MSHA Gets Mere Hand Slap for Playing by Its Own Rules
By James Sharpe,
CIH
Review of a long-delayed response to a Freedom of
Information Act (FOIA) request is a disturbing reminder from the past of two unpleasant
truths: the Mine Safety and Health Administration plays by its own rules when
procedures set up to govern its behavior get in its way, and an interdepartmental
unit designed to assure MSHA toes the line was largely ineffective in policing
the safety agency.
What brings these painful realities into focus was a
contract between MSHA and a private vendor to supply the agency with a driver
to operate a leased vehicle dedicated to mail and messenger services. According
to five-year-old contract language, the agreement unequivocally stated that the
driver may transport MSHA personnel to and from locations on the mail pickup
and delivery routes, but only as an incidental function and strictly in
conjunction with the primary mission. Personnel transport “shall not take
precedence over the major tasks of providing mail/messenger services,” the deal
stipulated. Yet, despite this clear statement, the driver’s chief function was
to move people, not mail.
MSHA Plays by Its Own Rules
FOIA Memos
In 2012, as editor at the time of a newsletter focused on
mine safety, I received a tip that MSHA was abusing its courier contract, so I
filed a FOIA request on September 11 of that year for a copy of the agreement.
I also asked for logs the driver kept that chronicled the daily demands of his
job. Soon afterwards, I received a second tip alleging that agency staff had
been directed to slow-motion my FOIA request. Suggesting the tip was on point, over
a month went by with nothing from MSHA. So I shot off a second FOIA memo on
October 17, 2012. “It has come to my attention that MSHA may be unnecessarily
delaying its response” to my September FOIA submittal, I wrote. So I asked for
all communications related to that submittal among MSHA personnel and between
MSHA employees and those of any other federal agency, including the Department
of Labor (DOL). When yet another month passed devoid of anything from the
agency, I launched a third FOIA on November 15 for a copy of all communications
between the driver and members of MSHA’s executive suite.
MSHA’s response to my initial FOIA inquiry finally
arrived on December 12, 1212, more than 90 days after my request was made.
Responses to the remaining two FOIAs trickled in, but, with one exception I’ll
get to later, they were not very illuminating. The documents were unrevealing
because they were heavily redacted under either of two FOIA exemptions. One
exemption protects internal, pre-decisional
communications of government personnel if the disclosure would adversely impact
the consultative functions of government. However, since the response to my
first FOIA foray had already arrived, we were now in the unprotected post-decisional stage. On that basis, I
appealed to the Solicitor of Labor (SOL) for the redacted information. I had to
resubmit the appeal when an SOL official claimed I had not stated a reason justifying
my initial appeal. The re-appeal was filed on February 18, 2013.
The delay arising from that appeal actually made MSHA’s
obstructionism look good. Whereas the safety agency’s pokiness was measured in
months, SOL’s stretched into years ‒ over three years in fact. In March 2016,
my patience exhausted, I asked Senator Tim Kaine of my home state of Virginia for
help. Thinking, though, that I needed to drop an even bigger name, I went to
the top by contacting the White House through its website. On May 13, 11 pages
of unredacted information I had been seeking since early in 2013 finally arrived.
Recall that my last two FOIA requests to MSHA were for
internal communications which might verify agency reluctance to release the
contract and logbook entries I had asked for initially. Sure enough, the SOL documents
contained the evidence, as the following reveals. Just a week after my September
2012 filing, the documents had been rounded up. I know because they showed up
as attachments to an internal MSHA email. The next day, September 19, MSHA’s
FOIA Officer sent an email containing a simple “Per your request.” message
along with two attachments, identified as “sharpe.sf50.pdf” and
“sharpe.van.pdf,” to a public relations staffer in the agency’s executive
suite. Most certainly, those files were the contract and logbook pages. Rather
than being sent directly to me, the contract and logbook information had gone
instead to MSHA’s top brass. Later email correspondence confirmed that my FOIA
request had been discussed with a Deputy Assistant Secretary.
