THE CHIEF GETS HER DAY IN COURT

A summary of the First Two Days of The Administrative Hearing

 

 

After months of gag orders and behind-the-scene machinations, ousted U.S. Park Police Chief Teresa Chambers finally got her day in court and with it a chance to tell her side of the story and to confront her accusers face to face.  Chambers is asking the U.S. Merit Systems Protection Board (MSPB) to overturn her firing and to give her back the job she says she’s always wanted.

 

Few outside of the federal employment system know what the MSPB is and what it does.  On its website, the mission of the Board is described as follows:

 

The Merit Systems Protection Board is an independent quasi-judicial agency established to protect Federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for employees against abuses by agency management. The Board carries out its statutory mission by:

 

The MSPB hearing room is located on the second floor of what appears to be an ordinary office building near the Metro station in Alexandria, Virginia.  The small room is best described as non-descript with its off-white walls and ordinary light oak chairs covered in cloth.  A total of 20 chairs have been set up to accommodate what is for this type of hearing a large crowd.  These sorts of hearings go on all the time without anyone ever paying attention to them.  But during this hearing, the room is packed with lawyers, reporters and interested onlookers.  Boxes of files and supplies spread out from the lawyer’s tables in an ever-widening arc. 

 

Outside, in the blowing wind and occasional rain, the media waits for a chance to catch up with the woman with whom they’ve been prohibited from speaking for so many months.  They want to hear her side of the story.  They have dozens of questions to ask and are willing to wait as long as it takes for her to come down the elevator, walk through the brown brick lobby and meet with them.  Some of the television stations send camera operators in shifts, each responsible for setting up the “live” trucks outside.  The giant transmitter masts rising from the center of those trucks gently sway in winds fueled by hurricane activity hundreds of miles away. 

 

Chief Chambers is represented by Mick Harrison, an attorney for the Kentucky Environmental Foundation.  Harrison, along with counsel from Public Employees for Environmental Responsibility (PEER), have been working with Chief Chambers day and night for weeks leading up to this trial.

 

The Judge hearing the case is Elizabeth Bogle, an Administrative Judge for the MSPB about whom web searches reveal very little.  But in July Judge Bogle ruled against Chambers’ request for immediate reinstatement on grounds that she was fired for whistle blowing.  Bogle said at the time that Chambers had not proved that she engaged in protected whistle blowing activity and would, therefore, not be reinstated.  But, by defining several elements of her ruling closely, she opened the door for Chambers’ attorneys to argue her case on several levels. 

"This decision means we did not land a knockout blow with the first punch," said Richard Condit, general counsel for Public Employees for Environmental Responsibility, which is representing Chambers. "At the hearing, the burden of proof will be on the agency to show why telling the truth is grounds for removal from federal service."

The National Park Service (NPS) is using Robert D. L'Heureux, a private practice attorney, to plead its case.  In preliminary motions, NPS officials said that their in-house attorneys might have conflicts of interest insofar as they had worked with Chambers’ during her tenure.  However, many of those attorneys are no longer with NPS having taken jobs with other federal agencies since this saga began. 

 

L'Heureux has a private practice in Alexandria, Virginia, and is serving as the NPS’s lead attorney although other attorneys from the Service have been in attendance during the first two days of the hearing.  L’Heureux spent 14 years as Associate Special Counsel for Investigation at the U.S. Office of Special Counsel, supervising the collection of evidence in thousands of whistleblower reprisal cases. He was counsel during early OSC litigation on behalf of whistleblowers. Some have noted the irony of using L’Heureux since much of the interest in this case has been because of Chambers’ accusations that the actions against her may have violated elements of the most recent Whistleblower Protection Act.

 

The first witness to be called was Donald Murphy, Deputy Director of the National Park Service, and Chambers’ former immediate boss.  It was Murphy who pushed for Chambers’ removal which was based in part on an “overall pattern of not listening.”    “Was this a problem from the beginning?” L’Heureux asked.  “Yes,” replied Murphy, to which L’Heureux asked in response, “Did this result in official action?”  “Yes, a letter of reprimand,” answered Murphy.  Oddly, this reprimand was not related to "not listening."

