[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
THE NASA ADMINISTRATOR'S SPEECH TO
OFFICE OF INSPECTOR GENERAL STAFF, THE
SUBSEQUENT DESTRUCTION OF VIDEO RECORDS,
AND ASSOCIATED MATTERS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON INVESTIGATIONS AND
OVERSIGHT
COMMITTEE ON SCIENCE AND TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MAY 24, 2007
__________
Serial No. 110-33
__________
Printed for the use of the Committee on Science and Technology
Available via the World Wide Web: http://www.house.gov/science
______
U.S. GOVERNMENT PRINTING OFFICE
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COMMITTEE ON SCIENCE AND TECHNOLOGY
HON. BART GORDON, Tennessee, Chairman
JERRY F. COSTELLO, Illinois RALPH M. HALL, Texas
EDDIE BERNICE JOHNSON, Texas F. JAMES SENSENBRENNER JR.,
LYNN C. WOOLSEY, California Wisconsin
MARK UDALL, Colorado LAMAR S. SMITH, Texas
DAVID WU, Oregon DANA ROHRABACHER, California
BRIAN BAIRD, Washington KEN CALVERT, California
BRAD MILLER, North Carolina ROSCOE G. BARTLETT, Maryland
DANIEL LIPINSKI, Illinois VERNON J. EHLERS, Michigan
NICK LAMPSON, Texas FRANK D. LUCAS, Oklahoma
GABRIELLE GIFFORDS, Arizona JUDY BIGGERT, Illinois
JERRY MCNERNEY, California W. TODD AKIN, Missouri
PAUL KANJORSKI, Pennsylvania JO BONNER, Alabama
DARLENE HOOLEY, Oregon TOM FEENEY, Florida
STEVEN R. ROTHMAN, New Jersey RANDY NEUGEBAUER, Texas
MICHAEL M. HONDA, California BOB INGLIS, South Carolina
JIM MATHESON, Utah DAVID G. REICHERT, Washington
MIKE ROSS, Arkansas MICHAEL T. MCCAUL, Texas
BEN CHANDLER, Kentucky MARIO DIAZ-BALART, Florida
RUSS CARNAHAN, Missouri PHIL GINGREY, Georgia
CHARLIE MELANCON, Louisiana BRIAN P. BILBRAY, California
BARON P. HILL, Indiana ADRIAN SMITH, Nebraska
HARRY E. MITCHELL, Arizona VACANCY
CHARLES A. WILSON, Ohio
------
Subcommittee on Investigations and Oversight
HON. BRAD MILLER, North Carolina, Chairman
JERRY F. COSTELLO, Illinois F. JAMES SENSENBRENNER JR.,
EDDIE BERNICE JOHNSON, Texas Wisconsin
DARLENE HOOLEY, Oregon DANA ROHRABACHER, California
STEVEN R. ROTHMAN, New Jersey TOM FEENEY, Florida
BRIAN BAIRD, Washington MICHAEL T. MCCAUL, Texas
BART GORDON, Tennessee RALPH M. HALL, Texas
DAN PEARSON Subcommittee Staff Director
EDITH HOLLEMAN Subcommittee Counsel
JAMES PAUL Democratic Professional Staff Member
DOUG PASTERNAK Democratic Professional Staff Member
KEN JACOBSON Democratic Professional Staff Member
TOM HAMMOND Republican Professional Staff Member
STACEY STEEP Research Assistant
C O N T E N T S
May 24, 2007
Page
Witness List..................................................... 2
Hearing Charter.................................................. 3
Opening Statements
Statement by Representative Brad Miller, Chairman, Subcommittee
on Investigations and Oversight, Committee on Science and
Technology, U.S. House of Representatives...................... 6
Written Statement............................................ 7
Statement by Representative F. James Sensenbrenner, Jr., Ranking
Minority Member, Subcommittee on Investigations and Oversight,
Committee on Science and Technology, U.S. House of
Representatives................................................ 8
Written Statement............................................ 9
Panel 1:
Ms. Evelyn Klemstine, Assistant Inspector General for Audits,
NASA Office of Inspector General and Mr. Kevin Winters,
Assistant Inspector General for Investigations, NASA Office of
Inspector General
Joint Oral Statement......................................... 10
Discussion
April 10, 2007 Meeting......................................... 12
Destruction of Documents....................................... 18
Panel 2:
Mr. Michael C. Wholley, General Counsel, National Aeronautics and
Space Administration (NASA)
Oral Statement............................................... 21
Written Statement............................................ 25
Mr. Paul Morrell, Chief of Staff, National Aeronautics and Space
Administration (NASA)
Oral Statement............................................... 27
Written Statement............................................ 30
Discussion
More on the Destruction of Documents........................... 33
More on the April 10th Meeting................................. 36
More on the Destruction of Documents........................... 39
Mr. Wholley's Relationship With Mr. Cobb....................... 45
Appendix: Additional Material for the Record
[#1], E-mail: Evelyn Klemstine to Thomas Howard, cc to Dahnelle
Payson re Areas of concern expressed by the staff related to
VITS, 4/23/2007................................................ 48
[#2], E-mail: Catherine Schneiter to Evelyn Klemstine re RE: Tape
recalled, 4/11/2007............................................ 51
[#3], E-mail: Evelyn Klemstine to Jacqueline White re RE: ViTS
Tape, 4/19/2007................................................ 53
[#4], E-mail: Catherine Schneiter to Daniel Birnbaum re RE:
Congressional request, 4/20/2007............................... 54
[#5], E-mail: David Gandrud to Catherine Schneiter re RE: Records
Request, 4/19/2007............................................. 56
[#6], Notes from Karen VanSant regarding Videotape, 4/10/2007.... 58
[#7], E-mail: Kevin Winters to Thomas Howard re VTS Tape, 4/18/
2007........................................................... 59
[#8], E-mail: Thomas Howard to Rhodesia Wyatt re RE: VTS, 4/17/
2007........................................................... 60
[#9], Memorandum for the record: Keith T. Sefton's dialogue with
Mr. Fred Berger, NASA ViTS coordinator concerning ViTS held on
4.10.2007; 5/07/2007........................................... 63
[#10], E-mail: Michael Wholley to Paul Morrell re Decision, 3/14/
2007........................................................... 66
[#11], E-mail: Catherine Donovan to Michael Wholley, cc: Keith
Thomas Sefton, re My thoughts on IC letter, 3/22/2007.......... 67
[#12], E-mail: Catherine Donovan to Michael Wholley re RE: Edits,
3/23/2007...................................................... 69
[#13], E-mail: Michael Wholley to Catherine Donovan re Revision,
3/26/2007...................................................... 70
[#14], E-mail: Michael Wholley to Michael Griffin, Paul Morrell,
Shana Dale re Round ``whatever,'' 3/29/2007.................... 75
[#15], E-mail: Michael Griffin to Michael Wholley, Paul Morrell,
Shana Dale re RE: Round ``whatever,'' 3/29/2007................ 78
[#16], E-mail: Michael Wholley to Jeff Rosen re Letter, 3/29/2007 80
[#17], E-mail: Michael Griffin to Paul Morrell re RE:, 4/02/2007. 83
[#18], E-mail: Michael Wholley to Michael Griffin, Shana Dale,
cc: Paul Morrell re Bullet Points, 4/03/2007................... 85
[#18B], E-mail: Michael Wholley to Jeff Rosen re Hearings??, 4/
04/2007........................................................ 89
[#19], E-mail: Keith Sefton to Andrew Falcon, Shari Feinberg, cc:
Richard Sherman re letter to Griffin, 4/19/2007................ 90
[#20], E-mail: Keith Sefton to Andrew Falcon, Shari Feinberg, cc:
Richard Sherman re FW: letter to Griffin, 4/19/2007............ 93
[#21], E-mail: Andrew Falcon to Paul Morrell, Michael Wholley,
Keith Sefton, Richard Sherman re Response to Congressman
Miller, 4/19/2007.............................................. 95
[#22], E-mail: Shari Feinberg to Michael Wholley, cc: Keith
Sefton, Andrew Falcon re Records memo, 4/23/2007............... 96
[#23], E-mail: Feinberg Shari to Michael Wholley, cc: Keith
Sefton, Andrew Falcon re Revised Records Memo for your review!,
4/25/2007...................................................... 103
[#24], E-mail: Paul Morrell to Andrew Falcon re no subject, 4/27/
2007........................................................... 110
[#25], E-mail: Sheva Morre to Keith Sefton re NASA TV/Video, 4/
27/2007........................................................ 113
[#26], E-mail: Keith Sefton to David Mould, cc: Paul Morrell,
Michael Wholley, Jason Sharp re RE: FOLLOWUP, 4/27/2007........ 115
[#27], E-mail: Andrew Falcon to Paul Morrell, Keith Sefton re
Draft letter, 4/27/2007........................................ 117
[#28], E-mail: Thomas Howard to Michael Wholley, Keith Sefton re
RE: Copy of IG meeting, 4/28/2007.............................. 120
[#29], E-mail: Fred Berger to Keith Sefton, cc: Harold Stewart,
Keith Sefton, Len Japngie, Les Newell re RE: April 10th
Recordings, 4/30/2007.......................................... 121
[#30], E-mail: Keith Sefton to Catherine Donovan re FW: April
10th Recordings, 5/07/2007..................................... 123
[#31], Letters................................................... 125
THE NASA ADMINISTRATOR'S SPEECH TO OFFICE OF INSPECTOR GENERAL STAFF,
THE SUBSEQUENT DESTRUCTION OF VIDEO RECORDS, AND ASSOCIATED MATTERS
----------
THURSDAY, MAY 24, 2007
House of Representatives,
Subcommittee on Investigations and Oversight,
Committee on Science and Technology,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:00 a.m., in
Room 2318 of the Rayburn House Office Building, Hon. Brad
Miller [Chairman of the Subcommittee] presiding.
hearing charter
SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT
COMMITTEE ON SCIENCE AND TECHNOLOGY
U.S. HOUSE OF REPRESENTATIVES
The NASA Administrator's Speech to
Office of Inspector General Staff, the
Subsequent Destruction of Video Records,
and Associated Matters
thursday, may 24, 2007
10:00 a.m.-1:30 p.m.
2318 rayburn house office building
Background
Since early 2006, Robert Cobb, the Inspector General of the
National Aeronautics and Space Administration (NASA), has been under
investigation for allegations of misconduct. After a review of 79
allegations, in early 2007, the Integrity Committee of the President's
Council on Integrity and Efficiency (PCIE), an organization of agency
inspectors general, issued a report finding that Mr. Cobb had abused
his authority and demonstrated the appearance of a lack of independence
from the agency's top officials, particularly Sean O'Keefe, NASA's
former administrator. Most of the allegations came from current and
former employees of NASA's Office of Inspector General (OIG).
The Committee has been tracking this investigation since 2006 and
made repeated requests for the final report and its supporting
documentation over a several-month period until it was released to the
Committee in late March of 2007. On April 2, 2007, Chairmen Miller and
Gordon called for the removal of Mr. Cobb. Since that time, the
Committee, along with the Senate Subcommittee on Space, Aeronautics,
and related Sciences has been conducting interviews in preparation for
hearings on the Cobb investigation.
The criteria used by the PCIE are set forth in Executive Order
12993, which includes an ``abuse of authority'' as one of the
allegations that must be investigated. The PCIE also has developed the
``Quality Standards for Federal Offices of Inspector General,'' which
all IGs are required to meet. They include integrity, objectivity,
independence, professional judgment and confidentiality. Independence
is defined as a ``critical element of objectivity. Without
independence, both in fact and in appearance, objectivity is
impaired.''
The PCIE's Integrity Committee, which conducted the investigation,
recommended action be taken against Mr. Cobb up to and including
dismissal. That recommendation was sent to Clay Johnson III, the head
of PCIE and deputy director for management of the Office of Management
and Budget for further action. Mr. Johnson sent the report on to
Michael Griffin, NASA's Administrator, and asked him to propose a
corrective action plan for Mr. Cobb.
Griffin turned the task of studying the hundreds of pages of
material and crafting a set of potential actions over to his General
Counsel, Michael Wholley. Mr. Wholley independently decided to apply
his own standards to the work of the HUD Inspector General and re-judge
the case based on that report. This was completely outside the scope of
the assignment to Mr. Griffin contemplated in the Executive Order. Mr.
Wholley, asking what laws had been violated, determined that the
Integrity Committee got it all wrong when they declared Mr. Cobb to
have abused the authority of his office. In fact, Mr. Wholley seemed
hard pressed to find that Mr. Cobb had done anything wrong at all.
Notably, Mr. Wholley has developed a mentor-protege relationship with
Cobb and so his actions bear out the finding of the Integrity Committee
that at least the appearance of a lack of independence exists. Mr.
Wholley was blind to that situation as he went about his self-defined
task.
Upon the suggestion of Mr. Johnson, the plan for dealing with Mr.
Cobb included a meeting between Mr. Griffin and the staff of the Office
of Inspector General (OIG) to inform them that Mr. Griffin had reviewed
the Integrity Committee's Record of Investigation and taken ``the
actions that I believe are necessary to address the ROI's findings.''
In a letter to Mr. Johnson, Mr. Griffin also said that he would
``listen to any concerns that may exist among the staff and. . .express
my support for a strong and effective Office of Inspector General.''
In early April, Mr. Griffin made public statements questioning the
conclusions of the PCIE report. He claimed to have reviewed the report
himself--although there is no evidence of that--and found no evidence
of an ``abuse of office'' ``lack of integrity'' or ``actual conflict of
interest'' or ``improprieties.'' He expressed his support for Mr. Cobb,
said he would not recommend his removal, and that Mr. Cobb's
``impartiality'' was not in question. Mr. Griffin said there were
examples of ``overly harsh treatment of subordinates; verbal
treatment'' by Mr. Cobb, and that he would recommend that Mr. Cobb take
management courses at the Federal Executive Institute every year, have
a management coach, and report on his progress to NASA's Deputy
Administrator.
The ``all-hands'' mandatory meeting was scheduled for April 10 at
2:30 p.m. Before the meeting, several persons expressed concern about
the NASA Administrator's prior supportive statements concerning Mr.
Cobb and questioned whether holding such a meeting with the OIG staff
gave the appearance that the Administrator was asserting control over
the independent Inspector General's office.
Because OIG employees are located at headquarters and several NASA
centers, the meeting was videoconferenced. Prior to that meeting, Paul
Morrell, Mr. Griffin's Chief of Staff, said he told the contract
employee running the Video Teleconferencing Service (ViTS) center not
to record the session, although the employee does not recall that
directive. However, during the planning for the meeting, a NASA public
affairs officer requested a DVD be made of the meeting, and when the
meeting was actually held, there were multiple signs (as many as 8)
noting that the session was being recorded. It was subsequently learned
that at least two of the NASA centers also videotaped the session so
that employees who were not present could view the meeting. This
appears to be a standard practice in NASA IG staff ``all hands''
videoconferences.
The Meeting
Mr. Griffin addressed the meeting, which was also attended by Mr.
Cobb. According to written reports from attendees of the meeting, Mr.
Griffin went far beyond a simple recitation of his support for Mr.
Cobb, the facts of Mr. Cobb's corrective action plan, and an assurance
of independence for the OIG's office. Mr. Griffin indicated that he was
not interested in the OIG's program or operational audits because the
OIG staff did not have the technical skills to audit in that area, that
OIG auditors should not be questioning NASA management decisions, and
that he would not pay attention to findings that didn't result in
savings in the hundreds of millions of dollars. Attendees at the
meetings also indicated that it was inappropriate for Mr. Cobb to be at
the meeting if open and honest dialogue was the goal.
Destruction of the Video Records of the Meeting
Early on April 11, Mr. Griffin's Chief of Staff called the ViTS
center employee. At the request of the Public Affairs Office, the
employee had created an original DVD and four copies, which were to be
provided to various offices. Mr. Morrell told the ViTS employee that
this meeting was not to be recorded and to get back the DVD and the
copies. The ViTS employee did so, and also called all of the centers
and told them to destroy the copies that they had. In a dramatic
moment, the ViTS person at one center actually destroyed a videotape by
beating it with a shelf board. Mr. Morrell claims that he never even
asked about whether the Centers might have tapes; the ViTS staffer
remembers this somewhat differently and is fairly confident he was
following Mr. Morrell's orders when he asked the Center ViTS people to
collect and destroy tapes.
