Hidalgo County levee system cited in IBWC whistleblower complaint
Jared Janes, 2009-09-25 22:47:12
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Hidalgo County’s levee system is at the center of a complaint filed Thursday by a former staff attorney at the International Boundary and Water Commission who accuses the agency of failing to follow federal protocol on major projects in the county.

Robert McCarthy, a former general counsel for the bi-national commission’s U.S. section — the federal agency that manages the levee system — filed a whistleblower complaint after he was fired in July.

In the 11-page complaint filed with a civil service board that investigates whistleblower complaints, McCarthy alleges wanton abuses of power at the El Paso-based agency, including illegal wiretapping of employees, a conspiracy to obtain unlawful pay raises and other examples of “gross mismanagement” by rogue employees.

Most notably for local interests, he accuses the agency of breaking the law when it contributed funds to the U.S. Department of Homeland Security’s levee-wall in Hidalgo County and for using county-owned engineering plans for repair work.

McCarthy, who worked at the IBWC for six months, said the obscure federal agency operates with little oversight from the U.S. Department of State.

“(The IBWC) feel nobody supervises them and they can do whatever they want,” McCarthy said in an interview Friday. “They’re an independent agency and nobody ever calls them out.”

Agency spokeswoman Sally Spener declined to comment on McCarthy’s case or his allegations, explaining they are part of a personnel matter that is under review.

The complaint does not prohibit the IBWC from continuing work on the county’s levees through economic stimulus package funding, she said.

McCarthy said he was fired on July 31, three days after he disclosed fraud, waste and abuse at the agency to four federal oversight agencies.

In a termination letter, U.S. IBWC Commissioner Bill Ruth said McCarthy was fired for failing to act in a constructive and collegial manner with the rest of the staff.

McCarthy’s whistleblower complaint says the agency violated a federal statute prohibiting cost-sharing between two federal agencies when the IBWC contributed $1.75 million in funds for a section of the levee-wall near the Hidalgo pump house.

Cost-sharing with Homeland Security — the federal agency tasked with building the border wall — created substantial risk “because the agency (IBWC) was funded to build flood control barriers, not border barriers,” according to the complaint.

McCarthy also alleges the agency solicited bids for a levee contract under the economic stimulus package using engineering plans prepared for Hidalgo County.

Proceeding based on designs prepared to state regulations for Hidalgo County — instead of to federal regulations — exposes the agency to the risk of design failures or contractual disputes, he said.

Godfrey Garza, the general manager for Hidalgo County Drainage District No. 1, said plans for a levee section near Granjeno were turned over to the IBWC with the county’s full support for the agency’s work.

Acting on McCarthy’s behalf, Public Employees for Environmental Responsibility — a Washington, D.C.-based group that works to uphold environmental laws — filed the whistleblower retaliation complaint with the Merit Systems Protection Board, demanding his immediate reinstatement.

The board will hear the case within 120 days, said PEER Executive Director Jeff Ruch. The State Department Office of Inspector General is investigating the claims McCarthy made before he was fired.

Last month, a news release from PEER labeled the IBWC the worst agency in the federal government, citing a 2005 State Department Office of Inspector General report that concluded “internal management problems have engulfed (the agency), threatening its essential responsibilities for flood control and water management in the American Southwest.”

Spener, the IBWC spokeswoman, responded in writing that problems identified in the 4-year-old report were cleaned up after the White House asked a former commissioner to step down following its release.

Arturo Duran left the post in late August 2005 after serving as commissioner since the prior year.

He confirmed to various news outlets that the White House had asked him to resign in the wake of a scathing report from the State Department’s Office of Inspector General. The report accused Duran of mismanagement and questioned his financial and personnel decisions, saying the agency was consequently in “disarray.”

Jared Janes covers Hidalgo County government, Edinburg and general assignments for The Monitor. He can be reached at (956) 683-4424.

For Immediate Release: September 24, 2009
Contact: Kirsten Stade (202) 265-7337

BORDER AGENCY AXES TOP LAWYER FOR WHISTLEBLOWER COMPLAINT — General Counsel Fired for Not Being “Collegial” in Reporting Waste and Abuse
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Washington, DC — The federal agency responsible for wastewater treatment and flood control projects on the U.S.-Mexico border ousted its General Counsel just three days after he reported waste, fraud and abuse to oversight agencies, according to legal briefs filed today by Public Employees for Environmental Responsibility (PEER). The agency’s termination letter stated that that the lawyer was fired for being less than “collegial” in writing legal opinions protesting violations by top agency officials.

