreover .
. . the Board should order that Todd Zinser not receive payment for
service as an employee from May 23, 1996, until Deans is returned to
his former position, i.e., until the agency complies with the Board's
May 23, 1996, Opinion and Order.''
What did OSC think of the substance of the case Mr. Zinser had made
against Deans to justify his actions? They thoroughly investigated Mr.
Zinser's claims--reinterviewed witnesses, collected documents and
deposed the principal players. OSC found, ``(A)s addressed in detail
below, the evidence established that the specific charges that formed
the basis for Deans' removal are unsupportable. . . . The evidence does
not support any of these allegations. On the other hand, it is clear
that Deans' removal was ordered at the behest of Deputy Assistant
Inspector General (DAIG) for Investigations Tod[d] Zinser, who strongly
objected to Deans' protected conduct.'' OSC investigators in 1996
concluded that Mr. Zinser's actions towards Deans were ``draconian in
nature'' and ``motivated by animus.'' They determined Mr. Zinser took
these actions because Deans ``discovered violations and politically
embarrassing information about high-level government officials and
community leaders.''
As a result of these findings against Mr. Zinser, Deans had to be
rehired and restored to a post in Denver. Deans was repaid almost a
year of back pay and benefits. On top of this, the government had to
pay over $10,000 in Mr. Deans' attorney fees. In short, the taxpayer
had to pay the bill for Mr. Zinser's outrageous and indefensible
conduct towards this whistleblower.
Mr. Speaker, it is reasonable for Members to wonder how someone with
this kind of history of abuse against a whistleblower could possibly
have been confirmed by the Senate to the post of Inspector General. I
wondered that too. It turns out, based on witness testimony and extant
documents, that Mr. Zinser never disclosed the OSC case to either the
White House or the Senate during his confirmation process.
The Senate routinely submits questionnaires to potential IGs with
questions that must be filled out. That questionnaire asks about legal,
ethical or other cases that the Committee should be aware of in
considering his nomination. In response to that specific question Mr.
Zinser wrote, ``I have never been disciplined or cited for a breach of
ethics.'' The questionnaire also asked: ``Please advise the Committee
of any additional information, favorable or unfavorable, which you feel
should be disclosed in connection with your nomination.'' Mr. Zinser
wrote simply ``None.''
None? A potential IG does not think it is relevant to the
confirmation process to acknowledge that he was found to have engaged
in prohibited personnel practices? Mr. Zinser was asked by a Washington
Post reporter why he did not disclose this case during his
confirmation. In a story on Mr. Zinser published by the Washington Post
on July 17, 2014, Mr. Zinser told the Post that he did not disclose the
case because, ``I just never thought of myself as a subject [of the
investigation], although maybe I was''.
More recently, in January 2015, Mr. Zinser responded to a Question
For the Record (QFR) from my friend, Ms. Lofgren, regarding the same
matter. In that response, Mr. Zinser gave a lawyerly answer, ``it is my
understanding that the subject [of the investigation] was the
Department of Transportation, Office of Inspector General.''
Technically that is true because under the law, cases filed with the
OSC name the office that is responsible for the alleged misconduct, not
the individual. Similarly, lawsuits filed against an agency name the
head of the agency in their official capacity regardless of whether
that official has any personal knowledge of the matter or not. However,
this artful response suggests that the case had nothing to do with Mr.
Zinser. Let me be clear: The case only existed because of Mr. Zinser's
personal misconduct, and he was squarely the subject of the allegations
of prohibited personnel practices.
The OSC's key document in the John Deans case--the OSC's ``request
for stay''--refers to Todd Zinser BY NAME 53 separate times in a 26-
page report. In addition, this document makes it exceedingly evident
that Todd Zinser was the sole individual in the Department of
Transportation IG's office who was believed to have retaliated against
John Deans. Looking at the OSC records, it is evident that the Office
found Mr. Zinser personally investigated Deans, personally constructed
unsupported findings against Deans to be used to justify adverse
employment actions, personally ordered those actions, and personally
resisted setting things right when OSC and the MPRB ordered the DOT OIG
to do so. Of all the employees at the DOT OIG's office, only Todd
Zinser was singled out by OSC for punishment by way of seeking that his
salary be withheld.
