"Call a spade a spade."
Favorite phrase of the late Sid Beckert,
Professor of Accounting, Ohio University , Athens , Ohio .
Many Americans, in addition to Indians, are cut off from the American Dream. Government for and by the people has been corrupted by dishonest federal politicians and administrators who feed their personal greed for money and power.
Throughout this book there are many instances where as Americans, we might feel a sense of collective guilt. It helps to blame the problems on BIA, and then that can be traced to our elected officials, another scape goat. If we look closely enough the ultimate cause of the problems gets dangerously close to home, it might just be ourselves. Whoops, quickly look away, not me, not me.
Look at our past and present treatment of Indians, or world history in general, and how we hide ourselves from so many things. We often cover bad actions with phony words or escapism. To rub our noses in sadness does absolutely nothing to improve the world. We want to feel good about ourselves, and to avoid the pain of collective guilt. Are we really responsible for what our ancestors did, long ago and far away?
Forget about collective guilt. It accomplishes nothing beyond momentary sadness and a poor self-image. Instead, let’s substitute collective RESPONSIBILITY. We are stuck with living in this world, and conditions are the result of past actions, so we must deal with them, that’s responsibility. We can look honestly at the dark side of human nature and learn from it, without any need to feel collective guilt for what our ancestors did. Instead we can change our attitudes and systems so our own generation (and future generations) can avoid repeating those same problems. Now we are moving away from the negative and towards the positive, and we can accomplish something.
To give you a starting point in looking at federal reprisal, first let’s take a look at the laws on that subject during the time in question. Although in my case the laws were sidestepped by the agencies charged with enforcing them, they show the principles that supposedly apply. Nice words, anyway.
In 1978 Congress passed Public Law 95-454, the Civil Service Reform Act. It describes principles of the merit system for federal employment. In condensed form, major provisions are:
- Hiring based on ability, knowledge, and skills.
- Fair treatment of employees with no discrimination, and proper regard for employees privacy and constitutional rights.
- Equal pay for equal work.
- Employees to have high standards of integrity and conduct.
- Employees should be protected against reprisal for the lawful disclosure of information which the employee reasonably believes evidences -
(A). a violation of any law, rule, or regulation, or (B). mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety.
The law also defines prohibited personnel practices. It says that no federal employee in charge of others may:
“take or fail to take a personnel action” [such as firing] ... “in reprisal for -
(A).”a disclosure of information by an employee ... which the employee ... reasonably believes evidences
(i) “a violation of any law, rule or regulation, or (ii) “mismanagement, a gross waste of funds, an abuse of authority ...”
The law goes on to say that the head of each agency is responsible for preventing prohibited personnel practices. In addition to this law, the federal constitution protects free speech. There have been questions about how this applies to government employees, which resulted in a Supreme Court Case, known as the Pickering case. In Pickering , the Supreme Court ruled:
“it is a matter of public importance that certain public employees, such as teachers, should speak out on matters of public concern.”
The United States Code of Military Justice which highly values obedience, states that soldiers must not obey unlawful orders from superiors.
As a matter of international law and principal, the atrocities of World War II led to the formation of the Nuremberg Principal, which is that all people are responsible for their acts, and obedience to the orders of military or political leaders does not excuse misconduct. There are basic rights of humankind that are beyond price.
But what about this whistleblower law? If you read the supporting documents and cases, you find that the phrase stating that constitutional rights “should beprotected” is simply descriptive, not mandatory. How about that - a law that reduces the power of the Constitution - and yet the law has been enforced in the courts and has NOT been declared unconstitutional. The law is used to deny free speech to federal employees!
If you read the Constitution, you will find no footnote or amendment that says these basic rights do not apply to federal employees, and yet the right of free speech is very commonly denied to them. Certainly you have read the news stories about employees of the U.S. Forest Service, the National Parks, and other federal agencies whose free speech has been denied, or the person was transferred, fired or in some manner punished for speaking honestly on matters of public importance.
In television panels, people discuss the role and future size of our armed forces. Very often one of the panel members is a retired military officer, and some advocate a sharp reduction in our national military. The money saved would be available for social purposes, to feed the poor, rebuild our crumbling roads, reduce the national deficit, or similar productive uses. Never do you see a military officer who is NOT retired making statements like those, nor do you hear an employed federal administrator offering disagreement with the current administrative policy. As a practical matter, free speech is not allowed - federal employees can not express their honest feelings or judgments if they disagree with the party line. The penalties are obvious to them, and their constitutional right to free speech is worthless.
