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Whistle-blower on leave; culprits off 'scot-free'

Jun. 23, 2013 - 06:00AM   |  
By SEAN REILLY   |   Comments
Berkina Porter MWM 20130422
Federal Mediation and Conciliation Service whistle-blower Berkina Porter, shown with her attorney, Kevin Owen, discusses agency procurement abuses. (Mike Morones / Staff)

When Berkina Porter took the job of director of administrative services at the Federal Mediation and Conciliation Service in January 2010, she figured she would retire from there. But within months, she found that the agency was leasing a Lincoln MKS luxury sedan with an employee’s purchase card, spending extra for access to the Golf Channel and paying a company linked to a former employee more than $20,000 to do work with no contract on file.

In February 2012, an inspector general’s review substantiated Porter’s allegations that agency personnel had improperly used their purchase cards. But by that point, the agency had placed her on paid administrative leave as a prelude to her planned dismissal and Porter was seeking protection from the Office of Special Counsel as a whistle-blower. Under the terms of an OSC-brokered March settlement, FMCS will keep paying Porter her $136,000 salary for up to another year while she looks for full-time work. FMCS, which is furloughing employees because of sequester-related budget cuts, also agreed to cover Porter’s attorney fees and pay her $72,500, which will be parceled out in the form of an annuity starting in 2016 that will pay her $508 per month for the next 15 years and four months. The annuity — in lieu of a lump-sum damage award that would have been subject to much higher income taxes — is in addition to her federal pension. Neither side admitted wrongdoing.

Porter and her attorney, Kevin Owen, said they know of no agency officials who have been disciplined over the epsiode.

While Porter, 52, fears the episode may end her federal career, others at the agency have gotten off “scot-free,” she said in an interview.

An independent agency founded in 1947 with field offices around the country, FMCS is charged with helping to settle strikes and other labor disputes. Early this year, for example, it helped end the impasse between the National Hockey League and the players union that forced the cancellation of hundreds of games in the 2012-2013 regular season.

The agency’s director, George Cohen, an Obama administration appointee who has headed the agency since October 2009, declined to be interviewed or to respond directly to written questions from Federal Times on FMCS’s handling of Porter’s case, its management practices or whether anyone has faced sanctions over the case. However, the agency took “immediate actions” to meet federal regulations after Porter raised concerns about the agency’s procurement practices, including bringing in the IG to conduct an independent review, Cohen said in a statement.

“More generally, you may be assured that when an FMCS employee raises concerns that call any agency practices into question, we take those concerns very seriously,” Cohen said.

But Porter’s account — buttressed by hundreds of pages of records — suggests that Cohen and other senior officials at first impeded her efforts to make changes and then retaliated. In an April letter to Porter closing out her case, the Office of Special Counsel said its investigation had found evidence that FMCS officials “took and proposed personnel actions at least in part because of your protected activity,” a reference to whistle-blowing. OSC declined to clarify whether it was referring to Cohen.

For Porter, a Virginia native who started her career more than 30 years ago as a temporary GS-3 clerk/typist with the Navy, the FMCS GS-15 job was supposed to cap a steady ascent that included assignments with the Coast Guard and Justice Department. With responsibility for contracting, property management and other areas, it was also an opportunity to put all her skills to work, she said. “I thought it was going to be really, really wonderful.”

What she found instead dismayed her. FMCS, with headquarters in downtown Washington, was spending about $9,000 annually for Deer Park bottled water even though federal rules generally bar the practice. The agency’s DirecTV service included an extra $29.95 monthly charge for the Golf Channel. And although about two dozen of the agency’s approximately 240 employees had purchase cards, none had the required authorizations or training on how to use them.

While agencies are supposed to go though the General Services Administration in procuring cars, for example, FMCS was using a purchase card to make monthly payments on a $29,400 three-year Lincoln MKS lease, a copy of the agreement indicates.

The purchase card making those monthly car payments belonged to Marcus Lawson, an agency customer service specialist. In an interview, he confirmed that Porter flagged the payments and other “questionable” agency practices. “As far as I know, that was the nature of the way things were going on at the time,” he said, referring to the vehicle lease.

“In my eyes, it [Porter’s management approach] was a positive,” Lawson said.

Porter also halted payments to a Pennsylvania company called The Papers Edge, which had received almost $21,000 for phone system installation and other services in 2009, purchase card records indicate. But Porter couldn’t find any invoices or a contract showing what the firm was supposed to do. According to online corporation records, a company principal is Chuck Burton, who retired from FMCS several years ago. Repeated efforts to reach Burton at the company’s listed phone number were unsuccessful.

Also retired is Dan Funkhouser, Porter’s immediate predecessor as administrative services director. In a phone interview last week, Funkhouser did not dispute that Burton’s company worked for the agency, but could provide no details on what it did.

“I just don’t remember, and I would feel uncomfortable trying to remember,” Funkhouser said, noting that he no longer has access to FMCS records. He also declined to discuss other management issues raised by Porter that date back to his tenure. “It’s been too long,” he said. “I have my opinions about Ms. Porter, but that’s better coming from somebody that actually worked with her.”

Within six months of taking the job at FMCS, Porter’s unease with the agency’s handling of purchase cards had reached the point that she agreed with an employee’s idea to report the problems and seek training help from GSA, which sets policy for the program as a whole. When her superiors found out, she said, “all hell broke loose.” Cohen, she said, told her not to go outside the agency; she was soon given a four-page “memorandum of counseling” by her immediate supervisor, Chief Financial Officer Fran Leonard. Leonard and other top managers also declined comment.

Over time, the friction escalated. In early 2011, Porter, who is black, said she learned that senior officials planned to hire a white man to fill a newly created position to oversee her procurement work. They backed off, she said, after she filed a discrimination complaint.

After she turned to OSC for help late that year, FMCS officials began an investigation of her performance, Owen said. In January 2012, Porter was placed on administrative leave and walked out of the building without explanation. According to Owen, the agency later said she failed to disclose a 2009 bankruptcy on a required financial disclosure statement, even though the statement, known as an Office of Government Ethics Form 450, does not specifically mandate that bankruptcies be reported. She has been on paid leave ever since.

A little more than a year before being placed on administrative leave, Porter had unsuccessfully sought a Government Accountability Office investigation into the agency’spurchase card use and other activities. Cohen again rebuked her for going outside the agency, she said, but agreed to a review of the purchase card program. Because FMCS lacks its own inspector general, he turned to David Berry, IG for the National Labor Relations Board.

In a February 2012 letter to Cohen dated about two weeks after Porter was put on leave, Berry verified that purchase cards had been used “to circumvent FMCS procurement process and other internal controls.” Besides the Golf Channel subscription, Berry noted that the agency had been using purchase cards to pay for some employees’ home Internet service without adequate justification and had written checks from the purchase card account for what “appeared to be ‘holiday’ bonuses” for maintenance staff at the agency’s headquarters.

While FMCS seemed to be getting the program under control, Berry said, his letter also noted that he had spoken to FBI agents. He declined to comment last week on whether he was aware of any criminal investigation; an FBI spokesman would not confirm or deny the existence of an inquiry. Owen would say only that he and Porter have been in contact with federal investigators.

Apart from a part-time teaching job with a private university, Porter said she has not worked since last year. Despite applying for numerous federal positions, she has gotten no callbacks or interviews. Her tenure at FMCS, she said, may have left her permanently “blackballed.”

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