Treasury watchdog subpoenas Google to identify whistleblower

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WASHINGTON — The Treasury Department’s office of the inspector general has gone to court to identify an anonymous employee at the Office of Financial Research who produced several critical online videos.

The employee reportedly posted five YouTube videos that raised concerns about discrimination and diversity problems at the research office, which is an independent bureau within Treasury.

The inspector general's office subpoenaed Google, which owns YouTube, in February, asking for identifying information about the employee as well as for the content of two of the videos. All of the videos were removed from public view by the employee last fall, according to court filings. They were posted between May 2016 and October 2017.

The videos were created to alert Congress to problems at the agency, and they were sent to more than 15 lawmakers along with a request for help, according to a March 27 motion to quash the subpoena filed on behalf of the employee. If the court rules against dismissing the case, however, the employee’s lawyers ask that his or her name be given solely to “specified, responsible persons within OIG.” The matter is playing out in the U.S. District Court for the Northern District of California.

The videos came at a time of low morale at the office, which has struggled to carve out a clear role for itself after its creation under the Dodd-Frank Act. It was designed to serve as a research unit dedicated to spotting future threats to the financial system. Richard Berner, the agency’s at the time, has since left for a position at New York University. Under the Trump administration, the office has been bracing for an overhaul that is likely to include significant staff reductions.

The employee’s motion raises concerns that the effort is part of a broader plan to silence workers who are unhappy at the agency. Senior Treasury official Craig Phillips allegedly called the videos “sick” and “disgusting” at an all-staff meeting last fall, according to the employee’s motion.

The filing also asserts that an unnamed Treasury Department official earlier this year “complained that the videos were threatening to employees and analogized the videos to mass shootings and terrorism in that the videos posed an imminent danger to employees.” Those comments followed a Wall Street Journal report about the agency’s troubles.

“That DOT official then bluntly stated that DOT wanted to find out who had published the videos, and that DOT, through OIG, had issued the subpoena to identify Movant,” the motion adds, referring to the anonymous employee. “Based on these statements, Movant understood that DOT's effort to subpoena Movant's identity was not to further any bona fide OIG investigation, given that there were no published Videos, but rather to intimidate Movant, stifle Movant's complaints, uncover the Wall Street Journal's anonymous sources, and/or take retaliatory action.”

The videos were short in length and heavy on text. They highlighted allegations of racial discrimination at the agency, including problems with hiring and promotion. Some of the videos included statistics, such as, “More than half of the OFR's African American workforce has left since 2013,” according to the employee’s description of the videos in a court document. Another video charged that three separate FOIA requests regarding the office’s employment and pay practices had gone unaddressed for more than a year. There was no threatening language or tone in the videos previously reviewed by American Banker.

According to the motion, the employee, who is described as a whistleblower, took several steps to alert officials to “unfair and discriminatory employment practices, unethical behavior, fraud, waste, abuse, mismanagement, and retaliation” at the Office of Financial Research before creating the videos. That included anonymous complaints to the Office of Inspector General, the Office of Special Counsel and the Equal Employment Opportunity Commission.

Some observers noted that the Treasury inspector general’s subpoena was somewhat surprising given the content of the videos, as described by the employee.

“It strikes me as unusual that Treasury would issue this type of subpoena that would more normally be reserved for a matter of security or significant government operations that require confidentiality, not just complaints about the atmosphere,” said Justin Brooks, a founding partner at the law firm Guttman, Buschner & Brooks who works on whistleblower and employment litigation.

Still, others emphasized that inspector general offices tend to run independently of the agencies they watchdog and that the Treasury inspector general's office might just have gotten the opportunity to look at some of the claims raised in the videos.

"They are good at being independent. They're nonpartisan and when there's a credible allegation, they're supposed to look into it," said Jeffrey Naimon, a partner at the law firm Buckley Sandler.

Naimon added that inspectors general “don't always get around to things while they are still in the headlines. It doesn't seem unusual that they'd be dealing with something a year later.”

For now, the case appears to be on hold. The government and the employee’s lawyers are engaged “in discussions in an effort to resolve this matter without further litigation,” the parties told the court on Monday. A status report is due April 16.

Richard Delmar, counsel to Treasury’s inspector general, said in a statement that the office is working with the employee’s lawyers to sort out the matter.

“We confirm that we, with the U.S. Attorney’s Office, are discussing the matter with the Movant’s lawyers,” he said. “We want to learn what the Movant’s concerns are, and address them.”

A report published last week about the case on the site included a comment from a Treasury inspector general spokesman referencing “potentially threatening situations at" the Office of Financial Research.

“We are responsible for investigating threats to the integrity of Treasury programs. Accordingly we are looking into potential threats. We cannot discuss further at this time,” the spokesman told the site.

Delmar did not respond to a request for further clarification about those earlier comments.

A spokeswoman for Kronenberger Rosenfeld, the law firm representing the employee, said in a statement that lawyers are “working with OIG to resolve this matter.”

“We believe the OIG was grossly misinformed by officials, who have a vested interest in the matter, about the nature of the whistle blowing videos,” the statement said. “The OIG protects the identity of whistle blowers and we look forward to helping them ensure that sacred trust is never again breached."

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