The executive department demands “loyalty” to the President, who appoints the head of each department. The career employees who report to that political appointee soon learn to keep quiet. Free speech is forbidden, by the very people who take a public oath to support it. You and I have allowed this to happen, and we have to change that.
One of the least admirable of human traits is being what I call kissy-kissy. We often defer to the wealthy, or cozy-up to the powerful, and people in droves line up just to see a “movie-star” or celebrity. Kissy-kissy people are popular, and we prefer fawning dogs as pets, confusing foot kissing with love.
How about the mis-guided Colonel Oliver North who so readily violated his oath to the Constitution, diverted money from the U.S. Treasury and deceived the Congress to follow the whims of the President? This is the stuff from which storm-troopers are made, yet many Americans consider such devotion to a leader, right or wrong, to be heroic. You can select your own part of the anatomy, as in foot-kissing or posterior-kissing, whatever, it’s not pretty. The Jewish “Capos” who cooperated with those in power (in Nazi concentration camps) by tormenting their own people were kissy-kissy, as was the traitor Quisling.
Many regard this business of loyalty to the boss (hierarchy) as being admirable, even if it means to ignore the dictates of Principle, religion or conscience. And yet our founding fathers did not believe that blind loyalty to a king or president was commendable, and instead gave us something of greater worth, the ideal of Principle embodied in the Constitution. In my case the employees of BIA, OSC, MSPB and countless other federal agencies substituted loyalty to the boss as more important than their oath to the Constitution, or the dictates of conscience. Government rewards this - they keep their jobs and get promotions, while those who refuse to be kissy-kissy get the ax. If people who follow Principle instead of playing “follow the leader” aren’t allowed in government, then where are they safe?
A former BIA employee, Julie Matt, is discussed in a following chapter. In reviewing Julie Matt’s documents, it is obvious that she, like me, was threatened with disciplinary action and her efficiency rating was downgraded. Bill Ellingson warned her about a reduction in force ( RIF ) that could eliminate her job. Three of Benjamin’s employees wrote accusatory letters describing how Matt was difficult to get along with as a fellow worker. Such letters are innuendo, but you are stuck with the tiresome business of disproving them.
Innuendo is not provable, but serves to raise suspicion. As a form of gossip that can not be proven, it also can not be disproved. The accused has no opportunity to face the accuser, to cross examine, or even to hear the testimony which is claimed to be confidential or private. By this process Julie Matt and others before her lost their jobs and had no effective appeal.
A few years earlier, federal administrators could and did require whistleblowers to submit to an involuntary mental examination, labeling anyone who dared to speak out as a “crazy.”
A similar pattern to that used against Julie was used in my case. Within a week following my memo to Benjamin ( 04/29/86 ) Joe Gourneau, the Assistant Area Director, called a meeting to give the Financial Management department notice of a verbal Reduction in Force (RIF) order that had (supposedly) arrived from BIA’s Washington office. Note that since the “freedom of information act” provides access to official papers, the agencies have learned to handle such “dirty work” as this verbally or by telephone, leaving no written record.
The RIF would have an effect on only one person in the department, me. At the time I had no knowledge that the memo I gave to Benjamin had been transmitted to Washington , but later evidence showed that it had been. There is no way to prove that the RIF was in response to my report, but based on later knowledge I believe it was in reprisal. Well, somebody read my audit report.
Unlike Julie Matt, other employees did not suddenly shun me by refusing to speak. They would speak if I spoke first, but they kept at a distance and most personal relationships became cold. In a subtle way, I was frozen out as an untouchable. Ellingson, Benjamin’s assistant, advised me that employees who were not favored by Benjamin never lasted more than a few months. I was marked as an enemy of the establishment.
On July 11, 1986 Benjamin called me into his office to discuss my performance rating for the past six months. I was astounded to discover he had graded me as “satisfactory.” Benjamin said I was downgraded for “failing to work within the system.” I complained that my work was better than that, and that the grade was unfair. In response he said he would add the comment that I did not get along well with his secretary, Jackie. That amounts to reprisal for complaining about reprisal.
