Special Counsel Orders Investigation of Alleged Foster Care Fraud and Coverup

“Yesterday, [10/2/14]the Government Accountability Project (GAP) announced that the U.S. Office of Special Counsel (OSC) has ordered an investigation into allegations that the Department of Justice (DOJ) Office of Juvenile Justice and Delinquency Prevention (OJJDP) improperly continued federal funding to Wisconsin under the Juvenile Justice and Delinquency Prevention Act (JJDPA).

The state allegedly violated requirements to separate foster children from adult inmates in prison or other secure detention. DOJ’s OJJDP also allegedly failed to investigate evidence that the state’s records were falsified so that, on the books, Wisconsin’s youth detention system would appear in compliance with the law. Further, the investigation must cover charges that the DOJ Office of General Counsel (OGC), tasked with ensuring the JJDPA is lawfully implemented, allowed the Wisconsin misconduct to continue through secret law – legal opinions that canceled longstanding interpretation of funding requirements in the Code of Federal Regulations (CFR). The falsified records and secret legal opinions allegedly allowed Wisconsin to receive, and continue receiving, tens of millions of dollars of illegal funding. Finally, the OSC ordered the probe to investigate charges that DOJ’s Office of Inspector General (OIG) obstructed an investigation of the misconduct. To date, neither OJJDP nor the OIG have sought recovery of any improper funding to Wisconsin.

The charges came in a whistleblowing disclosure by former DOJ OIG criminal investigator Jill Semmerling. In 2008, she was assigned to probe underlying charges raised by an OJJDP employee who had been told by a State of Wisconsin official that the books “were being cooked.” In 2013, the OJJDP employee, who remains at the agency, won a precedent-setting Whistleblower Protection Act case after suffering retaliation for her efforts to challenge Wisconsin’s misconduct. Ms. Semmerling, now retired from the OIG, was removed from the investigation in 2009 after finding evidence of widespread misconduct implicating high-level DOJ and state of Wisconsin officials. Her investigation also uncovered evidence that Wisconsin was not an aberration, but rather that DOJ officials had been winking at similar abuses nationwide. While the case officially remained open until January 2014, nearly all significant investigative work ceased in late 2009.

Under 5 USC 1213 of the Whistleblower Protection Act, employees can file disclosures with the OSC evidencing illegality, gross waste, gross mismanagement, abuse of authority, and a substantial and specific danger to public health or safety. If the Special Counsel finds a substantial likelihood the charges are correct, it may order the agency chief to investigate. On September 16, 2014, the OSC informed Ms. Semmerling that it had ordered the Attorney General to investigate. It found a substantial likelihood of misconduct for every Whistleblower Protection Act category of misconduct. The Attorney General has 60 days to investigate and report back with any corrective action commitments. Ms. Semmerling then will have an opportunity to comment on the report’s adequacy and reasonableness as a good faith resolution of her concerns. Finally, the OSC provides its own “pass fail” evaluation, after which the report and comments are sent to the President and Congress, and placed on the OSC’s website.

On Tuesday, just two weeks after the OSC’s September 16, 2014 order, the DOJ’s OIG chose to post its report of investigation into Wisconsin’s fraud on their website. The previously unreleased report was dated January 22, 2014, although no significant additional work had occurred since Ms. Semmerling’s meritless removal from the case in 2009. The DOJ OIG’s report only tangentially covers issues in the OSC order, and it neither covers the alleged multi-million dollar improper payments, nor the charges of secret law. The report’s conclusions find noncompliance in Wisconsin from 2001 to 2008; although the body indicates that non-compliance and failure to monitor detention facilities was ongoing in Wisconsin through at least 2013. Significantly, however, the OIG report confirms that despite noncompliance with the JJDPA, there has been no accountability. Wisconsin continues to receive full grant funding from the OJJDP, and no OJJDP employee has been held accountable for the malfeasance in Wisconsin or the retaliation against one of its own staff members. Most significant, the report does not address whether Wisconsin was an aberration or represented widespread abuse. The report does not include any corrective action recommendations.

Semmerling commented, “I am thankful that the OSC has ordered the investigation into my disclosure. It is the DOJ OIG’s mission to independently investigate and report waste, fraud and abuse to Congress and the public, which clearly has not occurred in this case. The lack of oversight and accountability in the administration of this grant program by the DOJ OJJDP is systemic. This systemic problem has allowed federal taxpayers’ money to be improperly awarded for years, circumventing a federal law put in place to protect abused and neglected children, who have no voice.”

Semmerling’s attorney Tom Devine added, “It is bad enough if states improperly receive federal funds designed to protect vulnerable youth. Here federal funds were received after putting child abuse victims in jail with adult offenders, and then lying about it. It is worse that Justice Department lawyers sustained this indefensible practice by secret law, through legal memoranda that canceled longstanding requirements on the books. We hope that this order is the first step toward accountability for foster care abuse victims, and accountability for those who betrayed them.””

Special Counsel Orders Investigation of Alleged Foster Care Fraud and Coverup[E News Park Forest 10/3/14]

REFORM Puzzle Piece