The U.S. Commerce Department confirmed Thursday that it has received and is reviewing the second report from Special Master Charles B. Swartwood III, made up of more than 60 case studies of complaints of improper law enforcement actions by fishermen and fishing businesses primarily in Massachusetts ports, especially Gloucester and New Bedford.
"Special Master Swartwood has finished his work on Phase 2 of his investigation," a Commerce Department official said in an email to the Times. "Review and consideration of the report and its recommendations are ongoing. Decisions will be released via a memorandum once the ongoing process is complete," said the official, who was authorized to comment on condition of anonymity.
The first report of more than 30 complaints found 11 that wronged the accused badly enough to warrant a recommendation for reparations. The then-Commerce secretary, Gary Locke, now ambassador to China, adopted virtually all the recommendations and issued a public apology and distributed more than $600,000 in reparations, including to some fishermen and businesses in Gloucester.
Before the first report was filed with Locke in April 2011, he reopened the window for new appeals of findings and settlements, dating back to 1994. The additional opportunity gave Swartwood the 66 cases that he has reviewed and reported his findings to Locke's successor, John Bryson.
Initially, Swartwood was retained by Locke to pursue loose ends and new leads following the last of a series of reports by Inspector General Todd Zinser into complaints that the fisheries law enforcement system at the National Oceanic and Atmospheric Administration had become vindictive, capricious and rudderless.
Locke, however, found that the violations and failures were systemic and resulted from a lack of leadership and guidance, so no punishments were meted out.
The director of law enforcement, Dale Jones, was reassigned, as were the cadre of agents and litigators in the Northeast regional office in Gloucester. But NOAA Administrator Jane Lubchenco, citing the Privacy Act, refused to make public any actions taken against Jones or lesser officials who may have violated the rights of the accused or interfered with the investigation itself.
Zinser testified to Congress that Jones organized and authorized the shredding of most of the official documents in his office during the investigation. Zinser also testified and later reported in detail on the misuse of the Asset Forfeiture Fund, made up of the penalties paid by fishermen.
The decision of Locke to employ Swartwood — the chairman of the Massachusetts Ethics Commission and a retired U.S. magistrate — to rectify miscarriages of justice reversed the intention of Lubchenco, who — based on advice from her chief counsel Lois Schiffer and NMFS Administrator Eric Schwaab — sought to reform the system without looking back to make wronged victims whole.
In a letter from Swartwood to Locke's successor, John Bryson on Feb. 22, the judicial master wrote that he had "prepared and sent to NOAA personnel provisional (agents, litigators, managers and executives) findings of fact in 66 cases, have received responses from NOAA personnel in all but five of those cases and expect the remaining responses to be filed on or before Feb. 28."
The letter was posted on the NOAA Law Enforcement website.
Swartwood wrote that he was "in the process of finalizing my report and recommendations which I estimate will be completed in four to six week" — or, by the middle of April.
Copied were Cameron Kerry, Commerce Department general counsel (and the brother of Sen. John Kerry), and Deputy General Counsel Geovette E. Washington.
Bryson on Monday took a paid leave of absence to deal with what he described as a "medical" problem following a bizarre driving experience last Saturday in suburban Los Angeles: he was involved in three minor collisions, two with the same car, and police found the secretary unconscious in the driver's seat of his car.
Bryson was cited for felony hit-and-run but formal charges were not filed, pending the toxicology report. The Commerce Department described Bryson as having suffered a "seizure."
In taking leave, his duties and authority fell to Deputy Secretary Rebecca Blank, who also served as acting secretary during a period of weeks last fall between Locke's resignation become ambassador to China and Senate confirmation of Bryson.
In that period, Swartwood wrote his first interim report to Blank, explaining that he was nearly finished with review of case files and had completed interviews with about half the complainants.
Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.
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