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Project on Government Oversight




Investigation Raises Questions about Government's Sole Witness Against High-Profile Whistleblower

March 22, 2011 


The Department of Homeland Security’s (DHS’s) only witness in a high-profile whistleblower retaliation case has been demoted twice within the Transportation Security Administration (TSA), according to a government spokesman who answered recent queries by POGO. The double demotion of this witness lends weight to the whistleblower’s assertion that an arrangement was in place between the witness and the heads of the Federal Air Marshal Service (FAMS) to retaliate against the whistleblower.

The demotions of the witness also cast doubt on the credibility of the witness. Some knowledgeable observers, including the whistleblower, believe the demotions stem from an investigation last year into allegations that the witness took action against the whistleblower as part of a deal with the former leadership of the FAMS.

This new information could change the legal analysis by the Merit Systems Protection Board (MSPB), the quasi-judicial panel responsible for hearing whistleblower retaliation cases, in favor of the whistleblower.

In early March, CNN wrote about a DHS Office of Inspector General (OIG) survey sent to FAMS employees asking them about “allegations of discrimination, retaliation and misconduct within the Federal Air Marshal Service.” The new information about the witness and how the FAMS is handling him shows that FAMS is still grappling with the sins of past FAMS senior management when it comes to retaliation and misconduct within its ranks.

Many parts of the story may be familiar to POGO blog readers, but it is somewhat complex, so bear with us.

Double Demoted

Frank Donzanti, the official who ordered the termination of air marshal whistleblower Robert MacLean, is now in a position that typically receives lower pay than his previous two positions within the TSA, according to Nelson Minerly, a spokesman for the TSA. (The FAMS is within TSA, which is within the DHS.)  Each of the two positions he has been in since his termination of MacLean typically receive less pay, and are positions with reduced responsibilities -- essentially demotions.  Update: This paragraph has been modified to more accurately reflect comments made by TSA spokesman Nelson Minerly.

At the time of publication, Donzanti had not responded to detailed email and voice mail messages requesting comment.

Donzanti was the key—the only—government witness against MacLean in MacLean’s whistleblower retaliation case.

In summer 2003, MacLean disclosed information to a reporter indicating that the FAMS overspent its budget and was going to cut back its coverage on nonstop, long-distance flights to save money on hotel costs. Just two days earlier, the U.S. government issued alerts that there was a heightened risk of terrorist attacks against commercial airlines. MacLean turned to the press after his chain of command and the DHS OIG failed to act on his disclosures. The press coverage led the FAMS to ask Congress for more money so it could reverse course on their plan.

Since the information MacLean gave to a reporter was not marked with any kind of labeling to notify recipients of the information that it should not be distributed, the FAMS retroactively labeled the information “Sensitive Security Information” (SSI), which is a form of controlled but unclassified information. The FAMS retroactively marked the text message as SSI three years after FAMS sent the text message out nationally and four months after MacLean appealed his termination for being the source of the embarrassing news story. It was on the sole basis of releasing SSI without authorization that MacLean was terminated from his job in 2006. Donzanti, then the Special Agent in Charge (SAC) at the Los Angeles FAMS Field Office, signed the termination letter. Although Donzanti signed the letter, it was drafted by FAMS headquarters, specifically its human resources department, according to MSPB Administrative Judge Franklin M. Kang’s ruling.

It’s worth mentioning that by law (the “Anti-Gag Statute” in place since the late 1980s), government employees cannot be subject to discipline for disclosing information that is retroactively designated with classified markings (also known as collateral national security information like “Secret” or “Top Secret”). The principle at play is that government employees need to be notified of their responsibilities when it comes to handling controlled classified information.

According to a 1988 congressional report, “Without the classification markings on unclassified employee cannot be sure that the nondisclosure agreements' restrictions apply to that material. Consequently, they must check with their supervisors, thereby alerting them to the disclosure. That invites a chilling effect.”

However, the U.S. Ninth Circuit Court of Appeals has ruled the same principle does not apply to hybrid secrecy categories like SSI. So at least in this narrow way, the rules regarding classified information better protect whistleblowers’ and other government employees’ rights than the rules (or lack of rules) regarding controlled but unclassified information, such as SSI.

