1

An Analysis of the October 2013, Washington Examiner Article

communications response by:

George H. Cohen, Director of FMCS

Internal, non-confidential, email communications from George Cohen,

Director, FMCS, on October 24, 2013 to the employees of Federal

Mediation and Conciliation Service, (FMCS), in response to Washington

Examiner, 5-Part Series, October 1 thru October 7, 2013

*Note the words in bold and highlight of the statement are explained

below through definitions that contradict the truthfulness of the

“official” statement by the FMCS Director, George H. Cohen*

Consisting of 2 files:

Part I – the Analysis of Director Cohen’s Statement

Part II – excerpt from the thousands of pages that reflect the

official complaints, emails (conflicts Mr. Cohen’s statements), obtained thru discovery, FOIA,

and excerpts from public domain, FMCS Website

2

Table of Contents

An Analysis of the October 2013, Washington Examiner Article communications response by: ................ 1

George H. Cohen, Director of FMCS ......................................................................................................... 1

Internal, non-confidential, email communications from George Cohen, Director, FMCS, on October 24,

2013 to the employees of Federal Mediation and Conciliation Service, (FMCS), in response to

Washington Examiner, 5-Part Series, October 1 thru October 7, 2013 ..................................................... 1

*Note the words in bold and highlight of the statement are explained below through definitions that

contradict the truthfulness of the “official” statement by the FMCS Director, George H. Cohen*............. 1

Proposition: ..................................................................................................................................... 3

Background: .................................................................................................................................... 3

Key Words and Definitions: .............................................................................................................. 3

Federal Personnel Rules – excerpt - 42 C.F.R. Part 2; Freedom of Information Act (FOIA) ................. 3

Exception ......................................................................................................................................... 3

Privacy Act ....................................................................................................................................... 4

Analysis of: The Statement issued on October 24, 2013 by George H. Cohen ................................... 5

Watchdog: Just Sign Here ............................................................................................................................. 7

A five-part series by the Washington Examiner watchdog team ....................................................... 7

Bureaucrats at tiny federal agency FMCS buy legions of luxuries with purchase cards ..................... 7

Reckless spending goes straight to the top at FMCS ......................................................................... 7

FMCS executives forced whistleblower to retract fraud complaint ................................................... 8

Federal officials cede power to contractors who write themselves sweetheart deals .......................... 8

Wounded vet blew whistle on FMCS, rewarded with pink slip, harassment ...................................... 8

Statement from FMCS in response to the Examiner's questions ........................................................ 8

Elements in this series ...................................................................................................................... 9

Got tips? .......................................................................................................................................... 9

FEDERAL MEDIATION & CONCILIATION SERVICE SALARIES, 2012 ...................................................... 9

Whistle-blower on leave; culprits off 'scot-free' ............................................................................. 10

Comments for .............................................................................................................................. 12

Whistle-blower on leave; culprits off 'scot-free' ............................................................................ 13

3

Proposition:

The official statement made by the President of the U.S. appointee, Director George Cohen, who

is also a registered ABA attorney in the District of Columbia, made is false in content, is

misleading, and was structured to deflect the current negative situation of his Agency.

Background:

From October 1, 2013 thru October 7, 2013, the Washington Examiner featured a five-part series

on Federal Mediation and Conciliation Service (FMCS), 2100 K Street, NW, Washington, DC

on outstanding allegations, substantiated by the review of thousands of pages of documents

secured by discovery and information contained in the following official complaints and records:

Case Numbers: Information accessible through the Freedom of Information Act (FOIA)

and public records from case numbers: Office of Special Counsel (OSC): OSC DI-12-

523, OSC MA-12-019 & OSC MA-12-2422 prohibited practices, fraud waste and abuse,

gross mismanagement of funds and government property charges outline: Merit Systems

Protection Board (MSPB) Case #DC-0752-13-0152-I-1.

Federal Equal Opportunity Employment Cases #FMCS-003 and #FMCS-002, Reports of

Investigation Equal Employment Opportunity Complaint; Congressional Inquiry

Documents of Congressman Van Hollen of Maryland

Academic paper, Case Analysis: Toxic Leadership, presented for review at the THIRD

International Conference on Engaged Management Scholarship, Atlanta, GA, September

2013.

