In this section of the report, we discuss whether EOUSA Deputy Director John Nowacki provided senior department officials with inaccurate information about whether Goodling used political or ideological affiliations to screen candidates for EOUSA detail positions, and whether Goodling discriminated against a detailee candidate on the basis of her alleged sexual orientation.
Goodling’s Discrimination Against a Detailee on the Basis of Sexual Orientation
Nowacki graduated from Evangel College in 1994 and from Regent University Law School in 1998. He worked in the Department’s Office of Public Affairs from November 2003 to March 2006, and then served a 6-month detail as a Special AUSA in the Eastern District of Virginia. In August 2006, he transferred to EOUSA as a Schedule C, political appointee as an EOUSA Deputy Director.
Nowacki told us that he was contemporaneously aware that Goodling used political affiliation to screen EOUSA detail candidates. Nowacki cited the applicant for an EOUSA counterterrorism detail (Candidate 1, described above) as an example of how Goodling discriminated against Democrats. Nowacki also stated that EOUSA Associate Counsel Voris told him that Goodling rejected extending an EOUSA detail because the detailee was a Democrat. Nowacki stated “in a number of cases Monica Goodling did take political considerations into account in detailee hiring.”
We found that Nowacki concealed from Department officials his knowledge that Goodling used political affiliation when assessing candidates for EOUSA details after the Department received an inquiry from a reporter regarding this issue. On March 29, 2007, Ted Goldman, a reporter for the Washington, D.C. legal weekly publication Legal Times, sent an e-mail to Tasia Scolinos and Brian Roehrkasse, then Director and Deputy Director of OPA, and Nowacki seeking comment on an allegation that Goodling had used politics to assess candidates for EOUSA detail positions. Goldman’s e-mail read in part:
Several longtime ausa’s are telling me that the detaillee [sic] program at the eousa has become far more politicized than ever before. here’s the quote i’m using. if you’d like to give me a response, i’d very much appreciate it:
“Historically, there are assistants from all over the country, EOUSA picks up their salaries, it’s been going on a long time, it’s a big deal,” says another assistant U.S. Attorney. “She [monica goodling] has taken over the vetting of detaillees and did it in a very political way. It’s no longer the recommendation of assistant U.S. Attorneys or merit, but ‘Are you active in politics, which party are you active for,’ it’s very blatant, and not very subtle. If you’re not the right stripe, you’re not coming to Washington.”
Shortly after receiving this e-mail, Nowacki forwarded it to Acting EOUSA Director Steven Parent. In his e-mail, Nowacki commented, “Steve – Let's talk about this tomorrow. It’s crap.” Similarly, Nowacki sent an e-mail to Scolinos and Roehrkasse regarding Goldman’s query and commented, “This is, to the best of my knowledge, largely crap. Let’s discuss tomorrow.” When we asked him about these e-mails, Nowacki first stated that he did not recall what he meant when he described the allegation as “crap.” Nowacki later stated that when he used the word “crap” he was being dismissive of the allegations.
During our interview of Nowacki, however, he acknowledged that the Legal Times’ allegations were accurate, because Goodling was taking political affiliation into account in making decisions about detailees.
We found that on March 30, 2007, the day after the reporter’s inquiry, Parent, Nowacki, and Scolinos exchanged drafts of a statement to send Goldman in response to his query. Several senior officials in the OAG were also copied on some of the e-mails containing draft responses. The sequence of e-mails and their recipients showed that at 11:26 a.m. on March 30, Nowacki e-mailed Scolinos a draft reply to Goldman that stated in part:
The process to select candidates has nothing to do with party affiliation. To suggest that those career employees who have been selected to serve details to EOUSA is based on anything but professional experience unfairly detracts from those career employees and is simply wrong.
Nowacki acknowledged in his interview that he drafted this statement, and said he thought it was edited by Parent. Nowacki argued the statement in the draft that “[t]he process to select candidates has nothing to do with party affiliation” was accurate at the time it was made, because Goodling was no longer with the Department and the statement was written in the present tense. Nowacki claimed that he thought he was drafting a description of the current practice. When asked about the last sentence of the document, Nowacki stated that he thought that sentence also was accurate because he had no evidence that Goodling used political affiliation to select candidates; he only had evidence that Goodling used political affiliation to veto candidates.
Several minutes after sending the first e-mail on March 30, at 11:33 a.m. Nowacki e-mailed Scolinos an alternative draft response to be issued in Parent’s name that stated in part:
In my tenure with EOUSA, I am not aware of any attempt to screen candidates on the basis of party affiliation by anyone, including Monica Goodling; that issue simply has never come up in any interviews in which I have participated. To suggest that those career employees who have been selected to serve details to EOUSA is based on anything but professional experience unfairly detracts from those career employees and is simply wrong.