At headquarters that morning, Mr. Morrell collected all of the DVDs
and then gave them to Michael Wholley, NASA's General Counsel. Some
time later, Mr. Wholley destroyed the DVDs by breaking them up with his
hands. Mr. Wholley later told Committee staff that he did so because he
wanted to be sure that no one could obtain the DVD by filing a request
under the Freedom of Information Act (FOIA).
Congressional Request
On April 18, the Committee learned of the April 10 meeting and the
possible destruction of the video recordings of that meeting and sent
letters to Administrator Griffin and Inspector General Cobb requesting
a copy of the videotape and all records related to it. When the
response stated that all copies had been destroyed, the Committee asked
for all records relating to Mr. Griffin's review of the PCIE report,
the April 10 meeting with the OIG staff and the destruction of the
video records.
Committee Investigation
Ever since Mr. Johnson put the responsibility on Mr. Griffin to
develop and implement a corrective action plan for NASA's Inspector
General, there have been concerns in Congress and elsewhere that it
would be difficult for Mr. Cobb to maintain his independence from NASA
management when he owed his continuance as NASA's IG to Mr. Griffin and
his General Counsel. This is of particular concern as one of the
substantiated allegations was that Mr. Cobb did not demonstrate the
appearance of a lack of independence of the prior NASA Administrator
and General. Staff review of the responsive documents and follow-up
interviews indicate a disturbing lack of concern by NASA management
about maintaining the independence of its Office of Inspector General.
The actions by staff at the highest levels of NASA to physically
destroy records of a questionable meeting between the Administrator and
the OIG staff points to a serious lack of public accountability. It is
unprecedented for a General Counsel to personally and knowingly destroy
agency records so that they cannot be obtained by Congress or the
public. Apologies referring to the use of ``stupid pills'' are not
acceptable for a person in such a position of public trust and
responsibility.
In its hearing, the Committee will hear from witnesses personally
involved in both the meeting and the destruction of its record.
Witnesses:
The first two witnesses are current, high-ranking staff of the NASA
Inspector General's office. They will testify as to the impact of Dr.
Griffin's address to the OIG staff. They also have insights into the
destruction of tapes.
Evelyn Klemstine, Assistant Inspector General for
Audits, NASA Office of Inspector General
Kevin Winters, Assistant Inspector General for
Investigations, NASA Office of Inspector General
The second panel of witnesses can speak to the disposition of the
Cobb case by NASA when it was presented to the agency by PCIE. They can
also speak to the relationship between Cobb and Wholley. Finally, they
can address the manner and motive for destroying the recordings of
Administrator Griffin's appearance before the IG staff.
Michael Wholley, General Counsel, NASA
Paul Morrell, Chief of Staff, NASA
Chairman Miller. Good morning. The hearing will come to
order.
In January, the Integrity Committee of the President's
Council on Integrity and Efficiency, PCIE, completed an
investigation into allegations of misconduct by Robert
``Moose'' Cobb, the Inspector General of the National
Aeronautics and Space Administration, NASA.
The report was damning. The report found that Mr. Cobb
abused his authority and showed a lack of the appearance of
independence from NASA management, and concluded that
discipline up to and including removal was appropriate. After
reading the report, Chairman Gordon and I of this committee,
and Senator Bill Nelson, the Chair of the counterpart committee
in the Senate, called upon President Bush to remove Mr. Cobb as
Inspector General of NASA.
Mr. Cobb continues to serve at the pleasure of the
President. It apparently continues to please President Bush for
Mr. Cobb to serve as the NASA Inspector General. This
committee, this subcommittee, will hear from Mr. Cobb and
others in the next weeks concerning the allegations of
misconduct that were the subject of the PCIE report.
As damning as the report was, it appears on closer
examination that the report was overly generous. The subject of
this hearing is the conduct of NASA officials in handling the
Cobb matter. Specifically, this hearing concerns a meeting with
the staff of the Office of Inspector General of NASA, a meeting
that all staff members were expected to attend, a meeting at
which Mr. Cobb sat beside Administrator Michael Griffin while
Administrator Griffin disputed the findings of the PCIE report.
NASA officials certainly have known that such a meeting would
only further the appearance of a lack of independence by the
NASA Inspector General.
In his prepared statement today, Michael Wholley, the
General Counsel of NASA, is in high dudgeon about the accounts
of NASA employees who attended the meeting, which he testifies
range from the patently false to the ridiculous. He asserts
that this subcommittee should be skeptical of allegations
slipped under the door or thrown over the transom, often
anonymously or with the request for anonymity. That is exactly
how whistleblowers provide information to oversight committees
of Congress and to Inspector Generals acting independently, as
required by statute.
We could have known for certain just exactly what happened
at that meeting, and not had to decide between wildly
conflicting accounts, decide which accounts to believe, because
there was a DVD made of the meeting, and then copies were made
of the DVD. Mr. Wholley personally destroyed those tapes. A
great American lawyer, Elihu Root, said that about half the
practice of a decent lawyer is telling would-be clients that
they are damn fools and should stop. That is a view of the
ethical expectations of a lawyer that I learned in law school,
and it remains the expectation set forth in the Code of
Professional Responsibility.
Instead, the view within NASA apparently was that DVDs
could be destroyed absent advice that any legal arguments that
the DVDs should be preserved was ``categorically fatally
legally flawed.'' I worry that the ethical obligations of a
lawyer that I learned in law school are now regarded as quaint
and antiquated like the Geneva Convention.
NASA officials, Mr. Wholley and Paul Morrell, knew that
there were questions about the propriety of the meeting. They
knew that the Cobb matter was a subject of interest by the
oversight committees of the House and the Senate. They knew
that the DVD of the meeting would be subject to disclosure, and
Mr. Wholley made a conscious decision to destroy the DVDs. It
is impossible not to conclude the worst from that conduct.
At this time, the Chair recognizes Ranking Member
Sensenbrenner for his opening statement.
[The prepared statement of Chairman Miller follows:]
Prepared Statement of Chairman Brad Miller
Good morning. In January, the Integrity Committee of the
President's Council on Integrity and Efficiency (PCIE) completed an
investigation into allegations of misconduct by Robert ``Moose'' Cobb,
the Inspector General of the National Aeronautics and Space
Administration (NASA). The report was damning.
The report found that Mr. Cobb abused his authority and showed a
lack of the appearance of independence from NASA management, and
concluded that discipline ``up to and including removal'' was
appropriate. After reading the report, Chairman Gordon and I and
Senator Bill Nelson, the Chair of the counterpart committee in the
Senate, called upon President Bush to remove Mr. Cobb and Inspector
General of NASA.
Mr. Cobb serves at the pleasure of the President, and it apparently
still pleases President Bush for Mr. Cobb to serve as the NASA
Inspector General.
This subcommittee will likely hear from Mr. Cobb and others in the
next few weeks concerning the allegations of misconduct that were the
subject of the PCIE report. As damning as the report was, it appears on
closer examination that the report was overly generous.
The subject of this hearing is the conduct of NASA officials in
handling the Cobb matter.
Specifically, this hearing concerns a meeting with the staff of the
Office of Inspector General of NASA, a meeting all staff members were
expected to attend, a meeting at which Mr. Cobb sat beside
Administrator Michael Griffin while Administrator Griffin disputed the
findings of the PCIE report. NASA officials certainly should have known
that such a meeting would only further the appearance of a lack of
independence by the NASA Inspector General.
In his prepared statement, Michael Wholly, the General Counsel at
NASA, is in high dudgeon about the accounts of NASA employees who
attended the meeting, which he testifies ``range from the patently
false to the ridiculous.'' He asserts that this subcommittee should be
skeptical of ``allegations slipped under the door or thrown over the
transom, often anonymously or with the request for anonymity.'' That is
exactly how whistle blowers provide information to oversight committees
of Congress, and to Inspector Generals acting independently as required
by statute.
We could have known for certain just exactly what happened at that
meeting, and not had to decide whose wildly conflicting account to
believe, because there was a DVD made of the meeting, and then copies
were made of the DVD. Mr. Wholly personally destroyed those tapes.
A great American lawyer, Elihu Root, said that ``About half of the
practice of a decent lawyer is telling would-be clients that they are
damned fools and should stop.'' That is the view of the ethical
expectations of a lawyer that I learned in law school, and it remains
the expectation set forth in the Code of Professional Responsibility.
Instead, the view within NASA apparently was the DVDs could be
destroyed absent advice that any legal arguments that the DVDs should
be preserved was ``CATEGORICALLY, . . .FATALLY, LEGALLY, FLAWED.''
I worry that the ethical obligations of lawyers that I learned in
law school are now regarded as quaint and antiquated, like the Geneva
Convention.
NASA officials, Mr. Wholly and Paul Morrell, knew that there were
questions about the propriety of the meeting, they knew that the Cobb
matter was the subject of interest by the oversight committees of the
House and Senate, and they knew that the DVD of the meeting would be
subject to disclosure, and Mr. Wholly made a conscious decision to
destroy the DVDs. It is impossible not to conclude the worst from that
conduct.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
We are here today, in part, to reconstruct a meeting we
should have been able to watch. Congress relies on Inspectors
General as agency watchdogs to oversee the conduct at agencies.
And let me say, ten years ago, when I was the Chairman of the
Full Science Committee, I used Inspectors General very
effectively in doing the oversight that the Constitution and
the public demands that the Congress do.
And even though I had a very contentious relationship with
then Administrator Daniel Goldin, the Inspector General, who
was also appointed by President Clinton, maintained his fierce
independence, and was able not only to give the Committee
relevant information on matters of concern, but according to
Mr. Goldin, these efforts, together with others that this
committee did, made NASA a better agency.
Now, because we rely on Inspectors General so heavily, we
take allegations against them seriously, and after a year-long
investigation and deliberative process, in which Congress was
kept almost entirely in the dark, the President's Council on
Integrity and Efficiency, the PCIE mentioned, too, by the
Chairman, forwarded its investigative committee's findings on
NASA's Inspector General to Administrator Michael Griffin.
Administrator Griffin, in concert with NASA's senior
management, reviewed the findings, and recommended that the
Inspector General attend management training courses. He
forwarded his recommendations to the Chairman of the PCIE, who
adopted them. Administrator Griffin then scheduled a meeting on
April 10 with staff from the Office of the Inspector General to
explain his decision.
By several accounts, Administrator Griffin's meeting on
April 10, with the Office of the IG further undermined the IG's
independence, and I am extremely concerned about that. As one
NASA employee told Committee staff after attending the meeting,
if there was an appearance of independence before, there is
none now. Given our reliance on Inspectors General, Congress
would have benefited from reviewing a tape of that meeting. It
is therefore unfortunate that these tapes were destroyed, but
hopefully, through testimony today, we can develop an accurate
picture of the meeting as possible.
I would further request the Chair, and I will be happy to
sign a letter to that effect, to refer this matter to the
Justice Department for investigation, because I believe that
this tape, which was produced by a NASA employee with NASA
equipment, is government property, and there are criminal
penalties for the destruction of government property.
But perhaps more unfortunately, we need to know why
recordings of that meeting were destroyed. I believe in open
government, and I am very concerned to hear that a government
employee was beating a videocassette with a plank and an
agency's General Counsel physically destroyed a stack of DVDs.
The fact that these events happened at different locations
across the country, and the fact that no copies of the recorded
meeting remain, suggest a coordinated effort to destroy all
record of the event.
This destruction also seems to have occurred with limited
understanding of the applicable law, and under full awareness
that Congress and specifically, this subcommittee, was
investigating this issue. I believe that personnel decisions
within the Administration should be handled by the
Administration, and as such, I support the decisions made by
NASA, the PCIE, and the President, but these decisions need to
be made transparently, and they need to be made in a way that
preserves confidence in the Office of Inspector General and our
agencies' leadership.
From the information that this subcommittee has received to
date, there is no reason to give us any confidence whatsoever
in how this matter was handled, and I hope that this hearing
inspires confidence, and will be able to restore at least a
scintilla of faith in what is going on at NASA headquarters.
Thank you.
[The prepared statement of Mr. Sensenbrenner follows:]
Prepared Statement of Representative F. James Sensenbrenner
We are here today, in part, to reconstruct a meeting that we should
have been able to watch. Congress relies on inspectors general as
agency watchdogs to oversee the conduct at agencies. As such, we take
allegations against inspectors general seriously. After a year-long
investigative and deliberative process, in which Congress was kept
almost entirely in the dark, the President's Council on Integrity and
Efficiency (PCIE) forwarded its Investigative Committee's findings on
NASA's Inspector General to NASA's Administrator, Michael Griffin.
Administrator Griffin, in concert with NASA senior management, reviewed
the findings and recommended that the Inspector General attend
management training courses. He forwarded his recommendations to the
Chairman of the PCIE, who adopted them. Administrator Griffin then
scheduled a meeting on April 10 with staff from the Office of the
Inspector General to explain his decision.
By several accounts, Administrator Griffin's April 10 meeting with
the Office of the Inspector General further undermined the NASA
Inspector General's independence. As one NASA employee told Committee
staff after attending the meeting, ``If there wasn't an appearance of
independence before, there is now.''
Given our reliance on inspectors general, Congress would have
benefited from reviewing a tape of that meeting. It is therefore
unfortunate that the tapes were destroyed, but hopefully, through
testimony today, we can develop as accurate a picture of the meeting as
possible.
Perhaps more unfortunately, we also need to understand why
recordings of that meeting were destroyed. I believe in open government
and I am very concerned to hear that a government employee was beating
a videocassette with a plank and an Agency's General Counsel physically
destroyed a stack of DVDs. The fact that these events happened at
different locations across the country and the fact that no copies of
the recorded meeting remain, suggest a coordinated effort to destroy
all record of the event. This destruction also seems to have occurred
with limited understanding of the applicable law and under full
awareness that Congress was investigating this issue.
I believe that personnel decisions within the Administration should
be handled by the Administration. As such, I support the decisions made
by NASA, the PCIE, and the President. But those decisions need to be
made transparently and they need to be made in a way that preserves
confidence in the Office of the Inspector General and in our agencies'
leadership. Hopefully, today's hearing will inspire that confidence.
Chairman Miller. Thank you, Mr. Sensenbrenner.
Our first panel will not be providing written testimony or
formal opening statements, though I understand that you may be,
would like to say something extemporaneously in a moment before
we actually begin with our questions.
We have asked both of them, in large part, to discuss the
April 10 meeting that is at issue here, between Administrator
Griffin and the staff of NASA's Office of the Inspector
General. In response, the response of the staff to that
meeting, and the destruction of the DVDs of the meeting.
Evelyn Klemstine is the Assistant Deputy Inspector General
for Audits at NASA. Kevin Winters is the Assistant Deputy
Inspector General for Inspections. In a senior OIG, Office of
Inspector General staff meeting on April 11, Ms. Klemstine
brought the concerns of the OIG staff, that the OIG staff had
raised with her about the meeting, and subsequently, drafted a
memo that set forth those concerns.
In an interview with the Committee staff, Mr. Winters also
expressed reservations about the propriety of the meeting, and
said that he was investigating the destruction of the DVD.
We want to thank both of you for being here. It is the
practice of the Subcommittee to take testimony under oath. Do
either of you have any objections to being sworn in?
Mr. Winters. No, Mr. Chairman.
Ms. Klemstine. No, Mr. Chairman.
Chairman Miller. Okay. You also have the right to be
represented by Counsel. Are either of you represented by
Counsel today?
Mr. Winters. No, Mr. Chairman.
Ms. Klemstine. No, Mr. Chairman.
Chairman Miller. All right. If you would please stand and
raise your right hand.
[Witnesses sworn]
Chairman Miller. Two quick matters. One is before we begin,
I would like to place into the exhibit of this hearing a record
of exhibits. That has been provided to Mr. Sensenbrenner, to
the Minority staff as well, and is, I believe, on the table for
your reference, for the witnesses, reference by the witnesses.
And without objection, it is so ordered. [The information
appears in the Appendix.]
And then, second, I know that neither of you were asked, we
didn't ask either one of you to provide a written statement,
but either of you wish to make any preliminary statement before
we begin?
Mr. Winters. Yes, Mr. Chairman. Thank you.
Chairman Miller. Mr. Winters.
