Early special counsel report pushed punishment for GSA chief
An early version of a report finding that General Services Administration head Lurita Doan violated the Hatch Act, the law limiting political activity in the government, recommended that President Bush "take disciplinary action" against her. This was changed to "appropriate action" in a later version of the report.
The recommendation of punishment, included in a May 17 draft investigative report from the Office of Special Counsel obtained by The Washington Post and posted on the newspaper's Web site Wednesday night, was absent from the May 18 version obtained Wednesday by Government Executive. The Post removed the link to the earlier report and issued a correction on its story Thursday.
"In our view, the evidence in this case supports a conclusion that whatever standard the president uses to review the evidence in this case, we recommend that the president take disciplinary action against Administrator Doan," the earlier version stated. "Because Ms. Doan, as the head of GSA, engaged in conduct before her subordinate employees that violated a federal law that is intended to protect the federal workplace from political influence and ensure that government resources are being administered in a nonpartisan fashion, her disregard for such protections and safeguards is serious and warrants punishment."
Both versions of OSC's report contained identical cover letters to Doan, stating that Special Counsel Scott J. Bloch determined that Doan violated the Hatch Act's prohibition against using official authority or influence to affect the result of an election.
OSC's investigation focused on Doan's role in a Jan. 26 meeting at GSA headquarters, where Scott Jennings, special assistant to the president and a deputy of political adviser Karl Rove, showed a 28-slide PowerPoint presentation to more than 30 GSA political appointees that analyzed the results of the 2006 midterm election and prospects for the 2008 elections.
The reports are consistent until page 10, where they detail Doan's claims that employees who presented testimony on her remarks following the January presentation were biased against her because they were poor performers.
The political appointees told OSC that Doan asked how the agency could help Republican candidates, though the accounts varied as to her exact wording. The older report omitted the names of the appointees who testified against Doan, and did not contain as much detail on OSC's position that there is little evidence to support Doan's claim.
But the reports' final sections on recommended action differed the most substantially. The earlier version stated that the "statutorily mandated punishment of removal has been recognized as 'an obvious expression of congressional policy that violations of the Hatch Act demand substantial punishment.' "
The earlier report also stated, "Doan's violation is further aggravated by her failure to take responsibility for her actions and her lack of remorse in violating the Hatch Act."
In interviews with OSC, Doan, "attempted to diminish her responsibility by consistently stating in her words 'probably like 40 times' that the Jan. 26 meeting 'was not her meeting' and it was 'not her agenda,' " the earlier report noted. "What Administrator Doan fails to recognize is that regardless of who sets a meeting or who sets the agenda of a meeting, she cannot, as the highest ranking official at GSA, ask or encourage an audience of over 30 subordinates to engage in political activity or to corrupt her agency to be used for political ends."
The later version of OSC's report contained a section titled "Disciplinary Action," but it simply quoted from the parts of the Hatch Act law that deal with punishments, and did not explicitly recommend that President Bush punish Doan.
The law states that federal employees who violate the Hatch Act law should be removed from their position, but the Merit Systems Protection Board can find, by unanimous vote, that a violation does not warrant removal and issue a penalty of at least 30 days of suspension without pay.
"Because Administrator Doan is a presidential appointee confirmed by the Senate, the president, not the Merit Systems Protection Board, must make any decision regarding imposition of disciplinary action," the earlier report stated.
An OSC spokesman said the agency does not comment on the process used to draft reports, or "how specific versions may have been disseminated."
Elaine Kaplan, Bloch's predecessor as special counsel, said it is not uncommon for changes to be made before this type of report is finalized, because there are a number of levels of review. She said the differences in the concluding sections of the reports are substantial.
"Apparently, there was a change of heart by the special counsel between May 17 and 18," Kaplan said. "It looks like a calculated decision was made that the original letter was too prosecutorial in tone and that the better course would be for OSC to take a neutral tone and leave the decision regarding Ms. Doan's fate to the president."
From her experience as head of OSC, Kaplan said that in highly sensitive cases like this, she would have been personally involved in shaping the language of the recommendation in the report and would have had the final approval authority.