BOSTON — Personnel management in NOAA's Office of the General Counsel for Enforcement and Litigation (GCEL) has been lax and ineffective, thwarted by union resistance, according to a report to the U.S. Senate by the Commerce Department inspector general.
But where CGEL was aggressive, giving an attorney a $2,000 bonus while in the midst of completing a case that shattered — improperly, according to a special judicial master's review — the New Bedford scalloping business of Larry Yacubian, the IG questioned the action.
The study looked at the period of 2005 through the fall of 2009, after the Obama administration had filled the top position at the National Oceanic and Atmospheric Administration with Jane Lubchenco.
"We found GCEL's process for evaluating the performances of its enforcement attorneys to be essentially pro forma," and involved "fundamental inattention to the basic requirements for completing appraisals ... reflecting a lack of proper care and regard for this important performance management function," the report said.
Dated Dec. 14, 2010, the report was sent to Lubchenco by IG Todd Zinser.
It was released by the Subcommittee on Federal Financial Management, Government Information, Federal Services and International Security on Monday at the start of the Faneuil Hall hearing into NOAA's use of the Asset Forfeiture Fund and related issues.
U.S. Sen. Scott Brown told the hearing NOAA had produced only a small number of documents requested and those were delivered last Friday. "We only got 20 percent of the documents," he said.
The IG's report into the personnel management of the office of about 16 enforcement and ligitation attorneys was heavily redacted before it was released to the subcommittee.
But Zinzer wrote that the then assistant general counsel for enforcement and litigation "acknowledged that the appraisals had been generic, cursory and incomplete. He also advised us that NOAA was exploring a multi-level appraisal rating system ... but that implementation required negotiation with the union."
But back in 2001, during the trial of the case against Yacubian, which was bitterly fought up to the U.S. District Court and then back down to the administrative law judge system and involved charges that Yacubian had fished illegally, the report discusses at length a "problematic statement and questionable timing" for the $2,000 bonus to an attorney.
His identity is redacted in the report, but according to Yacubian's attorney Pamela Lafrenniere and other government documents, including the report of Special Master Charles B. Swartwood III last month, the attorney was Charles Juliand.
The IG highlights the justification statement: "It was a high stakes game and the respondent was fighting back as he stands to lose his licence and his livelihood and be fined $250,000.
"We find it relevant to your reform efforts that GCEL's justification for the award ... would characterize an enforcement case ... as a 'high stakes game,'" Zinser wrote.
In his first report in January 2010, Zinser found that GCEL attorneys in Juliand's Gloucester office, which oversaw fishery law for New England and the Mid-Atlantic region, were levying fines as much as five times larger than other regions.
Swartwood concluded there was credible evidence that "money was NOAA's motivating objective" in the case that ruined Yacubian's career and life in New Bedford.
To settle the case, Yacubian sold a farm which had been in his family since colonial times.
"In 2004, on the very day when we sold the family farm ... we boarded a plane to Virginia where we saw our son, Capt. Lawrence G. Yacubian leave to serve in Afghanistan," he read from a prepared statement as lead witness in a panel of five representing industry.
"He later served in Iraq, and was awarded a Bronze Star for Meritorious Service in Combat. It is still hard for me to accept that unsupervised federal employees working in a rogue agency could be allowed to run amok in this nation that I love," he told the panel and audience in Fanuiel Hall.
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