I had worked quite a few overtime hours at the office, not counting work at home in the evenings and weekends. Benjamin’s announced policy of granting short periods of time off was not followed in my case. Any personal time I needed was charged against vacation. It’s a petty issue, but the pattern is the same as for Julie Matt. The treatment was aimed to demoralize the subordinate. Enough of this, and most people will give up and simply move on to another job.
About forty percent of my time was required by other duties assigned by the Assistant Area Director. Benjamin said I would not get any credit (on my efficiency rating) for that work, and true to his word I did not. By any measure my performance on the other forty percent merited a superior or outstanding efficiency rating. By Benjamin’s rules, the other work assigned to me counted against me, because it took time away from Benjamin’s assignments.
In the process of building evidence to support firing me, Benjamin brought in an accountant from the Albuquerque office of BIA to prove me wrong on the issues. The accountant, Rodney Young, spent several days in Benjamin’s office with the door closed. I did not know who he was or what they were doing together, because I was not introduced and Young did not speak one word to me or look directly at me.
His report, issued later, claimed to examine my “allegations” as they were called. My facts were well documented and proven on their face, but this term “allegation” was used again and again. Most of my documentation was in the form of papers stored in my desk, but Rodney Young did not ask to see my work. This did not prevent him from reaching the expected conclusions and from issuing a formal report concerning my work.
Rodney Young is not a CPA, but he issued a CPA’s finding of fact and opinion about my work without looking at my papers or asking me any questions. I was not aware of what he was doing at the time, but was given a copy of his report when I was fired a few days later. Here are the results of his official report, which he said was made in accordance with the formal standards of the American Institute of Certified Public Accountants:
[Henry’s] “allegations against the OIG are false, opinionated and a possible violation of professional ... ethics ...” [Henry’s] opinion about the accounting system was “irrelevant.” If [Henry] “had a little common discipline he could learn the system ...and understand it.”
As to Docket #184, there were “no erroneous or excessive disbursements.”
“We did not find the ... IIM cash accounts to be short $7 million.”
Young repeated from the prior OIG report that all ... accounts for ... Billings had been reconciled.”
Young added “we found this ... to be true at the Billings Area Office, and a perfect example of the [high] standards employed ... by said office.”
“In closing we ... commend ... Billings ... for the lead they have taken over the years ... in the IIM ... system ...”
If you refer back to earlier chapters, you will see that every part of Rodney Young’s report is false, both on my authority and according to the Inspector General’s audit. What you are looking at is a fraud done by Rodney Young, a BIA official who openly lied to suppress an honest report. You see this often within BIA; an investigation of fraud is itself done in a fraudulent way which compounds the error. Did Rodney Young get fired? Of course not.
While he was commending the area office for great work on the IIM system, an embezzlement was taking place from the IIM accounts at the Fort Peck Agency.
BIA has heard this evidence from me about Rodney Young. Do you think they fired him for fraud? In response to the evidence you see, BIA’s chief employee (Deputy to the Assistant Secretary of Indian Affairs), William Ragsdale, had this to say in a letter to Senator Baucus on December 17, 1987 , about Rodney Young:
“Those who know him and have worked with him testify to his commitment to the Bureau of Indian Affairs and to the goal of accurate accountability to the Indian People. Mr. Henry’s vague remarks implying that Mr. Young is not serving the Bureau with integrity appear to be slanderous in nature, and are not what one would expect from an individual with credentials such as Mr. Henry’s.”
If you care to review what is above, you will find that my remarks about Rodney Young are not vague. The evidence of fraud is there for you to read, and I call it fraud. I can not call the fraud deliberate, because I can not see into Rodney Young’s heart. You have the facts; what does it look like to you? I call Rodney Young a deliberate liar, a supporter of the cover-up, and BIA’s chief career employee (William Ragsdale) part of the problem.
The type, style and format of the report signed by Rodney Young is used almost exclusively by CPAs, and Young is not a CPA. He does work directly for a BIA CPA, Jim Parris. I assume the report was prepared under the supervision of Mr. Parris, because it bears all the marks of a CPA. If Parris was involved with it, and it certainly looks like he was, he is a party to the fraud and his CPA certificate should be revoked.
