# Appendix — Grenier v. Department of Justice (No. 06-538)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006

## Text

Supreme C
(2 Preme Court US.
O6—5-F 6007 TZ 2006

In Ohe opewe oF te GL
Supreme Court of the Gnited States

+

CHRISTOPHER W. GRENIER,
PAUL C. BOCK and TODD M. SHEA,

Petitioners,

No.

Vv.

DEPARTMENT OF JUSTICE,

Respondent.

*

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

+

PETITION FOR WRIT OF CERTIORARI
”

APPENDIX

Peter H. Noone

Counsel of Record

AVERY, DOOLEY, POST & AVERY
90 Concord Avenue

Belmont, Massachusetts 02478
(617) 489-5300

Counsel for Petitioners

THE LEX GROUP®© ¢ 1750 K Street N.W. @ Suite 475 ¢ Washington, DC 20006
(202) 955-0001 @ (800) 815-3791 @ Fax: (202) 955-0022 ¢www.thelexgroupdc.com

TABLE OF CONTENTS

Judgment of
The United States Court of Appeals for the
Federal Circuit

entered July 14, 2006................cc.cceeeee

Final Order of

United States of America

Merit Systems Protection Board
Boston Field Office

entered April 19, 2006.....................0000+.

Initial Decision of

United States of America

Merit Systems Protection Board
Boston Field Office

entered September 19, 2008 .................

Order of

United States of America

Merit Systems Protection Board
Boston Field Office

entered April 14, 2003.....................000...

Order of

United States of America

Merit Systems Protection Board

Boston Field Office

Re: Granting Stay Request
entered December 31, 2002...................

Page

ii

Memorandum to
Asa Hutchinson from
George J. Cazenavette, ITI
Re: Boston Field Division On-site Inspection
With Attachment
dated October 29, 2002 oo... eeeceeeeeeeeees A91

Attachment:

Memorandum to
Mark R. Trouville from
Rodney G. Benson
Re: Management Review of the
New Bedford Resident Office and
Cape Cod Task Force
i aisissivinecincndisetaamtainaee A96

Memorandum to
Rogelio E. Guevara from
George J. Cazenavette, III
Re: Recommendation for Transfers:
dated September 26, 2002.....................00:. A124

Memorandum to
Charles H. West from
Mark R. Trouville
Re: Management Review of the
New Bedford Resident Office and
Cape Cod Task Force
CR TRIE Te, Be iii tiv cserveceienivestctetes A128

Transcript of Hearing before
The Honorable William Carroll
on February 24-25, 2008 .............:2::cscee A131

Al

NOTE: Pursuant to Fed. Cir. R. 47.5, this disposition
is not citable as precedent. It is a public record.

United States Court of Appeals for the
Federal Circuit

[ENTERED JULY 14, 2006]
05-3213
CHRISTOPHER W. GRENIER, PAUL C. BOCK,
and TODD M. SHEA,

Petitioners,

Vv.

DEPARTMENT OF JUSTICE,
Respondent.

Judgment

ON APPEAL fromthe MERIT SYSTEMS
PROTECTION BOARD

In CASE NO(S).

BN1221030033-W-1,

BN1221030034-W-1, and

BN1221030035-W-1.

This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:

Per Curiam: (MICHEL, Chief Judge RADER and

SCHALL, Circuit Judges):

AFFIRMED. See Fed. Cir. R. 36
ENTERED BY ORDER OF THE COURT

Dated: JUL 14 2006 /3/

Jan Horbaly, Clerk

A3

UNITED STATES OF AMERICA MERIT
SYSTEMS PROTECTION BOARD
BOSTON FIELD OFFICE

CHRISTOPHER W. GRENIER, PAUL C. BOCK,
TODD M. SHEA,
Appellants,

Vv.

DEPARTMENT OF JUSTICE,
“Agency.

[ENTERED April 19, 2005]

DOCKET NUMBERS
BN-1221-03-0033-W-1

BN-1221-03-0034-W-1 .

BN-1221-03-0035-W-1
DATE: April 19,2005

Peter H. Noone, Esquire, Belmont, Massachusetts,
for the appellants.

Imelda L. Paredes, Esquire, Alexandria, Virginia, for
the agency.

BEFORE
Neil A. G. McPhie, Chairman
Barbara J. Sapin, Member

FINAL ORDER

The appellants have filed a petition for review
in this case asking us to reconsider the initial

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decision issued by the administrative judge. We
grant petitions such as this one only when
significant new evidence is presented to us that was
not available for consideration earlier or when the
administrative judge made an error interpreting a
law or regulation. The regulation that establishes
this standard of review is found in Title 5 of the
Code of Federal Regulations, section 1201.115 (5
C.F.R. § 1201.115).

After fully considering the filings in this
appeal, we conclude that there is no new, previously
unavailable, evidence and that the administrative

judge made no error in law or regulation that affects
the outcome. 5 C.F.R § 1201.115(d)

_ Therefore, we DENY the petition for review.
The initial decision of the administrative judge is
final. This is the Board’s final decision in this
matter. 5 C.F.R. § 1201.113.