Panel 1:
STATEMENT OF MS. EVELYN KLEMSTINE, ASSISTANT INSPECTOR GENERAL
FOR AUDITS, NASA OFFICE OF INSPECTOR GENERAL AND MR. KEVIN
WINTERS, ASSISTANT INSPECTOR GENERAL FOR INVESTIGATIONS, NASA
OFFICE OF INSPECTOR GENERAL
Mr. Winters. My name is Kevin Winters. I am the Assistant
Inspector General for Investigations at NASA's Office of
Inspector General.
With the Chairman's permission, we would like to provide a
brief opening statement. Our intent is to provide what we hope
is a helpful context regarding the organizations for which Ms.
Klemstine and myself are responsible.
As the Chairman knows, the mission of the Office of
Inspector General is to conduct objective oversight of NASA's
programs and operations, and then, to independently report to
the NASA Administrator, this Congress, and to the public, to
further help NASA's accomplishment of its mission.
Public Law 95-452, commonly known as the Inspector General
Act of 1978, is the statutory basis for Offices of Inspector
General throughout 61 federal agencies, and accordingly serves
as our statutory foundation for a series of broad mandates.
One such mandate under the Act is that the Office of
Inspector General perform the following two operational
functions: one being audits, the second being investigations.
The Office of Audits, supervised by Ms. Klemstine to my right,
focuses on the conduct of audit activities relating to NASA's
programs and operations. There are 101 NASA OIG employees in
the Office of Audits, who are deployed throughout most of
NASA's field centers. Ms. Klemstine, as the Assistant Inspector
General for Audits, is a 28-year career civil servant, largely
in the IG community, and has been with NASA OIG since November
2004.
I am privileged to lead the other operational function, the
Office of Investigations, which performs investigative
activities both criminal and administrative, pertaining to
NASA's programs and operations.
There are 81 NASA OIG employees in the Office of
Investigations, of which 58 are federal law enforcement
officers who serve as special agents. Like their audit
counterparts, our investigative staff is deployed throughout
most of NASA's field centers.
As the Assistant Inspector General for Investigations, I am
relatively new to the Inspector General community, having
served in NASA OIG for 17 months. Before that, I served 30
years of uniformed service in the U.S. Marine Corps. Like Ms.
Klemstine, I am now a civil servant.
Finally, we are responsible for our respective functions to
NASA Inspector General, the Honorable Robert Cobb. As the
Chairman mentioned, Mr. Cobb was nominated by the President as
NASA's Inspector General, on February 26, 2002, and confirmed
by the U.S. Senate on April 11, 2002.
We are here today at your invitation, and we look forward
to your questions.
Discussion
Chairman Miller. Thank you, Mr. Winters. That was one of
the better opening statements I have heard, certainly from a
witness that we didn't ask to prepare an opening statement. If
all witnesses that we didn't ask to prepare an opening
statement gave one like that, we would not ask more often.
At this point, I will recognize myself for five minutes,
and Mr. Sensenbrenner for five minutes. If any other Members
attend, they will be entitled to five minutes of questioning as
well. We will rotate back and forth until we have completed the
questions that we have of you.
April 10, 2007 Meeting
Mr. Winters and Ms. Klemstine, you did both hear of the
all-hands meeting on April 10. How did that e-mail, how did you
hear of that meeting?
Ms. Klemstine. I received an e-mail from the Deputy
Inspector General, stating that there would be a meeting on
April 10 that was mandatory for all staff members.
Chairman Miller. Okay. Mr. Winters.
Mr. Winters. The same thing, it was an e-mail on April 9,
which I believe was a Monday, late in the day, I want to say
about 5:00, from the Deputy.
Chairman Miller. And the Deputy was Tom Howard.
Mr. Winters. It was Mr. Tom Howard.
Chairman Miller. All right. Thank you.
If employees cannot attend all-hands meetings, meetings at
which every member of the staff is expected to attend, has it
been the practice to have a recording of that meeting for those
employees, and is it reasonable to do so?
Ms. Klemstine. Yes. Every all-hands meeting I have been to,
as well as some ethics training, and other meetings where
everybody is required to go to, have always been videotaped.
Mr. Winters. Yes. I think it is a reasonable idea that
people can come back and look at a tape. In this case, I don't
have a recollection that it was mandatory to go back and look
at a tape, though.
Chairman Miller. Okay. Mr. Winters, you told us, our staff,
that Mr. Cobb, Mr. Howard, Ms. Klemstine, and you were in the
meeting room when the Administrator, Mr. Griffin, came in, and
Mr. Morrell and Mr. Wholley.
You said to our staff that was tension in the room. What
was the nature of the tension? Could you describe the
atmosphere in the room?
Mr. Winters. It was a room in the basement of the NASA
Headquarters building, tiered seating. All the NASA OIG
employees were present in the room, who worked in the
Headquarters building, and to our front were the nine
respective NASA field centers displayed up on the screen.
The purpose of the meeting was generally known, that the
Administrator was going to discuss, more or less, his review
and findings, or it was assumed that he was going to discuss
his review and findings of the PCIE investigation. So, there
was a natural, in my opinion, tension that the Administrator
was going to discuss allegations of misconduct of our boss. So,
it was quite reasonable to have a feeling of tension about
that, with our boss present.
Chairman Miller. Sure. Mr. Winters, you told our staff, our
Subcommittee staff, that you knew instinctively that this
meeting was a mistake, that it gave a perception of a lack of
independence of the Inspector General. Is that your testimony
today as well?
Mr. Winters. That might be a bit of an overstatement, but
in my opinion, it was and is difficult to have that type of a
discussion with your boss present.
Chairman Miller. So, it was the appearance--well, you told
the staff that there were visuals that raised questions by you
and by other members of the staff. What did you mean by that?
Mr. Winters. The optics of the head of the NASA, the
Administrator, reviewing a report of allegations in front of
the Inspector General, and speaking to the staff about it. The
optics of just those people in the same room together, talking
about this particular subject.
Chairman Miller. Okay. So, in Washington, we would say that
there was a problem with the optics outside of the beltway, and
the rest of America would say it looked bad?
Mr. Winters. I think that might be an overstatement, Mr.
Chairman, but the optics did raise issues, obviously.
Chairman Miller. Okay. Ms. Klemstine, do you think it was a
bad idea? Did you think so at the time, and do you think so
now, to have the meeting with Mr. Cobb present?
Ms. Klemstine. I definitely felt that Mr. Cobb should not
be there. I was surprised that he was at the meeting. I had not
had that expectation.
However, what I was looking for at that meeting was
basically, ``a pep talk.'' I felt like our organization needed
somebody to come in and tell us that we were valuable to the
organization, that we provided some input, and that was what I
was looking for.
So, I wasn't opposed to having the meeting, but I didn't
agree with the content of the meeting.
Chairman Miller. Okay. Ms. Klemstine, did your senior staff
express any kind of concern to you about the meeting?
Ms. Klemstine. Not prior to the meeting, but after the
meeting.
Chairman Miller. Okay. What was the nature of their
concern?
Ms. Klemstine. Some of the comments made by the
Administrator as they related to the audit community.
Chairman Miller. All right. I am going to go over my time
just very briefly. I am going to refer to a memo dated April
23, 2007. That is Exhibit 1 in the book in front of you. Could
you tell us what that document is?
Ms. Klemstine. Yes. It is an e-mail that I prepared for the
Deputy Inspector General. The day after the Administrator had
spoken with us, Wednesday, we had our senior staff meeting, as
we do every Wednesday, and at the senior staff meeting, I
expressed at the meeting that my staff had concerns about some
of the content of the ViTS. At that time, I was told to
basically document those concerns, and this is the result of
that documentation.
Chairman Miller. Okay. And the concerns were that it was
not appropriate for Mr. Cobb to be at the meeting?
Ms. Klemstine. Yes.
Chairman Miller. And certainly not if Mr. Griffin expected
an open discussion of the staff. Is that----
Ms. Klemstine. Yes, that is correct.
Chairman Miller. And did Mr. Cobb ever address the
appearance, the issue of the appearance of a lack of
independence, and what would be done to correct that
appearance?
Ms. Klemstine. At the meeting itself?
Chairman Miller. Did I say Mr. Cobb? I meant, Mr. Griffin
is what I meant to say.
Ms. Klemstine. Oh. Did he address--I am not quite sure I
understand the question.
Chairman Miller. I am sorry. It was one of the concerns
that your staff expressed, was that Mr. Griffin never addressed
the principal concern of the PCIE report, that Mr. Cobb failed
to maintain the appearance of independence.
Ms. Klemstine. Yes, that was one of their concerns.
Chairman Miller. That Mr. Griffin never addressed that----
Ms. Klemstine. Yes.
Chairman Miller. That concern. Okay. And the--and did
Administrator Griffin also express, describe the work of the
OIG?
Ms. Klemstine. He described the work in terms of what it
was that he thought we ought to be concentrating on, or areas
that he thought that we should do, such as fraud, waste, and
abuse, and other areas where he didn't think that we added
value to the community.
Chairman Miller. All right. And did your staff express to
you how they regarded Mr. Griffin's statement? Did they find
them disheartening?
Ms. Klemstine. Yes. Several people were quite upset about
some of the comments.
Chairman Miller. Okay.
Ms. Klemstine. Especially my technical staff.
Chairman Miller. Okay. And did Mr. Griffin make any, say
anything about the technical expertise of the staff?
Ms. Klemstine. Yeah, he basically said that the audit
community didn't have the ability to make technical type, I
don't want to say decisions, but recommendations, I guess would
be the correct word. Those weren't his exact words, but in
generality.
Chairman Miller. So, okay, the staff lacked the technical
competence to make them.
Ms. Klemstine. Right, exactly, that you know, he had
engineers and technical people on his staff that were more
technically knowledgeable than those that would be on an audit
staff, even though I do have engineers, as well as software
engineers, as part of my staff.
Chairman Miller. Okay. So, this is, expecting a pep talk,
you got something very different.
Ms. Klemstine. That was my expectation, yes. I was looking
for, because I have been there for two and a half years, and we
have been under this cloud, and I really wanted, not only for
myself but for my staff, some feeling of adding value to the
organization.
Chairman Miller. Okay. Mr. Sensenbrenner.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
I would kind of like to go on the broader issues. Do you
think the impression that was given by Administrator Griffin's
talk to the IG staff was appropriate?
Ms. Klemstine. No.
Mr. Sensenbrenner. And why?
Ms. Klemstine. Again, as I stated earlier, I really felt
that he did owe us some type of pep thing, but I didn't think
that he should go as far as making comments about the fact
that, you know, if it wasn't a billion dollars worth of
savings, it wasn't worth reviewing, that we didn't have the
technical expertise to do certain types of jobs, and that our
jobs should be basically focused on fraud, waste, and abuse.
Mr. Sensenbrenner. You think that Administrator Griffin's
comments undermined the independence of the IG staff? Either of
you.
Ms. Klemstine. I think that would be an individual to
individual comment. Personally, it did not undermine my
independence, because I have been in this community a long
time, and I know that people make comments specifically on the
audit side. But I do know that many of my staff members did
feel undermined by his comments.
Mr. Sensenbrenner. Now, did Administrator Griffin make
these comments in response to a question, or was this just
something that he said on his own, and not in response to any
questions by the audience?
Ms. Klemstine. It was in response to a question from the
audience.
Mr. Sensenbrenner. Okay. And what was--if you can recall,
what was the nature of that question?
Ms. Klemstine. The nature of the question, that was
actually from, not somebody from the audit community, was
specifically what type of audits do you think we should be
doing?
Mr. Sensenbrenner. And that question, which came from
outside the audit community, and the answer of Administrator
Griffin, in your opinion, did it undermine the independence of
the audit community to be able to do its job?
Ms. Klemstine. Again, I am not sure it undermines. It does
leave an impression.
Mr. Sensenbrenner. Okay.
Ms. Klemstine. I mean, we are going to do what we need to
do, but it does leave the, what is the value, if the
Administrator is not interested in our work, then how are we
contributing?
Mr. Sensenbrenner. Well, he might not be interested, but we
are.
Ms. Klemstine. Right. And I--right, granted. And that is
why it doesn't undermine, because obviously, you are
preponderant customer, so you know, that is, it is just one
part of the equation.
Mr. Sensenbrenner. Not only the customer, but the sugar
daddy that gives you money every year, too.
Ms. Klemstine. Right.
Mr. Winters. Mr. Sensenbrenner, may I----
Mr. Sensenbrenner. Yeah.
Mr. Winters.--put you back on that line of questioning?
Mr. Sensenbrenner. Yeah.
Mr. Winters. The Administrator was very careful, in terms
of his prepared remarks, and I think this committee has a copy
of the prepared remarks. He actually worked from a list of
talking points, in terms of what he wanted to communicate with
our staff.
And the comments that Ms. Klemstine is referring to were in
response, of course, to questions, and it was my impression,
again, we are in the world of perceptions and how you view
evidence and how you view statements, that the Administrator
was very careful in qualifying his remarks, because he was
being asked as to his opinions, as to what mattered to him, in
terms of our work--as to the priority and to the type of work
that we are doing.
And he went on at great length that he valued very much the
fraud, waste, and abuse type investigations that we do. And
then, he went into his opinions as to management-type
recommendations, which he hears, apparently, you know,
according to him, every day. In terms of winners and losers on
decisions that are made, it was my impression that he was
saying that management-type recommendations are not as helpful
to him, in terms of the work the OIG does, as compared to the
typical criminal fraud, waste, and abuse investigations.
Mr. Sensenbrenner. When did you first learn that the
meeting was recorded? Both of you.
Ms. Klemstine. It was on the screen there. There were
several signs in the room that said that this is being
recorded.
Mr. Winters. That is true.
Mr. Sensenbrenner. And when did you first learn that the
meeting should not have been recorded?
Ms. Klemstine. I never heard that the meeting should not
have been recorded. What I did hear was the following morning,
I received an e-mail from one of my staff members telling me
that they were told to destroy the tapes, and that was my first
knowledge that there was any type of concept of tape
destruction.
Mr. Winters. I first learned on Monday. Monday, I think it
is the 16th or 17th of April. I might have my dates wrong on
that. It was after the weekend. The meeting occurred on April
the 10th, which I believe was a Tuesday. I had some evidence
that employees were asking for the tapes on that Friday, the
following Friday.
Mr. Sensenbrenner. Are these types of meetings usually
recorded?
Mr. Winters. Yes.
Mr. Sensenbrenner. Both of you say yes?
Ms. Klemstine. Yes.
Mr. Winters. And they are fairly rare, Mr. Sensenbrenner,
in terms of----
Mr. Sensenbrenner. All right.
Mr. Winters.--all-hands meetings. This is the first all-
hands meeting that we ever had with the Administrator since I
have been there.
Mr. Sensenbrenner. If I can run over my time a little bit,
too. Have either of you ever requested that a meeting of this
type be recorded?
Mr. Winters. No.
Ms. Klemstine. No.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
Chairman Miller. Mr. Sensenbrenner, I ran over three
minutes. You could have gone another couple minutes if you had
wanted to.
To follow up on that last question, have either of you
requested that a meeting not be recorded?
Mr. Winters. No.
Ms. Klemstine. No.
Chairman Miller. Okay.
Mr. Winters, you referred to Administrator Griffin's
opening statement being in writing. We actually do not have a
copy of that. It is hard to imagine our request would not have
included, would not have reached a copy of that prepared
statement, but can we receive that from you?
Mr. Winters. Well, we certainly have access to all NASA
documents, and we will make a request to get that.
Chairman Miller. Okay. Right.
Mr. Winters. I am sorry--is that----
Chairman Miller. You can answer this question quickly,
excuse me.
Mr. Winters. We can request a document for you.
Chairman Miller. Okay. I neglected to notice that Mr.
Feeney was here, and he is entitled to five minutes of
questioning as well. Mr. Feeney.
Mr. Feeney. Well, thank you, Mr. Chairman. If now is the
appropriate time, I probably won't have five minutes worth, but
for both of the witnesses, my understanding is that your Office
is to function totally independent of the Administrator's
supervision or control. Is that right?
Mr. Winters. Under the IG Act, we are under what is called
the general supervision of the head of the agency, which is a
term that is often debated in the periodicals.
Yes, we are independent, in terms of----
Mr. Feeney. Your mission is to be independent.
Mr. Winters.--what we decide to investigate or audit, and
things like that.
