WASHINGTON
– After recently released FOIA documents reveal significant obstruction of
basic questions relating to potential criminal conflicts of interest and
whistleblower retaliation at the Department of Veterans Affairs (VA), Sen. Chuck Grassley (R-Iowa) is demanding
fresh answers from Secretary Denis McDonough about the underlying allegations
and VA’s overarching obstruction.
“…this
revelation shows that you, as well as several other senior-level VA officials
are purposefully stonewalling my investigation, and intentionally withholding
information requested by the Congress,” Grassley
wrote. “…It is an absolute shame that this administration continues to
espouse transparency while engaging in conduct like this.”
In
a thorough letter to McDonough, Grassley outlines the apparent conflicts of
interest, retaliatory behavior by senior officials, and the collective and
blatant efforts to stall a congressional investigation.
Grassley
first inquired in
April
about the conduct of Charmain Bogue, Executive Director of the Veterans
Benefits Administration (VBA), whose husband’s business directly sought
contracts from the VA. Bogue allegedly failed to disclose her husband’s
employment and therefore her own conflicts of interests in overseeing the
contracting process.
At
Grassley’s urging, the Department of Veterans Affairs Office of Inspector
General
launched an
investigation
into the matter and related issues in July. The senator pressed the department
again in September after receiving
no response for months, but after the VA had produced hundreds of pages of
relevant documents via FOIA request to Empower Oversight.
In
his new interrogatory and document request, Grassley is seeking internal
communications about his earlier inquiries, all records related to Bogue’s
husband’s business with the VA and documents
related to the senior official (Thomas Murphy) who appears to have sought to
identify and disparage a whistleblower who he believes made disclosures to Grassley’s
office. In addition to all the information previously sought, Grassley is also
requesting the full, unredacted documents released under FOIA.
Full
text of Grassley’s letter follows and full text with attachments can be found
HERE.
November 17, 2021
VIA ELECTRONIC
TRANSMISSION
Denis
McDonough
Secretary
U.S.
Department of Veterans Affairs
Dear
Secretary McDonough:
I
write to you yet again today following Whistleblower
Network News
[1] and Empower Oversight’s
[2] release of Freedom of Information Act
(FOIA) documents which shed new light on the U.S. Department of Veterans
Affairs’ (VA) attempt to impede a congressional investigation. These documents demonstrate a pattern of
abusive, retaliatory, and potentially unlawful behavior by senior VA officials. Worse, the documents—released to non-governmental
third parties via FOIA— appear to be the very same documents I have repeatedly
requested VA to produce in letters I sent to you on April 2, 2021, July 20,
2021, and September 22, 2021.
[3] Finally, the documents reveal efforts by VA
officials to delay providing these responsive materials to my office. Therefore, it has become apparent that VA’s
refusal to respond to my requests has surpassed mere stonewalling, or even
gross incompetence, to downright obstruction.
FOIA Documents
Reveal Apparent Conflicts of Interest by VA Officials
On
April 2, 2021, I sent a letter to VA requesting information about alleged
conflicts of interest and ethical issues among senior-level officials and asked
whether any ethics opinions from VA Office of General Counsel (OGC) on the
matter existed.
[4] I specifically asked if Charmain Bogue,
Executive Director of the Veterans Benefits Administration’s (VBA) Education
Service, had recused herself from any business dealings with her husband,
Barrett Bogue, Senior Communications Advisor for the Veterans Education Success
(VES).
[5] While the VA failed to respond to my request
for information, the FOIA documents reveal that such guidance did, in fact,
exist, and that Mrs. Bogue may have failed to recuse herself from business
dealings with VES.
[6]
For
example, FOIA documents show that Mrs. Bogue may have been involved in VET TEC,
a five-year pilot program which allocated $75 million to help veterans gain new
skills to enter the job market.
[7] In a December 2017 email, a VA official
disclosed to a VA ethics attorney that Mrs. Bogue’s husband “works for the
Student Veterans of America and that this organization has a partnership with
the VA and may decide to compete for the Vet Tech pilot.”