NOTICE TO THE APPELLANTS REGARDING
YOUR-_FURTHER REVIEW RIGHTS

You have the right to request the United
States Court of Appeals for the Federal Circuit to
review this final decision. You must submit your
request to the court at the following address:

United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439

~—

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The court must receive your request for review no
later than 60 calendar days after your receipt of this
order. If you have a representative in this case, and
your representative receives this order before you do,
then you must file with the court no later than 60
calendar days after-receipt by your representative. If
you choose to file, be very careful to file on time. The
court has held that normally it does not have the
authority to waive this statutory deadline and that
filings that do not comply with the deadline must be
dismissed; See Pinat v. Office of Personnel
Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your
right to appeal this decision to court, you should
refer to the federal law that gives you this right. It is
found in Title 5 of the United States Code, section
7703 (5 U.S.C. § 7703). You may read this law, as
well as review the Board’s regulations and other

related material, at our website,
http://www.mspb.gov. Additional information is
available at the court’s website,

http://fedcir.gov/contents.html. Of particular
relevance is the court’s “Guide for Pro Se Petitioners
and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.

FOR THE BOARD: /s/
Bentley M. Roberts, Jr.
Clerk of the Board

Washington, D.C.

A6

CERTIFICATE OF SERVICE

I certify that this Order was sent today to each of the

following:

Certified Mail

U.S. Mail

U.S. Mail

U.S. Mail

U.S. Mail

US. Mail

Peter H. Noone, Esq.
Avery Dooley Post & Avery, LLP

90 Concord Avenue
Belmont, MA 02478

Christopher W. Grenier
25 Apple Tree Lane
Barrington, RI 02806

Christopher W. Grenier
P.O. Box 11
Barrington, PJ 02806

Paul C. Bock
21 Rounsevell Drive
E. Freetown, MA 02717

Todd M. Shea

c/o Peter H. Noone

Avery Dooley Post & Avery, LLP
90.Concord Avenue

Belmont, MA 02478

Imelda L. Paredes, Esq.

U.S. Départment of Justice
DEA Headquarters

Office of Chief Counsel (CCA)
2401 Jefferson Davis Highway
Alexandria, VA 22301

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April 19, 2005 /s/

(Date) Dinh-Chung
Case Management Specialist

A8

UNITED STATES OF AMERICA MERIT
SYSTEMS PROTECTION BOARD
BOSTON FIELD OFFICE

CHRISTOPHER W. GRENIER, PAUL C. BOCK,
TODD M. SHEA,
Appellants,

V.

DEPARTMENT OF JUSTICE,
Agency.

[ENTERED Sept. 19, 2003]

DOCKET NUMBERS

BN-1221-03-0033-W-1

BN-1221-03-0034-W-1

BN-1221-03-0035-W-1
DATE: September 19,2003

Peter H. Noone, Esquire, Belmont, Massachusetts,
for the appellants.

Imelda L. Paredes, Esquire, Alexandria, Virginia, for
the agency.

BEFORE
William Carroll
Chief Administrative Judge

INITIAL DECISION

On November 8, 2002, each of the appellants, Special
Agents with the Drug Enforcement Administration

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(DEA), timely submitted individual-right-of-action
(IRA) appeals’ from the Office of. Special Counsel’s
(OSC’s) November 5, 2002 closeout letter stating it
was terminating its investigation of each appellant’s
allegation that he was retaliated against for his
whistleblowing activity when he was reassigned’
from New Bedford, Massachusetts to a location on
the southwest border of the United States.’ Per 5
C.F.R. § 1201.36(a), the three appeals were
consolidated for processing on December 16, 2002.
Grenier v. Department of Justice, MSPB Dkt. No.
BN-1221-03-0033-W-1 (Grenier W-l or Grenier et
al.),* Tab 11; 5 C.F.R. § 1201.36(a)(1). The Board has
jurisdiction over the appeals as noted below. A

1 See generally 5 C.F.R. Part 1209 (Practices and Procedures
for Appeals and Stay Requests of Personnel Actions Allegedly
Based on Whistleblowing) and, in particular, 5 C.F.R. §
1209.2(b\)) (Board jurisdiction over IRA appeals).

* The parties frequently referred to the actions as transfers.
According to the Office of Personnel Management’s regulations
at 5 C.F.R. § 210.102(b)(18), a transfer “means a change of an
employee ... from a position in one agency to a position in
another agency.” The appellants, however, never were slated
to leave DEA’s employ. More precisely, the appellants: were
subject to reassignment actions. According to 5 C.F.R. §
210.102(bX 12), a reassignment “means a change of an
employee, while serving continuously within the same agency,
from one position to another without promotion or demotion.”
Also, I note that although the agency made a decision to take
the reassignment actions, to date the actions have not been

effected.

* Grenier was reassigned to Imperial County, California; Bock
to Eagle Pass, Texas; and Shea to E] Paso, Texas.

‘ This case was adopted ay the lead case.