Mr. Feeney. And so, for example, if the Administrator told
you not to investigate abuse, waste, or fraud, you would have
been required to ignore those instructions?
Mr. Winters. Correct. We make our independent assessments
as to what to do.
Mr. Feeney. In his original letter calling the meeting, Mr.
Griffin said that he had reviewed the ROI, and I have taken
actions that I believe are necessary to address the ROI's
findings. Did he express that in his statement that we don't
have a copy of?
Mr. Winters. Yes, he did. I don't know what was on the
statement. I presume--it was a written statement one page, and
he had some talking points, which he appeared to have, he read
from these talking points, in terms of why we are at the
meeting that he has been, that he was requested to provide
input to the Chair of the PCIE, and he went through the
chronology as to how we got to this particular place that he
reviewed the investigation, and that he is making the following
recommendations.
Mr. Feeney. Other than saying that with respect to the
technical expertise in running the agency, he felt like he had
people more suitable and qualified. Did he, in general, give
support to your Office, in terms of your mission, and in
general, express sympathy or empathy with the jobs that you
had, and support for what you do?
Mr. Winters. Well, we represent two separate functions of
the Office of Inspector General. From my functional area, the
Office of Investigations, my staff was supportive of him,
stating essentially ``good for the Administrator'' that he is
all about finding out about fraud, waste, and abuse, and
supports us.
Mr. Feeney. And Ms. Klemstine.
Ms. Klemstine. My staff's perspective, not as glowing.
There were concerns about, especially since I do have two
groups that specifically lean towards a technical area, both my
Science and Aeronautics Research Group, as well as my Space
Operation and Exploration Group. And they do more technical
type audits, as well as make technical recommendations.
So, there was some concern, specifically in those two
areas.
Mr. Feeney. And these concerns were expressed to you after
the meeting?
Ms. Klemstine. Yes.
Mr. Feeney. Were they expressed during the meeting to the
Administrator?
Ms. Klemstine. No.
Mr. Feeney. And was there a reason that they were not
expressed during the meeting?
Ms. Klemstine. No, I can't answer that question. I have not
asked that question, nor do I know any reason why it was not
expressed.
Mr. Feeney. Did anybody express at the time that they felt
it was inappropriate for Mr. Cobb to be in attendance at the
meeting? During the meeting, did anybody tell the Administrator
they would be more comfortable----
Ms. Klemstine. No.
Mr. Feeney. Okay. I have no further questions.
Chairman Miller. Thank you.
Destruction of Documents
Ms. Klemstine, we spoke for a moment about how both you and
Mr. Winters first heard that the tapes were being destroyed.
And I think you said you had gotten e-mails, I think according
to your interviews with our staff, Karen VanSant was involved
in an e-mail exchange. Catherine----
Ms. Klemstine. Actually, it was Susan Aggen, who mentioned
Karen VanSant. She was the one who actually had sent the e-
mail, that Karen had been told to.
Chairman Miller. Okay. All right. And then, Catherine
Schneiter----
Ms. Klemstine. Schneiter, yes.
Chairman Miller. Schneiter?
Ms. Klemstine. Yes.
Chairman Miller. Okay. And what did she tell you about the
DVDs?
Ms. Klemstine. Well, the first, and I believe that you have
a copy of that, was an e-mail that she sent to me, saying that
they had asked for the destruction of the tapes, and I wrote an
e-mail back in response, saying why are we doing this? And
then, I went actually down to physically talk to her, as to why
was this occurring, because in my mind, it sent up a bunch of
red flags, as to why would we destroy tapes.
Chairman Miller. Okay. You mentioned e-mails. Exhibit 5, in
the exhibit book before you, are those e-mails that you have
referred to?
Ms. Klemstine. No, this one comes from Dave Gandrud to
Catherine. It was a different e-mail.
Chairman Miller. I have got the wrong number. Exhibit 2.
Ms. Klemstine. Yes.
Chairman Miller. All right. Did you consider telling Ms.
VanSant or Ms. Schneiter not to destroy----
Ms. Klemstine. Yes.
Chairman Miller.--the tapes?
Ms. Klemstine. Very much so. I did.
Chairman Miller. Okay. You considered it. Did you do it?
Ms. Klemstine. No, I did not do it.
Chairman Miller. Okay.
Ms. Klemstine. And I did not do it because I was not the
originator of the document.
Chairman Miller. Okay. Do you feel any twinge of regret
in----
Ms. Klemstine. Yes.
Chairman Miller.--that decision?
Ms. Klemstine. Yes, I remember sitting at my desk when I
got this e-mail, and I was, I remember thinking jeez, we should
not be doing this. You know, the price to pay for destroying a
document versus what was on the document to me wasn't worth the
expenditure, and I did go and talk to Catherine about can't we
try to keep it or whatever, and I did discuss it at my level,
but I did not pursue it any higher than my level.
Chairman Miller. Okay. Did you discuss this with Mr.
Winters?
Ms. Klemstine. No, he was not there at the time.
Chairman Miller. Okay. Did you discuss him with it at any
time?
Ms. Klemstine. No.
Chairman Miller. Okay. Did----
Ms. Klemstine. You have to realize that the tapes were
destroyed the following morning, like 8:00 or 9:00 in the
morning. It was so quick, it was done within less than 24
hours.
Chairman Miller. All right. Did you hear Mr. Winters, at
any time, tell the staff of the OIG office that destroying
something always raises red flags? You used the phrase raises
red flags a moment ago.
Ms. Klemstine. Did I hear Mr. Winters make that comment?
Chairman Miller. Right.
Ms. Klemstine. No, I did not. That was----
Chairman Miller. Okay. Mr. Winters, what was your response
when you heard of the order to destroy tapes, the DVDs?
Mr. Winters. The chronology of getting there was, might be
helpful to the Chairman. The first time I heard that the tapes
were destroyed was the following week, when I talked to the
Chief of Staff of NASA.
Chairman Miller. Okay. Did you tell your staff at any point
that destroying something always raises red flags?
Mr. Winters. I might have.
Chairman Miller. Well----
Mr. Winters. It is a reasonable statement to make, and one
that I would hold today.
Chairman Miller. Okay. Whether you said it or not, you
thought it then, you think it now?
Mr. Winters. Correct.
Chairman Miller. Okay. Mr. Winters, did you begin an
investigation of any kind into the destruction of the----
Mr. Winters. Yes.
Chairman Miller. Okay. When did you do that?
Mr. Winters. Well, upon learning that the tapes were
destroyed, and I went back and talked to my leadership, as to
next steps, in terms of what to do.
Chairman Miller. Who were your leadership?
Mr. Winters. The Deputy Inspector General, Mr. Tom Howard.
Chairman Miller. Mr. Winters, I know that you are a lawyer.
Are you familiar with the evidentiary concept of spoilation, s-
p-o-i-l-a-t-i-o-n.
Mr. Winters. Probably not as much as I should, but maybe
the Chairman could share that with me.
Chairman Miller. Well, let the word go forth that any
lawyer who appears before this committee should be expected to
be quizzed about the law. Is there any element of what you
understand of spoliation to mean, that when a party, knowing
that evidence will be of interest to another party, because of
pending litigation or anticipated litigation, or the interest
of an oversight committee, destroys a document that would be of
interest, that the inference about what was in the document is
damning to the person who destroyed it? Is that your
understanding of----
Mr. Winters. I agree with that.
Chairman Miller. Okay. Is there any element of spoliation
that does not fit these circumstances?
Mr. Winters. There is not.
Chairman Miller. Mr. Sensenbrenner.
Mr. Sensenbrenner. Thank you. For either of you, were OIG
employees looking for copies of the destroyed tapes?
Mr. Winters. It is my understanding there were some
employees that missed the meeting, and were looking for the
tapes, so they could view the meeting themselves.
Ms. Klemstine. Yes.
Mr. Sensenbrenner. What was your reaction, when you
received the e-mail asking that copies of the tape be
destroyed?
Ms. Klemstine. I think that question applies to me. I, as I
stated earlier, when I was sitting at my desk reading that e-
mail, my thought was why are we doing this? This is not the
right thing to do. So, as I said, red flags went up in my head.
Mr. Sensenbrenner. When the red flags went up, did you do
anything in response to those flags?
Ms. Klemstine. I went back to the originator of the e-mail,
Ms. Schneider, and asked her specifically what is the story
here? Why are we doing this? Again, the e-mail actually came
out of Marshall, which is one of our field centers, where I
first obtained the knowledge that this was going on. I was not
familiar with the headquarters situation at all, and I was
basically told that there was somebody standing there waiting
to take the tape from the ViTS office, and that basically, they
had already given the individual the ViTS tape.
Mr. Sensenbrenner. Ms. Klemstine, you have been in the IG's
office for a long time. Have you ever received a request like
this?
Ms. Klemstine. No.
Mr. Sensenbrenner. And why do you think the NASA
headquarters wanted those tapes destroyed?
Ms. Klemstine. I truly do not know why. Again, the price of
destroying those tapes was not worth, in my mind, what was on
those tapes. And so, I cannot think why we would do that.
Mr. Sensenbrenner. Mr. Winters.
Mr. Winters. I can only speculate.
Mr. Sensenbrenner. And who do you think was behind the
decision?
Mr. Winters. To destroy it?
Mr. Sensenbrenner. Yes.
Mr. Winters. The combination of either the Chief of Staff
and the General Counsel.
Mr. Sensenbrenner. Ms. Klemstine.
Ms. Klemstine. I would say the same. I have no knowledge.
Mr. Sensenbrenner. I have no further questions. We will be
hearing from them in a few minutes.
Chairman Miller. Mr. Feeney.
Mr. Feeney. I have no further questions. Thanks.
Chairman Miller. I am sure that you will be disappointed
that that is the end of our questions for you. And if we could
take a recess of just a couple of minutes, we will have our
next panel.
Thank you.
[Recess.]
Chairman Miller. The Subcommittee will return to order.
And we now welcome our second panel, Michael Wholley, the
General Counsel of NASA, and Paul Morrell, the Chief of Staff
for NASA Administrator Michael Griffin.
It is, as you know, the practice of the Subcommittee to
take testimony under oath. Do any, do either of you have any
objection to being sworn in?
Mr. Wholley. No, sir.
Chairman Miller. Okay. You also have a right to be
represented by Counsel. Are you represented by Counsel today?
Mr. Wholley. No, sir.
Chairman Miller. If you would now please stand and raise
your right hand.
[Witnesses sworn]
Chairman Miller. Thank you.
Both of you have provided written testimony, and I believe,
I assume that your oral testimony will be very similar to that,
probably simply reading that.
If you could begin with limiting that testimony to five
minutes, all of your written testimony will be placed in the
record, and after that, we will ask questions in turn, as we
did before.
We will begin with Mr. Wholley. Mr. Wholley.
Panel 2:
STATEMENT OF MR. MICHAEL C. WHOLLEY, GENERAL COUNSEL, NATIONAL
AERONAUTICS AND SPACE ADMINISTRATION (NASA)
Mr. Wholley. Thank you, Mr. Chairman, Mr. Sensenbrenner,
Mr. Feeney.
I have been asked to address five issues in my testimony
today before the Subcommittee. As you may be aware, I met with
the staff of the Subcommittee, as well as with the staff of
other committees on April 27, for approximately three hours,
and addressed these five issues, as well as others, and
answered to the best of my recollection and belief all of the
questions posed to me.
You have asked me to address the April 10 meeting held by
Dr. Griffin. Dr. Griffin set out as his purpose for that
meeting what he put in his March 14 letter: ``I will schedule a
meeting,'' quoting Dr. Griffin, ``with the employees of the
NASA Office of Inspector General, to inform them that I have
reviewed the Record of Investigation (ROI), and I have taken
the actions that I believe are necessary to address the ROI's
findings. Such a meeting will provide me an opportunity to
listen to any concerns that may exist among the staff, and to
express my support,'' that would be Dr. Griffin, ``for a strong
and effective Office of Inspector General.''
I was in attendance at the meeting, arriving with Dr.
Griffin and Mr. Morrell, the Chief of Staff. The meeting was
held in the videoconference room on the lower level at NASA,
and Dr. Griffin spoke initially for approximately ten minutes.
He stated, as best I recall, something similar to what he had
set forth in his letter to Mr. Johnson, with respect to the
ROI, having revealed no evidence of a lack of integrity on the
part of Mr. Cobb, nor did the ROI indicate any actual conflict
of interest, or actual lack of independence on his part.
I had watched Dr. Griffin's interview on the C-SPAN program
Newsmakers on Sunday, April 8, which is still online, and his
remarks at this meeting were similar to those he articulated on
that program. Dr. Griffin then opened up the floor for
questions, and several questions were asked and answered. I
believe that the meeting lasted a total of approximately 30
minutes.
With respect to the subsequent collection and destruction
of all video records of Administrator Griffin's meeting with
the OIG staff, my involvement is as follows. At some point on
the morning after the meeting, Paul Morrell came into my
office. This was not an unusual occurrence. He had what turned
out to be several DVDs, and he sat at a table across from my
desk.
He appeared upset that in spite of his direction to the
contrary that this closed meeting was not to be recorded, the
meeting had been recorded. As best I recall, he stated that
someone in Public Affairs had asked that the meeting be
recorded, and had then asked that a number of copies me made.
Mr. Morrell indicated that he had recovered the copies from
Public Affairs, and that this meeting was not a Public Affairs
event, but rather, a closed meeting called by the
Administrator, for the purpose that the Administrator set forth
in his letter.
I believe I told him I clearly understood his pique that
his direction had been overridden, and that this closed meeting
had been recorded, and that copies had been made. I believe
that at the conclusion of our discussion, I asked him to leave
the recordings with me, and I put them on my desk.
I want to categorically state at no time and in no way did
Mr. Morrell indicate to me that I should destroy these
recordings. That did not happen. Sometime either later that
day, or early the next day, I honestly can't recall when, I
reviewed relevant portions of the Federal Records Act (FRA),
and in particular, the definition of what constituted a record.
I also briefly reviewed the Freedom of Information Act. I
concluded that these copies made by Public Affairs were not
records for purposes of the FRA, but also concluded that if
they were retained and filed, they could become records by
virtue of that retention. From my perspective, and I stated it
to the Subcommittee staff, I did not believe it wise to have
these in any way become records, subject to release under FOIA.
This was a closed meeting, specifically directed to not be
recorded, and these DVDs were not agency records at that time,
in my opinion.
I personally made the decision to destroy them, and I did
so by breaking them into pieces and throwing them in the trash.
The next time I heard anything about these recordings was while
I was on vacation in Florida the week of April 15 at a family
reunion. In looking at my e-mails, I believe I first learned of
the request to provide a copy of the recording to this
subcommittee some time in the late afternoon or the early
evening of April 18, when I learned of the Subcommittee's
letter of the same date. I informed my staff I didn't have any
copies of the recording, and that I had previously destroyed
them. At some later time, I learned that there had been other
recordings made at other ViTS locations.
Regarding my role in the response by Dr. Griffin to the
report of the Integrity Committee, I became aware that
something had been sent to Dr. Griffin from Mr. Johnson in his
role as Chairman of the PCIE. I will try and skip forward to
stay within my five minutes, sir. I think I received this from
Mr. Morrell on Monday the 26th. He gave me what had been
delivered to Dr. Griffin. I asked my executive assistant to
print all the documents out from the CD that was provided, and
I made arrangements to meet with Dr. Griffin and discuss how he
wanted this handled.
He indicated that he wanted the matter reviewed, and that
he wanted to know the full range of options open to him.
Specifically, I might add, he said I do not want a
recommendation. I want to know what my options are.
At some point, either the 27th or 28th, I discussed it with
my Deputy. I discussed the possibility of having a newly hired
individual, an experienced attorney who was due to begin
working in my office the following Monday, look over the report
and provide me her unvarnished opinion. I believed this was a
good option, in light of her extensive experience, and the fact
that so far as I was aware, she knew nothing about any of the
matters or the parties involved.
I asked Mr. Sefton to call her, and confirm that she knew
nothing about the case, and asked her if she could begin
working on it at the earliest opportunity, in light of the
tight deadline that we were facing. I concurrently reviewed the
materials. At the conclusion of her review, she provided me her
opinion.