At 12:16 p.m., Scolinos e-mailed Parent a draft response to the Legal Times’ allegations containing the language quoted above from Nowacki’s 11:33 a.m. e-mail. The e-mail was copied to OAG Deputy Chief of Staff Courtney Elwood, Counselor to the Attorney General Matthew Friedrich, Acting OAG Chief of Staff Chuck Rosenberg, Roehrkasse, and Nowacki. Scolinos stated in the e-mail that the quotation would go to the Legal Times in Parent’s name, and that she wanted “to confirm that you are comfortable with this and that this is accurate.”
Nowacki told us he did not tell any of the recipients, including the three senior OAG officials, that he had personal knowledge that Goodling did in fact use political affiliation to assess EOUSA detailee candidates.
Ultimately, the Department did not respond to the Legal Times e-mail inquiry that Goodling had politicized the hiring of EOUSA detailees. Scolinos told us that OPA may not have responded because both she and Rosenberg were concerned that they did not know all the facts. Similarly, Parent said he did not want the statement to be attributed to him since he was not sure of the facts.
However, we concluded that Nowacki’s actions in suggesting these responses, which he knew to be inaccurate, were improper and constituted misconduct. Nowacki acknowledged in our investigation that he knew at the time he wrote this statement that Goodling had used political affiliation to screen at least some EOUSA detail candidates. He reasoned that the draft statement was true because it would have been attributed to Parent, who did not know that Goodling used political affiliation to evaluate EOUSA detailee candidates. Nowacki did not disclose his knowledge to EOUSA, OPA, or the OAG. Instead, he told his supervisor and OPA senior managers that the allegations that Goodling had politicized the detailee hiring process were “crap,” and he drafted a response for public release that contained inaccurate statements. Nowacki also failed to inform EOUSA, OPA, and the OAG that they were considering issuing a public statement that was inaccurate.
In this section, we examine whether Goodling discriminated against an AUSA detailee on the basis of her alleged sexual orientation.86
In October 2005, an AUSA was detailed to EOUSA to work on Native American issues. She had been an AUSA since 2002, and had previously been a Republican elected office holder in her home state. As discussed below, we found evidence that, in part on the basis of this AUSA’s alleged sexual orientation, Goodling prevented an extension of the AUSA’s detail in EOUSA, attempted to prevent her from obtaining a detail to the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) in the Office of Justice Programs (OJP), and attempted to prevent her from obtaining a position with the Office on Violence Against Women (OVW).
In the summer of 2006, the AUSA’s supervisor at EOUSA, Dan Villegas, offered her an extension of her EOUSA detail, which she accepted. Later, in October 2006, Villegas and the U.S. Attorney for whom she had worked told the AUSA that her EOUSA detail would not be extended. Villegas told the AUSA that EOUSA Deputy Director Nowacki had been instructed by Goodling not to extend the detail. The AUSA said that Villegas also told her this was a political decision and was not based on her performance. In fact, the AUSA’s 2006 performance appraisal, which covered her detail at EOUSA, rated her performance as “Outstanding” on all performance elements, the highest possible appraisal.
Villegas told us that the AUSA had done a great job and he wanted to extend her detail. He said he asked Deputy Director Nowacki to extend the detail, but Nowacki said he would have to check. Villegas did not specify with whom Nowacki had to consult.
Nowacki told us that he asked Goodling whether the AUSA’s detail should be extended, and Gooding said that it should be terminated. Nowacki said that when he raised the issue of the AUSA’s detail extension with Gooding, he told Goodling that he did not have a problem extending it because “everyone says she does a great job, she’s well regarded.” Nowacki said that Goodling told him that EOUSA details should only be for 1 year. Nowacki said that Goodling then brought up the issue of the AUSA’s “relationship in progress” with her U.S. Attorney “and made it clear just that she thought that was inappropriate.” Nowacki said that Goodling’s decision was based, at least in part on the allegations that the detailee and her (female) U.S. Attorney were involved in a sexual relationship. Nowacki said he informed Villegas that the detail would not be extended because of a new EOUSA policy that strictly limited details to 1 year.
Villegas told us he did not believe Nowacki’s explanation for the termination of the detail because Villegas was aware of only two people whose details ended after 1 year – this detailee and another detailee from the same USAO.
EOUSA Associate Counsel Voris told us she also supported the extension of the AUSA’s detail, but that Goodling opposed it. Voris said that the AUSA was one of two AUSAs in the country with credibility with domestic violence groups, which was a significant issue in the AUSA’s work in EOUSA on Native American matters. Voris said she told Goodling and Nowacki that the AUSA was doing a good job. Voris said she told Nowacki that she disagreed with the denial of the detail extension, but Nowacki told her that his hands were tied.