The 1996 case was specifically built on Mr. Zinser's misconduct just
as the 2013 report by OSC is specifically about misconduct by Mr.
Zinser's two closest (now former) aides. Had Mr. Zinser divulged his
role in the Deans case at the time of his confirmation, it is highly
unlikely he would have been confirmed as the Commerce Inspector
General. The actions taken by Mr. Zinser in the John Deans case, and
described in detail in the OSC documents, are all antithetical to the
behavior and ethical grounding that the public deserves and that
Congress expects of an Inspector General. He showed no remorse about
his conduct at that time. Similarly, he showed no sympathy for the
victims of his aides' abuse in 2013. His initial reaction to the 2013
report was to protect those officials from the consequences of their
actions as documented in the OSC report. He maintained that position
for months, even under pressure from the Committee on Science, Space &
Technology where I am the Ranking Member.
For any IG to be associated with two whistleblower retaliation cases
of this kind would be an indelible stain on their reputation. However,
as my staff talked to more employees of the IG's office, we learned
that these two cases do not mark the end of whistleblower retaliation
at his office. We know of other recent instances of Mr. Zinser
expressing his belief that specific individuals that he personally
named were cooperating with our Committee or making protected
complaints to OSC. We also know that these individuals were targeted in
different ways for adverse actions in order to convince them to leave
or to remove them from the office. Separately, one senior OIG official
was placed on ``Administrative Leave'' immediately after they contacted
the Office of Special Counsel. That individual has since left the IG's
office for another federal agency. We also know that the current Deputy
Inspector General had, as of several months ago, obtained and retained
the entire email records of two former and one current high level IG
staff, including two of her predecessors--all of whom were viewed by
Mr. Zinser as disloyal to him or untrustworthy with the secrets of his
office. One of those predecessors is a sitting, Senate-confirmed
Inspector General at another Federal agency.
There is no legitimate reason to have collected and then retained the
emails of those three senior staff, including two former Deputy IGs.
There is certainly no justification for the current Deputy IG, widely
viewed as being the closest current personal aide to Mr. Zinser, to be
carrying those records on her laptop computer's hard drive. What would
such records be used for? It is impossible to know, but we do know that
there was a search and analysis of one of those former Deputy IG's
email records. A memorandum was prepared based on that search
documenting the exchanges between the former-Deputy and a woman who had
applied for a position within the OIG, who was a family friend. Mr.
Zinser was clearly aware of this relationship since the woman was a
reference for the former Deputy IG who was called as a reference by Mr.
Zinser when the former Deputy IC applied for his job.
Based on information obtained by Committee staff it seems clear that
Mr. Zinser was simply searching for anything he might uncover in his
former Deputy's emails that Mr. Zinser might be able to use against
him, since the former Deputy had fallen out of favor with Mr. Zinser.
When employee emails are to be pulled, there is a policy in place at
the DOC Office of Inspector General that requires Mr. Zinser to
personally sign a memorandum to the Chief
[[Page H2090]]
Information Officer requesting specific materials be produced. This
policy has been in place since October 2012. However, in the last year,
in particular, this policy has been largely set aside, permitting other
OIG staff in Mr. Zinser's chain of command to authorize the collection
of Commerce OIG employees' e-mails invoking Zinser's authority and with
his clear knowledge and, in some cases, specific direction but without
his actual signature. That occurred in the case of the former Deputy
IG.
The IT staff in the IG's office has had to comply with these requests
even though they violate a policy Mr. Zinser himself put in place. This
is an example of a long-standing issue in Mr. Zinser's management
style--he establishes policies and then ignores or stretches them
without any warning to those who work for him. This creates an
environment where it is easy for the IG to claim someone has violated
policy if he wants to punish them because the policy environment is
constantly and mysteriously shifting.
The pulls of email records, the targeting of suspected
whistleblowers, the adverse employee actions taken in retaliation for
protected disclosures are all widely known and discussed by employees
within the Department of Commerce OIG's office. We have heard from many
whistleblowers that they fear that if Mr. Zinser is not removed, there
will be--in the words of more than one of these individuals--''a
bloodbath''--in the office. As soon as Mr. Zinser believes no one is
looking, he will begin to take steps to invent allegations against
individuals he wants to retaliate against--as he did against Mr. Deans
and as his close aides did against OIG investigative staff in 2011--the
case which led to the 2013 OSC report--and then take steps to remove
them. People are frightened, and given Mr. Zinsers prior conduct they
have good reason to fear him and his potential actions.