I arranged for a meeting to brief Dr. Griffin, and had her,
the newly hired attorney, brief him on her review. At the
conclusion of that review, I indicated my full concurrence with
her analysis. I then left all the materials with Dr. Griffin,
informed him that under the terms of the executive order, he
was required to certify that he had reviewed the investigation,
and that once he had arrived at his course of action, we would
prepare the transmittal letter back to Dr. Johnson. The rest of
that paragraph deals with how that letter was sent back.
I have been asked to address concerns about the monitoring
of Mr. Cobb's actions under the corrective action plan proposed
by Administrator Griffin. Administrator Griffin set forth his
recommendation in his March 14 letter, and that is available to
you, and I am sure you have it.
I have no role in that monitoring process. The IG Act
specifically authorizes that general supervision can be by the
principal deputy, but cannot be delegated any further. Of
course, there still exist all of the options available to any
individual who wishes to file a complaint against the Inspector
General, including the Integrity Committee, the EO process, the
Office of Special Counsel, and others.
Dr. Griffin has publicly and privately stated that he wants
an independent Office of Inspector General, committed to its
statutory charter. I have been the General Counsel at NASA
since July 6, 2004. This is in reference to my personal
relationship, allegedly, with Mr. Cobb. My relationship with
Mr. Cobb is professional and amicable. Do we socialize
together? No. I have never been to his home, nor he to mine. We
are professional colleagues. As I stated to the staff during
our three hour meeting, I find him to be a man of integrity.
From my perspective, he understands his role as Inspector
General, and carries it out with conviction and force, and we
understand our boundaries well.
I was asked how often I talked with him. The answer is
simple. Every time I see him. We have worked together to
establish an acquisition integrity program, for example, and
both of us and our respective staffs firmly believe that it
will pay great dividends to the agency and to the government.
We also have disagreed on numerous occasions on the law,
and he has the impediment of being as stubborn and oftentimes
as argumentative as I am when we believe we are correct. We
have, on a number of issues, agreed to disagree. I am not sure
how much more of my five minutes are here, sir, but----
As I stated to the staff with whom I met on April 27, I do
not think that anybody, and I said this to the staff, I do not
think that anybody wishes more than I do that a recording of
that meeting could be provided to this body. There were
somewhere between 120 and 200 people, I believe, at that
meeting. The vast majority, in fact almost exclusively, OIG
people. I believe the only two non-OIG were probably Mr.
Morrell and I, and then, of course, the Administrator.
To in any way imply I destroyed copies of the recordings in
an attempt to destroy evidence of the substantive content of
that meeting is just not true, sir. Not my intent. I recognize
that memories and perceptions about what occurred there differ.
The rest, sir, you have commented on. I am not in high
dudgeon or in a fit of pique. I am just skeptical about
anything that comes in front of me. You have every right to be
skeptical as well.
Finally, I want to publicly apologize to everyone at NASA
and this committee who has had to expend time and effort trying
to find out whether a copy of this record still exists. I want
to particularly apologize to Dr. Griffin and the leadership at
NASA. The agency has important work to do, of this Nation and
its people, work that is critical to our national security, our
economic future. Misdirections like this are not helpful, and I
deeply regret that I have made this a distraction.
I spent my professional life trying to resolve problems,
and trying to make things better. Despite my honest and
considered efforts in the matter of the destruction of the
DVDs, I regret I failed to do so in this regard and
necessitated this hearing.
Thank you, sir.
[The prepared statement of Mr. Wholley follows:]
Prepared Statement of Michael C. Wholley
I have been asked to address five issues in my testimony today
before the Subcommittee. As you may be aware, I met with the staff of
the Subcommittee, as well as with staff of other committees, on April
27, 2007 for approximately three hours and addressed these five issues,
as well as others, and answered to the best of my recollection and
belief all of the questions posed to me.
1. You have asked me to address the April 10, 2007 meeting held by Dr.
Griffin with the staff of the NASA OIG. Dr. Griffin had set out his
purpose in holding such a meeting in his March 14, 2007 letter to Mr.
Clay Johnson detailing the actions he intended to take after reviewing
the HUD OIG Report of Investigation (ROI) on Mr. Robert Cobb, the NASA
Inspector General. In his letter Dr. Griffin stated that:
``. . .I will schedule a meeting with the employees of the
NASA Office of Inspector General to inform them that I have
reviewed the ROI and I have taken the actions that I believe
are necessary to address the ROI's findings. Such a meeting
will provide me an opportunity to listen to any concerns that
may exist among the staff and to express my support for a
strong and effective Office of Inspector General.''
I was in attendance at the meeting, arriving with Dr. Griffin and
Mr. Paul Morrell, the Chief of Staff. The meeting was held in the video
teleconference (ViTS) room on the lower level at NASA and Dr. Griffin
spoke initially for approximately ten minutes. He stated, as best I
recall, something similar to what he had set forth in his letter to Mr.
Johnson with respect to the ROI having revealed no evidence of a lack
of integrity on the part of Mr. Cobb, nor did it indicate any actual
conflict of interest or actual lack of independence on his part. I had
watched Dr. Griffin's interview on the C-Span program ``Newsmakers'' on
Sunday morning, April 8, and his remarks at this meeting were similar
to those he had articulated on that program. Dr. Griffin then opened up
the floor for questions, and several questions were asked of and
answered by Dr. Griffin. I believe that the meeting lasted a total of
less than thirty minutes.
2. With respect to ``[T]he subsequent collection and destruction of all
video records of Administrator Griffin's meeting with the OIG staff,''
my involvement was as follows. At some point the morning after the
meeting, Paul Morrell came into my office. This was not an unusual
occurrence. He had what turned out to be several CD cases in his hand
and he sat at the table across from my desk. He appeared upset that, in
spite of his direction to the contractor ViTS operator that this closed
meeting was not to be recorded, the meeting had been recorded. As best
I recall he stated that someone in Public Affairs had asked that the
meeting be recorded and had then asked that a number of copies be made.
Mr. Morrell indicated that he had recovered the copies and that this
meeting was not a public affairs event but rather a closed meeting
called by the Administrator. I believe I told him that I clearly
understood his pique that his direction had been overridden, and that
this closed meeting had been recorded and copied. I believe that at the
conclusion of our discussion I asked him to leave the recordings with
me, and I put them on my desk. I want to categorically state that at no
time, and in no way, did Mr. Morrell indicate to me that I should
destroy these recordings. That did not happen.
Sometime either later that day or early the next day, I honestly
cannot recall which, I reviewed relevant portions of the Federal
Records Act (FRA) and, in particular, the definition of what
constituted a record. I also briefly reviewed the Freedom of
Information Act. I concluded that these were not ``records'' for
purposes of the FRA, but also concluded that if they were retained and
filed they could become ``records'' by virtue of that retention. From
my perspective, and as I stated to the Subcommittee staff, I did not
believe it wise to have these in any way become ``records'' subject to
release under the Freedom of Information Act. This was a closed
meeting, specifically directed to not be recorded, and these DVDs were
not Agency records at that time. I personally made the decision to
destroy them, and I did so by breaking them into pieces and throwing
them in the trash.
The next time I heard anything about these recordings was while I
was on vacation in Florida the week of April 15th. In looking at my e-
mails, I believe that I first learned of the request to provide a copy
of the recording to this subcommittee sometime in the late afternoon or
early evening on April 18 when I learned of this subcommittee's letter
of the same date. I informed my staff that I did not have any copies of
the recording and that I had previously destroyed them. At some later
time, I learned that there had been other recordings made at other ViTS
locations.
3. Regarding my role in the response by Dr. Griffin to the report of
the Integrity Committee, I became aware that ``something'' had been
sent to Dr. Griffin from Mr. Johnson in his role as Chairman of the
PCIE with regard to Report of Investigation of the Integrity Committee.
To the best of my recollection, I became aware of this during a
conversation with Mr. Morrell that occurred while we were at Ames
Research Center in California at a Strategic Management Council
meeting. This would have been either February 21st or 22nd. From
reviewing my e-mails I have determined that on Monday, February 26th,
Mr. Morrell gave me what had been delivered to Dr. Griffin. The
``package'' consisted of the January 22, 2007 letter from the Integrity
Committee to Mr. Johnson; Mr. Johnson's transmittal letter to Dr.
Griffin, a copy of the ``Policy and Procedures'' of the Integrity
Committee, a copy of Executive Order 12993, a copy of a March 24, 1989
Memorandum Opinion from the Office of Legal Counsel to the Integrity
Committee, and a CD marked ``ROI IC 500, Vols. I-III, -FOUO-'' I asked
my Executive Assistant to print all of the documents on the CD and put
them in three ring binders. I made arrangements to meet with Dr.
Griffin and discuss how he wanted this handled. He indicated that he
wanted the matter reviewed and that he wanted to know the full range of
options open to him in light of the Report of Investigation. At some
point, on either the 27th or 28th, I discussed with my Deputy, Keith
Sefton, the possibility of having a newly-hired individual, an
experienced attorney who was due to begin working in my office on March
5th, look over the report and provide me her unvarnished opinion. I
believed that this was a good option in light of her extensive
experience and the fact that, so far as I was aware, she knew nothing
about any of the matters or the parties involved. I asked Mr. Sefton to
call her, confirm that she knew nothing about the case, and ask her if
she could begin working on it at the earliest opportunity in light of
the tight deadline that we were facing. She agreed to do so, and Mr.
Sefton arranged to deliver a copy of the materials to her. I
concurrently reviewed the materials. At the conclusion of her review
she provided me her opinion. I arranged a meeting to brief Dr. Griffin,
and had her, the newly-hired attorney, brief him on her review. At the
conclusion of her review, I indicated my full concurrence with her
analysis. I then left all of the materials with Dr. Griffin, informed
him that under the terms of Executive Order 12993 he was required to
certify that he had reviewed the investigation, and that once he had
arrived at his course of action we would prepare the transmittal letter
back to Mr. Johnson. I believe that it was on Monday, March 12th, that
I met with Dr. Griffin and received his direction on what actions he
wished to take. We had previously discussed that his actions in his
``general supervision'' role over the IG were limited, and that several
of the proffered options would in fact require the concurrence of the
Chairman of the PCIE, Mr. Johnson. I prepared the draft response for
Dr. Griffin's letter back to Mr. Johnson after the meeting, then had to
go on travel for the remainder of the week. In my absence, the attorney
who had reviewed the matter and who briefed Dr. Griffin worked with Mr.
Morrell to finalize the March 14th letter transmitted back to Mr.
Johnson.
4. Topic 4 that I have been asked to address concerns the
``[M]onitoring of Mr. Cobb's actions under the corrective action plan
proposed by Administrator Griffin.'' As indicated in the March 14, 2007
letter from Dr. Griffin, he has directed that Mr. Cobb ``. . .meet with
the Deputy Administrator on a bimonthly basis to discuss his
implementation of his individual leadership/management plan and his
professional growth with the Executive Coach.'' I have no role in that
monitoring process. The IG Act specifically authorizes that ``general
supervision'' can be by the principal deputy, but cannot be
``delegated'' further. Of course, there still exist all of the options
available to individuals who wish to file complaints against the
Inspector General including the Integrity Committee, the EEO process,
the Office of Special Counsel, and others. Dr. Griffin has publicly,
and privately, stated that he wants an independent Office of Inspector
General that is committed to its statutory charter.
5. I have been the General Counsel at NASA since July 26, 2004. My
relationship with Mr. Cobb is both professional and amicable. Do we
socialize together: no. I have never been to his home, nor he to mine.
We are professional colleagues. As I stated to the staff during our
three-hour meeting, I find him to be a man of integrity, intelligent,
focused on doing the best possible job he can, and very independent.
And I like that in a person. From my perspective, he understands his
role as an Inspector General, carries it out with conviction and force,
and we understand our boundaries very well. I was asked how often I
talked with him and the answer is quite simple: every time I see him.
We have worked together to establish an Acquisition Integrity Program,
and both of us, and our respective staffs, firmly believe that it will
pay great dividends to the Agency and to the government. We have also
disagreed on the law on occasion, and he has the impediment of being as
stubborn and argumentative as I am when we believe that we are correct.
We have, on a number of issues, ``agreed to disagree.''
As I stated to the staff with whom I met on April 27th, I do not
think that anybody wishes more than I do that a recording of that
meeting could be provided to this body. Your staff has apparently
received allegations of what was said and done at that meeting that
range from the patently false to the ridiculous. If a video or audio
recording of the event existed, it would clearly demonstrate what
actually occurred and we would not, perhaps, be having this hearing.
There were, I believe, somewhere between 120 and 200 people, mostly OIG
staff members including investigators, who were present at this
meeting. To in any way imply that I destroyed the copies of the
recordings in an attempt to destroy evidence of the substantive content
of the meeting beggars belief. I recognize that memories and
perceptions differ. That said, some of the allegations contained in the
April 25th letter, and which were related to me in my meeting with the
staffers on April 27th, were so false as to clearly imply an intent to
mislead on the part of those who provided them.
This latter point leads me to comment on a subject that is of
significant and growing concern to me. I believe that ``facts'' matter,
and that before any individual, organization or agency is pilloried,
before anyone's reputation is destroyed publicly or privately, there is
an ethical obligation to vigorously ascertain the truth, the factual
underpinnings, of each and every allegation. I come here today with the
firm conviction that such is the purpose of this hearing. My sense in
this matter is that there has been, on the part of some of the people
involved in this matter, a certain ``sentence first, verdict later''
mindset. My sense is that allegations have been slipped under the door
or thrown over the transom, often anonymously or with the request of
anonymity, and in all-too-many cases they are immediately given a
mantle of ``credibility'' because they originate from someone
``familiar with the issues'' and therefore ``must be true.'' In the
best of all possible worlds some level of skepticism, some kernel of
``doubt,'' some due diligence in ascertaining the facts must come into
play. In the best of all possible worlds individuals making such
allegations would be required to swear to the truth of what they are
saying, and would be made aware of the consequences of any false
statement. In the best of all possible worlds, judgment would be
withheld, and inflammatory, inaccurate public releases and commentary
would be curtailed until all allegations had undergone the scrutiny of
rigorous analysis. While I recognize that such a ``perfect world'' may
not be attainable, I nonetheless believe that each of us should do our
part to come as close to it as possible.
Finally, I want to publicly apologize to everyone at NASA who has
had to expend time and effort trying to find whether a copy of this
recording still exists. I want to particularly apologize to Dr. Griffin
and the leadership at NASA. This agency has important work to do for
this nation and its people, work that is critical to our national
security and our economic future, and distractions like this are not
helpful. I have spent my professional life trying to resolve problems
and trying to make things better. Despite my honest and considered
efforts in the matter of the destruction of the DVDs, I regret that I
have failed to do so in this regard.
Chairman Miller. Mr. Morrell.
STATEMENT OF MR. PAUL MORRELL, CHIEF OF STAFF, NATIONAL
AERONAUTICS AND SPACE ADMINISTRATION (NASA)
Mr. Morrell. Thank you, Chairman Miller, Ranking Member
Sensenbrenner, Mr. Feeney.
In his March 14, 2007 letter to Clay Johnson, Chairman of
the President's Executive Council on Integrity and Efficiency,
NASA Administrator Michael Griffin wrote: ``I will schedule a
meeting with the employees of the NASA Office of Inspector
General to inform them that I have reviewed the Report of
Investigation regarding the allegations of misconduct on the
part of NASA Inspector General Robert Cobb, and I have taken
the actions that I believe are necessary to address the Report
of Investigation's findings. Such a meeting will provide me an
opportunity to listen to any concerns that may exist among the
staff, and to express my support for a strong and effective
Office of Inspector General.''
In his subsequent letter to Clay Johnson, dated March 29,
2007, Administrator Griffin wrote: ``In my meeting with IG Cobb
and the OIG staff, I will make clear that I expect and support
a strong OIG, which continues to be dedicated to identifying
fraud, waste, and abuse, and that I am committed to leading an
agency where full and frank discussions are not just tolerated,
but are expected, condoned, and encouraged, in a climate
without fear of retribution, and one in which the full panoply
of protections exist for whistleblowers.''
The meeting between the Administrator and the Office of
Inspector General staff took place on Tuesday, April 10. The
previous day, on Monday, April 9, I contacted the Office of
Public Affairs to inquire about using the NASA TV facilities
available in the headquarters auditorium for the April 10
meeting, which included OIG staff at headquarters and the
various NASA centers across the country. The meeting was on a
sensitive subject, and I wanted the OIG staff to feel free to
participate in a full and free dialogue. Therefore, I asked
Public Affairs to determine if the equipment used in the
auditorium could limit the broadcast of the meeting solely to
meeting participants.
