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,
Original source can be found here.