I did not know about all of this until later, and the next thing that happened after the performance rating was on July 23. I was serving on a committee, and a meeting was held on July 23, 1986 by David Pennington, Chairman.
This was called the IMPL committee. The letters aren’t important as the group is best described as collecting information about various computerized systems within BIA. It was to report to Washington about how these systems were functioning and to report whether on not the systems were completely installed and in place. It so happens that the list of systems to report on included the IIM trust system described in an earlier chapter.
I had been appointed as a member of the committee representing the Financial Management department. David Pennington, who headed the Land and Minerals department was serving as both Chairman and Recording Secretary that day. To the best of my knowledge Benjamin had not passed on my information to higher authority despite repeated urging for over six months, so I saw this as an appropriate forum to report the IIM problem directly to higher authority. Yes, after waiting for six months I was going over the head of my supervisor. There was absolutely no doubt in my mind that this was required of me by my professional standards.
When it came time for my report, here is what I said to Mr. Pennington. I know exactly what was said, because I wrote it down at the meeting, and Pennington read the words back to me to be absolutely certain the report was exact and correct. I have my handwritten notes from that day. My report was:
“From an accounting standpoint the IIM system is out of control, not covered by proper accounting controls, and there is a strong indication of a substantial cash shortage in the Area Office.”
I asked Pennington to read the words back to me. He wrote them down and read them back exactly as shown above. I asked him to put this in the minutes of the meeting, and he said he would.
My report was the most interesting thing that happened at that meeting, so I’m sure the others present would remember it. On August 5, 1986 I received a typed copy of Pennington’s minutes of the meeting. My report had been omitted; there was no mention of it. Forging or changing official government records is a criminal offense, and Pennington did just that. When I last checked, in 1992, Pennington was still a BIA supervisor.
The meeting took place near the end of the day. When I arrived at work the next morning, I had a message to report immediately to Joe Gourneau, the Assistant Area Director. I knew I was in for big trouble. Gourneau reprimanded me for making the committee report. He had information about my report and said he was disturbed by it.
Gourneau also mentioned, as an unrelated matter, that at the Fort Peck Agency the BIA cashier had not deposited roughly $750,000. in receipts and that there had apparently been an embezzlement from the IIM trust accounts there.
I had passed a point of no return, and events started to move rapidly towards my dismissal. On July 28 Benjamin wrote me a memo referring to my committee report about the $7.5 million, and stated that “there was not a shortage.” Again we have a play on words, since Benjamin elected to call it an excess rather than a shortage. If it was an excess, then he could deny that there was a shortage.
He directed me to prepare a full report, which I gave to him on August 11, 1986 . That report defined the issues and defined the terms short and over. From here on in, Benjamin always stated that I said the cash was short and I was wrong because it was not short. That just disguises the issue.
I believe you have enough information now to understand how the BIA hierarchy works to keep employees in line. I’ll skip over the remainder of the happenings lightly, and then cover the appeals process with other federal agencies. Benjamin wrote me on September 24, stating “action still may be taken to separate you from your position,” and then on September 26, there was a letter of discharge, and I was fired. Both letters were filled with the usual innuendo, and you can’t protect yourself from unproved allegations like that.
Benjamin called me into his office late on a Friday afternoon. He had a five page letter that I was to read and sign a receipt for. He did not look me in the eye, and never again looked directly in my eyes on the several occasions I have seen him since. Other people have asked me how I felt at the moment of being fired, so I will tell you to the best of my ability.
I was stunned. The letter was a rambling personal assault filled with unsupported accusations and innuendo. I was insubordinate and my personal conduct was unsatisfactory. I was accusing him and fixing blame on him. I was arrogant for suggesting system improvements, and offering to work on “fixing” problems. I failed to work within the system. All my reports were taken as personal accusations against him.
I was surprised at my own feelings. I felt no anger at Benjamin. Hurt, certainly, and sorrow. My basic emotion was shame, not for myself but for Bill Benjamin. I was terribly sorry for him. I did not dislike Bill then and I don’t dislike him now. Bill is intelligent and knew he was doing a deliberate wrong. I felt sorrow at the discovery that he could sink to such depths, lie for the record, and do what amounted to bearing false witness against another for his own personal benefit.