Later that day, I was informed that the auditorium
equipment would not allow the meeting to be limited to
participants, and it was recommended that the headquarters
videoconferencing facility be used instead. Concerned that the
size of the videoconference facility was not adequate to
accommodate the number of OIG staff expected at the meeting, I
went to the facility and spoke to its manager, Mr. Fred Berger.
During my conversation with Mr. Berger, we discussed
whether the technology in the auditorium could be used, whether
the technology available in the videoconference center could be
used in the auditorium, and whether the video facility could
accommodate the number of OIG staff expected to attend the
meeting.
I also told Mr. Berger during our conversation that the
meeting should not be recorded. My reason for doing so was my
belief that recording the meeting might discourage questions
and discussion of OIG staff concerns, which was inconsistent
with what I believed was the Administrator's stated purpose for
the meeting.
The next day, on April 10, shortly after I arrived at the
meeting with the Administrator, I noticed a display on the
video monitor at the front of the room that indicated the
meeting was, contrary to my instructions, being recorded. Later
that day, I placed a call to Mr. Berger to inquire why the
meeting had been recorded. Mr. Berger was unavailable, and he
returned my call the following morning, as I was driving to the
office.
I asked Mr. Berger who recorded the meeting. He said he
did. I asked him why he recorded it, contrary to my direction.
Mr. Berger said he forgot that I had asked him that it not be
recorded, and that Mr. Fred Brown, from NASA TV, under the
Office of Public Affairs, had requested that the meeting be
recorded, and that Mr. Berger had provided Mr. Brown with a
copy of the recording.
I told Mr. Berger that I thought it was highly
inappropriate for someone in Public Affairs to request a
recording of a meeting between the OIG staff and the
Administrator, especially when I told him the previous day that
it should not be recorded. I asked Mr. Berger to retrieve the
recording from Public Affairs.
I next spoke by phone with my secretary, who informed me
that Mr. Bob Jacobs of the Office of Public Affairs had
delivered DVD copies of the meeting to my office. I was,
needless to say, surprised to learn that not only had the
meeting been recorded and provided to Public Affairs, but that
Public Affairs was making copies.
When I arrived at the office, I went to see Mr. Jacobs. I
asked Mr. Jacobs if he had requested that the meeting be
recorded. He said that he had. I told Mr. Jacobs that I
believed it was highly inappropriate for him to have requested
a recording of a closed meeting between the Administrator and
the OIG staff. I told him that he did not have the authority to
request recordings of the Administrator's non-Public Affairs-
related meetings. I requested that he provide me with any
additional copies that he had in his possession, which he in
turn did.
I then went to see Mr. Fred Berger at the conferencing
facility. When I arrived at his office, he was there with Mr.
Fred Brown from NASA TV. Mr. Berger gave me several more DVDs.
I asked him if what I had in my possession represented all the
copies. He said yes.
I took the DVDs to the NASA General Counsel. I explained to
Mr. Mike Wholley, excuse me, what had happened, that a non-
Public Affairs-related meeting had been recorded by Public
Affairs without proper consent or authorization, despite the
fact that I said it should not be recorded. I asked Mr. Wholley
what I should do with the DVDs. He said I should leave them
with him.
I left the General Counsel's office believing they were in
the appropriate hands. I never directed that any DVD or
recording be destroyed. It was my understanding that the
original recording had been made at headquarters, and that all
existing copies had been taken to the Office of the General
Counsel.
To the best of my recollection and belief, I was unaware
that copies of the meeting had been made and destroyed at NASA
centers until some time after the April 10 meeting had
occurred, and I believe, to the best of my knowledge, it was
some time the following week.
It was and remains my strong belief that the Office of
Public Affairs had no legitimate reason or authority to
request, copy, or possess a recording of what was a non-Public
Affairs-related meeting between the Administrator and the OIG
staff. Furthermore, it was and remains my very strong belief
that participants in a closed meeting have the right to expect
that the contents of the meeting will remain secure and
private, even when they know the meeting is being recorded. It
was my very strong concern that the possession of the recording
by Public Affairs compromised the foregoing.
The Subcommittee asked me to address my role in the
Administrator's response to the report of the President's
Council on Integrity and Efficiency. My role was as a
facilitator: scheduling meetings, conveying information, and
coordinating the preparation, editing, review, and approval of
correspondence. I did not review the Report of Investigation,
and I did not make recommendations to the Administrator
regarding his response to the Report of Investigation.
As you know, the Administrator recommended several actions
to the Chairman of the PCIE, and obtained his concurrence,
consistent with the Inspector General Act. Those
recommendations included IG Cobb's attendance at the Federal
Executive Institute courses, and the assistance of an executive
coach to help enhance IG Cobb's leadership and management
skills. In addition, IG Cobb will meet with the Deputy
Administrator on a bimonthly basis to discuss the
implementation of his individual leadership and management
plan, and his work with the executive coach. The Deputy
Administrator's meetings with IG Cobb will be one way of
monitoring his progress and his commitment to improving his
management skills. In addition, there are a number of options
available to OIG staff to report any future allegations of
inappropriate actions.
[The prepared statement of Mr. Morrell follows:]
Prepared Statement of Paul Morrell
Mr. Chairman, in his March 14, 2007 letter to Clay Johnson,
Chairman of the President's Executive Councils on Integrity and
Efficiency, NASA Administrator Michael Griffin wrote:
I will schedule a meeting with the employees of the NASA
Office of Inspector General to inform them that I have reviewed
the [Report of Investigation regarding the allegations of
misconduct on the part of NASA Inspector General Robert Cobb]
and I have taken the actions that I believe are necessary to
address the [Report of Investigation's] findings. Such a
meeting will provide me an opportunity to listen to any
concerns that may exist among the staff and to express my
support for a strong and effective Office of Inspector General.
In a subsequent letter to Clay Johnson dated March 29, 2007
Administrator Griffin wrote:
In my meeting with IG Cobb and the OIG staff, I will make
clear that I expect and support a strong OIG which continues to
be dedicated to identifying fraud, waste, and abuse, and that I
am committed to leading an Agency where full and frank
discussions are not just tolerated but are expected, condoned,
and encouraged in a climate without fear of retribution, and
one in which the full panoply of protections exists for
``whistleblowers.''
The meeting between the Administrator and the Office of Inspector
General (OIG) staff took place on Tuesday, April 10.
On Monday, April 9, I contacted the Office of Public Affairs to
inquire about using the NASA TV facilities available in the
headquarters auditorium for the April 10 meeting, which included OIG
staff at headquarters and the various NASA centers across the country.
The meeting was on a sensitive subject and I wanted the OIG staff to
feel free to participate in a full and open dialogue. Therefore, I
asked Public Affairs to determine if the equipment used in the
auditorium could limit the broadcast of the meeting solely to meeting
participants.
Later that day I was informed that the auditorium equipment would
not allow the meeting to be limited to participants and it was
recommended that the Headquarters video conferencing facility be used
instead. Concerned that the size of the video conference facility was
not adequate to accommodate the number of OIG staff expected at the
meeting, I went to the facility and spoke to its manager, Mr. Fred
Berger. During my conversation with Mr. Berger, we discussed whether
the technology in the auditorium could be used, whether the technology
available in the video conference center could be used in the
auditorium, and whether the video facility could accommodate the number
of OIG staff expected to attend the meeting. I also told Mr. Berger
during our conversation that the meeting should not be recorded. My
reason for doing so was my belief that recording the meeting might
discourage questions and discussion of OIG staff concerns, which was
inconsistent with what I believed was the Administrator's stated
purpose for the meeting.
The next day, on April 10, shortly after I arrived at the meeting
with the Administrator, I noticed a display on a video monitor at the
front of the room that indicated the meeting was, contrary to my
instructions, being recorded. Later that day, I placed a call to Mr.
Berger to inquire why the meeting had been recorded. Mr. Berger was
unavailable and he returned my call the following morning as I was
driving to the office. I asked Mr. Berger who recorded the meeting. He
said he did. I asked him why he recorded it contrary to my direction.
Mr. Berger said he forgot that I had asked that it not be recorded and
that Mr. Fred Brown, from NASA TV under the Office of Public Affairs,
had requested that the meeting be recorded, and that Mr. Berger had
provided Mr. Brown with a copy of the recording. I told Mr. Berger that
I thought it was highly inappropriate for someone in Public Affairs to
request a recording of a meeting between the OIG staff and the
Administrator, especially when I told him the previous day that it
should not be recorded. I asked Mr. Berger to retrieve the recording
from Public Affairs.
I next spoke by phone with my secretary who informed me that Mr.
Bob Jacobs, from the Office of Public Affairs, had delivered DVD copies
of the meeting to my office. I was, needless to say, surprised to learn
that not only had the meeting been recorded and provided to Public
Affairs, but copies were being made.
When I arrived at the office, I immediately went to see Mr. Jacobs.
I asked Mr. Jacobs if he had requested that the meeting be recorded. He
said that he had. I told Mr. Jacobs that I believed it was highly
inappropriate for him to have requested a recording of a closed meeting
between the Administrator and the OIG staff. I told Mr. Jacobs that he
did not have the authority to request recordings of the Administrator's
non-public affairs related meetings. I requested that he provide me
with any additional copies that he had in his possession, which he in
turn did.
I then went to see Mr. Fred Berger, the manager of the video
conferencing facility. When I arrived at Mr. Berger's office he was
there with Mr. Fred Brown, of NASA TV. Mr. Berger gave me several more
DVDs. I asked him if what I had in my possession represented all of the
copies. He said yes.
I took the DVDs to the NASA General Counsel. I explained to Mr.
Mike Wholley what had happened--that a non-public affairs related
meeting had been recorded by Public Affairs without proper consent or
authorization, despite the fact that I said it should not be recorded.
I asked Mr. Wholley what I should do with the DVDs. He said I should
leave them with him. I left the General Counsel's Office believing they
were in the appropriate hands.
I never directed that any DVD or recording be destroyed. It was my
understanding that the original recording had been made at
headquarters, and that all existing copies had been taken to the Office
of the General Counsel. To the best of my recollection and belief, I
was unaware that copies of the meeting had been made and destroyed at
NASA centers until some time after the April 10 meeting had occurred.
It was and remains my strong belief that the Office of Public
Affairs had no legitimate reason or authority to request, copy, or
possess a recording of what was a non-public affairs related meeting
between the Administrator and the OIG staff. Furthermore, it was and
remains my very strong belief that participants in a closed meeting
have the right to expect that the contents of that meeting will remain
secure and private even when they know the meeting is being recorded
internally. It was my very strong concern that possession of this
recording by Public Affairs compromised the foregoing.
The Subcommittee asked me to address my role in the Administrator's
response to the report of the President's Council on Integrity and
Efficiency (PCIE). My role was as a facilitator--scheduling meetings,
conveying information, and coordinating the preparation, editing,
review, and approval of correspondence. I did not review the Report of
Investigation and I did not make any recommendations to the
Administrator regarding his response to the Report of Investigation.
As you know, the Administrator recommended several actions to the
Chairman of the PCIE and obtained his concurrence consistent with the
Inspector General Act. Those recommendations included IG Cobb's
attendance at Federal Executive Institute courses and the assistance of
an executive coach to help enhance the IG Cobb's leadership and
management skills. In addition, IG Cobb will meet with the Deputy
Administrator on a bimonthly basis to discuss the implementation of his
individual leadership and management plan, and his work with the
executive coach.
The Deputy Administrator's meetings with IG Cobb will be one way of
monitoring his progress and his commitment to improving his management
skills. In addition, there are a number of options available to the OIG
staff to report any future allegations of inappropriate actions.
Thank you.
Discussion
Chairman Miller. Thank you, Mr. Morrell.
On the documents, or most of the documents that NASA has
provided in response to this committee's request, there is,
stamped in large type across the face of the document, in a way
that almost obscures the contents of the documents, makes them
very hard to read, and in the original, I understand that it is
in red ink: ``This document is provided by NASA solely for
Congressional use and not for further release. No waiver of
FOIA exemption or internal agency working document/
predecisional/attorney-client privileges are waived in this
provision for Congressional use beyond the purposes of the
committees making the request.'' To whom is that warning
intended?
Mr. Wholley. Sir, I don't believe it is a warning. I
believe it is the recognition that these are, in many cases,
predecisional documents that would not be releasable under
FOIA, and it was not intended, certainly, as a warning to this
committee.
Chairman Miller. All right. Do you contend that this
committee cannot release the documents that you have provided
us, under our oversight authority, to the public?
Mr. Wholley. Sir, if we were requested for them, we would
deny them under FOIA.
Chairman Miller. But you don't claim that this committee
cannot----
Mr. Wholley. I make no such claim.
Chairman Miller. Okay. I am struck by two provisions of
passages in Mr. Morrell's testimony and Mr. Wholley's
testimony. Mr. Morrell, you quoted the letter from
Administrator Griffin on the first page of your testimony: ``I
am committed to leading an agency where full and frank
discussions are not just tolerated, but are expected, condoned,
and encouraged, in a climate without fear of retribution, and
one in which the full panoply of protections exist for
whistleblowers.''
Mr. Morrell, do you think that is the climate in which NASA
and every agency should conduct their business? And Mr.
Wholley, do you agree with that?
Mr. Morrell. Yes, sir.
Chairman Miller. Okay. Mr. Wholley, in your testimony, you
said: ``My sense is that the allegations have been slipped
under the door or thrown over the transom, often anonymously or
with the request of anonymity, and in all too many cases, they
are immediately given a mantle of credibility, because they
originate from someone ``familiar with the issues,'' and
therefore ``must be true.'' In the best of all possible worlds,
individuals making such allegations would be required to swear
to the truth of what they are saying, and would be made aware
of the consequences of any false statement.''
Mr. Wholley, aren't we talking about the same people?
Aren't we talking about whistleblowers?
Mr. Wholley. Sir, I----
Chairman Miller. People who throw allegations over the
transom to us?
Mr. Wholley. Sir, this was not referring to things that
have come before the Committee. It was referring to the number
of allegations against Mr. Cobb in that Report of
Investigation, many of which were unfounded, some of which were
dismissed out of it.
Chairman Miller. Those were from NASA employees that were
whistleblowers, were they not?
Mr. Wholley. I am not sure who they were, sir, and I am not
sure how many of them would qualify as whistleblowers.
Chairman Miller. Okay. Well, it seems like there is some
category of a NASA employee that is a whistleblower, and that
is a good thing. That is a wholesome thing. They are patriotic
Americans. And then, there is some other category of NASA
employees who throw things over the transom and request
anonymity for it that is an unwholesome thing. Can you tell us
how we are supposed to tell the difference?
Mr. Wholley. Sir, I am not saying that one should try and
distinguish the difference. What I said was when they come in
that way, one needs to, as best as possible, try and find the
factual underpinnings for whatever is being said, as opposed to
taking it as gospel as it comes through.
Chairman Miller. Okay. Mr. Morrell, you spoke approvingly,
or quoted approvingly from Mr. Griffin's letter, how
whistleblowers should be regarded and protected. Do you see
anything in Mr. Wholley's testimony that is contrary to how you
describe the way whistleblowers should be treated or regarded?
Mr. Morrell. I don't want to speak for Mr. Wholley, but I
do believe that whistleblowers should have all the protections
afforded under law.
Chairman Miller. Mr. Sensenbrenner. I will have time for
additional questions.
More on the Destruction of Documents
Mr. Sensenbrenner. Thank you, Mr. Chairman.
I want to get to the tape of the meeting, and what happened
to it, and I have 44 United States Code Section 3301, and I
will quote it in total: `` As used in this chapter, ``records''
includes all books, papers, maps, photographs, machine readable
materials, or other documentary materials, regardless of
physical form or characteristics, made or received by an agency
of the United States under federal law in connection with the
transaction of public business and preserved or appropriate for
preservation by that agency or its legitimate successor as
evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the Government
or because of the informational value of data in them. Library
and museum material made or acquired and preserved solely for
reference or exhibition purposes, extra copies of documents
preserved only for convenience of reference, and stocks of
publications and of processed documents are not included.''