Robert McCarthy, General Counsel for the United States Section, International Boundary and Water Commission (USIBWC), with headquarters in El Paso, Texas, had cautioned the agency about financial abuses, including a $220 million Recovery Act flood control project which threatened the safety of millions of border residents. McCarthy’s legal opinions also warned about improper expenditures, illegal manipulation of payrolls, secret surveillance of USIBWC employees, and other abuses.

On July 28, 2009, McCarthy informed Bill Ruth, the holdover USIBWC Commissioner appointed by President Bush, that he had disclosed these concerns to the Office of Special Counsel, State Department Office of Inspector General (OIG), Office of White House Counsel and the Government Accountability Office. Three days later, Ruth ordered McCarthy’s termination. Ruth’s removal letter cited McCarthy’s legal memoranda, stating the memos demonstrated McCarthy’s “continued failure to support me…in a constructive and collegial manner ... [which] leaves me no other recourse.”

Ironically, on the day he fired McCarthy, Ruth submitted testimony to Congress in which he boasted “We have made implementing the Recovery Act a top priority and are pleased to report that we are moving forward quickly, efficiently and with an unprecedented level of transparency and accountability…the public is encouraged to report instances of waste, fraud and abuse to the Department of State OIG.…”

Today, on McCarthy’s behalf, PEER has filed a whistleblower retaliation complaint with the Merit Systems Protection Board (MSPB) demanding his immediate restoration.

“We expect government lawyers to uphold the law, not compete for Miss Congeniality,” stated PEER Counsel Christine Erickson who filed the complaint. “Documents in this case show a rogue agency acting without regard for law, regulation or even common sense.”

Among McCarthy’s disclosures was that USIBWC planned to build “cosmetic” levees along the Rio Grande in order to give the appearance of flood control while leaving residents vulnerable to seasonal inundation. In Presidio County, Texas, the agency planned to patch up structurally deficient levees damaged by a previous flood, with full knowledge that the repairs would not withstand even a minor flood, and that the levees themselves are located on unstable ground. In Hidalgo County, the agency planned to divert flood control funds to subsidize building a border barrier.

PEER has previously labeled the USIBWC the worst agency in the federal government, pointing to, among other things, a 2005 State Department Inspector General report which concluded that “Internal management problems have engulfed USIBWC, threatening its essential responsibilities for flood control and water management in the American Southwest.”

“Under Bush appointees, the USIBWC has become a bureaucratic basket case desperately in need of external intervention,” said PEER Executive Director Jeff Ruch, noting that his group has been contacted in the past few weeks by several current and former agency employees reporting similar problems. “Not only is the appointment of a new Commissioner long overdue but this tiny agency should be put under the State Department’s management control to prevent these fiascos from recurring.”

Whistleblower Laws - State Rankings 2009

Read the termination letter

Look at the McCarthy MSPB complaint narrative

See why PEER calls USIBWC the worst agency in federal service

View the Ruth congressional testimony touting transparency

Whistleblower Protection Blog
Posted at 2:13 PM on September 24, 2009 by Richard Renner
Federal water agency fires top lawyer for whistleblowing
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Public Employees for Environmental Responsibility (PEER) reports that it has filed briefs for Robert McCarthy, the former General Counsel for the United States Section, International Boundary and Water Commission (USIBWC). PEER says that USIBWC fired McCarthy on July 31, 2009 -- three days after McCarthy disclosed his reports of waste, fraud and abuse by USIBWC. McCarthy claims that USIBWC planned to build “cosmetic” levees along the Rio Grande. These would give the appearance of flood control while leaving residents vulnerable to seasonal flooding. USIBWC also planned to divert flood control funds to subsidize building a border barrier. PEER had previously labeled the USIBWC "the worst agency in the federal government." USIBC Commissioner Bill Ruth, a Bush Administration holdover, fired McCarthy for “continued failure to support me (Ruth)…in a constructive and collegial manner." PEER is asking the Merit System Protection Board (MSBP) to reinstate McCarthy.