Benjamin used the trick I had heard of years earlier during police training. I was a volunteer Deputy Sheriff in Ohio , and graduated from Ohio police training. We were told that if ever we had to strike a person twice in making an arrest, the defendant’s attorney would say “this brute of an officer struck the defenseless prisoner repeatedly, again and again, time after time, over and over.” The device is called puffery.
Benjamin used puffery. My reports about the defective OIG report were “highly irresponsible,” and I was “in the habit” of doing (whatever) again and again, and repeatedly. I was constantly accusing him. When he could find nothing specific, he found fault with “apparent implications.” My language was “insulting and abusive” and I “tried to make” fellow workers feel incompetent. I ask you, if a person IS incompetent are you supposed to somehow fill them with self confidence? I had continually refused to accept government policies and so forth.
For a few days after being fired I was on terminal leave. Over the next two years I wrote roughly two thousand letters, many with multiple copies and containing exhibits. If I was going to honor my ethical standards, it seemed best to stay and fight rather than give up and run away from the problem. It will help you in learning about BIA (and other federal agencies that support it) to know what I found in almost eight years of full time work appealing for justice.
I was unable to find a job, so before long I filed for unemployment benefits. Benjamin responded to the unemployment office that I was fired for willful misbehavior, so there were no benefits. There is no effective appeal to an employer’s claim. If Benjamin says misbehavior, then misbehavior it is in the eyes of the unemployment office.
During this period the Internal Revenue Service suddenly decided my tax returns needed an audit. I had taken a deduction for the loss of my household goods from the U-Haul trailer theft in Nevada . To report to work at BIA, I had to buy new underwear, socks and the like so I’d have something to wear at the office. I deducted the cost of these items that replaced what was stolen, but the IRS agent would only allow the cost of used underwear at garage sale prices, and so on. We could not reach an agreement, so now I owed taxes that I simply had no way to pay. As a former tax accountant, I know that I had a right to appeal at a higher level, and I requested the hearing, but none resulted. I was assessed with the additional tax, no appeal allowed.
Perhaps the IRS exam was a coincidence. What would you think if you had been the whistleblower and it had happened to you? The record is very clear that IRS audits have been used as reprisal in other cases.
There were three telephoned death threats from a disguised male voice. In addition several friendly people expressed their concern that I might be killed, and someone who should know told me my telephone had been bugged and my mail was being read by federal agents. I did my best to take none of this with alarm, but for a few days I carried a pistol in my pocket.
Several times, not at my request or with my prior knowledge, I was shadowed by Indian men who also parked at night in sight of my house. I did not recognize these men, but they were protective, not threatening. I felt the protection was not needed. From marks in the winter snow I could tell that sometimes one slept at night in a sleeping bag on the snow outside my bedroom window.
At one temporary job in Billings a giant of a man sat in his car outside, and if I came out on a break he walked over to stand beside me. I really do mean giant, I’m six foot two but I had to strain my neck to look up at this Indian who had the build of a professional wrestler. The accountants I worked with sometimes looked out the window in disbelief to see him waiting there. I knew who this man was and we spoke to each other, but I asked him no questions and he gave no reason for being there.
I have no idea if these guards came on their own or if some tribe or person sent them. There was some comfort in having guards, but it also caused me alarm to know that others felt my life was in danger. People of the caliber I was dealing with are reputed to have people killed when it is in their best interest.
If all else fails, there is a strong urge to call the police. The FBI has police power on federal lands and Indian reservations, and is charged specifically with investigating crimes against Indians. The FBI office in Billings is just a few doors down the hall from BIA.
I wrote the Billings FBI office on June 22, 1987 , giving them a report of the fraud and offering them access to my papers and evidence. I phoned a month later, and was told my letter was forwarded to their Butte , Montana office. I phoned the FBI in Butte , and was told that Agent Kelly Hemmert would return my call. Agent Hemmert, I’m still waiting.
In April, 1988 I wrote the FBI again with more information and offered cooperation and evidence. The FBI did not respond, and to this date has shown no interest. If you research the history of the FBI in dealing with Indian matters, you will find that they respond with strength and guns when Indians complain too loudly. The strength is not used for Indians, it is used to stifle their freedom and civil rights.
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