 

This pattern of question and answer between the attorneys and Murphy went on for several hours.  For his part Murphy answered quickly and directly but he frequently seemed nervous; he seemed to have trouble swallowing from time to time and took frequent drinks from a bottle of water placed on the witness stand.  At one point during one of the frequent lulls in the proceedings he mouthed to his attorneys that he needed “a bathroom break.”  But it was some time before the need became so great that he asked the judge directly for such a recess.

 

During the proceedings, Chief Chambers sat next to her attorney, Mick Harrison, typing notes into her laptop computer and writing thoughts and ideas to him on orange Post-It notes which were then stuck to various pages of evidence or to the sides of the desk.  At one point a dozen or so of these notes filled up the face of one sheet of paper, obscuring whatever else was written there.  Chambers had turned from appellant to an aggressive legal aid.  She quickly pulled up pages of evidence as they were referenced by the attorney for the other side and handed them to Harrison, her notes on a sticky already attached.

 

A key charge was the communications Chambers had with a woman named Debbie Weatherly, a self-described Congressional staffer who worked with the House Interior Appropriations Sub-Committee.  Some have called her the puppet-master, a woman who pulls many of the strings for the committee but is rarely seen or identified.  It was to Weatherly that Chambers turned with questions about the funding of an additional study and which agency should be made to pay for it.

 

It was Weatherly who set off alarms at the NPS in response to Chambers’ questions and information Chambers provided her about the status of the implementation of recommendations from a previous Congressionally mandated management study.  It was the conversations with Weatherly which have been used to lodge the charge of “improper budget communications,” even though each of Chambers’ superiors encouraged her to open up a dialogue with Weatherly almost from the first day she (Chambers) was named Chief.

 

On cross examination Chambers’ attorney, Mick Harrison, asked Murphy why he started making notes about Chambers late in 2003.  Murphy said that, after noticing this pattern of behavior on the part of Chambers, he wanted to be able to document it. He added that it was not intended for any other person.  But Harrison took exception, noting that a memo he wrote contained both first-person and third-person pronouns.  He read one passage which said “I told you that this was something needing attention.”  Harrison asked why Murphy would write something in that manner if it wasn’t intended for someone else.  “Didn’t you write this for Craig Manson?” Harrison asked.   Murphy responded, “I keep notes in this manner.  I’m a writer and often refer to myself this way.”  That comment resulted in more than a few snickers from those in the hearing room.

 

Later, Murphy testified that Chambers didn’t follow his direct orders to detail Pamela Blyth who served under Chambers and was an important part of the upcoming budget process.  Chambers has stated that she needed Blyth because she would be experiencing a full budget cycle for the first time since joining the USPP.  Murphy argued that Blyth needed better training in the ways of the federal government and that the only way to get her that training was to have her “detailed” to work under another person in another part of the NPS for a period of 120 days to as long as a year.

 

“Her [Chambers] first response was that she didn’t think it a good idea [to detail Blyth] – that she didn’t want to lose a key member of her staff.”  Murphy said.  “She questioned whether this was coming from ‘snipers’ in the U.S. Park Police who were out to get her.  She had said that these snipers were opposed to changes she was making in the department.”

 

Murphy continued “After a conversation that lasted more than half of an hour, I told her that this wasn’t open to discussion and that she had to do this,” to which attorney L’Heureux asked, “Did she say she would comply?”  “Yes, reluctantly,” Murphy said.  “Did she?”   “No.”

 

This episode involving Blyth is also related to the charge (Number 6 in the official filing document) that Chambers violated the chain of command expectations within the agency.  The specific charge is that she had phone conversations in August 2003 with James Steven Griles, the Deputy Secretary of the Department of the Interior, who ultimately reversed the decision to move Blyth to another assignment.