Several witnesses told us that Goodling’s opposition to the extension of the detail was based at least in part on the AUSA’s alleged sexual orientation. Voris said that when she told Goodling she supported the detail extension, Goodling responded that Voris did not know the AUSA as well as she thought she did. Voris said that Goodling then told her that the detailee had a homosexual relationship with the U.S. Attorney in the AUSA’s USAO and that the two took trips together at government expense.
Voris told us she believes that the AUSA’s alleged sexual orientation was a factor in Goodling’s decision not to extend the detail, but did not know if it was the only reason. Voris said that Goodling’s decision may also have been due to an allegation that the AUSA and U.S. Attorney took government trips together and because the AUSA allegedly received large bonuses.
EOUSA Director Battle also told us that Goodling opposed the detail extension because Goodling had problems with the AUSA’s alleged sexual orientation.
EOUSA Deputy Director Nowacki told us that Goodling had told him that the AUSA and her U.S. Attorney were involved in a relationship, and that the staff at the USAO resented the relationship. Nowacki said that Goodling told him this because Nowacki had informed Goodling that the U.S. Attorney was upset with him for refusing to extend the detail. Nowacki stated that he came away from his meeting with Goodling with the sense that her personal views on homosexuality probably played a role in Goodling’s decision not to extend the detailee’s detail.
John Kelly, the EOUSA Chief of Staff and Deputy Director, told us he heard rumors about the alleged relationship between the AUSA and the U.S. Attorney before the detailee had arrived at EOUSA for her detail. He said he told both Battle and Goodling about the rumors, which included both the sexual relationship and allegations that the U.S. Attorney gave the AUSA large bonuses. According to Kelly, Goodling reacted to this information by putting her head in her hands and asking why no one had told her about this information before the AUSA was detailed to EOUSA.
The AUSA told us that the rumors were false and that she was not involved in a sexual relationship with her U.S. Attorney. Similarly, the U.S. Attorney denied that she and the AUSA were involved in a sexual relationship.
After the AUSA learned in October 2006 that her EOUSA detail would not be extended, she applied for a detail with the Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office in OJP.87 According to the AUSA, on November 1, 2006, she interviewed with OJP Chief of Staff Nick Tzitzon, who offered her the detail position at the end of her interview. However, she said she did not hear from Tzitzon for several months.
On December 18, 2006, William Mercer, who at the time was the Principal Associate Deputy Attorney General, sent an e-mail to OJP Assistant Attorney General Regina Schofield asking when the AUSA was to assume her duties in the SMART Office.88 Schofield replied that “Monica called Nick [Tzitzon] and expressed concerns abt the detail but never countered her references or offered alternatives for immediate staffing concerns. After giving her a month, I told Nick to release the paperwork on [the detailee] last week.”
Schofield told us she told Mercer that she wanted to hire the detailee for the SMART Office. According to Schofield, however, Goodling had called Tzitzon and told him that she did not want OJP to hire the detailee, but Goodling did not explain why. Tzitzon confirmed to us that Goodling called him and asked that OJP put the detail on hold and refused to give Tzitzon any reasons for her request, saying that she could not tell him the reasons.
Tzitzon’s account of his conversation with Goodling was confirmed by former OJP Deputy AAG Cybele Daley. Daley told us that she was in Tzitzon’s office either during his telephone conversation with Goodling or shortly thereafter. She stated that Tzitzon told her that Goodling had requested that OJP not accept the AUSA as a detailee, and that she did not provide reasons for that request.
As a result of Goodling’s request, Schofield called several people to try to find out Goodling’s reasons. Schofield told us that she learned from discussions with several people, although she did not recall who, that it was alleged that the AUSA had a homosexual affair with her supervisor, a U.S. Attorney. Schofield told us that allegation was not relevant to her assessment of the AUSA’s qualifications, and she offered the AUSA the detail despite Goodling’s objections. On February 1, 2007, the AUSA was detailed to the SMART Office, despite Goodling’s request that the AUSA not be given the detail.
Schofield said the AUSA was doing a good job at the SMART Office, and would renew her SMART detail. The AUSA told us she was not aware that Goodling had opposed her detail to the SMART Office.
We also learned that in 2006 Goodling had tried to prevent the AUSA from obtaining a detail to the Office of Violence Against Women (OVW) because of Goodling’s belief about the AUSA’s sexual orientation. At the time, Mary Beth Buchanan was the Acting Director of OVW in addition to being the U.S. Attorney for the Western District of Pennsylvania. Buchanan stated that in approximately December 2006, when the AUSA’s detail at EOUSA was ending, the AUSA’s U.S. Attorney asked Buchanan to consider hiring the detailee at the OVW.
