|Wednesday, March 30, 2016 12:45 PM|
A federal appeals court ruled in late February that an FBI whistleblower, who reported fraud and sexual misconduct involving prostitutes, was wrongfully terminated in October 2010.
Lieutenant Colonel John C. Parkinson worked as a special agent in the FBI as part of a Special Operations Group ground team. He reported that an undercover facility for FBI operations was compromised in 2006 because pilots, Special Agents Steven Broce and Andrew Marshall, allegedly engaged in sexual acts with women, who were brought back to the facility. The pilots also allegedly participated in activities, which cost taxpayers tens of thousands of dollars over a number of years.
Parkinson attempted to use proper channels to blow the whistle on the agents’ misconduct, but Parkinson’s supervisors chose to ignore his claims. When Parkinson went to the Office of the Inspector General (OIG) in the Justice Department to report wrongdoing, the investigation into Broce and Marshall eventually targeted Parkinson after those implicated in his whistleblower disclosures made counter-allegations against Parkinson.
Parkinson brought his claims related to his wrongful termination before the Merit Systems Protection Board (MSPB), which hears claims from civil service employees related to violations of their rights. Typically, the MSPB does not hear cases brought by FBI agents, but Parkinson was able to pursue his case because he is a “preference eligible veteran” and was enlisted in the U.S. Marine Corps Reserve.
The United States Court of Appeals for the Federal Circuit dismissed [PDF] a “lack of candor” charge brought against Parkinson under the FBI Offense Code. He was accused of providing “false information” or concealing information when he reported wrongdoing. The appeals court found no substantive evidence to back up this charge.
The appeals court also found the MSPB “improperly precluded Parkinson” from raising a whistleblower retaliation defense.
Jesselyn Radack, a whistleblower attorney who represented Parkinson, called the outcome a “rare victory for an FBI whistleblower.”
“Parkinson made his whistleblowing disclosures internally and used internal channels when he first experienced retaliation,” Radack stated. “The FBI’s internal channels failed Parkinson miserably. The Inspector General’s office turned the investigation on Parkinson, and the FBI fired him based on charges which were proven completely false once examined outside Bureau.”
Radack noted FBI employees do not have appeal rights, but Parkinson did because of his background in the Marines. His case set a precedent by clearly establishing that people like him have “appeal rights” and may assert whistleblower retaliation in their appeal.
More significantly, it is the first time any FBI whistleblower was able to bring up whistleblowing retaliation outside the FBI’s internal process, according to Radack.
If Parkinson had not taken his case outside the FBI’s internal process to pursue an appeal in a federal court, it is extremely doubtful whether he would have achieved any kind of justice.
Frank Scafidi, who was Parkinson’s supervisor at the FBI’s Sacramento Division for a number of years, said he had “regular opportunities to evaluate” Parkinson. As an agent, Parkinson “never failed to deliver on a task that he was given.”
While Scafidi was no longer Parkinson’s supervisor when he faced retaliation, Scafidi remarked, “When he did the right thing and reported misconduct to his superiors, rather than follow up on Parkinson’s information, they set in motion a series of counter-allegations which led to Parkinson’s dismissal—a dismissal that the appeals court noted ‘cannot be sustained.’ Indeed.”
“I am hopeful that the U.S. Department of Justice will recognize the grave injustice done to Parkinson in this instance and expeditiously settle this matter in his favor,” Scafidi added.
According to a court filing, an FBI ground team apparently found Broce and Marshall left the undercover facility’s door unlocked. The lights were not turned off. Evidence of sexual acts, including stains and hair, was left on furniture in the facility. The facility was compromised as a result of the sex acts.
The ground team had to find a new warehouse that could be used as an undercover facility for operations. Parkinson recommended that the new site be bifurcated so that the pilots could not access the ground team’s side and the ground team could not access the pilots’ side. He was in charge of much of the coordination that was necessary to complete a build-out of the new facility. It was finished in 2007.
The misconduct did not cease, and Parkinson and other colleagues in the ground team met with Assistant Special Agent in Charge (ASAC) Gregory Cox in February 2008. The agents informed Cox of the sex trips, which were taking place with FBI aircraft, but Cox declined to report the alledged misconduct to the FBI’s Office of Professional Responsiiblity (OPR). Cox later denied he had ever been informed about Broce and Marshall’s sex trips.
A letter sent to the Justice Department’s OIG by Parkinson contains even more lurid details.
When Broce worked for the FBI division in Boston, he “left his handgun in a brothel and did not regain control of his handgun for approximately 24 hours.” Worse, the special agent “had to pay extortion money to the prostitute in the amount of $500.00 in order to regain possession of his handgun.” About twenty years later, Broce left his FBI identification in a brothel in Reno, Nevada.
Broce also allegedly abused access to vehicles procured with U.S. taxpayer money, but which were not registered to the United States government, to continue a “pattern of engaging prostitutes during government work hours, often during evening shifts,” which he was “known for being especially eager to work.”
In Lodi, California, when Broce was stopped by local law enforcement, a police officer noticed he had a local prostitute with him in a government vehicle. Broce informed the officer he was an FBI agent. The officer did not let Broce leave and notified his sergeant that he had stopped an agent. The FBI “handled the matter” and no police report was filed.
Broce traveled over forty miles from Sacramento for a “second prostitute for the evening in violation of California state criminal law.” The FBI pilot was “never charged, nor was his access to a variety of government vehicles with false plates ever curtailed by the FBI,” Parkinson and other colleagues reported.
The other special agent, Marshall, allegedly exploited his position in the FBI to “intimidate members of the public.” When he gained control of the Rocklin, California, Boy Scout Troop, he took out a restraining order against two scout moms, “who refused to be intimidated by the fact that he was an FBI agent.” He took over the troop as a Scout Master “to advance his son to Eagle Scout.”
Parkinson and other colleagues alleged Marshall had “anger management problems compounded by habitual alcohol use,” which the FBI ignored.
The letter also accused Marshall of abusing his access to the FBI’s airplane hangar for years by utilizing it as his own personal storage facility, where he would keep “his recreation vehicle, camping trailer, bicycles, furniture and household goods.” They took up substantial space and Parkinson and other colleagues estimated the storage cost taxpayers approximately $25,000 a year.
Both defrauded the government by clocking in to make it appear they were working and would then go home.
In 2014, the Justice Department refused to adopt key reforms that would benefit FBI personnel like Parkinson, who make whistleblower disclosures internally. The Department rejected “judicial review, the incorporation of administrative law judges, time limits for decisions on cases, hearings upon request, and a requirement that federal government employees be produced to provide testimony if it would be relevant to the resolution of a case.
Importantly, these reforms would have been available to all employees, regardless of whether they fell into some special category that prevented the government from stopping them from pursuing a claim against the agency for retaliation.
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