MSPB rules VA violated former employee's constitutional rights

Tuesday - 4/5/2011, 7:52pm EDT

CORRECTION: Kevin Owen said VA's lead IG investigator William Tully did not destroy evidence in the case of Adair Martinez, only that some e-mails were not retained as part of the case. Federal News Radio erroneously reported that evidence had been destroyed. The story reflects the correction. Federal News Radio regrets the error.

By Jason Miller
Executive Editor
Federal News Radio

A Merit Systems Protection Board judge ruled that Adair Martinez was wrongfully fired by the Veterans Affairs Department, and the agency violated her 5th amendment rights.

MSPB judge Lynne Yovino ruled April 1 that Roger Baker, VA's assistant secretary in the Office of Information and Technology and chief information officer, did not give Martinez due process to respond the allegations by the agency's inspector general. Martinez was the VA deputy assistant secretary for information protection and risk management organization.

The VA IG issued a report in August 2009 detailing allegations against Martinez that ranged from contracting and hiring fraud to personal misconduct.

Yovino ruled that Baker did not give Martinez due process as required under the law.

"I find that, by concurring in the Inspector General's findings concerning the appellant's violations, as opposed to finding that appropriate action should be taken, Mr. Baker determined the appellant was guilty of those violations which then formed the basis of the charges in the notice of proposed removal," Yovino wrote in her decision. "In my view, because Baker's testimony was tainted by his prior review of the evidence and concurrence in the violations, his later claim that he nonetheless provided the appellant with a meaningful opportunity to reply is unavailing."

A VA spokeswoman said the agency is reviewing the decision. VA has until May 6 to appeal MSPB's ruling.

Martinez's attorney Kevin Owen said the agency must start paying Martinez again as well as give her more than a year's worth of backpay and attorney's fees. VA terminated Martinez's employment on Feb. 5, 2010.

If VA decides to appeal, it would go to a three-person panel at MSPB to decide on the motion. If the agency loses that decision, it could take the case to the U.S. Federal Court of Appeals.

"My client should be put back in her previous role," said Owen, an attorney with the Law Offices of Gary M. Gilbert and Associates. "My client feels the decision is bittersweet because, yes she prevailed, but she hadn't had a chance to bring her case to the public. The testimony was able to show overwhelming evidence that the charges were false."

Owen said VA IG "cherry-picked" the facts from witnesses and the fact investigators did that came out during the MSPB review.

"This case shows there is a bigger problem with the VA's IG office," Owen said. "There was evidence that showed the IG offered bonuses for investigating and being able to put on their website reports that substantiate employee wrong doing. We saw emails bragging about website hits for their reports."

Owen said the judge's decision is the first he's heard of that was based on the due process clause of the Constitution.

He said there had been case law in other courts, including the U.S. Supreme Court, but not before the MSPB.

"The statute says MSPB's jurisdiction does not permit the recovery of damages, just back pay, her former job and any attorney's fees," Owen said. "Ms. Martinez is not looking for damages. She's looking to get her name cleared and get her job back. She's excited about the decision and wants to get back and move on."

Under Baker, VA has reorganized its Information and Technology Office and folded many of Martinez's old duties into the chief information security officer's role, which is now held by Jerry Davis.

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