Hardly a coincidence, September 19 was also the day MSHA
applied the brakes. Its FOIA Officer, no doubt marching to a directive from the
corner office, messaged internally that any work on the FOIA, including the
acknowledgement letter, was to be put on hold. When the red light flashed
before the eyes of a clearly perplexed Facilities staff member who was in the
loop, he asked, “Why are they holding this FOIA?” No reply showed up in the
email paper.
Subsequent emails suggest the hold was lifted on
September 27. If so, since the documents were already in hand, it should have
taken little additional effort to get them out the door. But MSHA wasn’t
prepared to do that. In an email within headquarters that day, a FOIA staffer
stated she had been told to release an acknowledgement letter to me but to
include “that it will take ‘90’ days for us to process.” True to that schedule,
MSHA timed release of the documents so they hit the 90-day arrival deadline
nearly on the button.
A takeaway from this
experience is that, for an agency that requires mine operators to follow the
law or else, MSHA has a very flexible attitude toward laws that apply to it.
Under FOIA, federal agencies must complete requests “promptly.” It’s hard to
see how 90 days meets that requirement. Moreover, nothing in the statute
permits foot-dragging from a federal agency merely because requested documents might
make the agency look bad. As we’ll see
below, a black eye is exactly what the documents give MSHA.
Ineffective OIG Investigation
DOL’s Office of Inspector General (OIG) launched an
investigation in 2012 after DOL received an anonymous complaint alleging that “senior
executive leaders” at MSHA were using a leased luxury vehicle, a Chrysler Town
& County van equipped with leather seats, for personal travel. The
allegation caught OIG’s attention because government rules do not allow federal
workers to use government-financed vehicles for personal use. Key to the OIG
query was MSHA’s contract for courier services, the very document I was seeking
in my first FOIA. Since MSHA probably anticipated an unfavorable outcome from OIG’s
work, it surely was thinking damage control when my timely FOIA plopped into
its midst, a mindset that could explain its officially sanctioned delay in
responding to my request.
OIG could not confirm the personal travel allegation.
However, in its report released in 2013, investigators said the inquiry had
uncovered “several concerns.” The first was that the contract statement of work
did not accurately reflect the van driver’s primary duties. In reality, the
purpose of the contract was to provide transportation for high-ranking MSHA
officials on official business rather than to deliver mail and messages between
MSHA’s Northern Virginia offices, DOL headquarters in downtown D.C. and other
public and private locations. Although OIG did not say so explicitly, such use
is a clear violation of the contract. Moreover, the main focus as a people
mover meant the contract was actually a personal services agreement not allowed
by DOL. (According to the OIG report, my FOIA triggered a pow-wow over the
contract between MSHA and SOL. That led to a legal opinion that the van could
be used for independent official travel no more than 20% of the time.)
Second, there were “excessive costs” associated with the
contract and with the lease agreement for the vehicle. Specifically, MSHA was
paying the company supplying the driver $46 a hour for the worker’s services
during regular business hours and $60 an hour for overtime, when the
government’s regular hourly approved rate for contract drivers doing similar
work was $13.98. In addition, the cost for the van was $1,150 a month during
the first year of the lease, reduced to $530 and $375 a month, respectively,
during the second and third years. OIG also criticized MSHA’s decision to get the
van through a private leasing company rather than through the government’s
leasing service, where, according to an MSHA contract officer, a vehicle could
be obtained for roughly $220 a month.
In a memo to MSHA Assistant Secretary Joe Main, an OIG
official briefly summarized these findings. He then asked the Assistant
Secretary to let him know what Main planned to do regarding the issues OIG had
identified. The official asked to be copied on any documentation Main might
take should “you decide to initiate any corrective action or take any
disciplinary action as a result of this report.” On March 28, 2013, Main
responded. He said he had instructed staff to revise the contract and noted
that MSHA had acquired a vehicle through the government’s leasing service.
There was no mention of what the re-negotiation would entail or of any
disciplinary action.
