, Gloucester, MA

June 20, 2011

"What does it take to get fired?" senator asks

By Richard Gaines
Staff Writer Nancy Gaines Correspondent

BOSTON — The fisheries law enforcement culture in New England, which featured bounties and bonuses and millions in fines coming and going as if managed by "cookie jar" rules, is being reformed, the head of the National Marine Fisheries Service told a U.S. Senate subcommittee Monday.

The National Oceanic and Atmospheric Administration, NMFS' parent agency, said it has put control of its funds under its CFO, made enforcement of laws more consistent with nationwide standards, and transferred the burden of proof of wrongdoing to enforcement officials.

Faith in the progress proclaimed by NMFS administrator Eric Schwaab at Faneuil Hall, while widespread among the presiding senators and witnesses, was shaky and cut with skepticism. There is no evidence that anyone who participated in the ugliness, documented by the federal Commerce Department's inspector general and a special judicial master over the past 18 months, has been called to account.

"What does it take to get fired at NOAA?" U.S. Sen. Scott Brown asked Schwaab at one point in a three-hour hearing that featured a new report by Inspector General Todd Zinser, this one focused on the small cadre of litigation and enforcement attorneys in the office of the general counsel of the National Oceanic and Atmospheric Administration, NMFS' parent agency.

"Is anybody going to be fired or being held accountable?" the Massachusetts Republican added.

"There is a distinction between being fired and being held accountable," Schwaab retorted.

The latest report from Zinser (see related story), his fourth based on his investigation of law enforcement abuses, featured a redacted description of the awarding of a $2,000 bonus to a litigation and enforcement attorney in a case described as "a high stakes game" featuring the livelihood of a fisherman fighting a $250,000 fine.

The attorney, identified as Charles Juliand by other records possessed by the Times, was singled out in the IG's final report for a series of actions and statements that amounted to conduct unbecoming a federal government attorney charged with enforcing the law.

The IG concluded that Juliand bore "animus" to fishermen and the industry.

The bonus for the $250,000 bounty was repudiated by Special Master Charles B. Swartwood III in a May report; the case drove Lawrence Yacubian out of the New Bedford scalloping business.

Swartwood wrote that a five-line email that was completely redacted by the Commerce Department provided him "credible evidence that money was NOAA's motivating objective in this case."

But Schwaab repeatedly refused to provide specifics about punishment, citing the Privacy Act, although he did assert that people have been held accountable.

Months ago, it was announced that Juliand and two colleagues in NMFS' Gloucester litigation and enforcement legal office have been reassigned, and as were agents involved in the long and determined effort to prove illegal actions by the Gloucester Seafood Display Auction.

The agents used spurious technical violations leveled at fishermen unsuccessfully to gain their help in building the auction case, according to Swartwood.

Dale J. Jones, NOAA's director of law enforcement for more than a decade, was converted into a fisheries analyst, still making more than $150,000 a year.

Both Yacubian and Larry Ciulla, president and co-owner of the Gloucester auction, were part of a fishing industry panel following the two-hour back-and-forth between Schwaab, Zinser, Brown and Sen. Thomas Carper, a Delaware Democrat and the chairman of the Subcommittee on Federal Financial Management, Government Information, Federal Services and International Security.

In May, NOAA administrator Jane Lubchenco, with Schwaab, came to Gloucester to issue a public apology to Yacubian and the Ciulla family and nine other fishermen victimized in judicial miscarriages organized in NOAA's Office of Law Enforcement and the Office of General Counsel for enforcement and litigation.

Reparations totaling more than $650,000 were distributed.

As the first witness yesterday in Boston, Schwaab sought to show that Lubchenco's administration was fixing the system. He released a five-page outline of reforms that included bringing the fund of fines, known as the Asset Forfeiture Fund, under control of NOAA's CFO. "Fishermen want a level playing field," he said.

Lubchenco declined the invitation of the subcommittee to attend

"The fund was a mess," said Carper, who described the oversight as "dog's records."

While the hearing did not have the moments of high drama that characterized a set of hearings by House subcommittees in 2010 which brought to light the free-wheeling use of the fund to acquire more vehicles than there were agents and finance overseas travel, as well as Zinser's revelation that Jones organized a document shredding that impeded the investigation by eliminating an unknown body of communiques, the Faneiul Hall hearing did focus more deeply inside NOAA's hierarchy.

"We'll never know what was in those documents," the IG told Carper, Brown and about 100 people in the historic old meeting hall.

Zinser went on to wonder how top management could transform a culture habituated to reward wrongdoing.

He added that when people get "performance rewards for bad behavior" it's hard to tell them they "did anything wrong."

"Senator Brown asked what does it take to get fired from NOAA and Mr. Schwaab responded: Long-term poor performance and misconduct," said Mayor Carolyn Kirk. "But apparently no behavior rose to those standards? My jaw drops."

She was in the audience along with New Bedford Mayor Scott Lang, and Gloucester lawmakers state Rep. Ann-Margaret Ferrante and state Sen. Bruce E. Tarr, who has been advising Brown on fisheries issues.

Carper seemed amazed that NOAA had apologized and paid reparations for harming fishermen with wrongful law enforcement, yet has kept the entire force intact albeit in different jobs or places.

"In Delaware," he said, public employees who commit such acts are brought to account, "and we're able to remove them from the service."

He added that political leadership needed to convert career employees in the lower and middle levels to accept the reforms. "You have to convince the career management to forget the acrimony and defensiveness that come with the Inspector General's report and get on with the reforms," Carper said.

Congressman John Tierney focused on Lubchenco's absence. "It is telling that, given the topic of this hearing and the request for her to testify, she is not here. It shows a lack of interest and investment in the issue at hand and leads me to continue to question if she is the right person to lead NOAA in a new direction and find solutions to the outstanding issues at the agency."

"There is a huge accountability issue," said Ferrante. She sparked the resistance to oppressive law enforcement, eventually recruiting the congressional delegation to press Lubchenco to bring in the IG in June 2009.

She said the hearing demonstrated that there are two kinds of people: "Our people in NOAA and those who aren't are those people."

Richard Gaines may be contacted at 978-283-7000 x3464 or Correspondent Nancy Gaines is the founding editor of the Boston Business Journal.