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hearing in the consolidated appeal was held in two
parts: on February 24-25, 2003,and on June 16-18,
2003. For the reasons set forth below, the appellants’
request for corrective action is DENIED.

BACKGROUND

Following an agency decision on September 26, 2002
to reassign them, the appellants each filed a
“Complaint of Possible Prohibited Personnel Practice
or Other Prohibited Activity” with OSC on October 8,
2002.° They also requested OSC to request a stay
from the Merit Systems Protection Board.® Grenier
v. Department of Justice, MSPB Dkt. No. BN-1221-
03-0033-S-1 Grenier S-l), Tab 1, Exh. A, Bockv.
Department of Justice, MSPB Dkt. No. BN-1221-03-
0034-S-1 (Bock S-l), Tab 1, Exh. A, and Shea v.
Department of Justice, MSPB Dkt. No.BN-1121-03-
0035-S-1 (Shea S-l), Tab 1, Exh. A. A review of each
appellant’s complaint reveals that he cited various
actions that he was reporting to OSC, only one of
which was the proposed reassignment. Id. OSC
refused to ask the Board for a stay and otherwise on
October 31, 2002, made a preliminary determination
to close its inquiry on each appellant’s complaint
relative to the reassignment action only. Grenier S-1,
Tab 1, Exh. E; Bock S-l, Tab 1, Exh. F; and Shea S-l,
Tab 1, Exh. F. The appellants did not choose to
respond with any new information to this

° The appellants have been-represented throughout by
Attorney Noone who has for the most part submitted joint
documentation to OSC and to the Board.

* This stay request would have been to a member of the Board
in Washington, D.C., pursuant to 5 U.S.C. § 1214(b)(1)(A).

All

preliminary determination so, on November 5, 2002,
OSC notified each appellant that it was closing its
file on the matter of his reprisal charge for the
reasons stated in its October 31, 2002 determination.
Grenter S-l1, Tab 1, Exh. F; Bock S-l, Tab 1, Exh. G;
and Shea S-l, Tab 1, Exh. G.

The appellants next, as mentioned above, filed
their appeals with this office on November 8, 2002
and simultaneously requested stays of their
reassignments, scheduled for various dates in
January 2003. On November 25, 2002, I denied each
appellant’s request for a stay based on the evidence
in the record at that time. I found, in short, that the
strength of the agency’s motive to retaliate was weak
and that otherwise there existed evidence to support
the agency’s reassignment of each-’appellant; thus,
there was not a substantial likelihood that any of the
appellants would prevail on the merits of his appeal.
5 C.F.R. § 1209.10(b)\(2); Grenier S-1, Tab 2; Bock S-l,
Tab 2; and Shea S-l, Tab 2.

The appellants each filed a second request for
a stay on December 17, 2002 based on newly
discovered evidence. Grenier S-2, Tab 1; Bock S-2,
Tab 1; and Shea S-2, Tab 1. On December 31, 2002,
based on the-evidence in the record at that time, I
granted Grenier’s and Shea’s requests for a stay.
Grenier S-2, Tab-4 and Shea S-2, Tab 4. I found, in
short, that the balance had shifted “and that the
agency’s professed need to reassign these two
appellants based on their poor performance and on a
need to correct the office situation in the New
Bedford Resident Office (NBRO) where all three
appellants worked was not sufficient enough to

Al12

outweigh the agency’s retaliatory motive; thus, there
was a substantial likelihood that Grenier and Shea
would prevail on the merits-of their appeals and,
further, the agency did not meet the criterion of
extreme hardship to negate the stay.’ 5 C.F.R. §
1209.10(b)(2).

With respect to appellant Bock’s stay request,
I dismissed it on December 31, 2002 based on the
fact that he had been granted a postponement of his
January 2003 reassignment date—to no later than
August 17, 2003—based on DEA’s Career Board
- accepting his reason, i.e., medical emergency, for a
delay. Bock S-2, Tab 4. At that time I believed the
decision in Grenier et al. would be issued before
August 17, 2003 and thus the granting of a stay
would be meaningless. When, that turned out not to
be true, Bock, on August 11, 2003, requested, for a
third time, a stay of his reassignment. On August 13,
2003, I granted the stay, with no objection from the
agency, to be effective until the date on which my
initial decision was issued. Bock S-3, Tab 3.

ANALYSIS AND FINDINGS

The Board has jurisdiction over an IRA appeal when

certain criteria are met.

— —

The Board has jurisdiction over an IRA if an

a

’ | found in adjudicating, the second stay requests that Chief
Inspector George J. Cazenavette III had actual knowledge of
the appellants’ whistleblowing disclosures. The evidence
presented since that time has caused that finding to be
incorrect. Cazenavette had constructive, not actual, knowledge.
See text infra.