Now, from that, it appears that the tape was a public
record, that was at least preserved for a brief period of time,
or appropriate for preservation, because it did deal with the
functions, policies, decisions, procedures, operations, or
other activities of the government. So, I think it is very
clear that the tape was a public record.
Now, it is also a crime to destroy public records. Mr.
Wholley, with your legal analysis of having these records
destroyed, were you familiar with the litigation relative to
Henry Kissinger's notes while he was at the State Department?
Mr. Wholley. No, sir. I can't, I cannot own up to some
familiarity with it.
Mr. Sensenbrenner. Okay. Well, let me tell you what they
said. First of all, in Reporters Committee for Freedom of the
Press v. Vance, which was decided by the U.S. District Court
for the District of Columbia, the notes that were made of
Kissinger's conversations while at the State Department were
federal records under the FRA. Then, that case went up, and
there was other litigation, and it said the determinant factor
for creating a federal record is whether the record was made at
government expense, that is, with government materials and on
government time. I think very clearly this tape was made at
government expense, with government materials, and on
government time.
Have you ever been asked to give advice to anybody in NASA
relative to what records can be destroyed, and if so, what was
that?
Mr. Wholley. No, sir. I can't say that I have been
personally asked to give advice to anybody on that.
Mr. Sensenbrenner. Well, isn't it your job, when an issue
like this comes up, and you were personally involved in
destroying at least the tapes that were in the NASA
headquarters, that you should be concerned about what the law
is on this subject?
Mr. Wholley. Yes, sir.
Mr. Sensenbrenner. Okay. Is it your belief that the tape,
once it was made, was a government record?
Mr. Wholley. No, sir.
Mr. Sensenbrenner. Why not?
Mr. Wholley. If--had it been--had that been my belief, sir,
I would not have destroyed it.
Mr. Sensenbrenner. Well, why not? I read the relevant
portions of the law.
Mr. Wholley. Yes, sir.
Mr. Sensenbrenner. I read the determinant cases, when Mr.
Kissinger claimed that his notes should be private, and not
government record, you know, it isn't very hard to dig the
cases out. Isn't that the job of a General Counsel to do that?
Mr. Wholley. Yes, sir. It is.
Mr. Sensenbrenner. Okay. Well, it wasn't done. Now, Mr.
Morrell. You testified you didn't have anything to do with the
destruction of the tapes, and did you speak to the technician,
Mr. Berger, who made the tapes, after the teleconference?
Mr. Morrell. The next morning, sir.
Mr. Sensenbrenner. Okay. And after your conversation, did
Mr. Berger erase his copy of the teleconference, and called
NASA centers up, asking them to do the same?
Mr. Morrell. I have heard that he had.
Mr. Sensenbrenner. Okay. Did you ask him to do it?
Mr. Morrell. I did not.
Mr. Sensenbrenner. Okay.
Mr. Morrell. It was my understanding that the recording had
been made at headquarters.
Mr. Sensenbrenner. Who is Keith Thomas Sefton?
Mr. Morrell. He is Mr. Wholley's Deputy.
Mr. Sensenbrenner. So, he is an attorney as well? Okay.
Berger wrote, on an e-mail to Mr. Sefton, dated April 30, which
was after the April 27 meeting: ``At 10:15 a.m. on Wednesday,
April 11, 2007, I received a call from Paul Morrell. During
that phone conversation, Paul asked me to contact my
counterparts at the centers to find out if those who recorded
the meeting still have the recordings, or if they could
retrieve them. Paul wanted me to ask them to erase videotapes
or shred DVDs of their recordings.'' And this was an e-mail
from Fred Berger to Keith Sefton.
Mr. Wholley, were you aware of that e-mail?
Mr. Wholley. No, sir. Not at the time.
Mr. Sensenbrenner. So, your deputy didn't tell you this?
Mr. Wholley. Sir, to be honest with you, I was trying to
stay away from--in fact, when--well, the answer is I can't
remember when I learned of it, but you know----
Mr. Sensenbrenner. What were you planning on staying away
from?
Mr. Wholley. I wanted to stay away from any involvement
that, because I was involved in the destruction of tapes, I
wanted to stay away from any involvement in talking to any of
the witnesses. In fact, when the Committee asked for any e-
mails, or any documents, I turned my computer over to another
attorney in the office, and said this is everything I have,
just take what you believe is responsive.
Mr. Sensenbrenner. And what--which attorney was that?
Mr. Wholley. That was Ms. Donovan.
Mr. Sensenbrenner. Now----
Mr. Wholley. I believe she worked with her supervisor, Mr.
Falcon.
Mr. Sensenbrenner. Okay. And Mr. Morrell, I have read you
this e-mail from Fred Berger, who was the technician that did
the recording, to Keith Thomas Sefton, who works in Mr.
Wholley's office.
That is at variance with the testimony that you have given
and the answer to my question. How can you explain that?
Mr. Morrell. I can't explain it, sir. All I know is I asked
where it was recorded. He said he recorded it at headquarters.
He said that it had been given to Public Affairs, and I asked
him to get it back. Never any----
Mr. Sensenbrenner. I would repeat what is in the--part of
the mail: ``Paul wanted me to ask them to erase videotapes or
shred DVDs of their recordings.''
Mr. Morrell. I did not do that. When I had all the copies
that were at headquarters, Mr. Berger gave me the final copies,
I asked him was this everything, and he said yes.
Mr. Sensenbrenner. Okay.
Mr. Morrell. And at that point, I knew I didn't know what
needed to be done with them, so I took them to the General
Counsel.
Mr. Sensenbrenner. Okay. Thank you, Mr. Chairman. I have no
further questions.
Chairman Miller. Mr. Feeney.
More on the April 10th Meeting
Mr. Feeney. Mr. Wholley, I think it was, at best, a foolish
mistake to destroy the videotapes. I want to make that clear.
But I also want to ask you some questions. Is it your
understanding that as part of a decision-making process before
a final conclusion or decision or report is issued, that notes
and documents that are used, in terms of developing the final
decision, are subject fully to the FRA?
Mr. Wholley. I would have to look at that in context. I am
not quite sure I have the entirety of your question.
Predecisional stuff that----
Mr. Feeney. Predecisional.
Mr. Wholley. No.
Mr. Feeney. And in the two letters that Mr. Griffin penned,
the first letter, of March 14, he says that one of the purposes
is to have an opportunity and ``to listen to any concerns that
may exist amongst the staff, and to express my support for a
strong and effective Office of Inspector General.'' In his
subsequent letter to Clay Johnson, on March 29, he says that he
wants to make it clear that he is ``committed to leading an
agency where full and frank discussions are not just tolerated,
but are expected, condoned, and encouraged.''
And it seems to me, when I am trying to have that sort of
conversation with my staff, that a video recording is the last
thing I want to encourage those sorts of full and frank
discussions. And so, do you share Mr. Morrell's opinion that
this meeting should never have been taped in the first place,
given the purposes that Mr. Griffin laid out in those two
letters?
Mr. Wholley. Yes, sir. I share that. As I recall, the
conversation when he came in that morning, which was the
morning of the 11th, with the copies that Public Affairs had
made, as you could tell, his concern was that Public Affairs
had no right to tape a meeting that was supposed to be a
private, internal, closed meeting between the Administrator and
the staff of the Inspector General. If I may, the first time I
became aware, and this relates back to something Ms. Klemstine
said, and the first time I became aware that there was an
internal policy within the IG that their meetings are recorded,
so other people can see them, was when I saw the IG's response
back. I did not consider this an IG's meeting. It was an
Administrator's meeting.
Mr. Feeney. And you were in the meeting. Is----
Mr. Wholley. Sir, I walked in with Mr. Morrell and Mr.
Griffin, and Mr. Griffin walked immediately to the front of the
room, faced the audience, and began talking.
Mr. Feeney. Did you know that the meeting was being
recorded at that point?
Mr. Wholley. No, I did not. I know there were signs up. I
was sitting, what would have been on the very far right of a
semicircle, as Dr. Griffin looked, and Mr. Berger was in front
of me. There may well have been signs. I was, I just did not
see them.
Mr. Feeney. Our last two witnesses, including Ms.
Klemstine, said that it was clear to people that were viewing
the monitor that the meeting was being recorded. That was my
understanding of her testimony. Did you know that, Mr. Morrell?
Mr. Morrell. Yes, there were signs.
Mr. Feeney. There were signs, but Mr. Wholley, you didn't
see the signs?
Mr. Wholley. I didn't see them. I mean, frankly, I wasn't
looking for them.
Mr. Feeney. Well, one can only wonder, given the fact that
there were concerns that Mr. Cobb was in the room, apparently.
There were concerns about the tenor of Mr. Griffin's remarks.
One can only--but nobody expressed them at that meeting. One
can only wonder whether it was the video, as much as anything,
that may have intimidated some of the people that had concerns
that they expressed after the meeting, but not at the meeting.
And so, again, I want to say that at best, it was a foolish
decision, in my view, in retrospect, to destroy the tapes that
should have not been made in the first place, but it seems to
me clear that if I were having a meeting like this with my
staff, video cameras on all of us would be the last thing that
I would want to encourage full and frank discussions and
concerns.
And with that, I yield back the balance of my time.
Chairman Miller. Thank you. Mr. Morrell, I also would like
to encourage candor within your staff. You believe that it
would inhibit, kill candid discussions within the staff to have
it videotaped, but having a discussion of the findings of
improprieties of the allegations of misconduct by the Inspector
General Cobb, with their supervisor, Inspector Cobb, sitting
right there, would not inhibit the discussion. That could be
free, that could be open, that could be candid, with him
sitting right there?
Mr. Morrell. I didn't say that. I am sure that some people
may have felt intimidated by having him there.
Chairman Miller. All right. And do you think that inhibited
conversation within that room?
Mr. Morrell. Perhaps it did. It would be very possible, in
fact.
Chairman Miller. Very much sense that it would?
Mr. Morrell. Perhaps some people would be inhibited to
speak up. I think it--I mean, people did ask questions. I
thought perhaps some people would have--there would have been
more than what there was, but----
Chairman Miller. Well, the Inspector, the guy they are
talking about is sitting right there, beside Administrator
Griffin. Is that right?
Mr. Morrell. He was not beside the Administrator.
Chairman Miller. He was in the room. Okay. And they were
talking about him. And they were talking about allegations of
misconduct by him.
Mr. Morrell. Correct.
Chairman Miller. And that, you thought, could be an
uninhibited, free, candid discussion.
Mr. Morrell. I didn't say--Mr. Chairman, I didn't say that.
I can tell you that the Administrator felt that if he was going
to be talking about the IG, the IG should be in the room.
Chairman Miller. If you were concerned, Mr. Morrell, it
strikes me if you were concerned about the candor in the room,
and making people feel that they should have an uninhibited
discussion, to say what was on their mind, that it was not the
taping of it that inhibited that, it was having Mr. Cobb right
there, and also, the tenor of what we understand Administrator
Griffin said.
Now, we don't have the tape to see what he said. We have
still not been provided the written statement that you said
that he used, but----
Mr. Morrell. On the written statement, it was prepared from
some talking points that we had prepared, and----
Chairman Miller. And can we get those?
Mr. Morrell. You should have them already.
Chairman Miller. We do not.
Mr. Morrell. I can get them to you, but they were provided,
I believe, in the first set of documents that you requested.
Chairman Miller. All right.
Mr. Morrell. It is not a complete document. It is a partial
document, of what he used.
Chairman Miller. All right. Mr. Morrell, Mr. Wholley wrote
you an e-mail on March 14, which we have been provided, about
this proposed meeting. The proposal in the letter to Clay
Johnson that Mr. Griffin would address the Inspector General
staff. It is before you, as Exhibit 10. Do you have it?
Mr. Morrell. Yes, sir.
Chairman Miller. All right. Do you recognize that e-mail?
Mr. Morrell. I do.
Chairman Miller. Okay. Can you read it through the warning
that you not disclose it beyond the Congressional Committee?
Mr. Morrell. I can probably get through it.
Chairman Miller. Okay. I would like to read from it:
``Paul, I wasn't very articulate in our discussion last night
and I apologize. Truth is, I am very troubled by the proffered
``addition'' to the letter,'' ``to call a ``special meeting''
of the IG staff and not be prepared to back Moose,'' that is
the Inspector General Cobb, ``in a strong way would undercut
Moose, grant more credibility to the complaints, and the
investigation than warranted, and be, I believe,
counterproductive. On the other hand, to call a special meeting
and praise Moose in front of the selected group,'' the IG
staff, ``will risk Mike becoming the center of the
controversy,'' Mr. Griffin, Administrator Griffin. ``As I said
last night, I see no upside for Mike in the proposed course of
action, and I do see a downside. I know that this is a not a
legal matter, but I am concerned about how this will play out
if the suggested course of action is adopted.''
Do you remember getting that e-mail?
Mr. Morrell. Yeah.
Chairman Miller. Okay. Did I read that faithfully?
Mr. Morrell. I believe so.
Chairman Miller. All right. Do you recall the conversations
that you had with Mr. Wholley?
Mr. Morrell. Vaguely.
Chairman Miller. Okay. Do you recall the e-mail?
Mr. Morrell. Yes.
Chairman Miller. Okay. Did you have the same concerns?
Mr. Morrell. I raised this issue with the Administrator. He
did not believe that he was going there to defend the IG or to
criticize the IG, but to talk about facts, and it was something
that he decided he wanted to do.
Chairman Miller. Okay. Well, the concern, the reaction that
the previous two witnesses, Mr. Winters and Ms. Klemstine, in
particular, described, aren't those exactly the reactions that
Mr. Wholley was concerned would result from such a meeting?
Mr. Morrell. I believe so.
Chairman Miller. All right. Did you share those concerns?
Did you have the same concerns that Mr. Wholley had?
Mr. Morrell. I don't believe at the time I did. I believed
that the Administrator would go in, discuss facts----
Chairman Miller. All right.
Mr. Morrell.--what we was asked to do, what he decided to
do, and what his expectations were for the Office, as he stated
in his letter.
Chairman Miller. All right. All the testimony today has
been that there were signs everywhere. There were--let me not
exaggerate. There were visible signs, readily visible signs,
saying that the meeting was being taped. The two previous
witnesses said that they noticed the signs. They assumed that
they were being, the meeting was being taped. Did you notice
those signs?
Mr. Morrell. I did.
Chairman Miller. All right. Why did you not say at the time
to stop the taping of the meeting?
Mr. Morrell. When I noticed that the Administrator was
already speaking, Mr. Berger was at his console working, and I
decided it wasn't appropriate to interrupt the meeting.
Chairman Miller. I have abused my time again. Mr.
Sensenbrenner.
Mr. Sensenbrenner. I will yield the Chairman my time.
More on the Destruction of Documents
Chairman Miller. All right. You had collected the DVDs. You
took them to Mr. Wholley. Why did you take them to him? He said
that you didn't specifically say destroy these. What did you
say?
Mr. Morrell. I believe what I told--I recapped what had
happened, that I didn't ask--I asked that the meeting not be
recorded, but Public Affairs had apparently put in a request. I
thought it was inappropriate, didn't believe that Public
Affairs had any authority or legitimate reason for doing so,
that I collected them, take them from Public Affairs, and I had
them, and I didn't know what to do with them.
Chairman Miller. What did you expect Mr. Wholley would do
with them?
Mr. Morrell. Part of the reason I brought them to him was
because they had maintained the records on the IG
investigation, and I figured he would be, you know, he and his
office would know what to do with them.
Chairman Miller. Did you say that to Mr. Wholley, that
because he was maintaining the other records pertaining to
the----
Mr. Morrell. No, what I asked him was what should I do with
these?
Chairman Miller. And he said leave them with me?
Mr. Morrell. Yes.
Chairman Miller. Did it not occur to you that he might
infer from your conduct that you wanted them destroyed? I mean,
it seems like you came powerfully close to saying, ``Will no
one rid me of these troublesome DVDs, these meddlesome DVDs?''
Mr. Morrell. No, sir. That was not my intent. I was never,
it was never my intent to destroy anything.
Chairman Miller. Did you ask Mr. Wholley if you could throw
the tapes away?
Mr. Morrell. No.
Chairman Miller. Did you ask him if the tapes could be
destroyed?
Mr. Morrell. No.
Chairman Miller. Did you ask him to research the law on
what needed to become of the tapes?
Mr. Morrell. I believe as I was leaving, he said he was,
something to the effect that he would look into it, or
something to that effect.