Key Words and Definitions:

Federal Personnel Rules – excerpt - 42 C.F.R. Part 2; Freedom of Information Act (FOIA)

FOIA covers information that an individual requests about someone else or something that is not

specifically about the requesting individual. Under the provisions of FOIA, agencies must release

to a requester all agency-held information on the requested subject unless it is protected by one

of several specified exemptions. With respect to requests for information dealing with the

performance of other employees, one such FOIA exemption prohibits agencies from releasing

such information. This exemption holds that FOIA provisions do not apply to matters that are in

"personnel and medical files and similar files, the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy" (5 U.S.C. 552(b)(6)). In other words, because of the

personal nature of performance information, FOIA protects the rated employee's privacy.

Exception

If, however, an agency receives a court order signed by a judge ordering the release of

information, it must do so. If an agency receives the same kind of order from an administrative

law judge or an arbitrator, the agency decides whether to honor the order.

4

Privacy Act

The Privacy Act covers information that individuals request about themselves that is

Government-held information contained in a system of records. A system of records is defined

by law as "...a group of any records under the control of any agency from which information is

retrieved by the name of the individual or by some identifying number, symbol, or other

identifying particular assigned to the individual" (5 U.S.C. 552a(a)(5)).

Misleading – deceptive, ambiguous, confusing, false, disingenuous

Spurious – meaning false, bogus, fake, forged, counterfeit, imitation, specious, unauthentic,

sham, illegitimate, phony

Whistleblowers – anyone who reports any prohibited practices or unethical behavior to the

proper authorities.

See attachments that contradict the truthfulness of Mr. Cohen’s Statement

5

Analysis of: The Statement issued on October 24, 2013 by George H. Cohen

Dear FMCS Colleagues:

As some of you are no doubt aware, beginning on October 1, the Washington Examiner published a

series of articles that we believe to be misleading and filled with errors. The articles focused on

allegations made by a former employee, and reiterated by another former employee, who were

purported to be “whistleblowers.” As with a previous article covering many of the same

allegations, we did not comment on the specific matters raised by the reporter because, as you

know, the Agency is prohibited under Federal Personnel rules from discussing specific personnel

matters involving Agency employees.

Since this article, like the one published previously, attacks the reputation of FMCS and of a number

of our employees by name, there are some matters that are important for you to know. First and

foremost, I am personally offended that many of our colleagues were made the subject of these

spurious allegations without any kind of corroborating investigation or even so much as a

phone call from their accusers to check the facts. I can assure you that as soon I was informed of

the initial allegations by the employee identified as the source, we took immediate action in

response, and I simultaneously notified the employee of my action.

The actions I directed, with the support of Agency leadership, included taking steps to ensure that

the Agency’s internal processes and procurement practices met federal regulations. Additionally,

after we took those steps and in response to additional concerns raised, I immediately sought a

review by an outside, independent authority. That independent reviewer investigated the allegations

and concluded by recommending some process and procedural changes. The Agency took steps

immediately to implement those changes. The reviewer specifically did not advise any disciplinary

action, noting that the individuals who appeared to be responsible for the practices reviewed were

no longer employed by FMCS. In the course of following the reviewer’s advice, the Agency did refer

one matter to an outside agency for investigation. FMCS cooperated fully in that investigation,

which has subsequently been closed with no finding of wrongdoing by the Agency or any individual.

All of these matters have been extensively scrutinized and, since the conclusion of the independent

review and investigation, the Agency has been the subject of an independent audit with no negative

findings.

Nothing has altered my view, as communicated to you the last time an article appeared rehashing

these allegations. All of us at FMCS take great pride in our outstanding record of accomplishment

and this Agency’s hard-won reputation for excellence. While the recent media attention is

regrettable, it by no means alters the true facts of our record as an agency and certainly not the

standards and values that we uphold on a daily basis. Ironically, I am sending this memo shortly

after the extraordinary efforts of Commissioner Greg Lim, working closely with Scot and me, resulted

in the resolution of a strike that highlights the importance and value of the work FMCS does every

day. The BART strike, during which 2 employees tragically lost their lives, negatively impacted over

Comment [SCP1]: The documents supported at attachment “A” show that the Washington Examiner and Federal Times Article are indeed true.

