TSA Abused Reassignments to Target Whistleblowers, House Panel Finds

TSA Administrator David Pekoske (center) speaks in Los Angeles in August. TSA Administrator David Pekoske (center) speaks in Los Angeles in August. Richard Vogel / AP

Senior officials at the Transportation Security Administration used reassignments to retaliate against whistleblowers, and the Homeland Security Department is withholding related documents from Congress and the Office of Special Counsel, a House committee found in a pair of reports released on Tuesday.

The reports were the climax of a three-year bipartisan investigation by staff of the House Oversight and Government Reform Committee that found “recurrent misconduct with minimal consequences,” including sexual harassment and reassignments due to suspicion of unauthorized contact with the news media.

“TSA senior officials often circumvented the disciplinary process to avoid repercussions for their actions,” the 118-page majority report said. “This pattern of mitigation allowed senior-level misconduct to persist, decreasing agency morale” as reflected in the agency’s “astronomical attrition rates (as high as 20 percent in some segments of the workforce during the period in question) and abysmal ranking in a governmentwide job satisfaction survey (336 out of 339 agencies and components in 2017).”

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separate report by ranking member Rep. Elijah Cummings, D-Md., made recommendations for stronger oversight of TSA following a probe that included one deposition, 10 transcribed interviews, meetings with dozens of whistleblowers, five hearings and a review of thousands of pages of documents. 

“The committee found TSA inappropriately reassigned employees to new positions hundreds of miles from their stations without any discernable, organizational need,” the report said. “Many reassignments resulted in considerable hardship due to financial and family obligations, forcing some employees to leave TSA rather than accept the reassignment.”

The withholding of documents prompted the committee two weeks ago to issue a subpoena to the acting general counsel, who appeared on Tuesday for a still-unreleased transcribed interview.

The sexual harassment came in one case in the form of men boasting of the number of women they slept with at ports while in the Navy.

In another case reviewed in great detail, an assistant administrator of the TSA Office of Intelligence and Analysis began contacting an underling repeatedly after-hours, ignoring her requests that he stop. He sent a highly explicit email to the younger female for whom he was a “mentor,” describing his vision of sex with her. But he insisted he would not in reality have sex with her or leave his wife and child.

After detailed investigations and complaints by her, TSA’s Office of Professional Responsibility recommended that this official be dismissed. (He was also accused of abusing the hiring process.) But higher TSA officials intervened to keep him on with a two-week suspension.

Administrator David Pekoske, who was sworn in at TSA on Aug. 10, 2017, told the committee at a Wednesday hearing that he found the reports—and a figure of 45,000 TSA misconduct cases, “deeply troubling.” He assured lawmakers that if such personnel decisions were being made today, the outcomes would be different.

But he said the agency has already shown improvements. “During my first year, I devoted the majority of my time to TSA’s front lines,” he said, calling it a “positive beginning” in an effort to develop an environment free of retaliation.

Already, morale has improved he said, citing his just-received results of the 2018 Federal Employee Viewpoint Survey that are “the highest in TSA history.” Under questioning, Pekoske said, “Morale is not what the public perceives it to be—it is not really terrible.”

As for retaliation against whistleblowers, Pekoske said he had met—at his own initiative—with numerous whistleblowers and promised them to take their suggestions for improvements seriously. They express “great frustration” and feel “stymied” at TSA, the administrator said. But he made clear that whistleblowers have a “beneficial impact on TSA,” having trained 7,000-8,000 employees in the past year.  He has also met twice with the American Federation of Government Employees.

Pekoske said there hasn’t been an involuntary reassignment at TSA since 2015, and that he has strengthened that prohibition (though he has yet to punish anyone for retaliation.) In planning reassignments, “we consider the needs of the agency, the cost of the reassignment and the effect on the individual,” he said.

Still in flux is the question of turning over the subpoenaed documents. Panel Chairman Rep. Trey Gowdy, R-S.C., said: “DHS yesterday managed to do something not even God can do, which is to unite Republicans and Democrats.” Through testimony in March 2017, the committee learned that DHS Acting General Counsel Joseph Maher instructed TSA to redact and withhold documents on the basis of the attorney-client privilege. The committee ultimately issued a subpoena to compel the documents in question. DHS OGC, however, directed TSA not to produce them.

Pekoske said TSA had provided all documents sought by the Office of Special Counsel after Congress last December passed new legislation. “For the others, I follow the executive branch guidance,” he told skeptical committee members, adding that it was not his decision.

Cummings helped launch the investigation three years ago after an inspector general’s probe into vulnerabilities in TSA’s airport screening. He said “urgent reforms are necessary to improve security operations, personnel management and transparency at TSA.” His three recommendations are that TSA implement unfulfilled security recommendations (some classified) from the IG, the Government Accountability Office and others that have “languished,” suggesting that Congress launch a one-year effort to monitor progress.

Second, he recommended that Congress consider legislation to strengthen civil service protections to prevent retaliation against whistleblowers as well. Third, Congress should consider legislation to significantly enhance transparency regarding whistleblower claims, settlement agreements, and non-disclosure agreements.

Outside whistleblower advocates welcomed the new information.

“Chairman Gowdy’s blistering report confirms what we’ve experienced as whistleblower advocates at TSA over the last decade,” Irvin McCullough, national security analyst for the nonprofit legal group the Government Accountability Project, told Government Executive. “The TSA's culture of fear, cover-up and retaliation discourages all but the most devout and persistent patriots from speaking truth to power.”

One TSA whistleblower who attended the Wednesday hearing but is still not satisfied was Robert MacLean. A civil aviation specialist whom TSA fired in 2006 after he spoke to TV reporters about a decision to reduce air marshals on flights, he won his Supreme Court case. Then he asked for a new job within DHS. “TSA has placed me in five different involuntary directed reassignments, four of which had little to no duties,” he said. “It has locked me out of my field office, accusing me of being dangerously mentally ill and directing me to pay and seek a psychiatric examination while forcing me to exhaust my earned personal leave.”

Such treatment, he told Government Executive before the hearing, “goes on because there's never any accountability of the bosses who order or carry out retaliation. When the case stinks, the whistleblowers are bribed to leave serving in the federal government and the TSA retaliators continue on to chill others into silence."

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