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appellant has exhausted his administrative remedies
before OSC and makes nonfrivolous allegations that
(1) he engaged in whistleblowing activity by making
protected disclosures under 5 U.S.C. § 2302(b)(8),®
and (2) the disclosures were a contributing factor in
the agency’s decision to take or fail to take, or
threaten to take or fail to take, a personnel action
under 5 U.S.C. § 2302(a)(2)(A). See Yunus v.
Department of Veterans Affairs, 243 F.3d 1367, 1371
(Fed. Cir. 2001); Rusin v. Department of the
Treasury, 92 M.S.P.R. 298, J 11 (2002).

Each appellant has exhausted his administrative
remedies before OSC.

As recounted above, each appellant presented a
complaint to OSC on October 8, 2002 and each
received a closeout letter from OSC on November 5,
2002. This scenario serves to exhaust each
appellant’s administrative remedies before OSC. 5
U.S.C. § 1214(aX(3); 5 C.F.R. § 1209.5. Thus, I find

8 This section states:

(b) Any employee who has authority to take, direct
others to take, recommend, or approve any personnel
action, shall not, with respect to such authority--(8)
take or fail to take, or threaten to take or fail to take, a
personnel action with respect to any employee or
applicant for employment because of--(A) any disclosure
of information by an employee or applicant which the
employee or applicant reasonably believes evidences-(i)
a violation of any law, rule, or regulation, or (ii) gross
-mismanagement, a gross waste of funds, an abuse of
authority, or a substantial-and specific danger to public
health or safety.

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that each appellant has met this first jurisdictional
criterion.®

Each appellant has made nonfrivolous allegations
that he engaged in whistleblowing activity by
making protected disclosures.

As part of the appellants February 7, 2003
prehearing submission, I required a list of
whistleblowing disclosures each had allegedly made.
Grenier listed 39 disclosures, Bock 41, and Shea 47.
Grenier W-l, Tab 23. While I do not agree that each
of the listed disclosures constitutes a nonfrivolous

* On February 10, 2003, I issued an order summarizing the
prehearing conference I held with the parties on that, date.
Therein, I noted my agreement with the appellants that each
had certainly raised other personnel actions with OSC in their
respective October 8, 2002 complaints. However, I noted that
OSC had not addressed these other actions in either its.
October 31, 2002 preliminary determination notice or its
November 5, 2002 close out letter. Thus, I stated I did not
intend to address them in the instant appeal because I doubted
satisfaction of the exhaustion requirement. I instructed the
appellants to inquire of OSC as to its intention to address the
other actions or wait until 120.Jays had passed and file second
IRA appeals on those actions. The appellants agreed with this
procedure, inquired of OSC (and learned essentially, that OSC
had erred in not addressing all personnel actions on November
5, 2002) and subsequently filed second appeals. I dismissed
these second appeals without prejudice pending the
adjudication of the instant appeal. See Grenier v. Department of
Justice, MSPB Dkt. No.BN-1221-03-0117-W-1 (Initial Decision
JuL. 21, 2003); Bock v. Department of Justice, MSPB Dkt. No.
BN-1221-03-0119-W-1 (Initial Decision Jul. 21, 2003); and Shea
vu. Department of Justice, MSPB Dkt. No. BN-1221-03-0118-W-1
(Initial Decision Jul. 21, 2003). With the issuance of the initial
decision today, I am reopening the above-captioned appeals for
further processing.

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allegation of whistleblowing activity, I find that
each, appellant has made several nonfrivolous
allegations. I note that only one disclosure need be
alleged to meet the second jurisdictional criterion.

With respect to Grenier’s allegations at
Grenier W-i, Tab 23,”° the record evidence shows that
he authored a January 27, 2001 memorandum
addressed to his second-level supervisor, Assistant
Special Agent in Charge (ASAC) Carol Cooper
detailing a meeting he had had the day before,
January 26, 2001, with his immediate supervisor,
John H. Schaefer; NBRO Resident Agent in Charge ©
(RAC). Grenier W-l, Tab 50, Appellants’ Exh. F. In
that memorandum, he alleged, among other things,”
that Schaefer had made threatening remarks
concerning two DEA, subordinates, i.e., Bock and
Shea, and two Massachusetts State Police officers
assigned to NBRO’s Task Force.’* Grenier also

1° See also Grenier S-l. Tab 1.

‘. He had also orally informed her in a telephone conservation
about the same matters late in the day on January 26, 2001. I
note that cooper is physically located in the New England Field
Division, Boston, Massachusetts, Grenier in NBRO, New
Bedford Massachusetts.

12 As _with many of Grenier’s, Block’s, and Shea’s
communications noted herein, I have recited the most obvious
of the statements constituting alleged protected disclosures.
This is not meant to exclude other statements each appellant
may have made in each of his communications. However, I will
henceforth not include “among other things” to denote that
possibility.