[8]
The VA official also suggested that “[Mrs. Bogue] connect with [OGC] to
determine if disclosure and/or recusal is needed.”
[9] The VA ethics attorneys responded:
“If [Student
Veterans of America (SVA)] is going to bid on the Vet Tech pilot program, then
Charmain’s participation in the source selection would create the appearance of
a conflict. If her spouse’s job is contingent on the VA contract award then her
participation in the source selection would run afoul of criminal conflict of
interest law prohibiting participation in official matters affecting one’s
outside financial interest, or that of his or her spouse. 18 U.S. C. § 208.”
[10]
A
few months later, in February 2018, the VA official followed up with the VA
ethics attorney and revealed that Mrs. Bogue’s “leadership suggested we not go through
the acquisition process and instead pursue a provisional approval of each
vendor as a GI Bill school.”
[11] The email further revealed that:
“Mr. Coy had
removed the entire acquisition process from [Mrs. Bogue’s] organization to OEO
due to a perceived risk that the SVA is actively engaged in conversations with
vendors of Vet Tec and also planned to bid. It was unclear to us at the time if
SVA would partners with vendors for the acquisition or bid independently.”
[12]
The
VA official expressed further concerns about perceived conflicts of interest
and stated that some vendors were actively litigating contract bids “for what
they perceive as bias against for-profit schools” indicating that SVA, VBA, and
Mrs. Bogue’s office were under scrutiny with respect to that allegation.
[13] In response, the VA ethics attorney informed
the VA official that if Mrs. Bogue was working with SVA, or if SVA is an
anticipated bidder, then Mrs. Bogue should recuse herself from the Vet Tec
procurement program.
[14] Another VA ethics attorney added that it
would be fine for Mrs. Bogue’s employees to work on the matter, but “it must be
made clear to everyone involved that [Mrs. Bogue] is not to be consulted on
this matter at all.”
[15] The VA official contacted VA ethics attorneys
again in March 2018 to express concern that senior VA officials did not
understand the difference between conflicts of interest and recusal, and stated
that they would forward the appropriate guidance from OGC.
[16]
Despite
repeated warnings from VA ethics attorneys, and accompanying ethics guidance to
Mrs. Bogue herself, it is alleged that Mrs. Bogue did not recuse herself from
dealings with her husband’s consulting firm’s client, VES, after all. In addition, VA has refused to disclose
whether proper recusal procedures were followed with respect to VES’s business
dealings with VA. As a result of my
inquiry, the VA Office of Inspector General (VA OIG) has stated that it is
investigating whether Charmain Bogue violated applicable conflict of interest
laws or regulations with respect to her official duties and her husband’s
private business interests.
[17]
The
FOIA documents also reveal that several VA officials requested recusal from
participating in VA’s response to my office.
In one instance, a VA official stated that they must recuse themselves
because they had previously approved a $10,000 contract to Charmain Bogue’s
husband to write a white paper.
[18] According to another email, a separate VA
official may have been removed from the inquiry because “all [Veterans Service
Organizations] were heavily involved.”
[19] It is not clear why that relationship
necessitated a recusal.
[20] Thus the documents indicate that some VA
officials take clear and immediate steps to remove themselves from any
appearance of a conflict of interest; however, it is still unclear if this
occurred with respect to Mrs. Bogue.
FOIA
Documents Reveal Retaliatory and Disingenuous Behavior at VA
As noted in previous communications,
multiple whistleblowers have contacted my staff seeking to disclose waste,
fraud, and abuse at VA. These
disclosures include allegations of whistleblower reprisal by VA officials. Protecting whistleblowers and safeguarding
their confidentiality is critical to encourage employees to identify problems
so they can be fixed. Therefore, executive branch officials and managers should
go to great lengths to respect and honor whistleblowers who risk their careers,
and sometimes lives, to expose wrongdoing.
