UNITED STATES ENVIRONMENTAL
PROTECTION
AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
OCT
2 9
2019
Via
Hand Delivery and Email
The
Honorable Andrew
R.
Wheeler
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington,
DC
20460
Re:
Seven
Day
Letter -- Refusals
to
Fully Cooperate and Provide Information
for
Audit and Investigation
Dear Administrator Wheeler:
I write pursuant
to
Section
S(d)
of
the Inspector General
(IG)
Act
of
1978,
as
amended, which requires
an
Inspector General
to
report
to
the
head
of
the agency "whenever the Inspector General becomes aware
of
particularly serious
or
flagrant problems, abuses,
or
deficiencies relating
to
the
administration
of
programs and operations
of
such [agency]." 5
U.S.C.
App.
3,
§ S(d). This
report
is
commonly called the
"Seven Day Letter."
The particularly serious
or
flagrant problem I am reporting concerns
two
instances
of
refusal
to
fully
cooperate and provide information
to
the
IG,
one during an audit and one
dur
i
ng
an administrative
investigation. They center on a single employee -- Chief
of
Staff
Ryan
Jackson.
BACKGROUND
The
IG
Act gives the Office
of
the Inspector General
(OIG)
unqualified
"timely
access
to
all records
..
.
or
other
materials" relating
to
agency programs
or
operations. 5
U.S.C.
App.
3,
§ 6 (a)(l)(A). No
"information"
requested by
the
IG
may be "unreasonably refused
or
not
provided." Id.
at§
6 (c)(2). The
IG
Act
is
unambiguous,
as
is
your
August
8,
2018, message
to
all
EPA
employees, Cooperating
with
the
Office
of
Inspector General
to
Ensure the
U.S.
Environmental Protection Agency
is
Fulfilling the Public's
Trust
(Attachment A). There you echo the Act's explicit mandate
of
full agency cooperation:
"It
is
imperative and expected
that
agency personnel provide the
OIG
with
access
to
personnel
..
.
or
other
information .
..
needed
by
the
OIG
to
accomplish its mission."
Your message particularly recognizes OIG's investigation practices: "For investigations
...
the
OIG
follows
generally accepted protocols
for
questioning employees and gathering evidence." Protocols observed
by
our
investigative agents -- such
as
those taught
to
all federal
OIG
agents
at
the Federal
Law
Enforcement Training Center --
do
not
allow agency employees
to
set conditions
fo_r
interviews.
As
the
IG
Act reinforces, in the sphere
of
gathering information during
an
investigation, the
IG,
not an agency
employee, makes the
"judgment
"
as
to
reasonableness. 5
U.S.C.
App.
3,
§ 6 (c)(2). Terms and
conditions
for
an
interview dictated
by
an
employee
do
not, in
our
judgment, satisfy investigative
protocols.
Two courts
of
appeals agree. '"Congress intended that the Inspector General's investigatory authority
include the power
to
determine when and how
to
investigate."' Department
of
Homeland Security,
Customs and Border Patrol
v.
Federal Labor Relations Authority, 751
F.3d
665,
672
(D.C.
Cir.
2014),
quoting
U.S.
Nuclear Regulatory Comm'n
v.
Federal Labor Relations Authority,
25
F.3d
229, 235
(4
th
Cir
.
1994).
As
outlined more thoroughly below, Mr. Jackson's cooperation
has
been patiently sought multiple times
over protracted periods by
OIG
auditors and investigators. Auditors asked
of
him merely a
brief
email
reply. Investigators requested
to
interview him. Both matters, after Mr. Jackson's repeated delays and
refusals, were elevated,
in
writing,
to
you and/or other senior agency leaders
in
a final hope
for
cooperation
with
the
OIG,
and
to
warn
of
the possibility
of
a
Seven
Day
Letter.
On
both matters I
personally
met
with the Associate Deputy Administrator and General Counsel (October
18,
·2019)
to
press the grave character
of
failure to fully cooperate with audits
and
investigations
and
offer some
minor accommodations
to
Mr. Jackson.
On
October
24,
2019, I emailed you
and
the Associate Deputy Administrator the full contents
of
this
letter
in
draft
(subject line: "Draft
Seven
Day
letter for refusal
to
fully cooperate
...
for
immediate
attention") requesting
that
Mr.
Jackson
have "fully cooperated"
with
the audit and investigation by
COB
October
28,
2019,
or
I could send this final letter
as
early
as
today.
As
of
COB
October 28, 2019,
Mr
.
Jackson
has
still refused
to
cooperate.
Since
October
21,
2019, neither you nor any agency official
has
contacted
OIG
on this urgent matter.
REFUSAL
TO
COOPERATE
Audit:
Refusal
to
provide requested information
• September 11, 2019, Mr.
Jackson
to
auditors: "When would you like
to
talk
to
me about this?
I'm eager." (Attachment
B)
• October
7,
2019, Angela Bennett
(Lead
Auditor)
to
Mr. Jackson: Asking Mr.
Jackson
to
"confirm"
his answer to question from October 3
rd
interview
of
Mr. Jackson
--
"'From whom did you
receive a copy
of
the testimony?'
