September 25, 2009
by Jared James
Hidalgo County’s levee system is at the center of a complaint filed Thursday by a former staff attorney at the International Boundary and Water Commission who accuses the agency of failing to follow federal protocol on major projects in the county.
Robert McCarthy, a former general counsel for the bi-national commission’s U.S. section — the federal agency that manages the levee system — filed a whistleblower complaint after he was fired in July.
In the 11-page complaint filed with a civil service board that investigates whistleblower complaints, McCarthy alleges wanton abuses of power at the El Paso-based agency, including illegal wiretapping of employees, a conspiracy to obtain unlawful pay raises and other examples of “gross mismanagement” by rogue employees.
Most notably for local interests, he accuses the agency of breaking the law when it contributed funds to the U.S. Department of Homeland Security’s levee-wall in Hidalgo County and for using county-owned engineering plans for repair work.
McCarthy, who worked at the IBWC for six months, said the obscure federal agency operates with little oversight from the U.S. Department of State.
“(The IBWC) feel nobody supervises them and they can do whatever they want,” McCarthy said in an interview Friday. “They’re an independent agency and nobody ever calls them out.”
Agency spokeswoman Sally Spener declined to comment on McCarthy’s case or his allegations, explaining they are part of a personnel matter that is under review.
The complaint does not prohibit the IBWC from continuing work on the county’s levees through economic stimulus package funding, she said.
McCarthy said he was fired on July 31, three days after he disclosed fraud, waste and abuse at the agency to four federal oversight agencies.
In a termination letter, U.S. IBWC Commissioner Bill Ruth said McCarthy was fired for failing to act in a constructive and collegial manner with the rest of the staff.
McCarthy’s whistleblower complaint says the agency violated a federal statute prohibiting cost-sharing between two federal agencies when the IBWC contributed $1.75 million in funds for a section of the levee-wall near the Hidalgo pump house.
Cost-sharing with Homeland Security — the federal agency tasked with building the border wall — created substantial risk “because the agency (IBWC) was funded to build flood control barriers, not border barriers,” according to the complaint.
McCarthy also alleges the agency solicited bids for a levee contract under the economic stimulus package using engineering plans prepared for Hidalgo County.
Proceeding based on designs prepared to state regulations for Hidalgo County — instead of to federal regulations — exposes the agency to the risk of design failures or contractual disputes, he said.
Godfrey Garza, the general manager for Hidalgo County Drainage District No. 1, said plans for a levee section near Granjeno were turned over to the IBWC with the county’s full support for the agency’s work.
Acting on McCarthy’s behalf, Public Employees for Environmental Responsibility — a Washington, D.C.-based group that works to uphold environmental laws — filed the whistleblower retaliation complaint with the Merit Systems Protection Board, demanding his immediate reinstatement.
The board will hear the case within 120 days, said PEER Executive Director Jeff Ruch. The State Department Office of Inspector General is investigating the claims McCarthy made before he was fired.
Last month, a news release from PEER labeled the IBWC the worst agency in the federal government, citing a 2005 State Department Office of Inspector General report that concluded “internal management problems have engulfed (the agency), threatening its essential responsibilities for flood control and water management in the American Southwest.”
Spener, the IBWC spokeswoman, responded in writing that problems identified in the 4-year-old report were cleaned up after the White House asked a former commissioner to step down following its release.
Arturo Duran left the post in late August 2005 after serving as commissioner since the prior year.
He confirmed to various news outlets that the White House had asked him to resign in the wake of a scathing report from the State Department’s Office of Inspector General. The report accused Duran of mismanagement and questioned his financial and personnel decisions, saying the agency was consequently in “disarray.”