Joshua Replogle / AP

Customs and Border Protection Official Not Guilty of Prohibited Hiring

Judge criticizes Office of Special Counsel’s pursuit of case involving rigged job ads.

After four years of investigation and judicial hearings, a Customs and Border Protection human resources executive has been exonerated from charges that she participated in a team effort by employees to bypass civil service competitive hiring procedures to convert into career jobs three Schedule C political employees who were alumni from the 2008 Obama presidential campaign.

In an Oct. 6 ruling, Merit Systems Protection Board Administrative Judge Bruce Tucker Smith rejected as unproven all eight counts in an Office of Special Counsel complaint, saying OSC’s case against Assistant Commissioner for Human Resources Management Katherine Coffman was built “entirely on conjecture and speculation.” If illegal hiring practices were used at Customs and Border Protection, they were committed by others beyond the reach of OSC and the MSBP, Smith wrote, concluding that he is “left with the unmistakable impression that [Coffman] was charged solely because she was the last woman standing.”

The case stemmed from a 2010 request to human resources staff by then-acting CBP Commissioner Alan Bersin, an Obama administration recess appointee, that the jobs be offered as long as it was “legal and ethical,” according to testimony cited in the judge’s ruling. The three hires were Nate Bruggeman, Ben Rohrbaugh and Brian Albert, all of whom were initially political appointees working for Bersin at his first assignment, as DHS’ special representative for border affairs.

In 2010, the suggestion also arose that one of the three be hired as a Schedule A employee, a category that allows for noncompetitive hiring, as for people with disabilities. Numerous CBP human resources staffers then got involved in crafting job announcements and “selective placement factors” that would be “tailored” to the resumes of the three favored candidates.

The Office of Personnel Management raised alarms about the plan, having issued in 2009 what became known as the “Berry memo” requiring agencies to seek OPM approval for hiring a political appointee into a competed-for career job. That led the Office of Special Counsel beginning in 2011 to investigate, the result being a complaint in April 2014 against Coffman and two other CBP employees, charging them with “discriminating in favor of political appointees and against all other potential candidates.

“They did so by improperly intervening in the hiring process to convert non-career political appointees into career appointments (known as ‘political burrowing’), OSC said in a press statement, embarking on a rare case of alleged political discrimination in hiring. (Bersin, now assistant Homeland Security secretary for international affairs and chief diplomatic officer, was not accused.)

The applications, which contained questionable qualifications, were later rejected as improper by an angry DHS Chief Human Capital Officer Jeff Neal. Of the three subject to the Office of Special Counsel’s complaint, two settled with the MSPB and accepted “demotions to nonsupervisory duties,” according to OSC’s 2014 annual report.

OSC spokesman Nick Schwellenbach on Wednesday told Government Executive that his office would have no further comment as it considers its next steps. By law it has 30 days to appeal the judge’s ruling.

Customs and Border Protection spokesman Michael Friel on Wednesday said the agency “respects Administrative Law Judge Smith’s initial decision and will continue to cooperate with the Office of Special Counsel on this matter.”

In this month’s ruling, Smith expressed skepticism that Bersin wanted to hire the three only for political reasons. And after examining Coffman’s signatures (on behalf of her supervisor) on dated cover letters for the three candidates’ resumes, he said the evidence suggests that “others within CBP engineered the hiring process and then attempted to distance themselves from the three applications.”  

He also accused the OSC of hiding evidence, overstating Coffman’s involvement (she worked in Washington while the hiring operations are in Indianapolis) and relying on an improper legal standard that judged the accused based on negligence rather than intent.

Smith singled out CBP Assistant Commissioner for Human Resources Management Christine Gaugler, saying she “either personally or through others (exclusive of [Coffman]) engineered the three competitive application packages and the Bruggeman Schedule A package and that she was fully aware of the manipulation of those documents toward Commissioner Bersin’s stated objectives.”

Gaugler retired in September 2011, and the judge noted that the employees other than Coffman (who continues to work in a reorganized CBP human resources department) are no longer subject to pursuit by OSC or the MSPB.

Attorney Debra Roth, a partner in Shaw, Bransford and Roth who represents Coffman, said in a release that the Office of Special Counsel “engaged in a selective prosecution against Ms. Coffman because of her high-level position within CBP’s HR Staff.”

In an interview with Government Executive, Roth said the OSC “reached conclusions too easily based on superficial work. Coffman’s was case not unique, except that they prosecuted her.” The OSC has a history “of not looking for exculpatory evidence, or ignoring it,” she added.  “That’s not how our government should work. It should be about justice that is blind and even-handed, not looking to make a case.”