Comment [SCP2]: According to the definition, the whistleblowers met the legal criteria by reporting unethical behavior… Thus, this statement of “purported” is also untrue. The whistleblowers affirmed that this statement is untrue by the Case Numbers Reported: Case Numbers: Information accessible through the Freedom of Information Act (FOIA) and public records from case numbers: Office of Special Counsel (OSC): OSC DI-12-523, OSC MA-12-019 & OSC MA-12-2422 prohibited practices, fraud waste and abuse, gross mismanagement of funds and government property charges outline: Merit Systems Protection Board (MSPB) Case #DC-0752-13-0152-I-1

Comment [SCP3]: Exceptions to this Federal Rule are unlawful and criminal acts that can be reported… The use of this as an “excuse” not to tell what has been reported to law enforcement is just that – an excuse

Comment [SCP4]: Spurious, according the definition provided indicates that Mr. Cohen is calling everyone “else” a liar and that there are no records, in official capacity, as noted in the above case numbers, to support these allegations… Again, Mr. Cohen has decided to purposely withhold the truth from his own staff. Instead, he has reiterated what the whistleblowers have said all along… attack those who will not comply with the unethical and prohibited personnel practices of FMCS.

Comment [SCP5]: Not true, the investigator limited his inquiry to information provided by FMCS, as the Washington Examiner paper disclosed, these employees “are” still employed by FMCS!!

Comment [SCP6]: Not true, refer to OSC case files

Comment [SCP7]: Not true, check out attachment 2, section II

Comment [SCP8]: If anything said in the media where not true, rest assured that FMCS’ legal team would be all over it…

Comment [SCP9]: See attached records – excerpt from the above mentioned official complaints that show, by name, direct actions – emails, as well as financial reports, section II

6

400,000 commuters per day and resulted in an estimated economic loss of over 70 million dollars per

day.

We will continue to strive for excellence each day and to maintain the high standards for integrity

and commitment to duty that have always distinguished FMCS. We welcome your input, questions,

and the continuation of your valued suggestions for improvement.

Sincerely,

George

George H. Cohen

Director

Federal Mediation and Conciliation Service

Refer to Attached excerpts of documents that reflect this statement is not true

Comment [SCP10]: Not true, if this letter is an indicator of the high standards for integrity and commitment, then FMCS still has a long road ahead.

7

Watchdog: Just Sign Here

A five-part series by the Washington Examiner watchdog team Share on print Share on email 88

Bureaucrats at tiny federal agency FMCS buy legions of luxuries with purchase

cards

BY LUKE ROSIAK | 10/01/13 12:11 PM

Part one of a five-part Washington Examiner series, "Just Sign Here: Federal Workers Max Out at Taxpayer Expense." See the entire series at this link. One federal employee leased a $53,000 take-home car with taxpayer money in apparent defiance of federal regulations and regularly billed the... Read More…

Reckless spending goes straight to the top at FMCS

BY LUKE ROSIAK | 10/02/13 11:02 AM

Top officials of the FMCS lavished taxpayer funds on themselves, made the phantom company of a recently retired employee one of their largest vendors and spent tens of thousands of dollars on storage spaces near their homes. Part two of a five-part Washington Examiner series. Read More…

8

FMCS executives forced whistleblower to retract fraud complaint

BY LUKE ROSIAK | 10/03/13 12:02 PM

FMCS employees' use of purchase cards amounted to rampant violation of federal procurement law, specialists say, and when an employee wrote to the GSA to ask for a compliance review, the agency director and another top official forced her to send a “retraction.” Part three of a five-part... Read More…

Federal officials cede power to contractors who write themselves sweetheart deals

BY LUKE ROSIAK | 10/04/13 07:46 AM

Officials at theFMCS effectively ceded control to outside contractors who helped write their own contracts and became angry when asked to compete for work, according to official emails reviewed by the Washington Examiner. Part four of a five-part Washington Examiner series. Read More…