However, FOIA documents reveal that at least one senior VA official may
have engaged in retaliatory behavior against an individual he believed made
protected disclosures to my office.
On
April 6, 2021, Thomas Murphy, Acting Undersecretary of Benefits at the VA, and
one of the subjects of my April 2, 2021 inquiry, disclosed to you that the VA
became aware of an allegedly inappropriate business deal involving Mrs. Bogue’s
husband’s consulting firm, but that the previous administration opted not do to
anything about it.
[21] In his email to you, Mr. Murphy stated that
“we contacted the [Office of Accountability and Whistleblower Protection
(OAWP)] to ask about opening an investigation as is the process when SES’s are
involved.”
[22] The email further reveals Mr. Murphy’s
apparent animus against the whistleblower who he believes presented these
allegations to the VA. According to Mr.
Murphy, “the allegations Senator Grassley mentions here are part of a long list
of allegations levied by a fired former employee that claimed to be a
whistleblower . . . I terminated her for
multiple violations of VA policies.”
[23] In his email, Mr. Murphy not only assumes the
identity of an individual he believes contacted my office, but disparages that
individual to you and dismisses that individual’s concerns. This conduct is unbecoming of a government
employee, and flies in the face of the spirit of whistleblower protection
laws.
In
the same e-mail, Mr. Murphy also addressed allegations that he “[a]ccept[ed]
gifts” during a NASCAR event, another topic I raised in my letter.
[24] Mr. Murphy asserted to you that former
Secretary Robert Wilkie determined he did not commit an ethics violation, but
in the future should contact OGC in advance of such events.
[25] Although technically correct, the full story
is a bit more complicated. Mr. Murphy
failed to mention that while Secretary Wilkie overturned an OAWP proposed
10-day suspension for improperly accepting gifts, he nevertheless specifically
admonished Mr. Murphy for failing to seek an ethics opinion regarding his
wife’s attendance at the event.
[26]
On
April 8, 2021, in response to Mr. Murphy’s email, you rightfully instructed him
to “sit this one out.”
[27] You also advised him not to “discuss this
matter with [his] subordinates,” and that “if anyone from [his] team contacts
[him] about this, simply ask them to fully comply with any information requests
. . .”
[28] It is unclear if VA reprimanded Mr. Murphy for
his actions, or whether VA has required Mr. Murphy undergo any further training
in whistleblower protection laws or conflicts training.
FOIA
Documents Reveal Senior VA Officials Stalled a Congressional Investigation
On May 5, 2021, one senior VA official
emailed a document titled “Grassley Packet” to the VA Office of General Counsel
(OGC) indicating that VA had a responsive letter, and accompanying responsive
documents, ready to deliver to my office.
[29] In this undelivered document, it appears that
VA was set to confirm whether or not anyone was, in fact, under investigation
for the allegations raised in my April 2, 2021 letter.
[30] Based on the FOIA documents, several VA
officials debated whether or not it was appropriate to tell Congress if someone
was under investigation by the VA OIG.
[31] One VA official stated that they would “defer
to OGC on legal implications, but . . . [understood] it’s a policy call.”
[32] Clearly, the VA determined it was appropriate
to disclose these matters to the public via FOIA.
To
make matters worse, in the second FOIA production, VA appears to have drafted
an entire response to my inquiries, along with responsive documents, but never
transmitted the response to my office.
[33] The response cover letter also acknowledges
that the OAWP and the VA OIG initiated investigations into the matter. Of course, I learned that VA OIG had launched
its investigation through VA OIG’s own acknowledgment to my office on May 26,
2021.
[34]
The draft VA response, released in the second FOIA production, also references
an April 6, 2021, interim response that my office also never received.
[35] This interim response, signed by VA’s Deputy
Assistant Secretary for Congressional and Legislative Affairs, is included in
this FOIA release.
[36]
The
stonewalling appears intentional. On May
27, 2021, in an email to your chief of staff, an OGC attorney stated that “[he]
spoke to the boss who seemed to be leaning toward your solution of letting it
sit for a while . . .”