 

At one point during cross examination of Murphy, Mick Harrison stated “You did not take action to initiate action against Ms Chambers in August, in September, in October, in November and that it wasn’t until the article appeared in The Washington Post that you initiated your action.”

 

Later in the day, Congressional staff person Debbie Weatherly was brought in to testify to the charge of improper budget communications with Congress on the part of Chambers.  Mick Harrison asked her “Do you believe that officials have a right to tell Congress that they need more money?”  To which Weatherly responded, “It happens every day.  There are no rules against it.”  But Harrison continued, “You didn’t recommend that Ms. Chambers be disciplined for answering your questions?”  “No, because we are contacted dozens of times a week about issues like that.”

 

But it was the fact that Chambers was telling Weatherly a different story with different budget numbers and different outcomes regarding the management study than she was hearing from others.  “Was there a discrepancy in information received from Ms. Chambers and from her superiors?”    “Yes.”  “Did that concern you?”  “It absolutely did.”

 

On cross-examination Robert L’Heureux asked Weatherly “Did the information you got from Ms. Chambers – what was that information?”  “This was not the first time Teresa and I had talked, Weatherly said.  “The information I was getting from her was very different from what they were telling me.  I didn’t know what the factual information was and I was shocked – I didn’t want the members to learn that there was a major problem.”

 

Park Service Director Fran Mainella testified last on the first day but added very little to the proceedings.  L’Heureux asked her “In your conversations with Chambers, did she describe that there was a risk to safety?”  Mainella responded, “The only thing I recall is that there was a risk on the Baltimore-Washington Parkway.”  “Did you agree with Ms. Chambers concerns about safety and security?”  “Not at all.”

 

Later, when the topic came up regarding a complaint filed by Chambers against Deputy Director Murphy on December 2, 2003 (the same day The Washington Post article in which Chief Chambers was referenced and quoted was published), Mainella was asked “Did you receive a communication from Ms. Chambers about Mr. Murphy?”  “Yes.”  “Did you perceive that letter as a grievance?”  “Absolutely not.  I perceived that letter as a list of concerns.”

 

Speaking to the issue of the complaint letter on cross-examination Mainella was asked by Harrison, “Did you take any action?”  “I gave it to my attorneys.  This was not a grievance but a request for action.”  Harrison continued “Have you taken any action on it?”  “No.”  “Has anyone else taken action on the issues raised in this letter?”  “No.”

 

“Did you direct Mr. Murphy to take any action against Ms. Chambers for her comments to the media?” Harrison asked.  “No,” was Mainella’s response.  “Did you object to Mr. Murphy’s proposed actions against Ms. Chambers?”    “No, I didn’t object.”

 

Despite months of hearing Fran Mainella tell others that there was “so much more to this story” involving Chief Chambers, her testimony provided no clues as to what she meant for all this time.

 

On the second day of the hearings, Deputy Assistant Secretary Paul Hoffman took the stand.  Hoffman was the person who was ultimately given responsibility as the deciding official in the Chambers’ case.  Much of his testimony on direct and cross examination had to do with the way he gathered information to make his decision and upon what he ultimately made his decision to have Chambers fired.  Time and time again, however, Judge Elizabeth Bogle stopped Chambers’ attorneys from questioning the process Hoffman took.

 

Mick Harrison asked Hoffman, “On charge number one, the allegation that Ms. Chambers had a communication with a Congressional staff person – Ms. Weatherly – and…”  At this point Judge Bogle interrupts, “I will not allow you to question him about why he made the rulings he did.”  This process was repeated time and time again during Hoffman’s testimony.

 

In fact, it seemed like tempers may have gotten short a few times as represented by the following exchange:  Judge Bogle – “Mr. Harrison, this is enough.  You’re bringing up issues that you didn’t bring up in our pre-trial conference.  If there’s something that you will raise that will show bias then you may proceed.  I’ve read the charging documents and I don’t believe there’s anything there that would be helpful to you.” Harrison – “I believe that’s a decision which should be made by the appellant.”

