Attorney Misconduct, Inadequate Supervision, and Mismanagement in the Office of General Counsel

Report Information

Issue Date
Report Number
18-06501-158
VISN
State
New York
District
VA Office
General Counsel (OGC)
Report Author
Office of Special Reviews
Report Type
Administrative Investigation
Recommendations
7
Questioned Costs
$0
Better Use of Funds
$0
Congressionally Mandated
No

Summary

Summary
Following an investigation conducted in response to allegations made to the VA Office of Inspector General (OIG) hotline, the Office of Special Reviews substantiated that an Office of General Counsel (OGC) attorney was using VA time and resources to work on matters related to his outside law practice. Moreover, the OIG determined that the attorney represented private clients in U.S. bankruptcy court in cases where the clients owed money to the federal government. This conduct implicated criminal conflict of interest laws, which prohibit federal government employees from representing third parties in cases where the United States is a party or has a direct and substantial interest. The review team discovered that VA’s OGC received complaints about the attorney using VA time and resources to engage in his outside law practice as early as 2012. The OIG found that OGC's failure to appropriately supervise or meaningfully investigate the attorney's misconduct allowed it to continue. It was not until the OIG alerted OGC to this review’s preliminary findings that the OGC investigated the attorney, which ultimately led to his removal from federal employment in March 2020. The OIG's seven recommendations to the Acting VA General Counsel addressed actions to be considered in light of the attorney's misconduct and OGC officials' prior failures to take prompt appropriate action. These included revision to the OGC's relevant guidance and how OGC identifies and advises its employees who have outside employment. OGC was also asked to consider whether it should implement a supplemental regulation requiring some employees to disclose and obtain prior approval before engaging in outside employment. VA’s OGC concurred with all recommendations.

Open Recommendation Image, SquareOpenClosed and Implemented Recommendation Image, CheckmarkClosed-ImplementedNot Implemented Recommendation Image, X character'Closed-Not Implemented
No. 1
Closed and Implemented Recommendation Image, Checkmark
to General Counsel (OGC),Human Resources and Administration/Operations, Security, and Preparedness (HRA/OSP)
The Acting VA General Counsel confers with the Designated Agency Ethics Official and the Assistant Secretary for Human Resources and Administration to determine whether any remaining administrative action should be taken with respect to the Attorney’s conduct.
No. 2
Closed and Implemented Recommendation Image, Checkmark
to General Counsel (OGC)
The Acting VA General Counsel confers with the Designated Agency Ethics Official to determine whether VA should take any further action with respect to the Attorney’s representation of private parties in matters currently pending in U.S. federal court in which the United States is a party or has a direct and substantial interest to address any other government ethics issues.
No. 3
Closed and Implemented Recommendation Image, Checkmark
to General Counsel (OGC)
The Acting VA General Counsel determines what, if any, obligation the Office of General Counsel has with respect to reporting the Attorney’s conduct to the relevant disciplinary authority under Rule 8.3 of the New York Rules of Professional Conduct or any other governing authority.
No. 4
Closed and Implemented Recommendation Image, Checkmark
to General Counsel (OGC)
The Acting VA General Counsel determines the appropriate action to take, if any, with respect to Mr. Hogan’s failure in his official duties to take appropriate action.
No. 5
Closed and Implemented Recommendation Image, Checkmark
to General Counsel (OGC)
The Acting VA General Counsel determines the appropriate action to take, if any, with respect to the Deputy Chief Counsel’s failure in his official duties to take appropriate action.
No. 6
Closed and Implemented Recommendation Image, Checkmark
to General Counsel (OGC)
The Acting VA General Counsel confers with VA’s Designated Agency Ethics Official to revise its November 8, 2019 memorandum. The revision should at a minimum (a) emphasize all criminal conflict of interest statutes relevant to outside employment, (b) ensure appropriate time for supervisory review of confidential financial disclosure reports to identify potential conflicts or other issues, (c) identify the official responsible for ensuring that the annual risk assessment focused on outside activities is completed on an annual basis to assist Chief Counsel in identifying employees with outside employment, (d) engage employees with outside employment in formal discussions regarding applicable ethical rules and the consequences of noncompliance, and (e) document the annual meetings and formal discussions they have with employees.
No. 7
Closed and Implemented Recommendation Image, Checkmark
to General Counsel (OGC)
The Acting VA General Counsel confers with VA’s Designated Agency Ethics Official to determine whether VA should consider implementing a supplemental agency regulation requiring VA employees, or any category of employees, to disclose and obtain prior approval before engaging in any outside activities for which they receive compensation in accordance with 5 C.F.R. § 2635.803.