Wounded vet blew whistle on FMCS, rewarded with pink slip, harassment

BY LUKE ROSIAK | 10/07/13 05:11 AM

Weeks after Tanya Pelcher-Herring told oversight bodies that the Federal Mediation and Conciliation Service was breaking federal contracting rules and wasting tax dollars, the agency terminated her employment for not reporting to work. Read More…

Statement from FMCS in response to the Examiner's questions

"These items which the Examiner is inquiring about appear to have been the subject of a now-settled employment dispute involving a

disgruntled FMCS employee. These purchasing issues were addressed in the settlement, but must remain confidential under federal personnel rules, as noted, in the absence of a release from the employee.

"When FMCS became aware of this employee's concerns about the Agency's procurement practices, we took immediate actions. These actions included taking steps to ensure that the Agency's internal processes meet federal regulations. Additionally, we obtained a review by an outside, independent authority regarding FMCS procurements made over a period of years. We conducted a prompt and thorough investigation and a review of our own internal processes. With the settlement of the employment dispute, the conclusion of our own investigation and reviews by outside authorities, the allegations were dropped and outside authorities indicated they would take no further action."

9

Elements in this series

Tuesday: Bureaucrats at tiny agency buy legions of luxuries with purchase cards

Wednesday: Reckless FMCS spending goes straight to the top

Thursday: FMCS heads forced whistleblower to retract fraud complaint

Friday: Federal officials cede authority to outsiders who write own contracts

Monday: FMCS fired whistleblower wounded vet after ICU stay

Got tips?

Do you know more about what's going on at the FMCS -- or any other federal agency? Contact Luke Rosiak at lrosiak@washingtonexaminer.com.

FEDERAL MEDIATION & CONCILIATION SERVICE SALARIES, 2012

10

Whistle-blower on leave; culprits off 'scot-free' Jun. 23, 2013 - 06:00AM | By SEAN REILLY | Comments

Federal Mediation and Conciliation Service whistle-blower Berkina Porter, shown with her attorney, Kevin Owen, discusses agency

procurement abuses. (Mike Morones / Staff)

Personnel

Labor Management Relations

When Berkina Porter took the job of director of administrative services at the Federal Mediation and

Conciliation Service in January 2010, she figured she would retire from there. But within months, she

found that the agency was leasing a Lincoln MKS luxury sedan with an employee’s purchase card,

spending extra for access to the Golf Channel and paying a company linked to a former employee more

than $20,000 to do work with no contract on file.

In February 2012, an inspector general’s review substantiated Porter’s allegations that agency personnel

had improperly used their purchase cards. But by that point, the agency had placed her on paid

administrative leave as a prelude to her planned dismissal and Porter was seeking protection from the

Office of Special Counsel as a whistle-blower. Under the terms of an OSC-brokered March settlement,

FMCS will keep paying Porter her $136,000 salary for up to another year while she looks for full-time

work. FMCS, which is furloughing employees because of sequester-related budget cuts, also agreed to

cover Porter’s attorney fees and pay her $72,500, which will be parceled out in the form of an annuity

starting in 2016 that will pay her $508 per month for the next 15 years and four months. The annuity — in

lieu of a lump-sum damage award that would have been subject to much higher income taxes — is in

addition to her federal pension. Neither side admitted wrongdoing.

Porter and her attorney, Kevin Owen, said they know of no agency officials who have been disciplined

over the epsiode.

While Porter, 52, fears the episode may end her federal career, others at the agency have gotten off

“scot-free,” she said in an interview.

An independent agency founded in 1947 with field offices around the country, FMCS is charged with

helping to settle strikes and other labor disputes. Early this year, for example, it helped end the impasse

between the National Hockey League and the players union that forced the cancellation of hundreds of

games in the 2012-2013 regular season.

The agency’s director, George Cohen, an Obama administration appointee who has headed the agency

since October 2009, declined to be interviewed or to respond directly to written questions from Federal

Times on FMCS’s handling of Porter’s case, its management practices or whether anyone has faced

sanctions over the case. However, the agency took “immediate actions” to meet federal regulations after

Porter raised concerns about the agency’s procurement practices, including bringing in the IG to conduct

an independent review, Cohen said in a statement.

