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CBP secret deal to bury investigator's past misconduct questioned

Jul. 7, 2013 - 06:00AM   |  
By JIM McELHATTON   |   Comments
OPM IG Patrick McFarland told lawmakers his office has had a 'consistent backlog' of background check fabrication cases pending since 2008 but his office is hampered by a lack of resources in pursuing them.
OPM IG Patrick McFarland told lawmakers his office has had a 'consistent backlog' of background check fabrication cases pending since 2008 but his office is hampered by a lack of resources in pursuing them. (Tom Brown / Staff)

Ramon Davila quit his job as a senior special agent with the Customs Service nearly a decade ago, after an internal probe found he’d run up tens of thousands of dollars in dubious government credit card charges, violated weapons laws and obstructed an internal affairs investigation, according to court filings.

Though some Customs officials proposed firing Davila, the agency instead allowed him to resign under a deal that kept the proposed disciplinary action out of his personnel folder. Within months, he applied for — and received — a contract investigator job vetting top secret government clearances, according to records.

Last month, Davila pleaded guilty to falsifying security clearance background checks, joining a growing list of at least 19 background investigators or researchers since 2008 to plead guilty to or face sentencing for falsifying background checks. The Office of Personnel Management’s inspector general is working on nine more such cases, but says a backlog of 36 others still awaits investigation because of a lack of resources.

All told, the government has spent more than $1.5 million to reopen investigations that were falsified to ensure applicants who received clearances were entitled to them. Among the applicants vetted by Davila, for instance, were employees and contractors for the Air Force, Navy and National Geospatial-Intelligence Agency. Of the 24 counts of false statements charged in the Davila case, 23 involved investigations for top secret clearances.

Concerns over the integrity of security clearance background investigations have drawn more attention after Edward Snowden, a former National Security Agency contract employee, leaked details about classified NSA surveillance programs to the Guardian and Washington Post newspapers.

OPM IG Patrick McFarland told a Senate panel last month that a 2011 reinvestigation into Snowden’s background check by USIS of Falls Church, Va., may have been faulty. The company acknowledged it received a subpoena for records from the OPM IG in January 2012 and said in a statement it has cooperated fully with the government’s “civil investigative efforts.”

McFarland also told lawmakers that his office has had a “consistent backlog” of fabrication cases pending since 2008. Dozens of cases are waiting to be opened following referrals from OPM, but McFarland said his office is hampered by a lack of resources.

“The longer it takes before we can conduct the criminal investigation, the more likely it is that witnesses’ memories will fade to the extent that they are no longer good witnesses for trial,” he said.

At the same hearing, Sen. Claire McCaskill, D-Mo., said the OPM IG’s investigation is looking into a “systemic failure” to adequately conduct background checks.

In another case, in which an investigator falsified nearly one in three credit checks performed, USIS was forced to reopen 1,465 cases, spending more than $120,000.

Saying it conducts thousands of investigations, USIS said its work is confidential and declined to comment about Snowden’s 2011 background check.

Since 2008, the U.S. Attorney’s Office in Washington has prosecuted at least 19 background investigators in cases involving both contract and federal employees, including eight at USIS.

In court papers, one investigator blamed the falsifications on “a lazy, poorly reasoned choice,” but others cited being overworked and stressed. Another attempted suicide after being caught.

OPM, which oversees background investigations for the government, declined to comment specifically on Davila’s case. But in a written statement to Federal Times, Merton Miller, OPM’s associate director for federal investigative services, said that OPM had overseen more than 2.2 million background investigations in fiscal 2012 and misconduct rarely occurs.

“OPM has developed and implemented a proactive integrity assurance program and robust training in this area, with strong internal controls to ensure investigators are performing in accordance with federal standards,” Miller said.

Francis Hoang, a former White House associate counsel to President George W. Bush, who represents defense and security contractors, said the steady stream of falsification cases points to a broader trend.

“We take functions that used to be done by the government and we contract them out, generally starting out at a high premium,” he said. “We pay a lot. We get good, qualified people. As contractor dollars shrink ... the products and services are falling short.”

A 'troubling' case

Amid the wave of background investigation falsifications, Davila’s case stands out, experts say.

“The most troubling thing about this scenario is that [Customs and Border Protection] agreed to keep such serious allegations about this guy private,” said Phil Becnel, managing partner of Dinolt Becnel & Wells Investigative Group in Washington, an expert on background investigations.

Becnel said one problem with background checks highlighted by Davila’s case is that agencies and companies that investigate people for misconduct often fear disclosing too much to investigators for fear of being sued.

“So when you have one government agency substantiating such serious allegations about someone and agreeing to keep the matter private, they’re really doing the rest of the federal government a tremendous disservice,” Becnel said.

Officials at Customs and Border Protection did not respond to repeated requests for comment days after Federal Times provided a copy of a court filing that detailed the internal investigation into Davila’s conduct.

Davila’s attorney declined to comment. Davila faces up to five years in prison and a $250,000 fine.

Before he could find work as a background investigator in 2004, Davila first had to undergo his own background check. Davila answered “no” when asked if he had ever left a job by mutual agreement following misconduct investigations. But around the same time, prosecutors said Davila had agreed to quit his Customs job following a proposed removal action seven months earlier.

None of the misconduct findings resulted in criminal charges against Davila. And prosecutors only disclosed the probe in a court motion in May, seeking to introduce the evidence at trial.

According to court records, the internal probe began in February 1997 and ended six years later. The probe substantiated an allegation that Davila, a former Virgin Islands police commissioner, had told a St. Croix police chief in 1998 not to provide Customs internal affairs agents with reports they’d requested relating to a homicide investigation.

Investigators also found he’d misused the Treasury Department’s enforcement computer system to run queries on two political candidates in 1994. And a probe uncovered more than $50,000 in charges from 1994 to 1998 on Davila’s government credit card for expenses such as stays at the Mirage and Sands hotels, airfare for his sister and other non-Customs employees, and tennis and golf fees.

After the internal investigation ended, Davila agreed to resign “in lieu of disciplinary action,” court documents state.

A draft of the agreement obtained by prosecutors, which was not filed in court, expressly provided that Davila’s official personnel folder would not contain any record of proposed disciplinary action, records show.

What’s more, even the agreement itself would be kept “strictly confidential,” except as necessary for official government business, filings show.

“At least in part as a result of Davila’s false representation, the investigator conducting Davila’s background investigation never uncovered this negative information regarding Davila’s employment history,” prosecutors wrote in a filing.

A spokesman for USIS said Davila was never employed with the company, but he worked as “one of hundreds of certified independent contractors used by the company on occasion to augment its own workforce.”

“The services of Mr. Davila were terminated by USIS in November 2007, when evidence first appeared that he was falsifying reports,” USIS spokesman Ray Howell said.

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