Donzanti is currently the TSA Assistant Federal Security Director for Law Enforcement (AFSD/LE) at John Wayne Airport in Orange County, CA, according to Minerly, the TSA spokesman. When Donzanti fired MacLean on April 11, 2006, he was the SAC of the FAMS Los Angeles Field Office. Until his first demotion in January 2007, he had command over hundreds of air marshals and all airport TSA law enforcement operations throughout California and Hawaii, including such major airports (known as “Category X” airports) as Los Angeles International, San Francisco International, and Honolulu International.

Donzanti’s current title may sound like a lofty one, but his position of diminished responsibilities is non-supervisory, and John Wayne is a small, Category 1 airport which ranks 40th in passenger travel.

Also, when Donzanti fired MacLean as SAC, Donzanti held the grade of SV-L. Nine months after MacLean's termination, Donzanti was demoted the first time to Deputy Special Agent in Charge and, if his payband was adjusted to reflect the typical payband of his new position, it would have gone down a notch on the pay scale to SV-K. Currently as the AFSD/LE for John Wayne Airport, his payband would be knocked down yet another grade to SV-J, assuming his new pay reflects the typical payband of his new position. TSA spokesman Nelson Minerly provided POGO with the typical paybands of these respective positions, but pointed POGO to TSA’s FOIA office for information on specific employees.

Allegations of Sexual Harassment, an Illicit Affair, and a Secret Arrangement With the Then-FAMS Director

MacLean has told POGO that he believes Donzanti was recently demoted because a TSA investigation may have substantiated complaints by numerous air marshals that Donzanti had sexually harassed co-workers and had engaged in an illicit affair with a subordinate. POGO was made privy to numerous statements by several current and former air marshals where they witnessed first-hand many of these activities.

“TSA is unable to comment on ongoing investigations and ongoing litigation,” TSA spokesman Minerly told POGO in response to detailed questions. “TSA takes all allegations of employee misconduct seriously and will take appropriate action to resolve any issues in accordance with TSA policy.”

Despite Minerly’s comment, POGO has independently learned that the investigation itself was completed several months ago, and that two reports by the TSA’s Office of Inspections/Special Investigations Unit have been distributed to FAMS management for review.

In filings with the MSPB early last year, MacLean alleged that Donzanti was having open sexual relations with a journeyman law enforcement officer. These alleged activities occurred while Donzanti was the senior-most manager of a federal law enforcement/anti-terrorism field office manned with hundreds of Top Secret clearance holders who had unfettered access to sensitive security and classified information.

Furthermore, MacLean has long held that Donzanti had a quid pro quo arrangement with two FAMS directors, Thomas Quinn and Dana Brown. (Quinn was director of the FAMS when MacLean blew the whistle, and left the FAMS a few months before MacLean was terminated. Brown was FAMS director when MacLean was fired. Prior to becoming director, Brown was Quinn’s chief of staff.) The alleged arrangement involved the protection of Donzanti—essentially making his troubles related to alleged improper relationships disappear—in return for actionsthat Donzanti took—retaliating against MacLean—on Quinn and Brown’s behalf. Using Donzanti as the deciding official in MacLean’s case gave Quinn and Brown distance from the retaliation against MacLean, MacLean told POGO.

In sum, “Director Quinn protected Mr. Donzanti from discipline for his blatant violation of Agency regulations… in exchange for Mr. Donzanti carrying out Director Quinn’s instructions to remove [MacLean],” according to filings MacLean made with the MSPB in 2010.

It has been well established, based on internal FAMS documents that have been released, that Quinn aggressively targeted whistleblowers and other air marshal employees, including MacLean, who had disagreements with FAMS policies under Quinn. Among the disagreements were FAMS policies that enabled members of the public to easily identify air marshals, who are supposed to remain undercover and blend in with the public.

Quinn did not take kindly to the dissent, which manifested itself online and in numerous newspaper and broadcast investigations. For instance, Quinn wrote in a February 11, 2005, memorandum to the DHS Inspector General and Immigration & Customs Enforcement Assistant Secretary Michael J. Garcia accusing MacLean of posting to an anonymous online message board. Quinn believed MacLean was “one of the most strident and irresponsible anti-management voices” on the message board and that he was part of a “concerted public campaign to undermine FAMS management.” In an interview for a February 9, 2007, Wall Street Journal article, Quinn accused Federal Law Enforcement Officers Association (FLEOA) of being “disgruntled amateurs,” “insurgents,” “terrorists.” A senior executive who ran the unit receiving requests for FAMS internal affairs investigations told Congress that he was “incredulous” at the “steady stream” of “frivolous charges” directed against FLEOA leadership, including MacLean, who was the Association’s executive vice president.