[37] By “letting it sit for a while,” I assume
that the VA official’s email means that VA leadership made a conscious,
deliberate choice to not deliver the VA’s prepared response to my letter, which
included information on alleged conflicts of interest and whistleblower
reprisal at the VA. This assumption, based
VA’s lack of response on the matter, appears to be true. If true, this revelation shows that you, as
well as several other senior-level VA officials are purposefully stonewalling
my investigation, and intentionally withholding information requested by the
Congress. Congress should never have to
rely on third-party FOIA releases for basic communications from the executive
branch.
On
April 7, 2021, VA Deputy General Counsel, Richard Hipolit, forwarded my April
2, 2021, letter to VA OIG and stated that “[you] would be interested in any
advice [VA OIG] may have regarding this matter,” to which VA OIG responded that
VA OIG is “unaware of any limitation on VA’s response to Congress.”
[38] As am I.
Yet, VA still has not responded to any
of my letters. Therefore, in addition to
answering all questions from my April 2, 2021, July 20, 2021, September 22,
2021, letters, I also ask that you provide answers to the following questions
in writing:
1.
All
documents, memoranda, and electronic communications, including contracts the VA
has had with respect to business dealings with Barrett Bogue, his client,
Veterans Education Success (VES), his employers, and his firm’s clients for the
past five years.
2.
Neither
Mrs. Bogue’s recusal paperwork, recusing herself from VA business with her
husband’s clients or employers, nor Mr. Murphy’s letter of admonishment for not
consulting OGC are present in either FOIA release. Please provide both Mrs. Bogue’s recusal
paperwork and Mr. Murphy’s letter of admonishment should they exist
3.
It
appears that VA exchanged email communications with the Department of Justice
(DOJ) with respect to its initial proposed suspension of Mr. Murphy.
[39] Please provide any and all documents,
memoranda, and electronic communications with the DOJ with respect to Mr.
Murphy’s decision memorandum.
4.
Has
Mr. Murphy successfully completed training on whistleblower protections? Has he completed any trainings addressing
recusal procedures with respect to investigations in which he may be a subject? If so, please provide the date in which Mr.
Murphy received these or additional trainings, and if he completed them
satisfactorily. If he has not completed
these trainings, why has he failed to do so?
5.
In
an April 7, 2021, email, a VA official apparently received guidance from OGC
related to a response to my April 2, 2021, letter; however that recommendation
is entirely redacted.
[40] I ask that you produce this guidance in full,
unredacted form. If there is a legal
basis for why you cannot produce this information in full, please explain and
cite a legal basis.
6.
How
many VA employees have, by virtue of implied or apparent conflicts of interest,
been recused from the VA’s efforts to respond to my inquiries? Please identify which VA officials have been
recused and why.
7.
Is
the person seeking answers to Mrs. Bogue’s potential conflicts of interest in
December 2017, February 2018, and March 2018 the same individual that Mr.
Murphy claims to have terminated in his April 6, 2021 email to you? If so, please provide any and all documents
associated with Mr. Murphy’s assertion that the matter has been fully
investigated.
8.
It
would appear that VA, at least as of April 22, 2021,
[41]
does not have any guidance or protective measures in place to protect
potentially market-sensitive information.
Has VA since developed guidance with respect to handling material
non-public, market-sensitive information?
If so, please produce this guidance in full, unredacted form. If not, why not?
9.
Please
produce the responsive letter and corresponding documents to my office that
have been included in these FOIA releases.
Please produce them in full, unredacted form. I have attached VA’s completed response, with
your signature line, along with responses to my April 2, 2021 questions for
your convenience.
[42]
I
must implore you to comply with my requests for information outlined in my
April 2, 2021, July 20, 2021, September 22, 2021, and now November 17, 2021
letters, to your office by no later than November 26, 2021. It is an absolute shame that this administration
continues to espouse transparency while engaging in conduct like this. If you have any questions, contact my
Committee staff at (202) 224-5225.