 

At one point Robert L’Heureux told the court, “We’ll stipulate that she [Chambers] was not advised of Mr. Hoffman’s investigation and wasn’t provided every document.  Does that help?”  To which Mick Harrison responded, “Yes.”

 

Still, regarding the formal Proposal to Remove prepared by Donald Murphy and sent to Chambers in December 2003, Hoffman said “I’m not saying that everything that’s in there I agreed to, but substantially I agreed to it.  I did find that Ms. Chambers did exhibit hostility toward her supervisor.”  “So something she said exhibited hostility or malice?”  “Not malice but hostility… hostility in the verbiage of her response.”  Interestingly, he based this on a conclusionary paragraph written by a member of Chief Chambers’ original legal team, which does not include her current legal representatives, and which was not written or signed by Chambers herself.

 

Then it was the Chief’s turn on the stand.  The first issue discussed was that of the detail of Pamela Blyth: 

Mick Harrison:  “Do you recall a request to detail Ms. Blyth?”

 

Chambers: “Yes.  I first learned about it on August 7 of 2003 when Director Mainella and I had a discussion.  During that discussion she asked me if Mr. Murphy had told me about the request to detail Pamela Blyth.  I was surprised, and she was surprised that I was surprised . . .  My shock was that the timing of it was very difficult.  We were in the middle of the budgets that you’ve heard about.  We were trying to figure out how to deal with a 12-million dollar shortfall . . . All of that going on with the attention being paid to the national icons.  She [Mainella] seemed to agree that this was an issue . . .” 

 

Nonetheless, Director Mainella deferred to Deputy Director Donald Murphy regarding the move of Pamela Blyth.

 

Chief Chambers went on to describe how she ended up calling Craig Manson, an Assistant Secretary at DOI, when Pamela Blyth – and not Chief Chambers – got word from Donald Murphy during a weekend that she was to start her new assignment just two days later.  She said Manson was out of cell phone range and that she left a message for him.  In the meantime, Department of the Interior Deputy Secretary J. Steven Griles had heard from Jeff Capps, President of the applicable Fraternal Order of Police and, said Chambers, since they apparently have a good enough relationship he acted on Capps’ suggestion to call Chambers directly.

 

Chambers told Deputy Secretary Griles that Pamela Blyth was an important cog in the process and without her it would set up the U.S. Park Police for failure. 

 

Harrison asked Chambers “Did he [Griles] ever express concerns that you were contacting him directly beyond Murphy or Mainella?”  “No, we would have hallway talks and some longer conversations.  In fact, I remember one conversation in vivid detail.  Also, Griles said, ‘Tell me what’s going on with your budget.’  I told him, ‘Everything is fine, sir.’ He said, ‘No, tell what’s going on.’ I told him ‘Everything’s fine.’  And then he pulled me into his office.  He told me you don’t have to worry about talking to me.  I take responsibility and you don’t have to worry.  I’m hearing about troubles with the 12-million dollar shortfall or words to that effect.”

 

Harrison then asked: “What about detail of Pamela Blyth?”  Chambers responded that “He called me late Sunday night or early Monday morning and said that he had taken care of things.  I didn’t ask who he had talked to.  He told me to call her [Blyth], which I did, and tell her to report directly to Park Police Headquarters [instead of to the National Park Service].”

 

The relationship and involvement of Deputy Secretary Steve Griles sets the stage for the continuation of the hearings on September 14 when Griles will return from his white water rafting expedition.  Griles’ testimony about his conversations with Chief Chambers and who initiated them will go a long way to make her case that she did not go outside of the chain of command and that the decision not to detail Pamela Blyth was one which Deputy Secretary Griles made.  Interestingly enough, Pamela Blyth remains in her original assignment, having never been transferred or “detailed.”

 

Check back to HonestChief.com later this week for an updated summary of the hearing.  Judge Bogle expects to wrap up the case on September 14, 2004 and has said she expects to make her decision within three to five weeks.  At the same time, Chambers’ attorneys are setting the stage for an appeal should Bogle rule against them.