VA IG responds to criticisms in Martinez case

Wednesday - 4/20/2011, 8:20am EDT

WFED's Jason Miller

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By Jason Miller
Executive Editor
Federal News Radio

The Veterans Affairs Department's Inspector General took the unusual step of publicly responding to criticism from the lawyers representing a former agency employee.

VA's IG George Opfer sent a letter to Gary Gilbert detailing over two pages specific areas where Opfer said Gilbert and some of the attorneys that work for his firm overstated or wrongly stated claims about the IG's investigation into former VA deputy assistant secretary for information protection and risk management organization Adair Martinez.

"The statements regarding the report issued by the OIG and the conduct of the investigation reflect nothing more than your personal opinions regarding the evidence, which you conspicuously omitted from the public statement and present in such a manner as to misrepresent them as findings of fact," Opfer wrote. "Your failure to cite the Administrative Judge's Order in your statement demonstrates your intent to mislead the public about the issues in this case and the initial decision. In addition to representing your opinions as conclusions of fact, your public disclosure also includes statements that are blatantly false and could be considered defamatory towards the individuals named."

Opfer's letter comes on the heels of Gilbert issuing a press release detailing the ruling of a Merit Systems Protection Board (MSPB) judge. Judge Lynne Yovino found in an initial decision posted April 1 that VA violated Martinez's 5th amendment rights to due process.

VA has until May 6 to appeal MSPB's ruling.

VA fired Martinez in February 2010 after the IG issued a report in August 2009 detailing allegations against Martinez that ranged from contracting and hiring fraud to personal misconduct.

Gilbert and attorney Kevin Owen did not respond directly to the letter from Opfer, but continued to claim the IG's work was "shoddy."

"I have not had the time to digest and determine what if any response we will have," Gilbert said in an interview with Federal News Radio. "It strikes me that the letter itself is inappropriate for the IG to send. They are a potential witness in this matter. Apparently, they've already had improper Ex Parte communications with the board. The IG should know better."

Gilbert and Owen say the IG communicated with the MSPB board chairman and Judge Yovino, but didn't include them on the initial letter.

"The clerks' letter to the VA IG indicated that having these communications was not permissible," Owen said. "MSPB regulations are clear that this type of communications is not allowable. It could open the agency or the IG to sanctions by MSPB."

VA dismisses the attorney's claims that the IG is part of the litigation and that its work was sloppy in any way.

"We stand by our report of August 2009 and OIG is not a party to this litigation," said Jim O'Neill, VA's assistant IG for investigations in an interview with Federal News Radio.

But Gilbert said Yovino said there is evidence in the discovery process from the IG as part of the basis for her ruling that shows problems with the office's work.

"It's our belief that there are deficiencies in the investigation and through ongoing litigation we will respond to whether the IG investigation was thorough and accurate," he said. "The IG employed poor investigative technique throughout the investigation. We will put out some of testimony that illustrates the considerable deficiencies in the investigation by IG."

In the IG's letter, Opfer pointed to a paragraph in the judge's ruling saying the IG's methods were not as issue in the case.

"[T]he conduct of the [OIG] investigation is not a relevant issue in this litigation and [she] would not hear any allegations of discrimination or retaliation by the IG in its conducting the investigation of the appellant," the letter quoted the judge's brief. "I will hear evidence relating to the affirmative defenses to the extent they are relevant to any communications between the IG and the deciding or proposing officials. The manner in which the IG investigation was conducted is not relevant to the issues in this appeal."

Opfer also said the IG staff did not distort testimony of witnesses as Gilbert and Owen allege.

"The testimony of witnesses interviewed during the investigation were recorded and transcribed and these transcribed interviews, including that of Ms. Martinez, comprised the evidence that VA relied on in taking action against Ms. Martinez," Opfer said.

Finally, Opfer said the comments Owen made about the lead investigators Linda Fournier and Bill Tully were "false and inflammatory."

Owen wrote in the release that Fournier destroyed evidence and Tully participated in a "scheme" where the IG gives bonuses to investigators based on the impact of their reports.

"I highly recommend that you remove the statement from your website and refrain from making any further inaccurate, misleading, false, or defamatory statements regarding the issues in this matter," Opfer wrote.

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