The last whistleblower issue I wish to raise, Mr. Speaker, is that
Mr. Zinser has let his office fall out of compliance with the U.S. Code
33 specifically, 5 U.S. Code Sec. 2302 (prohibited personnel
practices). That provision establishes the Office of Special Counsel's
(OSC's) 2302(c) Certification Program and requires that Federal agency
managers participate in training regarding the rights of whistleblowers
and their right to make protected disclosures.
Last year the White House directed agencies to take affirmative steps
to complete the OSC certification program. According to the Commerce
OIG's own web-site ``That provision charges `[t]he head of each agency'
'' with responsibility for ``ensuring (in consultation with the Office
of Special Counsel) that agency employees are informed of the rights
and remedies available to them'' under the prohibited personnel
practice and whistleblower retaliation protection provisions of Title
5.'' As the head of the IG's office it is Todd Zinser's responsibility
to ensure his office is certified under this program. The Commerce OIG
web-site currently states ``OIG has been certified by the U.S. Office
of Special Counsel (OSC) for conducting training and promoting
awareness of provisions of the Whistleblower Protection Act, 5 U.S.C.
Sec. 2302(c).''
However, the OSC has confirmed to Committee staff that the Commerce
OIG's whistleblower protection certification required under 5 U.S. Code
Sec. 2302 lapsed in September 2014. Six months later the Commerce IG's
office still has made no attempts to recertify. According to multiple
Commerce OIG sources as well as documentary evidence obtained by the
Committee, Mr. Zinser's new Deputy IG Morgan Kim has specifically
directed multiple OIG staff not to attempt to recertify.
I wish that I could provide more definitive accounts of all the
misconduct that has been going on in Mr. Zinser's office, but the truth
is that Mr. Zinser refused to comply with the Committee's document
requests. Mr. Zinser and his Deputy IG actively worked to obstruct the
Committee's investigation. These two top officials have been behind a
campaign to intimidate staff into not cooperating with the Committee by
pushing some to get lawyers, even though they were not the target of
the investigation, and by reminding people that if they say something
quotable during interviews with the Committee it may end up in the
Washington Post or a Committee Report.
One individual widely known within the office to be particularly
close to Mr. Zinser pressured OIG staff to call the Committee to report
the ``positive'' aspects of Mr. Zinser's management. Several
individuals have told the Committee they felt this was both completely
inappropriate and an attempt to coerce individuals into taking part in
these efforts to obstruct the Committee's investigation.
IG Zinser has also attempted to ``paper'' the Committee with a
voluminous production of materials wildly unresponsive to our document
requests. Since the Committee's August 2014 request letter, the
Committee has received less than two boxes of responsive materials and
17 boxes of completely unresponsive material. Some material provided
showed a complete lack of concern for their contents for they included
sensitive personally identifiable information, such as social security
numbers of Commerce OIG employees, private phone numbers and
birthdates.
Meanwhile, we know that the materials we were seeking were going
through an extraordinarily slow search and review process within the
OIG. None of that material was ever delivered to the Committee.
Committee investigators cannot recall any comparable example of such a
complete failure to comply with a document request--even from private
parties--across a quarter century of Committee investigations. The idea
that an Inspector General, who has an obligation to cooperate with
Congress that goes beyond that expected of any other Executive branch
official, would fail to comply with a request from a Committee of the
House is simply unfathomable.
The Committee sent two bipartisan document request letters to IG Todd
Zinser on July 16, 2014 and August 26, 2014. The July letter requested
documents related to Mr. Zinser's inappropriate hiring of the former
Assistant IG for Administration and Rick Beitel, including copies of
relevant records from his personal work journals. The letter warned Mr.
Zinser: ``These journals represent official records and we remind you
that such records should not be removed from the office nor tampered
with in any way. The Committee intends to continue to examine the
conduct and productivity of your office, and we consider your journals
to be important evidence in that effort,'' the letter said. On August
26th the Committee sent a second letter to IG Zinser demanding
documents concerning multiple allegations that Mr. Zinser was
inappropriate collecting and monitoring his employees' e-mails in a
hunt for potential whistleblowers in his office.