'’ DEA staffs many of its field offices with special agents like
the appellants here and a combination of state and local police

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alleged in his list of disclosures that on March 27,
2001 he orally informed Cooper that the problems in
NBRO were ongoing. Further, Grenier alleged that
-on August 14, 2001 he orally informed Cooper that
Schaefer was deliberately condescending to task
force agents who were not college graduates.
Further, Grenier alleged that on December 26, 2001
he orally informed Acting SAC (A/SAC) Thomas
Pasquarello that morale was horrible and the NBRO
was falling apart and that Schaefer had dry-fired his
wepon in the office. Further, Grenier alleged that on
December 28, 2001, he had provided Pasquarello
documentation that Schaefer had falsified a report
involving an undercover reverse sting operation™ he.
(Schaefer) had botched. Further, Grenier alleged
that on March 20, 2002, he informed ASAC Rodney
G. Benson, who was performing an_ internal
management review of the NBRO and the Cape Cod
Task Force (CCTF),” that-the NBRO had failed and
was an embarrassment to DEA, that, with few
exceptions, no other law enforcement agencies would
work/with NBRO because of Schaefer, that Schaefer
had extorted two local police officers who asked to

officers. This constitutes what is called a task force. This
structure promotes a team effort where each task force member
can provide his/her own knowledge and expertise in law
enforcement while drawing from the knowledge and expertise
of others in the task force. Cazenavette testified that a task
force is a force multiplier for DEA’s resident offices enabling
DEA to better accomplish its mission. Hearing Transcript (HT)
152 ~

*4 This is a procedure whereby an undercover DEA agent poses -
as a seller of drugs to drug dealers.

‘S This management review will be discussed in detail below.

Al17 .

leave NBRO (i.e., threatened that if they talked
about him after they quit the task force, he would
have their chief demote them), that Schaefer had
traded a hard-working local police officer for another
who was reportedly corrupt (and who Schaefer knew
had been reported as possibly corrupt), and that
Schaefer would falsify reports to show he was
present for enforcement activity on the street when
he was not.

From, my review of the above, I find that
appellant Grenier has made nonfrivolous allegations
that he disclosed information which he reasonably-
believed evidenced either violations of law, rule, or
regulation, gross mismanagement,’® abuse of
authority,’’ or substantial and specific danger to
public health or safety. In sum, I find he has met
the second jurisdictional criterion of making
nonfrivolous allegations that he engaged in
whistleblowing activity by making protected
disclosures under 5 U.S.C. § 23:02(b)(8).

‘© See White v. Departrrient of the Air Force, 63 M.S.P.R. 90,
95(3 994) (for purposes of 5 U.S.C. § 2302(bx8), “gross
mismanagement” is defined as management action or inaction
which creates-ia-.substantial risk of-significant adverse impact
upon the agency’s ability to accomplish its mission).

1? See Pulcini v. Social Security Administration, 83 M.S.P.R.
685, J 9 (1999) (an “abuse of authority” is defined AS an
“arbitrary or capricious exercise of power by a Federal official
or employee-that adversely affects the rights of any person or
that results in personal gain or advantage to himself or to
preferred other persons”) affd, 250 F.3d 758 (Fed. Cir. 2000)
(Table).

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With respect to Bock’s allegations at Grenier
W-l, Tab 23,” the record evidence shows, via a.
February 1, 2001 memorandum authored by
Cooper,” that Bock orally informed Cooper in a
January 24 or 25, 2001 meeting that Schaefer would
lie or change a decision because he forgets what was
said 5 minutes earlier and that the language
Schaefer uses berates people: Grenier W-l, Tab 50,
Appellants’ Exh. G. Bock also alleged that in the
same meeting with Cooper, he told her that Schaefer
had been seen wearing his ballistic helmet
backwoods while eating lunch and staring into
space, that he (Bock) believed Schaefer was mentally
ill, that he (Bock) and others were concerned for
their safety and felt Schaefer could “go off” at any
minute, and that Schaefer displayed irrational
behavior. Bock also alleged in his list of disclosures
that he orally informed Cooper on August 21, 2001
that Schaefer consistently lied, that Schaefer had a
mental problem, i.e., narcissistic personality
disorder, that Schaefer was subject to mood swings
and temper tantrums and often stared into space,
that Schaefer was inconsistent in. his policies
regarding operation plans when conducting
surveillance, and that Schaefer, after an altercation
with a task force officer, changed the location of his
pistol from his ankle to the small of his back.
Further, Bock alleged that in his March 20, 2002
interview with Benson during the management

1® See also Bock, S-l, Tab 1.

‘° This memorandum was essentially a written summary of
what Cooper learned from NBRO personnel interviews on
January 24 or 25, 2001.

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review, he told Benson that Schaefer had at one
point issued a physical challenge to one of the task
force officers, i.e., to settle their differences outside,
that Schaefer because of his incompetence, had
botched a reverse sting operation, and that Schaefer
had improperly exposed DEA to Giglio concerns”
because of his acceptance on the NBRO Task Force
of two allegedly corrupt local police officers.

From my review of the above, I find that
appellant Bock has made nonfrivolous allegations
that he disclosed information which he reasonably
believed evidenced either violations of law, rule, or
regulation, gross mismanagement, abuse of
authority, or substantial and specific danger to
public health or safety. In sum, I find he has met the
second jurisdictional criterion oof making
nonfrivolous allegations that he engaged in
whistleblowing activity by making protected
disclosures under 5 U.S.C. § 2302(b)(8).