Chairman Miller. Mr. Wholley, how many lawyers reported to
you at that time?
Mr. Wholley. In the Office of General Counsel?
Chairman Miller. Yes, sir.
Mr. Wholley. At headquarters, in the neighborhood of 35.
Chairman Miller. And were there others in other places
within NASA?
Mr. Wholley. Yes, there are attorneys at all ten centers.
Chairman Miller. And how many attorneys in all are there?
Mr. Wholley. Approximately 152 at this time.
Chairman Miller. 152 lawyers, and 35 are right there at
your elbow.
Mr. Wholley. Yes, sir.
Chairman Miller. Okay. Did you ask any of them to research
the law on your behalf?
Mr. Wholley. No, sir.
Chairman Miller. You did not give the research assignment
to any lawyer?
Mr. Wholley. No, sir.
Chairman Miller. You looked at the books yourself?
Mr. Wholley. Yes, sir.
Chairman Miller. Generally, I applaud that in lawyers. It
doesn't happen often. Do you have a background in FOIA or
records, or records law? You said earlier you are not familiar
with the case law that Mr. Sensenbrenner referred to. Is that
an area that has been an area of specialty for you, or
concentration?
Mr. Wholley. Certainly not a specialty, sir. In terms of my
past time serving as the Staff Judge Advocate of various
commands and serving at headquarters.
Chairman Miller. Were there lawyers within the 160, however
many who reported to you, who did have that as an area of their
concentration?
Mr. Wholley. Yes, sir. That would be the General Law
Section.
Chairman Miller. The General Law Section, but you did not
inquire of anyone in the General Law Section?
Mr. Wholley. I did not.
Chairman Miller. Why did you not?
Mr. Wholley. Well, I guess one reason, it was a very
sensitive matter. As my attorneys will tell you, I do a lot of
my own research. Even after they present a product, although it
is not a question of not trusting them. I am, as you may have
gotten from my statement, I am a show me the data, look at the
law. I looked at exactly what Ranking Member Sensenbrenner
said, `44 U.S.C. sec. 44.' I looked at the FOIA. And sir, as I
mentioned in my written remarks, I didn't start on this right
away. It was some time later that day. There were other things
going on. It was some time later that day. From my perspective,
these were recordings that were made by the Public Affairs
Office, of a private, closed meeting of the Administrator. They
should not have been made.
Chairman Miller. All right. Mr. Wholley, Mr. Morrell
discussed the e-mail that you sent him before the meeting, that
I read aloud. Do you recall that e-mail? Do you recall your
conversations about your concern about how it looked?
Mr. Wholley. I don't recall the conversation from the night
before. I do recall the e-mail.
Chairman Miller. Okay. So you expressed a concern in the e-
mail about how it would all look one way or the other.
Mr. Wholley. Yes, sir.
Chairman Miller. Okay. And so, you were present at the
meeting, correct?
Mr. Wholley. Yes, sir. I was.
Chairman Miller. Okay. Were you aware then of the concerns
that Ms. Klemstine expressed, and Mr. Winters expressed, that
the staff members felt about what was said at the meeting?
Mr. Wholley. No, I was not aware then, sir, and it is----
Chairman Miller. Well, hearing what happened at the
meeting, did you have any of those concerns yourself?
Mr. Wholley. No.
Chairman Miller. But you did know that there was a very
strong potential problem one way or the other, of this meeting
not looking good, of--either if Administrator Griffin said
Moose Cobb is my boy, or if he criticized Moose Cobb to his own
employees?
Mr. Wholley. Yes, sir. I had concerns.
Chairman Miller. Okay.
Mr. Wholley. They were expressed in the e-mail.
Chairman Miller. And you knew at the time that this was a
subject, at that point, Senator Nelson, Chairman Bart Gordon,
and I had all urged the President to fire Moose Cobb. You knew
that, did you not?
Mr. Wholley. I am trying to put, I believe your letter was,
that particular letter was early April, April 3, perhaps.
Chairman Miller. April 2.
Mr. Wholley. Second.
Chairman Miller. But that was before the meeting.
Mr. Wholley. Yes, sir.
Chairman Miller. Okay. It was before the tapes were
destroyed.
Mr. Wholley. Yes, sir.
Chairman Miller. Okay. You knew that how this whole matter
was being handled was something that the oversight committees
of Congress were interested in, did you not?
Mr. Wholley. I knew they were interested in the matter,
yes, sir.
Chairman Miller. Okay. And you knew, you said that you did
not want this to subject to FOIA if you kept it. Isn't that
right?
Mr. Wholley. That is what I said, sir. If, but as I, that
is only half of what I said. I said I did not believe they were
agency records, but if we retained them, they would become
agency records. From my perspective, we had five copies that
Public Affairs had made of a closed meeting between the
Administrator and the IG staff, that was not only not
authorized, but was specifically said not to be recorded.
Mr. Sensenbrenner. Will the Chairman yield?
Chairman Miller. The Chairman happily yields.
Mr. Sensenbrenner. In what part of the Federal Records Act
is it intended to encourage agencies to destroy records
promptly so that they won't become records? Is there any clause
in that? I haven't been able to find it.
Mr. Wholley. Sir, I have never looked for that clause, nor
have I been able to find it.
Mr. Sensenbrenner. Well, it isn't there. I yield back to
the Chairman.
Chairman Miller. Thank you, Mr. Sensenbrenner.
Mr. Wholley, you are also a lawyer, and the General Counsel
of NASA. Are you familiar with the evidentiary concept of
spoilation, s-p-o-i-l-a-t-i-o-n, spoilation?
Mr. Wholley. Yes, sir.
Chairman Miller. Okay. And describe that concept for me.
Mr. Wholley. Basically, inferences can be taken negative to
the person who fails to provide certain evidence.
Chairman Miller. And certainly, destroys it, knowing that
that the documents are subject to, would be evidence in a
pending litigation, or anticipated litigation, or an inquiry
from Congress?
Mr. Wholley. Yes, sir. May I continue?
Chairman Miller. You may.
Mr. Wholley. I don't know how to get that across any more
clearly. At the time that I, having finished my research, which
we now may say was not sufficient, at that time, I did not
believe they were federal records. I did not believe Public
Affairs should have copies. I did not believe there was any
reason for these copies to exist and be filed, or they could
become federal records, and possibly FOIA-able, and as perhaps
impossible as this may seem, I did not consider, truly, I did
not consider the political aspects of this.
As I have said, nobody regrets more that I can't produce
that particular DVD.
Chairman Miller. And you are aware that now, there are
employees of, you spoke of it, or you wrote of it in your
written testimony, you did not get to it in your oral
testimony, that there are employees of NASA who attended that
meeting, who are now providing us with accounts of the meeting
that you described as patently ridiculous, outrageous----
Mr. Wholley. Sir, your staff informed me of several
allegations that were patently ridiculous and outrageous.
Chairman Miller. Knowing everything that you knew then,
knowing that this meeting was in its very conception a problem,
knowing that we were interested, Congress was interested, the
oversight committees were interested in how NASA dealt with the
PCIE recommendations, knowing that we would likely eventually
ask for that DVD, if it still existed, why is there not every
element of spoliation present, so we should assume the worst?
Mr. Wholley. Sir----
Chairman Miller. Under ordinary rules of evidence.
Mr. Wholley. I cannot stop you from assuming the worst,
other than to say, sir, that there were 120 to 180 people in
there, many of whom were NASA IG investigators. There was
certainly no intent on my part to destroy evidence. Frankly,
that just was not my intent. As I have stated to your staff,
and as I will state here, what I did, I did in good faith. If
it was a mistake that I made on the law, it is probably not the
first one I have ever made, nor will it, unfortunately, be the
last. But it was an honest mistake, and I deeply regret that I
destroyed them, for the reason that we are now here debating
this.
Chairman Miller. Okay. Is it your practice to destroy other
federal property?
Mr. Wholley. No, sir.
Chairman Miller. Have you done it on any other occasion?
Mr. Wholley. Not that I can consciously recall, sir.
Chairman Miller. All right. And how did you do it in this
case? Exactly how did you destroy those DVDs?
Mr. Wholley. Broke them in half, threw them in the trash.
Chairman Miller. Mr. Sensenbrenner.
Mr. Sensenbrenner. I have no further questions.
Chairman Miller. Mr. Wholley, in addition to your e-mail to
Mr. Morrell, you sent an e-mail to Jeff Rosen, the counsel at
OMB for Clay Johnson.
Mr. Wholley. Yes, sir.
Chairman Miller. Dated April 4, 2007.
Mr. Wholley. I do not recall that particular e-mail, sir.
Chairman Miller. Okay. It is in the evidence book as
Exhibit 18-B, the exhibit book.
Mr. Wholley. Sir, my #18 is----
Chairman Miller. 18-B.
Mr. Wholley.--the bullet points from----
Chairman Miller. 18-B. 18-B.
Mr. Wholley. Yes, sir.
Chairman Miller. All right. The subject line is Hearings
with two question marks.
Mr. Wholley. Yes, sir.
Chairman Miller. Okay. Now, that was two days after Senator
Nelson, Chairman Gordon, and I called on Mr. Cobb, called on
President Bush to fire Mr. Cobb.
Mr. Wholley. Yes, sir.
Chairman Miller. Okay. And in the e-mail, you, of course,
point out the subject of the Cobb case, and you wrote that the
Cobb case ``continues to spin up to ``escape velocity,'''' and
``the reason for this e-mail is to arrange a meeting between
the two us, and anyone else you care to bring from your staff
who has been involved in vetting this investigation, before
there is any hearing, so that we can soberly consider the
approach to be taken.'' ``I am sure that you can appreciate
that I am not particularly keen on seeing two entities of the
Executive Branch at odds in a hearing before the Legislative
Branch.''
So, you were aware that this would likely be the subject of
Congressional hearings.
Mr. Wholley. No, sir. I cannot say I was aware that it was
likely.
Chairman Miller. It was possible.
Mr. Wholley. Possible, yes, sir.
Chairman Miller. All right. If it was likely, there just
would have been one question mark. Possible was two question
marks.
So, you were certainly very, very aware of the Congress'
interest in this, this committee's interest in this, and you
were getting together with OMB to kind of get on the same page?
Mr. Wholley. No, sir. My concern, which I had expressed as,
since you have all my e-mails, you know, my concern was that
the, concerning the disconnect between the Executive Order, the
Integrity Committee policies and procedures, and what had
actually been produced and what transpired. That was my
concern, not the hearing, sir. I mean, you called a hearing. I
have given you everything that I have on my computer that my
counsels, that my attorneys believe was relevant. I am here to
answer any question you have. My concern was about the way the
Executive Order and the policies and procedures were not
properly interfacing in the way that the investigation came to
us.
Chairman Miller. All right. I am sorry. ``I am sure that
you can appreciate that I am not particularly keen on seeing
two entities of the Executive Branch at odds in a hearing
before the Legislative Branch.''
Mr. Wholley. Yes, sir.
Chairman Miller. What was it you were concerned that OMB
and NASA might be at odds about?
Mr. Wholley. It wasn't so much OMB, sir. It was the
Integrity Committee and the PCIE. And it is not OMB. I was
talking to Jeff Rosen, Mr. Rosen, in his capacity as the
Counsel to Clay Johnson, Chairman of the PCIE. He was well
aware, as were others, of my concerns about the Executive Order
and the policies and procedures, and how they were or were not
interfacing properly.
Chairman Miller. All right. Mr. Wholley, could you describe
what your role was in the response by Administrator Griffin to
the findings of the PCIE, the report of the PCIE?
Mr. Wholley. I was given the package, sir. I was given the
package by Mr. Morrell, as I said on, my e-mails reveal it was
the 26th. I did review it. I turned it over to someone who knew
nothing about it, a very experienced today, and asked for her
unvarnished opinion on it.
I had her brief Dr. Griffin. I was in the room. At the
conclusion of her brief, he asked me my thoughts. I explained
that I was on all fours with her analysis, which had been done
independently. We had previously or simultaneously given him
the range of options. As you know, sir, he has no disciplinary
options, which is why his letter talks in terms of with the
concurrence of the Chairman of the PCIE.
And that was my role, sir.
Chairman Miller. All right. What was the standard that the
attorney that you referred to used in her analysis? Was it one
of criminal misconduct, or was it one of appearances?
Mr. Wholley. I believe she would be better able to answer
that, sir, but I do know that she had the policies and
procedures, with the definitions therein. She had the Quality
Standards for Inspectors General. She had the Executive Order.
She had all of the, she had everything I had. And she had a
number of years of experience.
Chairman Miller. And--I am sorry.
Mr. Wholley. I am sorry. I don't want to speculate. I was
going to say I doubt she used criminal law standards, since any
criminal law violation, I assume, would have been given to the
Justice Department, and as you know, sir, the investigation
specifically says there is no violation of law, rule, or
regulation, gross misconduct, or gross waste of funds. They did
say there was an abuse of authority in creating a hostile work
environment.
Mr. Wholley's Relationship With Mr. Cobb
Chairman Miller. Just one more set of questions, Mr.
Wholley.
I know in your written statement, and perhaps in your oral
statement as well, you said that you did not socialize, you do
not visit with Mr. Cobb in his home. He did not visit in your
home. You did talk whenever you saw each other.
Did you have regular meetings with him to discuss matters
before your Office or before his Office?
Mr. Wholley. Yes, sir.
Chairman Miller. Okay. And how often was that?
Mr. Wholley. Sir, I would say probably it would be rare
that if I didn't see him once every couple of weeks.
Chairman Miller. Okay. Did you----
Mr. Wholley. Probably more. Weekly, ten days.
Chairman Miller. Did you tell our staff that you met once a
week from the time that you joined NASA?
Mr. Wholley. Yes, sir. Initially, we did have weekly
meetings, when----
Chairman Miller. All right.
Mr. Wholley. There were weekly meetings between the
Administrator, that the parties that were supposed to be at the
meeting were the Administrator, Deputy Administrator, Chief of
Staff, Inspector General, and General Counsel. That had existed
before I got there. More often than not, the Administrator
wasn't there. It was the Deputy Chief, and this was prior to
Dr. Griffin arriving.
Chairman Miller. All right. And did the two of you compare
notes on your discussions with our staff?
Mr. Wholley. No, sir. Compare notes, sir?
Chairman Miller. Well, that is a phrase. Did you talk with
each other about the interviews?
Mr. Wholley. I think we said something, but it was not,
frankly, it was not what I would consider anything substantive.
Chairman Miller. Okay. And you are familiar with all of the
allegations, not just the summary report, but all of the
allegations within the file of the PCIE matter, the Inspector
General, began as an Inspector General's investigation by the
Inspector General of HUD. Have you reviewed all of that?
Mr. Wholley. Sir, I have reviewed what I was provided, what
NASA was provided. I have reviewed that. I don't know if I have
everything. I was, as I mentioned to your staff, I dealt with
the pile of wood that was given to us.
Chairman Miller. All right. In, well, allegation 43, in the
Record of Investigation, again, it is an allegation, was that
Mr. Cobb had improperly provided you information pertaining to
criminal cases.
Mr. Wholley. Yes, sir.
Chairman Miller. You are familiar with that allegation.
Mr. Wholley. Yes, sir.
Chairman Miller. Okay. And you are familiar, you know that
one of the principal concerns about Mr. Cobb's conduct at NASA
was the inappropriateness of his relationship with Sean
O'Keefe, and how close it appeared to be, rather than an arm's
length independence.
Mr. Wholley. Yes, sir. And again, I believe Mr. O'Keefe
left in February of 2005.
Chairman Miller. All right. Did you seek advice from Mr.
Cobb on how to manage your own staff, how to lead it, how to
deal with challenges, or did he seek advice from you on those
matters?
Mr. Wholley. He did not seek advice from me, no sir.
Chairman Miller. Did you discuss it?
Mr. Wholley. We discussed leadership at times, sir.
Chairman Miller. Okay. I have no further questions.
Mr. Sensenbrenner. Neither do I.
Chairman Miller. I thank both of you for appearing, and for
your testimony, and I believe that Mr. Sensenbrenner and I have
already discussed further action that we may take. Thank you.
Mr. Wholley. Thank you, Chairman Miller and Mr.
Sensenbrenner.
[Whereupon, at 11:55 a.m., the Subcommittee was adjourned.]
Appendix:
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Additional Material for the Record