Three top officials at the Transportation Security Administration came in for criticism by an inspector general for sidestepping the normal investigative process to save the job of an underling accused of sexual misconduct.
The newly released redacted report dated Jan. 8 from acting Homeland Security watchdog John Kelly gives lawmakers requested details on a 2015 case in which an assistant administrator of intelligence was investigated for an inappropriate workplace relationship.
Though a first investigator recommended that the employee be terminated, several higher-ups intervened to instead give him a lateral transfer at the same pay.
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“DHS OIG’s review determined that TSA senior leaders deviated from standard policy and practice in a number of key respects indicating that the [Senior Executive Service] employee received unusually favorable treatment in the resolution of his disciplinary matter,” the IG wrote. “Our review specifically found that former Deputy Administrator Mark Hatfield, Chief Counsel Francine Kerner, and former Office of Professional Responsibility Assistant Administrator Heather Book each interfered with the disciplinary process in a way that circumvented the very TSA policies and procedures that were established to prevent favoritism in such circumstances.”
The case dating to late 2014 began with an anonymous complaint that the employee was engaged in an inappropriate relationship with a subordinate employee, and that he violated TSA hiring policies in hiring a colleague outside the competitive process.
The interviewers used a controversial tactic to elicit information. During the interview, investigators repeatedly asked whether he had engaged in an intimate or sexual relationship with “Jane Doe,” including whether he ever sent her any communications of a sexual nature.
The employee denied having done so, calling his relationship with the Jane Doe “non-romantic, non-sexual.” But the interrogators then produced an email the employee had sent to Jane Doe using sexually explicit statements. The employee “then admitted to having an emotionally intimate” relationship with her that, “he conceded, was inappropriate for the workplace.”
His communications with her continued even after she asked him to stop contacting her for non-work reasons, the report said. The unit chief investigating the employee cited him for poor judgment, lack of candor, inappropriate conduct (for hiring a colleague outside the competitive process) and unprofessional conduct. That last offense stemmed from a quote from an email from the employee to a subordinate “in which he referred to an assistant administrator as a ‘dick.’ "
The Office of Professional Responsibility unit chief then told the employee, “Although your decision to engage in an inappropriate relationship while serving as a member of the senior leadership team at TSA showed poor judgment, your subsequent attempts to conceal your actions by being less than candid regarding multiple matters while being questioned by [the Office of Inspections] has irretrievably undermined TSA’s ability to trust you.”
In May 2015 she began the process of termination.
But officials Book and Hatfield, on examining the case, favored a lesser penalty, the audit noted. Hatfield “believed the lack of candor charge was unfair because it was based on a trap set by the OOI investigators” since the investigators waited to unveil their incriminating email. Hatfield “felt the TSES Employee’s long history of exemplary service with TSA warranted mitigation of the penalty.”
Auditors then criticized what happened next, saying the “insertion of senior management” caused the “process to go off course.”
The original investigator was closer to the facts, the report noted, and the accused should have been notified of the intent to terminate and given an opportunity to provide an oral or written response and “make his case why the lesser penalty was warranted.”
Hatfield, Book and Kerner were criticized for bringing in Gen. Francis Taylor, then acting as TSA administrator and “entirely unfamiliar with TSA’s disciplinary policies and procedures.”
The result was that the employee was given a nominal demotion (with no pay cut) and transferred to another unit in the Washington area.
Tuesday’s IG report "confirms senior staff at the Transportation Security Administration intentionally bypassed their own rules and provided 'unusually favorable treatment' to a senior executive who had been recommended for removal on the basis of his misconduct,” said a joint statement from Reps. Trey Gowdy, R-S.C., and Elijah Cummings, D-Md., chairman and ranking member of the House Oversight and Government Reform Committee, which had requested the report.
"TSA must immediately implement the inspector general's recommendations to ensure it conducts all disciplinary actions in a fair and impartial manner without regard to position while also protecting the rights of whistleblowers,” they added.