Comment [SCP11]: This car was not replaced by the Agency until the whistleblowers made their complaints public

Comment [SCP12]: If the statements were untrue, then why was there a settlement?

11

“More generally, you may be assured that when an FMCS employee raises concerns that call any agency

practices into question, we take those concerns very seriously,” Cohen said.

But Porter’s account — buttressed by hundreds of pages of records — suggests that Cohen and other

senior officials at first impeded her efforts to make changes and then retaliated. In an April letter to Porter

closing out her case, the Office of Special Counsel said its investigation had found evidence that FMCS

officials “took and proposed personnel actions at least in part because of your protected activity,” a

reference to whistle-blowing. OSC declined to clarify whether it was referring to Cohen.

For Porter, a Virginia native who started her career more than 30 years ago as a temporary GS-3

clerk/typist with the Navy, the FMCS GS-15 job was supposed to cap a steady ascent that included

assignments with the Coast Guard and Justice Department. With responsibility for contracting, property

management and other areas, it was also an opportunity to put all her skills to work, she said. “I thought it

was going to be really, really wonderful.”

What she found instead dismayed her. FMCS, with headquarters in downtown Washington, was spending

about $9,000 annually for Deer Park bottled water even though federal rules generally bar the practice.

The agency’s DirecTV service included an extra $29.95 monthly charge for the Golf Channel. And

although about two dozen of the agency’s approximately 240 employees had purchase cards, none had

the required authorizations or training on how to use them.

While agencies are supposed to go though the General Services Administration in procuring cars, for

example, FMCS was using a purchase card to make monthly payments on a $29,400 three-year Lincoln

MKS lease, a copy of the agreement indicates.

The purchase card making those monthly car payments belonged to Marcus Lawson, an agency

customer service specialist. In an interview, he confirmed that Porter flagged the payments and other

“questionable” agency practices. “As far as I know, that was the nature of the way things were going on at

the time,” he said, referring to the vehicle lease.

“In my eyes, it [Porter’s management approach] was a positive,” Lawson said.

Porter also halted payments to a Pennsylvania company called The Papers Edge, which had received

almost $21,000 for phone system installation and other services in 2009, purchase card records indicate.

But Porter couldn’t find any invoices or a contract showing what the firm was supposed to do. According

to online corporation records, a company principal is Chuck Burton, who retired from FMCS several years

ago. Repeated efforts to reach Burton at the company’s listed phone number were unsuccessful.

Also retired is Dan Funkhouser, Porter’s immediate predecessor as administrative services director. In a

phone interview last week, Funkhouser did not dispute that Burton’s company worked for the agency, but

could provide no details on what it did.

“I just don’t remember, and I would feel uncomfortable trying to remember,” Funkhouser said, noting that

he no longer has access to FMCS records. He also declined to discuss other management issues raised

Comment [SCP13]: Cohen continues to forget that there are records to support the truth, while he continues to publish statements that do not reflect the truth past and “current”

Comment [SCP14]: Regardless of whether OSC declined to comment or not, if it is referred to the Agency, then it must also be referring to the Agency Leadership – You cannot be a leader and accept the good things and cower when the bad things are brought to light.

12

by Porter that date back to his tenure. “It’s been too long,” he said. “I have my opinions about Ms. Porter,

but that’s better coming from somebody that actually worked with her.”

Within six months of taking the job at FMCS, Porter’s unease with the agency’s handling of purchase

cards had reached the point that she agreed with an employee’s idea to report the problems and seek

training help from GSA, which sets policy for the program as a whole. When her superiors found out, she

said, “all hell broke loose.” Cohen, she said, told her not to go outside the agency; she was soon given a

four-page “memorandum of counseling” by her immediate supervisor, Chief Financial Officer Fran

Leonard. Leonard and other top managers also declined comment.

Over time, the friction escalated. In early 2011, Porter, who is black, said she learned that senior officials

planned to hire a white man to fill a newly created position to oversee her procurement work. They

backed off, she said, after she filed a discrimination complaint.