Six days after IG Todd Zinser received that second letter informing
him of the Committee's knowledge that he was hunting for whistleblowers
in his own office, the Inspector General was seen using his personal
hand-truck to remove two banker's boxes of materials to his car. This
occurred on Labor Day, Monday, September 1, 2014, a federal holiday
when few witnesses would have been on site at the Department of
Commerce. Furthermore, the Committee has evidence that IG Zinser
conducted his removal of this materiel with great haste. He was in and
out of his office with his two boxes of material inside of 30 minutes.
Although there is no way to know what Mr. Zinser removed from his
office over Labor Day weekend, the timing of his actions is highly
suspicious and raises serious questions about his efforts to obstruct
the Committee's investigation.
The Committee is aware of at least one more incident where records
were removed from his office and destroyed. Since he is under a
microscope, actions of removing or destroying records cannot help but
be seen as obstructionist in nature and his cavalier disregard for the
effects of this on his reputation and the opinion of others--even
senior members of a Committee with broad jurisdiction over his
Department--highlights the serious mismatch between Mr. Zinser and the
ethical and professional requirements of serving as an Inspector
General.
Mr. Zinser also invoked attorney-client privilege to prevent
witnesses from fulfilling their obligation to speak to the Committee,
and to withhold materials responsive to our request. As a common law,
non-Constitutionally derived concept, attorney-client privilege is not
recognized by Congress as a legitimate reason to withhold information
during Congressional inquiries. While I understand that private parties
sometimes have a particular concern with defending this privilege, I
cannot fathom how a Senate-confirmed government employee, using
government lawyers paid with tax dollars, can think that the work of
those attorneys could be considered privileged from review by Congress.
Never in the last quarter century of Committee investigations has an
official in a statutorily-established Federal office attempted to
withhold materials or testimony using this claim of attorney-client
``privilege.'' The usual accommodation is for an agency to provide the
records or testimony, while noting that they believe the materials
should be treated with care. Frankly, OIG attorneys are routinely
released from this privilege in order to cooperate with OSC and EEO
investigations. The Congress should not be treated any less
cooperatively than those offices, but Mr. Zinser would not release the
attorneys to answer questions. His former counsel, who had been found
by OSC to have engaged in prohibited personnel practices, very much
wanted to speak with the Committee as he believed he had evidence that
might exonerate him as well as implicate Mr. Zinser. IG Zinser
specifically intervened to prevent this former employee from talking to
Committee staff about illegal activities that he believes he had
witnessed during his work for Mr. Zinser. This misuse of attorney-
client privilege, with a hidden threat to seek punishment by the Bar if
an attorney decided their obligation to the Constitution outweighed Mr.
Zinser's personal desire, is clearly abusive and appears motivated by a
desire
[[Page H2091]]
to hide evidence of his misconduct from the Congress.
I have not reached the end of the account of failed management and
misconduct by Mr. Zinser. Just last month, the Department of Commerce's
Office of Civil Rights issued its findings in an Equal Employment
Opportunity (EEO case related to age discrimination and retaliation
filed by a former Commerce OIG employee. The detailed 282-page report
found that the Commerce OIG discriminated against the complainant in
violation of the Age Discrimination in Employment Act of 1967 and
retaliated against him for filing his EEOC complaint `` in violation of
non-retaliation provisions of Title VII of the Civil Rights Act of
1964,'' the Age Discrimination in Employment Act of 1967 and ``in
violation of the EEOC regulations prohibiting retaliation.'' In sworn
testimony to EEOC investigators regarding the monitoring and
examination of the former employee's e-mails and files, the EEOC also
found that Mr. Zinser's ``testimony does not fully mesh with the
documentary evidence. . . .''
