GloucesterTimes.com, Gloucester, MA

July 1, 2010

Audit cites wide fund abuse by NOAA cops

By Richard Gaines
Staff Writer

Tens of millions in fines levied against U.S. commercial fishermen held in an unrecorded account were used by the fisheries law enforcement division of the National Oceanic and Atmospheric Administration to fuel extravagant purchases and foreign travel, according to a forensic audit for a U.S. inspector general made public Thursday.

Among the discoveries by the accounting firm KPMG, brought in by Department of Commerce's IG's office, was that NOAA police own more vehicles "by a substantial margin" than they have officers — 202 vehicles for 172 officers.

The audit also found multiple purchases on the same day from the same vendor, six-figure overseas' convention spending and the purchase of 22 vessels — including a $300,000 "undercover" vessel described by the manufacturer as "luxurious," with a "beautifully appointed cabin." All of those purchases bypassed internal review, the audit found.

In all, the mess of an asset forfeiture fund — used by the police and legal divisions — was of a magnitude greater than estimated by the initial investigators of IG Todd Zinser.

While the Asset Forfeiture Fund was loosely estimated last spring to involve $8.5 million, the forensic audit concluded that NOAA fisheries law enforcement may have brought in as much as $96 million over 41/2 years through June 2009 and spent $49 million via more than 82,000 transactions.

Although the investigation of the fund covers only as far back as January 2005, the police chief, Dale Jones, was appointed in 1999 late in the administration of President Bill Clinton.

Jones apparently was removed from his office — if not the payroll — in March after Zinser announced at a congressional oversight hearing here in Gloucester, the epicenter of resistance to NOAA law enforcement and fisheries management policies, that his teams had evidence Jones misused the fund for personal overseas travel.

The next day, at a different oversight hearing into NOAA law enforcement abuses in Washington, Zinser made another major accusation — that Jones had ordered the shredding of documents while the IG's investigation was nearing its conclusion.

The only subsequent notice of the law enforcement scandal that followed, however, was a cryptic announcement from NOAA that a career fisheries manager had been named acting head of law enforcement. The announcement of the departmental change did not even mention Jones' name.

NOAA Chief Counsel Lois Schiffer and Eric Schwaab, who heads NOAA Fisheries for chief administrator Jane Lubchenco, announced after the IG's preliminary report of police abuses that there would be no looking back or effort to rectify past miscarriages of justice.

NOAA has also fought against Freedom of Information Act requests by the Times seeking official clarification of whether Jones remains on the federal payroll.

Lubchenco did not respond to an invitation to comment Thursday, but NOAA released a statement saying the agency "expected this review, appreciates the level of detail it provides and is evaluating the data and results carefully."

"Based upon the earlier IG input and public feedback, NOAA has already taken action to improve policies, management processes and internal controls of the fund," NOAA said.

'Why aren't they in jail'?

The reaction of others Thursday was very different.

"My question is, why are these people not in jail?" said attorney Stephen Ouellette, who maintains an Atlantic Coast fishing and maritime practice and began documenting violations of individual rights and high seas police excesses in letters to Congress dating back a decade.

"There're not very nice people, are they?" said Lawrence Ciulla, president of the Gloucester Seafood Display Auction, the family business that keys the fishing port economy in Gloucester.

"This latest in a series of reports by the Inspector General appears to be yet another vindication of allegations the industry has been making for several years, namely that NOAA enforcement agents and general counsel are perversely incentized to seek fines and forfeitures grossly disproportionate to relatively minor or technical violations of complex and ever changing regulations," said auction defense attorney Paul Muniz.

Congressman John Tierney said yesterday he intends to introduce legislation to prevent future misuse of the NOAA Asset Forfeiture Fund and support fishermen who have been cleared of wrongful allegations by NOAA.

"Today, we received further evidence of the NOAA's misuse of authority," Tierney said. "It is essential that we end this culture of no accountability at NOAA and take the appropriate steps to ensure fairness and economic stability for our fishing community."

NOAA police 'slush fund'

Delegate Madeleine Bordallo of Guam, who chairs a fisheries subcommittee of the House Commerce Committee and had the gavel on March 3 when Zinser said under oath that Jones had authorized a mass document shredding, said she views the audit as spotlighting a NOAA enforcement "slush fund."

In her statement, she said the asset forfeiture account "was never meant to be a slush fund for bureaucrats to go on a spending spree with a limitless credit card — and it is of the utmost importance that NOAA establish transparent guidelines for how this fund can be used."

Still to come from Zinser is a report on specific cases and the follow up on the reported document shredding.

The Asset Forfeiture Fund — built with fines paid by fishermen for alleged violations of NOAA regulatory mandates — was "more an abstract concept than a tangible entity within NOAA," the new audit found.

So extensive was the problem that KPMG's contract with the IG's office expired before the global accounting firm could begin identifying specific irregularities, Zinser's summary indicated.

The results were seen Thursday as another powerful vindication for fishermen and others in the industry, who for years had complained to Congress and the NOAA hierarchy about abuse of authority, grudge-settling and harassment on the part of agents — all to no avail.

Probe started here

The Inspector General's Office began a national investigation one year ago in Gloucester and elsewhere in Massachusetts, and reported in January that NOAA police, primarily criminal specialists hired by Jones working in a field that is largely administrative, had wrongly treated bland oversights in reporting as if they were criminal conspiracies.

The worst excesses were found in the Gloucester-based law and police sections, from which the entire New England and Mid-Atlantic states are governed.

The turning point came last year after the No. 1 target of the police and legal offices here in Gloucester announced a third effort to punish the Gloucester Seafood Display Auction, which had refused to accede in two earlier cases.

Instead, after NOAA announced a 53-count allegation against the No. 1 sales platform for fish caught in the Gulf of Maine, its advocates — especially state Rep. Ann-Margaret Ferrante and Sen. Bruce Tarr — organized a plea for intervention from the leadership of the state legislature to halt the agents' "vindictive" law enforcement.

The cries for relief brought the congressional delegation into action, and that pressure ultimately pushed NOAA's Lubchenco to call for the Commerce Department's Inspector General to step in.

Under the administrative law system used against the fishing industry, the NOAA administrator serves as the appeals judge for cases tried in the Coast Guard administrative law system. And in April 2009, Lubchenco upheld a finding of her predecessor at the top of NOAA against the auction, despite its having won a dismissal at trial.

That finding by Lubchenco gave her regional fisheries police and litigators the material to claim the auction was facing a punitive shutdown at the hands of the federal agency.

Gloucester agent-in-charge Andy Cohen leaked information to the Boston Globe that, because of the new charges, the auction was facing temporary shutdown. But with the auction case in court, no shutdown ever occurred. and U.S. District Judge Douglas Woodlock chastised Cohen for his actions.

Richard Gaines can be reached at 978-283-7000, x3464, or rgaines@gloucestertimes.com.