With respect to Shea’s allegations at Grenier
W-l, Tab 23,” the record evidence shows, via a,
February 1, 2001 memorandum authored by Cooper,
that Shea orally informed Cooper in a January 24 or
25, 2001 meeting that the NBRO was in total chaos -
because of Schaefer, that Schaefer makes
inconsistent statements and does not trust people,
and that Schaefer has a personality disorder. Shea
also alleged in his list of disclosures that he told

*° Giglio arise when a law-enforcement officer called to testify
at a criminal trial has to admit being involved in
criminal/dishonest conduct himself.

2! See also Shea, S-1, T.ab 1

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Cooper on January 24 or 25, 2001 that Schaefer is a
pathological liar, that Schaefer’s ineffective
management reflects not only on himself (Schaefer)
but DEA as a whole, and that many of the task force
officers were contemplating returning to their
respective departments because of Schaefer's
irrational behavior and manipulation. Further,
Shea alleged that in a March 27, 2001 meeting, he
orally informed Cooper that NBRO had a hostile
work environment, that he (Shea) felt that Schaefer
was deliberately out to get revenge on him for
previously informing Cooper about his (Schaefer’s)
problems, that Schaefer repeatedly lied and
sometimes even denied having case-related
discussions with him, that his (Shea’s) life and the
lives of others were in jeopardy because of Schaefer’s
obvious hostility, and that other members of the task
force were leaving because they could not tolerate
Schaefer’s lies and deceit.” Further, Shea alleged
that on September 10, 2001, he orally informed
Cooper that Schaefer told him he had better watch
his back, that Schaefer was setting him up as a
scapegoat for his own mismanagement and failures,
that Schaefer was irrational, unstable and
dangerous, and that Schaefer had sworn to get
revenge on another agent if it was the last thing he )
ever did. Further, Shea alleged that on December 19,
2001, he orally informed then SAC Vincent J.
Mazzilli that Schaefer failed in his duties as a
commanding supervisor in an undercover reverse
sting operation almost resulting in the death of an

*2 Both Grenier and Bock allegedly stated to Cooper in the
same meeting on this date (a meeting between Cooper and all

three appellants) that they -concurred with these particular
disclosures of Shea. Grenier W-1, Tab 23.

A21

agent, that he (Shea) was being targeted as a fall
guy for Schaefer’s failures, and that Schaefer had
probably concealed information about the alleged
corruption of a local police officer at a time when
that officer was about to be appointed as a task force
officer. Further, Shea alleged that on December 28,
2001, he orally informed then A/SAC Pasquarello
that Schaefer failed in his duties as a commanding
supervisor in an undercover reverse sting operation
almost getting people killed, including, members of
the public. Further, Shea alleged that in his March.
20, 2002 interview with Benson during the
management review, he told Benson that Schaefef
caused a lot of problems with state and local
authorities which led them to leave DEA, that
Schaefer created factions and intrigue as
mechanisms of control, and that Schaefer deflected
his failures on everyone else. In addition, Shea
provided Benson examples of two cases which
Schaefer allegedly poorly managed.

From my review of the above, I find that
appellant Shea has made nonfrivolous allegations
that he disclosed information which he reasonably
believed evidenced either violations of law, rule, or
regulation, gross mismanagement, abuse of
authority, or substantial and specific danger to
public health or safety. In sum I find he has met the
second jurisdictional. criterion of making
nonfrivolous allegations that he engaged in
whistleblowing activity by making protected
disclosures under 5 U.S.C. § 2302(b)(8).

A22

Each appellant has established by a preponderance
of the evidence that his disclosures were a
contributing factor in the encys decision t

propose his reassignment.

It is clear that a, reassignment action is a personnel
action covered under the whistleblower law. In fact,
it is specifically enumerated in the law. See 5 U.S.C.
§ 2302(a)(1)(A)iv). Moreover, the law provides that:

The employee may demonstrate that
the disclosure was a contributing factor
in the personnel action through
circumstantial evidence, such as
evidence that—(A) the official taking
the action knew of the disclosure; and
(B) the personnel action occurred within
a period of time such that a reasonable
person could conclude that the
disclosure was a contributing factor in
the personnel action.

5 U.S.C § 1221(e)(1).

On February 24 and 25, 2003, I held the first part of
the bifurcated hearing in the consolidated appeal.
This was as a result of what I found to be a viable
agency allegation that the agency officials who
recommended and _ decided the appellant’s
reassignments had no actual or constructive
knowledge of the appellants’ whistleblowing
activities at the time those officials acted on the

A23

reassignments.” Grenier W-l, Tab 26. After the
hearing concluded, I found in an April 14, 2003
order, Grenier W-1, Tab 39, and I repeat that finding
here, that the recommending and deciding officials
in the. reassignment actions had constructive
knowledge of the appellants’ disclosures. See
McClellan v. Department of Defense’ 53 M.S.P.R.
139, 147 (1992) (reprisal can be shown by
establishing that a person with only constructive
knowledge of the appellant’s disclosure can influence
the official taking the action against the appellant).
Consequently, I further find that each appellant has
met the “knowledge” part of the above-cited law.™
Further, I found.-in my April 14, 2003 order, and I
repeat that finding here, that each appellant’s
disclosures during 2001 and 2002 were made within
such a period of time of the September 26, 2002
decision to reassign that a reasonable person could
find that they contributed to the action. See
Easterbrook v. Department of Justice, 85 M.S.P.R.
60, 67 (2000). (personnel actions occurring within
slightly more than 7 months of disclosure met
“timing” test).