Quinn could not be reached at the time of publication.

MacLean isn’t alone in believing what he does: last year numerous air marshals filed with the U.S. Office of Special Counsel their belief that there was a quid pro quo arrangement. The TSA's internal affairs section (Office of Inspection, or TSA/OI) launched an investigation a year ago into this alleged arrangement, the sexual harassment claims, and the allegation that Donzanti had an improper relationship with a subordinate. The investigation is complete and is under review, POGO has learned.

As mentioned earlier, Donzanti did not respond to requests for comment. Also, TSA said it could not offer detailed comment because the matter is under investigation and involves ongoing litigation.

New Facts Could Change Legal Analysis in Whistleblower’s Favor

Regional MSPB Administrative Judge Franklin M. Kang ruled against MacLean last year. Judge Kang disregarded the seemingly disparate treatment MacLean faced compared to other air marshal whistleblowers. MacLean argued the other air marshals had engaged in similar acts, but faced far less punishment. Judge Kang, however, disregarded the other cases as not “similarly situated” to MacLean's, and limited his analysis solely to disciplinary cases under the purview of Donzanti only.

MacLean sought other witness testimony besides Donzanti’s—as mentioned earlier, Donzanti was the only witness allowed to testify in MacLean’s case before the MSPB. Other witnesses besides Donzanti were not allowed. MacLean argues other testimony would have established that his discipline was directed from the top of his agency. This may have have required Kang to take into account the other air marshal cases if Kang also would have deemed MacLean’s case as similarly situated.

Earlier, the U.S. Ninth Circuit Court of Appeals said the MSPB could determine if MacLean had "a good faith belief" that the information he released was not “sensitive security information” at the time. As mentioned earlier, the information was not marked SSI—if it truly were SSI, it should have been marked as such according to FAMS policy.

Kang said in his decision that because the text message only came from the Las Vegas office and that MacLean did not know about text messages being sent from the other 20 field offices, MacLean would have only known that the message was for Las Vegas flights only. He also said that MacLean should have known better as a law enforcement officer.

“Judge Kang completely glossed over the fact that TSA chose to send the message to our unsecured plain-jane Nokia cell phones instead of the multi-million dollar Datamaxx Group software, password protected, encrypted Palm Tungsten W smart-phones,” which were built for secure communications, MacLean told POGO. Note: After leaving the FAMS, Director Quinn immediately left to work for Datamaxx Group.

Senior FAMS Officials Get Treated Differently Than the Rank-and-File

There continues to be a pattern in which TSA/FAMS senior executives are investigated for serious wrongdoing and then quietly transfer or retire. In contrast, the TSA routinely revokes the Top Secret clearances of air marshals, sometimes for minor infractions such as travel voucher over-payments, and having out-of-state license plates.

The former SAC and the Assistant SAC of the Las Vegas FAMS Field Office were both investigated by internal affairs and later both quietly retired. The Las Vegas SAC who abruptly resigned ordered the investigation that led to MacLean's removal.

Thomas Quinn, the former TSA/FAMS director, was investigated by the House Judicial Committee and publicly scorned by its Chairman, F. James Sensenbrenner (R-WI). He also got to retire.

Donzanti’s demotions are unusual when contrasted with what rank-and-file air marshals like MacLean must go through. Rank-and-file air marshals are first investigated, frozen from any transfers, issued a proposal, placed on administrative leave and/or suspension, afforded to respond in 30 days, and it generally takes many months for the TSA Office of Chief Counsel and a TSA/FAMS senior executive to make a final decision. Such due process against Donzanti would have been extremely accelerated, and there is a long-standing TSA policy that employees cannot be transferred while under investigation or awaiting disciplinary action. MacLean wants to know whether or not Donzanti was given a special settlement that other air marshals are never offered. We asked TSA for comment on this, but the TSA told us it could not comment on investigations and ongoing litigation.

Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO's investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.

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