...
your [October 3
rd
]
answer was: 'Will I
say
where I
got
it
from? No."' (Attachment
C)
• October 16, 2019, John Trefry (Audit Director) to Douglas Benevento (Associate Deputy
Administrator): Alerting Mr. Benevento
of
Mr. Jackson's continuing lack
of
cooperation by
refusing
to
answer auditor question, and giving
Mr
. Benevento
"opportunity
to
direct Mr.
Jackson
to
fully cooperate
...
and
provide the requested information." (Attachment
D)
• October
21,
2019, Mr.
Jackson
to Mr. Benevento and auditors: Regarding October 7
th
question
from
Lead
Auditor
to
identify from whom
Mr
.
Jackson
received copy
of
testimony, "I
am
not
going
to
involve others
or
point fingers .
..
whoever agrees
or
not
...
Welcome
to
Washington."
(Attachment
D)
Administrative Investigation: Refusal
to
submit
to
interview
• October
8,
2019 (11:35 AM), Deputy Assistant Inspector General
for
Investigations Craig Ulmer
to
Mr. Jackson:
Seeks
date
for
interview "pertaining to
an
ongoing administrative investigation
2
...
my office spoke
to
your scheduler
...
on
September 25
th
,
to
arrange a meeting, but since
that
time the
OIG
has
not heard back about your availability." (Attachment
E)
• October
8,
2019 (12:04 PM), Mr. Jackson
to
Mr. Ulmer:
"If
you would like
to
tell
me
specifically
what
it
is
about, I'll
be
glad
to
schedule
it
...
[my scheduler]
has
asked the subject
of
the
matter
and until I receive
it
...
I'm not meeting with you
or
your staff." (Attachment
E)
• October
9,
2019 (4:23 PM), Mr. Ulmer
to
Mr. Jackson: "[O]n July 24, 2019, you were interviewed
by
OIG
Special Agents
...
and you terminated that interview before
it
could
be
completed
...
This
second interview
is
necessary
...
you are not entitled
to
advance notice
of
the purpose
of
the
interview or the topics
...
That said, you may reasonably expect
that
the same
or
similar topic(s)
discussed during the interview
of
July
24,
2019 will
be
covered .
..
We have communicated with
your scheduler on multiple dates, including on September 25, October
1,
and October 2
...
we
have yet
to
receive a date and time .
..
I should note
that
you were given the opportunity to
follow up with any clarification you believed necessary
...
At any time, should you feel
that
you
need
to
clarify
or
provide additional documents or information regarding any
of
the matters
discussed at the July
24
interview
or
any other future interview, you are permitted
to
do so."
(Attachment
E)
• October
9,
2019 (4:40 PM),
Mr
. Jackson
to
Mr. Ulmer: "Well, then I
am
not
meeting with you
or
your staff
if
you will
not
tell
me
the subject
of
the conversation
so
that
I may prepare
for
it.
The
fact
that
you cannot and will not provide the subject
of
what you want
to
meet with me about
is
unprofessional, and I'm not participating. Unless you have further substantive information, do
not contact me further." (Attachment
E)
• October 15, 2019: Helina Wong (Assistant Inspector General for Investigations)
to
Administrator
Wheeler
and
Mr. Benevento: Alerting them
to
Mr. Jackson's continuing lack
of
cooperation
by
refusing
to
submit
to
an
interview,
and
"request[ing]
that
you direct Mr. Jackson
to
make
himself immediately available
to
be
interviewed
and
to
henceforth fully cooperate with
OIG
investigations." (Attachment
F)
• October 21, 2019, Mr. Jackson
to
Mr. Ulmer: "I have already
met
with
your staff for
an
hour.
If
you would like a second interview
send
me your questions in writing, and I will respond
in
writing." (Attachment
G).
ACTION
Section
S(d)
of
the
IG
Act requires you
to
transmit this letter
to
appropriate committees
or
subcommittees
of
Congress within seven calendar days
--
by November
5,
2019
--
together
with
your
report containing any comments you wish
to
provide.
The
appropriate congressional committees
(whether for issues arising under the
IG
Act
or
oversight responsibilities for the agency) are the House
Committee on Oversight
and
Reform, House Committee on Science,
Space
and Technology, House
Committee on Energy and Commerce, Senate Committee on Environment and Public Works and Senate
Committee on Homeland Security
and
Government Affairs.
Please
inform me simultaneously
with
your
notification
to
Congress
that
you have provided my report
to
those committees.
3
CONCLUSION
As
it
is
for the agency itself, information
is
the oxygen for the Inspector General's office. If information
is
choked off, we cannot fulfill our congressional charter and produce work
of
the rigor and quality
expected by the American public.
You
reaffirmed in your message to all agency employees
that
Inspector General
access
to
all information
is
"imperative"
in
"Fulfilling the Public's Trust."
To
countenance open defiance even in one instance
--
much
less
two, both
by
a senior official setting
precedent
for
himself and all agency staff
--
is
ruinous.
Sincerely,
U~ttr
A.
QAAAJL
Charles J. sa ehan
Acting Inspector General
Attachments
4