In view of the above, I find that each appellant
has established by a preponderance of the evidence
that his whistleblowing disclosures were a

*3 The agency representative stated that information leading
to this allegation had just then recently been acquired. It was

not known during the adjudication of the stay requests.

24 I will provide the factual analysis for this finding when I
otherwise analyze the clear and convincing issue below. It will
be more easily understood this way.

A24

contributing factor in the agency’s decision to
reassign him.”

The agency has established by clear and convincing
evidence that it would have taken the same actions’

absent the appellants’ whistleblowing activity.

Because the appellants have met the
jurisdictional criteria in their IRA appeals, I now
turn to the merits of the appeals. In determining the
merits of an IRA appeal, the Board examines
whether an appellant has established by a
preponderance of the evidence that he engaged in
whistleblowing activity by making a protected-
disclosure under 5 U.S.C. § 2302(b)\(8) and that such
whistleblowing activity was a contributing factor in
the personnel action. If so, the Board must order
corrective action unless the agency establishes by
clear and convincing evidence that it would have
taken the same personnel action in the absence of
the disclosure. 5 U.S.C. §§ 1221(e) and 2302(b)(8); see
Spencer v. Department of the Navy. 327 F.3d 1354,
1356-57 (Fed. Cir. 2003). The Board may resolve,
these merits issues in any order it deems most
efficient. See Dick v. Department of Veterans Affairs,
290 F.3d 1356, 1363-64 (Fed Cir. 2002); Rusin 92
M.S.P.R. at J 20 n.9. I find it most efficient here to
bypass the issue of whether the appellants have
established by preponderant evidence that they
engaged in whistleblowing activity (remembering

2° This means that each appellant has gone beyond merely
meeting the jurisdictional criterion by making a nonfrivolous
allegation that his disclosures were a contributing factor in the
agency's decision to reassign him. Rather, I have found that he
has actually proven that a contributing factor exists.

A25

that I have, already decided that the appellants have
proven by preponderant evidence that their
whistleblowing activity was a contributing factor in
the agency’s decision to reassign them) and proceed
to the issue of whether the agency showed by clear
and convincing evidence that it would have taken
the same reassignment actions absent the
whistleblowing activity.

Clear and convincing evidence is that measure
or degree of proof that produces in the mind of the
trier of fact a firm belief as to the allegations sought
to be established; it is a Higher standard than the
“preponderance of the evidence” standard. 5 C.F.R.§
1209.4(d). In determining whether an agency has
shown by clear and convincing evidence that it
would have taken the same personnel action in the
absence of whistleblowing, the Board will consider
the following factors: (1) the strength of the agency’s
evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of
the agency officials who were involved in the
decision; and (3) any evidence that the agency takes
similar actions against employees who are not
whistleblowers but who are otherwise similarly
situated. See, eg. Carr uv. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir.
1999).

The strength of the agency’s evidence in support of
its action

The Board’s authority in an IRA appeal is
limited to adjudicating whistleblower allegations.
The Board lacks the authority to adjudicate the

_A26 ——

merits of the underlying personnel action, here the
reassignment of each appellant. Lewis, v. Departmen
of the Army, 63 M.S.P.R. 119, 125 (1994), affd, 48
F.3d 1238 (Fed. Cir.) (Table), cert, denied, 516 U.S.
834 (1995). Said another, way, it is not for the Board
to decide if it would have reassigned the appellants
(knowing all the information that has been gathered
in this appeal process) if the agency has otherwise
shown that there was clear and convincing evidence
for effecting the reassignment actions it did.

In the - matter of the appellants’
reassignments, the deciding official was Rogelio E.
Guevara, the Chief of Operations, DEA.” Guevara
testified that he. first occupied his current position
in June 2002. Hearing Transcript (HT) 13, 1052. He
made the decision to reassign the appellants, each
one of them, on September 26, 2002, only several
months later. HT 9-10. The basis of his decision was
a memorandum of that same date forwarded to him
by Chief Inspector George J. Cazenvette III, Office of
Inspections (IN),” recommending the reassignments.
T 19; Grenier W-l, Tab 50, Apellants’ Exh. YY.
Guevara testified that he was privy to the contents
of the memorandum because of a previous discussion
with Cazenavette about it, see infra, and he had
done certain research prior to receiving the
memorandum. Thus, upon actually receiving it, he

26 Guevara testified that he is the only official authorized to
effect a reassignment of a special agent from one division to
another. HT 34

27 Guevara and Cazenavette are in separate organizational
entities in DEA. One is not subordinate to the other. Both
report directly to the Administrator of DEA through the Deputy
Administrator.