The outcome of OIG’s investigation was disappointing. “[M]isuse,”
OIG’s single-word summary to describe the depth of wrongdoing, is a euphemism
for egregiously foul conduct. Although disinclined to mention it in its
investigation summary, OIG heard testimony that the travel-oriented abuse of
the contract had actually begun when the contract was first approved about a
decade before. Thus, from day one, the contract had been a scheme sanctioned by
MSHA’s top officials to skirt departmental rules. Moreover, the waste of
taxpayer funds was flagrant: in the first year of the renewed agreement, which
began on July 1, 2011, MSHA spent just shy of $124,000 for the driver alone
(the vehicle was a separate expense), twice the money stipulated in the
contract. No one had an answer for the OIG as to who approved all this money, a
significant portion of which went to pay overtime to ferry around officials before
and after the driver’s regular work shift.
Main’s silence on disciplinary action could hardly have
been an oversight. It seems likely no punishment was ever dispensed. The logs
show Main himself used the van more frequently than nearly everyone else. He
couldn’t very well punish his underlings when he was an active participant in
the scam. In fact, Main apparently took the abuse one step further. The
Assistant Secretary uses a commuter rail service for his long commute from his
home south of Fredericksburg, VA. Main’s disembarkation point has since
changed, but for about five years from October 2009 forward, the date Main
assumed command of MSHA, he usually exited the train at Union Station in the
District of Columbia. That meant he still had personal responsibility to get to
his workplace, MSHA headquarters across the Potomac River in Arlington, VA.
Yet one official told investigators there had been “ ‘some
talk’ ˮ among MSHA employees of seeing the driver pick up Main in the
government vehicle at the train station. The van driver admitted he picked up
Main at the terminal and whisked him to DOL, but “only on an occasional basis
and not [as] part of his commute to work.” Another MSHA official noted that on several
occasions after late day meetings, the driver would return the van to agency
headquarters after detouring to Union Station to drop off Main for his return
trip home. The logs show a late-day drop for Main on May 4, 2011 and morning
pickups in 2012 on January 12 and February 1. This information would seem to have
been sufficient for a deeper probe into Main’s use of the van for his personal
use, but the OIG declined go there.
In contrast, another government watchdog did take
exception to the commuting travel arrangements of a deputy director of the
Defense Intelligence Agency. In a March 29, 2013 article, the Washington Post described the commute of
a now-retired official from his home in suburban Virginia to DIA headquarters
in D.C. He would first drive his car to an intelligence facility in Northern
Virginia, park it there, briefly go into the office, then take a
government-provided vehicle for the rest of the trip. The director’s
arrangement “ ‘could be characterized as a personal limousine service based
solely on reasons of rank, position, prestige or personal convenience,’ ˮ wrote
the Pentagon’s Inspector General, who documented 43 trips to DIA headquarters
that were “ ‘essentially’ ˮ home-to-work trips at government expense. Main’s
commute was different, but his pickups and drop-offs at the train station in a government
vehicle were at the taxpayers’ expense.
Although DOL’s OIG posts its investigative reports on its
public website, to this day the MSHA probe has never been among them. We got a
copy through a FOIA request.
In the FOIA section above, we stated that there was one
exception to the bland responses MSHA sent us to fulfill our final two FOIAs.
One set of responses included driver logbooks between September 18, 2012 and
November 15, 2012. Unlike the previous set of logs we received as a result of our
first FOIA request, which documented a large number of people runs independent
of mail runs, this set was noteworthy by the absence of such references. In
other words, the logs were now being written to keep out incriminating entries.
The proximity in time between this change and our FOIA memo just a week before
may be coincidental, but we doubt it. As every mine operator knows, fudging
safety documents is a felony. Preparing washed out driver logs is certainly not
as heinous as lying about mine examiner certification or miner training, but because
its intent to deceive is still the same, the perpetrator and co-conspirators should
suffer consequences. After all, shouldn’t what’s good for the goose also be
good for the gander?
Copyright 2016, James Sharpe, CIH. All Rights Reserved.
(Reprint by Permission Only)
