Report: Border Patrol overlooked managers in kickback scheme

Agency investigations of a hotel room kickback scheme by Border Patrol agents in Arizona ignored information indicating that senior managers may have known about the situation, the Office of Special Counsel has reported.

Allegations by two whistleblowers that management officials knew of the fraud were ignored by agency investigators and contradictory statements by managers were not resolved, according to OSC, an independent agency that investigates and prosecutes whistleblower complaints.

OSC chief Scott Bloch concluded that while the Border Patrol's reports on the situation contained all the information required by law, the agency "failed to conduct a thorough investigation," and its findings were not reasonable.

"After extensive delays and two reports, the agency's response to the whistleblowers' disclosures remains inadequate," OSC concluded in a report Bloch sent late last week to President Bush. "In particular, the agency appears to have discounted without justification evidence implicating management and supervisory personnel in the wrongdoing identified by the whistleblowers."

The alleged fraud involved Border Patrol agents accused of accepting cash rebates, credits and other kickbacks from local lodging facilities while claiming the full per diem amount -- $55 for lodging in Douglas, Ariz. -- for reimbursement. The hotels or landlords would provide receipts reflecting payment of the full per diem.

The whistleblowers -- Larry E. Davenport, a retired senior patrol agent with 15 years' experience, and Willie A. Forester, a former supervisory Border Patrol agent with about 20 years' experience -- made the accusations in February 2001. The Justice Department's Office of Inspector General opened an investigation in September 2001, after Davenport and Forester reported their allegations to Rep. Jim Kolbe, R-Ariz.

In January 2003, the IG substantiated the whistleblowers' allegations, recommending that the Border Patrol, then part of the former Immigration and Naturalization Service, take disciplinary action against those accused of wrongdoing. In November, the Border Patrol's new parent agency, U.S. Customs and Border Protection, told OSC that it had decided against disciplining any of the employees.

CBP informed OSC that a human resources official at the Homeland Security Department had issued a memorandum recommending against disciplinary action. "We cannot afford to channel off our energies with an administrative burden that disciplining 75 individuals would entail," the memo stated.

OSC referred the case to then-Homeland Security Secretary Tom Ridge. As a result, CBP commissioned a second panel, which proposed 45 instances of disciplinary actions based on the IG's report. These included suspensions, firings and a demotion. Four of those punished were supervisors.

The report, however, did not recommend any action against higher-ranking management personnel. The panel reported it had found little evidence of their involvement after interviewing more than 25 employees at the Border Patrol's Douglas station.

The OSC report took issue with that conclusion. "It is simply not credible that 45 employees at a single Border Patrol station could engage in a pattern of conduct sufficiently egregious to warrant severe discipline without the knowledge of management," the report stated.