After she turned to OSC for help late that year, FMCS officials began an investigation of her performance,

Owen said. In January 2012, Porter was placed on administrative leave and walked out of the building

without explanation. According to Owen, the agency later said she failed to disclose a 2009 bankruptcy

on a required financial disclosure statement, even though the statement, known as an Office of

Government Ethics Form 450, does not specifically mandate that bankruptcies be reported. She has been

on paid leave ever since.

A little more than a year before being placed on administrative leave, Porter had unsuccessfully sought a

Government Accountability Office investigation into the agency’spurchase card use and other activities.

Cohen again rebuked her for going outside the agency, she said, but agreed to a review of the purchase

card program. Because FMCS lacks its own inspector general, he turned to David Berry, IG for the

National Labor Relations Board.

In a February 2012 letter to Cohen dated about two weeks after Porter was put on leave, Berry verified

that purchase cards had been used “to circumvent FMCS procurement process and other internal

controls.” Besides the Golf Channel subscription, Berry noted that the agency had been using purchase

cards to pay for some employees’ home Internet service without adequate justification and had written

checks from the purchase card account for what “appeared to be ‘holiday’ bonuses” for maintenance staff

at the agency’s headquarters.

While FMCS seemed to be getting the program under control, Berry said, his letter also noted that he had

spoken to FBI agents. He declined to comment last week on whether he was aware of any criminal

investigation; an FBI spokesman would not confirm or deny the existence of an inquiry. Owen would say

only that he and Porter have been in contact with federal investigators.

Apart from a part-time teaching job with a private university, Porter said she has not worked since last

year. Despite applying for numerous federal positions, she has gotten no callbacks or interviews. Her

tenure at FMCS, she said, may have left her permanently “blackballed.”

Comments for

13

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Sharon Kurash · Top Commenter

Instead of blackballing an employee who has an eye to following proper financial procedures,

EVERY SINGLE supervisor who tried to obstruct her should be immediately terminated and

lose their pension. That would send a message to the cheaters out there who try and ruin a

persons career when they are trying to do the right thing. That woman should be overseeing the

Military procurement program at one of the major branches and given a big fat pay raise.

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· June 24 at 4:34pm

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Deborah N Edward Smith · Virginia Union University

Why do we have whistle blower clauses just for the whistle blower to be the one to be penalized.

The government is supposed to be for the people by the people. If the average citizen did half of

the actions taken by personnel in this story they would be in jail. If the head is corrupt how can

you justify penalizing the body. In this case Mrs. Porter is being punished for doing what's right

and we as the people need to call the head into accountability for it's action. We must speak out

because our silence means we consent. Mrs. Porter is just one of many whistle blowers who have

suffer such disgraceful treatment for following the rules. WE MUST SPEAK OUT! We want

Justice!

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· June 25 at 8:08am

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Charles Patterson · Works at US Postal Service

Every employee found to be stealing government monies should be removed and prosecuted to

the fullest extent of the law. What good is the whistle-blowing laws if this the consequence.

Submit Query

Cynthia D. Washington

So excited about creating our Waste, Fraud and Abuse Division WFASTOP

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· June 25 at 4:25pm

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Ken Huffman · Top Commenter

SOP! Findings of the IG should have carried more weight. Porter's fortunate the involved IG was

from a different agency. Apart from being generally lazy, non proactive, and often incompetent,

they tend to become duplicit with agency management.

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· June 23 at 7:38pm

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Wayne Barrette

Can we really sustain viably this way?

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· June 24 at 1:29pm

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Wayne Barrette

My keyboard on this damn device is going to drive me insane. Viability is what that should say.

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· June 24 at 1:34pm

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Robbie McDuffie · Strayer

This is injustice; how can you blame a person who is standing up for right and doing her job.

Where is the person who's place she took, oh; I forgot he has retired and he doesn't remember.

Ms. Porter walked into a job that was corrupted from the word "go". This woman needs to be

reward instead they are throwing her under the bus. Keep your head Ms. Porter.

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· June 26 at 4:42pm

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Kevin Glover · Top Commenter · Theodore Roosevelt High School

INTEGRITY AND FAITH BEFORE ALL ELSE, NUFF SAID!

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· June 25 at 6:36pm