A Tampa Veteran Affairs police officer said he was fired after reporting on wrongdoing in his department.
Charles Harrington is speaking exclusively with The Daily Caller about the problems he found at the Bay Pines VA facility, but he also submitted detailed reports of his findings to then VA Secretary David Shulkin, the VA Office of Inspector General (VAOIG), and Office of Special Counsel (OSC).
According to the report prepared for Shulkin, Congress and others, a man named Raymond Harrison walked into the Bay Pines VA on June 2, 2015, and during a police interview, implicated Carl Giordano and Thomas Stewart in distributing prescription drugs illegally.
The two men were later convicted in Circuit Court, and both have been released from jail. But Harrington alleges that procedures and the suspects’ constitutional rights were violated along the way.
He alleges that VA police detective Fernando Olivas didn’t read Giordano his Miranda rights, failed to follow appropriate chain of custody procedures while handling evidence, and included irrelevant medical information about the suspect in a police report.
Olivas “ignored the Rules of Evidence and violated the Constitutional Rights of the accused,” Harrington writes in his report.
Harrington claims that Olivas failed to establish probable cause before placing Giordano under arrest, despite Harrison’s implication and Giordano making an “excited utterance,” according to a police report when Olivas asked him whether he passed anything to Stewart.
“Olivas then states he left Stewart in the custody of a uniformed VA Police Officer. There is no record with (the police report), nor within known subsequent follow up statements attached to the report, of there being a search conducted of Stewart’s person when taken into physical custody; who conducted the search nor where or with ‘whom’ the chain of custody begins or ends with, nor the point, time, location, or circumstances of incriminating physical evidence discovered within the control of the suspect for which he was charged.”
While Giordano was being detained, he was left alone by Bay Pines VA police and overdosed on pills.
“While the unknown officer was away, Giordano swallowed a purported amount of thirty pills which were left in his possession. An ambulance was called, and Giordano was taken to the Emergency Department at the C.W. Bill Young VA Medical Center for treatment. He was Baker Acted (held in a psych ward temporarily against his will), and after being cleared and released on 07/16/2015, Giordano was taken to jail,” Harrington said.
Although Giordano survived, he lay comatose for three to four days in the hospital, according to Harrington’s investigation.
Harrington said he began investigating the incident on his own, more than a year later, because no one had been held responsible.
At least one federal agency found Harrington’s investigation had merit; Michael Nacincik, public affairs officer for the VA Office of Inspector General, issued this statement: “In this instance the OIG reviewed the matter and determined at the time that it should be referred to VA for appropriate action.”
Due to his investigation, Harrington said, he has been retaliated against; since January 2017, he has been under investigation for an allegation of releasing private information illegally.
According to documents reviewed by TheDC, in October 2017, the newly created VA Office of Accountability and Whistleblower Protection (OAWP) stepped in and issued an executive stay order — stopping any VA action against Harrington — but that stay order was revoked in June 2018, and he was terminated soon after.
James Hutton, Deputy Assistant Secretary for the VA’s Office of Public and Intergovernmental Affairs, issued a statement.
“VA’s Office of Accountability and Whistleblower Protection investigated these allegations in April 2018. The investigation did not substantiate whistleblower retaliation against Mr. Harrington,” Hutton stated. “Under the provisions of the VA Accountability and Whistleblower Protection Act, Harrington’s proposed removal was placed on hold in October of 2017 while OAWP investigated the disclosure he had filed. After OAWP’s investigation did not substantiate whistleblower retaliation, the hold was lifted.”
But Harrington argues that the “fact finding” process violated VA procedures that call for a formal investigation process.
Natalie Khawam heads The Whistleblower Law Firm and represents several VA whistleblowers; she said she has seen fact findings be used a retaliatory tool.
“We have seen the agency bypass the formalities of an AIB by using an informal ‘Fact-finding’ to gather evidence in a biased manner in relation to “incidents” that occur at the agency facility, which is then used as evidence in a proposed disciplinary action to support the action.
“A ‘Fact Finding’ can be used as a retaliatory tool against whistleblowers because it allows the Agency to take a shortcut from the AIB, a proper process that was developed by policy,” Khawam said.
“It then falls on the employee to point out the credibility issues with the evidence that was gathered in the fact-finding in their response to the proposed discipline that is raised against them.”
That’s exactly what Harrington hopes will happen as his termination is appealed; he believes that fact findings are not allowed, and removals based on them have not been challenged properly.
He said that according to VA rules and procedures, a formal administrative investigation — known as an administrative investigative board — is to be formed before an employee can be terminated.
The AIBs have rules and regulations spelled out in VA procedures including: issuing a charge letter, convening a qualified board, an objective investigation, and no conflicts of interest (in his case, the people who he blew the whistle on conducted the fact finding.
None of that happened in his case, Harrington argued, and Khawam agreed that fact finding are often broad and nebulous.
“Since there are no formal requirements for how a fact-finding is supposed to be done, the evidence is normally gathered in a biased and improper manner and the employees involved may or may not be aware that they are participating in the fact finding or what may come of what information they are providing to the fact finder.”
Harrington is currently appealing his termination through the Merit Systems Protection Board (MSPB).