Buchanan said she called EOUSA Director Battle to find out why the AUSA’s detail was not going to be extended. Battle told her that she should talk to Goodling. Buchanan said that Goodling told her that the AUSA and the U.S. Attorney were involved in a relationship, and that it would not be appropriate for the Department to do anything to further that relationship, such as employing them in the same geographic area. According to Buchanan, at that time the U.S. Attorney was trying to find a position in the Washington, D.C. area. Buchanan said she understood that Goodling was telling her not to select the AUSA because it would look like the Department was sanctioning the homosexual relationship. However, Buchanan said that the AUSA had never actually applied for a detailee position in the OVW.89
We concluded that Goodling refused to extend the AUSA’s EOUSA detail, and tried to block her SMART detail and potential detail with OVW, because of Goodling’s perception of the AUSA’s sexual orientation. The AUSA had done well in the detailee position in EOUSA, and was well qualified for the SMART detail, yet Goodling prevented the extension of her EOUSA detail and sought to prevent her from obtaining other details. Several witnesses provided credible testimony that one of the reasons for Goodling’s actions was the alleged sexual orientation of the AUSA.90
Both 28 C.F.R. Section 42.1(a) and standard OARM job announcements state that Department policy prohibits discrimination based on sexual orientation. We concluded that Goodling’s actions violated Department policy and federal law, and constituted misconduct.91
In addition, we believe Battle should have raised concerns about Goodling’s actions. In this instance, Battle knew that Goodling had considered sexual orientation as a reason to deny the AUSA an extension of her EOUSA detail. As discussed above, Battle also told us that he knew that Goodling was discriminating against a candidate for a career SES position in part on the basis of his political affiliation (EOUSA Deputy Director Candidate #2), and had discriminated against a candidate for an EOUSA detail (Candidate #1) because of his wife’s political affiliation. We believe that Battle, as Director of EOUSA, should have raised concerns about Goodling’s actions with Goodling’s supervisor, Kyle Sampson, the OIG, or OPR.
Finally, we believe that OJP senior management, which resisted Goodling’s request to deny the AUSA a detail to the SMART Office, deserves credit. OJP AAG Schofield found the allegations about the AUSA to be irrelevant, and to her credit, even in the face of opposition by an official in the OAG, offered the detail to the AUSA.
We learned of this allegation during the course of our investigation of Goodling’s actions, and therefore address it in this report. We did not, however, conduct a comprehensive examination of whether Goodling discriminated on the basis of sexual orientation against others.
The SMART Office’s mission is to prevent convicted sex offenders from repeating their crimes. The SMART Office establishes and maintains the standards for the Sex Offender Registration and Notification Program and also oversees grant programs regarding sex offender registration and notification.
Mercer told us that he had encountered the AUSA at a social function, and she discussed with him the fact that she had not heard back from OJP regarding the SMART detail. Mercer said that because he knew that the AUSA’s EOUSA detail was ending, and because he wanted her to be detailed to the SMART Office, he sent an e-mail to Schofield asking about the AUSA’s status. In his e-mail response to Schofield, Mercer indicated he was pleased that OJP would offer the AUSA the detail.
Although Buchanan stated that the AUSA never applied for an OVW detail, we found a December 9, 2006, e-mail from the AUSA to Buchanan in which the AUSA told Buchanan that her EOUSA detail was ending, and that she was available to assist Buchanan at the OVW. The AUSA attached her résumé to that e-mail. There is no evidence that Buchanan responded to the AUSA’s overture.
As noted above, several witnesses told us that Goodling may have opposed the AUSA’s EOUSA detail extension, or her potential details to the SMART Office or to the OVW, in part because of the claim that the AUSA had benefited financially from the alleged relationship with her supervisor, the U.S. Attorney, by allegedly improperly receiving large bonuses and taking trips at government expense with the U.S. Attorney. Even if these allegations were true – and we reached no such conclusion – the other evidence described above indicates that Goodling’s actions were motivated at least in part by the AUSA’s alleged sexual orientation. Moreover, even if Goodling’s acts were based solely on the financial allegations, her actions would be wholly inappropriate. The allegations regarding the AUSA’s financial benefits were never formally investigated or even referred for investigation. Goodling’s actions, therefore, were based solely on unproven rumors.
The Civil Service Reform Act does not specifically reference sexual orientation. However, it is a prohibited personnel practice to “discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant...” 5 U.S.C. 2302(b)(10). The Office of Personnel Management has “interpreted this statute [2302(b)(10)] to prohibit discrimination based upon sexual orientation.” See http://www.opm.gov/er/address2/Guide04.asp.