Sincerely,
-30-
[3] See Letter from Charles E. Grassley, Ranking Member, S. Comm. on
the Judiciary, to Denis McDonough, Sec’y, U.S. Dep’t of Veterans Affairs (Apr.
2, 2021),
https://www.grassley.senate.gov/imo/media/doc/grassley_to_dept.ofveteransaffairsvbaethicsmarketinfoleaks.pdf;
Letter from Charles E. Grassley, Ranking Member, S. Comm. on the
Judiciary, to Denis McDonough, Sec’y, U.S. Dep’t of Veterans Affairs (July 20,
2021),
https://www.grassley.senate.gov/imo/media/doc/grassley_to_veterans_affairs_dept.vbainsidertradingallegations.pdf;
[6] FOIA Release 1 at 134-36.
[7] FOIA Release 1 at 138.
[8] FOIA
Release 1 at 138.
[9] FOIA Release 1 at 138.
[10] FOIA Release 1 at 139.
[11] FOIA Release 1 at 139.
[12] FOIA Release 1 at 140.
[13] FOIA Release 1 at 140.
[14] FOIA Release 1 at 140.
[15] FOIA Release 1 at 141.
[16] FOIA Release 1 at 142.
[17] Letter from Michael J. Missal,
U.S. Dep’t of Veterans Affairs Office of Inspector General, to Charles E.
Grassley, Ranking Member, S. Comm. on the Judiciary (May 26, 2021) [Attached as
Exhibit A to Letter from Charles E. Grassley, Ranking Member, S. Comm. on the
Judiciary, to Denis McDonough, Sec’y, U.S. Dep’t of Veterans Affairs (July 20,
2021),
https://www.grassley.senate.gov/imo/media/doc/grassley_to_veterans_affairs_dept.vbainsidertradingallegations.pdf.
[18] FOIA Release 1 at 97.
[19] FOIA Release 1 at 122.
[20] FOIA Release 1 at 122.
[21] FOIA Release 1 at 87.
[22] FOIA Release 1 at 87.
[23] FOIA Release 1 at 87 (emphasis added).
[24] FOIA Release 1 at 87.
[25] FOIA Release 1 at 87.
[26] FOIA Release 1 at 508.
[27] FOIA Release 1 at 307.
[28] FOIA Release 1 at 307.
[29] FOIA Release 1 at 176. As early as April 6, 2021, an attorney from
VA Ethics Specialty Team wrote that a response was being prepared regarding my
request for information. FOIA Release 1 at 45.
A May 27, 2021 email also confirms that VA had prepared a draft
transmittal letter with responsive answers and documents to my request for
information. FOIA Release 1 at
317. A second FOIA release includes a
completed response by VA. FOIA Release 2 at 1051-59.
[30] FOIA Release 1 at 182.
[31] FOIA Release 1 at 182.
[32] FOIA Release 1 at 182.
[33] FOIA Release 2 at 1051-59.
[34] Letter from Michael J. Missal,
U.S. Dep’t of Veterans Affairs Office of Inspector General, to Charles E.
Grassley, Ranking Member, S. Comm. on the Judiciary (May 26, 2021) [Attached as
Exhibit A to Letter from Charles E. Grassley, Ranking Member, S. Comm. on the
Judiciary, to Denis McDonough, Sec’y, U.S. Dep’t of Veterans Affairs (July 20,
2021),
https://www.grassley.senate.gov/imo/media/doc/grassley_to_veterans_affairs_dept.vbainsidertradingallegations.pdf.
[35] FOIA Release 2 at 1051-59.
[36] FOIA Release 2 at 315.
[37] FOIA Release 1 at 184.
[38] FOIA Release 1 at 147.
[39] FOIA Release 1 at 510-12.
[40] FOIA Release 2 at 353.
[41] FOIA Release 2 at 850.
[42] Attached as Exhibit A.