The Commerce OIG has been ordered to compensate the employee for
``backpay to remedy the change to lower grade he took due to the
hostile work environment'' in the IG's office; expunge its official
files of the inaccurate interim performance appraisal the employee was
coerced into signing and any related document; provide all supervisors
in the Commerce OIG, including the IG and Deputy IG, with at least 8
hours of EEO training and require IG Todd Zinser to sign and post (for
60 days) a notice to all OIG employees that the office has been found
in violation of age discrimination and retaliated against former
Commerce OIG employee. The notice states that the OIG will abide by
federal requirements, equal employment opportunity laws and will not
retaliate against employees who file EEO complaints in the future. The
notice is supposed to be placed in center within the IG's office or on
the OIG intranet and is required to be signed by IG Zinser. Mr. Zinser
refused for two solid weeks to sign that notice. Only after my friend,
Mr. Honda, asked IG Zinser about this matter during an appearance
before the Appropriations Committee did Mr. Zinser finally sign the
notice on February 25.
Not for the first time, Mr. Zinser is going to rely on the taxpayer
to cover the costs of his misconduct. There are more claims out there
that will also cost the taxpayer to defend against and settle. In fact,
during the last two years six employees in the IG's office have filed
complaints of retaliation with the Office of Special Counsel. The
Department of Energy's OIG, which is nearly twice as large as the
Commerce IG's office has had zero complaints of retaliation filed with
OSC during this same period. The Department of Health and Human
Services (HHS) OIG, which has a staff of more than 1,200 people and is
nearly seven times the current size of the Commerce OIG had a single
alleged case of retaliation filed with OSC in the same time frame.
The issues I have identified reveal an endemic failing in Mr.
Zinser's leadership. There is a sustained pattern of misconduct and
malfeasance that would be unacceptable in any senior federal official
but is particularly troubling for an Inspector General. Based on the
exhaustive work by Committee staff, as well as Mr. Zinser's
representations to other Members, we have convincingly shown that:
During his Senate confirmation for the Commerce IG post, Mr. Zinser
failed to disclose a significant case against him involving his
personal retaliation against a whistleblower;
Over a period of many years, Mr. Zinser and his closest staff have
engaged in efforts to identify and retaliate against whistleblowers in
his office;
Mr. Zinser has repeatedly misled the Congress about his conduct, and
took steps to obstruct the Committee's investigation into allegations
of misconduct;
Mr. Zinser has been disingenuous in his official correspondence with
the Council of the Inspectors General on Integrity and Efficiency
(CIGIE) regarding inappropriate hiring in his office;
Mr. Zinser has failed to conduct himself by ethical standards
expected of an Inspector General;
Mr. Zinser has engaged in inappropriate hiring practices that
undermine the integrity of federal hiring; and,
Mr. Zinser has failed to establish policies and procedures in his
office that would guarantee accountability and efficiency.
Mr. Speaker, how can this person still hold a high position of public
trust? His continued presence in Federal service stands as a blot on
our record, in that we have tolerated such conduct by an IG. We could
impeach him, and I believe there is adequate information to justify
that. However, it would be time consuming and expensive, and while we
worked through that process, the taxpayer would still be paying the
senior leadership of DOC OIG, and whistleblowers would still be
legitimately worried for their careers. That is unacceptable.
We could ask CIGIE to redo the investigation my staff and the
Committee did in the 113th Congress. I respect the CIGIE, but the cold
truth is that CIGIE's Integrity Committee is slow moving, and their
prior failure to do diligent work into a serious allegation against Mr.
Zinser leads me to question their responsiveness--or at least the
responsiveness they displayed four years ago. And as with impeachment,
it would be slow and expensive and whistleblowers would stand in danger
every day the process dragged on.
The law provides that the President can remove an IG without any
requirement that CIGIE has first done an investigation. If an IG
conducts themselves in an outrageous and disreputable way, it would be
irresponsible to leave them in office once that has been established. I
believe that Mr. Zinser's wide-ranging misconduct, supported by just a
tiny coterie of current senior staff, is sufficient in and of itself to
justify immediate removal. I intend to ask the President to do just
that.
Mr. Speaker, I believe I have established the need for immediate
change in the senior leadership of this office. The current leadership
must be replaced with individuals who can serve as beacons of integrity
and stewards of appropriate and diligent federal oversight. If any
Member wants a fuller recounting of the evidence in this case, I will
be happy to provide them with additional information.
That information provides as much documentation for my account as we
can provide without compromising the position of whistleblowers whose
careers still stand at risk so long as Mr. Zinser and his closest
senior leaders remain in their positions. I will extend that same offer
to the President as I believe that his role under law complements my
own obligations as a Member to reveal significant violations of law
that I believe we have uncovered.
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