A27

was prepared to go forward with the reassignments.
HT 19.

The research he had done consisted of
reviewing a report in which he had been much
involved, when he first took over as Chief of
Operations several months before called the
“Domestic Field Divisions’ Special Agent and
Support Personnel Resource Requests.” HT 1052;
Grenier W-l, Tab 50, Appellants’ Exh. EEEE.
According to Guevara, this report concluded that the
domestic threat from drug trafficking was
principally along the Southwest U.S. border. A
second phase of the study resulted in a
recommendation that DEA realign its resources to
meet the drug threat along that border and that
about 37 agent positions be transferred there. HT 20,
1054. Thus, Guevara recognized a dire need to staff
the Southwest U.S. border with agents, and,
although he could send many new agents just
graduating from the agency’s training academy, plus
agents returning from overseas assignments, he also
saw, in the appellants’ reassignments, an
opportunity to send “some seasoned help to try to
mentor these brand new agents.” HT 47-48.

Guevara also pointed to a May 30, 2002 letter
from the. SAC, El Paso Field Division reinforcing the
problems his office faced keeping up with the
workload in that area. HT 1061; Grenier W-1, Tab 50,
Appellants’ Exh. EEEE at DEA00136. He also noted -
that the Federal Bureau of Investigation was
“standing down about 400 FBI agents from the
business of drug enforcement” and that the New

A28

England Field Division (NEFD) was overstaffed with
agents. HT 47-48, 1056-57.

Guevara was privy to the contents of the
September 26, 2002 memorandum because he had
spoken, with Cazenavette in early September when
the latter had returned from an Office of Inspections
on-site inspection (i.e., “headquarters inspection”) of
NEFD. At that time Cazenavette informed Guevara
that the enforcement operations of the NBRO were
dismally deficient, that critical elements associated
with the enforcement of drug laws were also
deficient, such as evidence handling, and that the
agents at NBRO were not conducting and carrying
on the business of the DEA like senior agents and
were not showing the type of leadership that senior
agents should be providing in a task force setting.
HT 22. Cazenavette added that the office had not
initiated any major drug trafficking investigations in
some time, that the agents had not established a
confidential informant in over a year, and that the
agents were doing nothing -more than preparing
summary reports after state police officers would
make arrests. What was lacking, Cazenavette told
him, was a true DEA presence in terms of follow-up
investigation, an attempt to identify, the sources of
supply bringing narcotics into the community. HT
42. Cazenavette_ specifically identified the three
appellants as blameworthy because of their lack of
attention to detail and cavalier attitude about their
responsibilities. According to Cazenavette, the
appellants displayed a disregard for their
responsibilities to the extent, as the inspectors were
told, that they only collected evidence during
business hours. Guevara noted that this was “very

A29

unusual because DEA ageiits work day and night
regularly and work horrible hours to try to catch
these traffickers.” HT 43, Guevara testified that
Cazenavette did not tell him anything about NBRO’s
RAC Schaefer, e.g., that he was mentally unsound.
Furthermore, although the RAC would be the logical
place to focus the blame, Guevara understood
Schaefer was gone, i.e., retired, and “I was concerned
with what was going on with the office then and why
it was deficient.” HT 43-44.

Guevara further testified, in essence, that he
had no contact with anyone or anything else in
making his decision to reassign the appellants.
Specifically, he did not know the appellants, he did
not speak to their then SAC, Mark V. Trouville, until
after he had decided to reassign the appellants, he
never spoke to Schaefer, and he was not involved in
any way with the August 2002 headquarters
inspection. HT 8, 21. Most importantly, Guevara
testified, he never read AS AC Benson’s March 2002
management review. HT 55, 58; Grenier W-l, Tab 50,
Appellants’ Exh. HH. This is crucial because that
review, in essence, exposed the appellants as
whistleblowers and recommended, among other
things, “systematic, across the board
transfers/removal of all assigned (NBRO) personnel.”
See infra.

Guevara testified that he never read Benson’s
Management Review despite being forwarded a copy
of it on August 13, 2002 by Trouville. HT 55, 58;
Grenier W-1, Tab 50. Appellants’ Exh. PP. Guevara
explained that, at his level, he would not look at a
management review; it would be for the SAC who

A30

ordered the review to entertain. Otherwise,
Guevara’s subordinate, the Domestic Chief of
Operations, who coordinates with the SACs, would
see a Management review and assist the SAC with
it. HT 33. Guevara added that many times “a lot of
paper comes into my office where subordinate DEA
managers feel that this has to be routed to me,
whether in fact it is necessary or not” and he does
“not read every piece of paper that comes to him.”
HT 30, 34. He would never do research into a
document like a management review because it is in
much more detail than he would get into; rather, he
would take it at face value. HT 59.

But, Guevara admitted to reading the
September 26, 2002 memorandum from Cazenavette
entitled “Recommendation for Transfers: Special
Agents Chris Grenier, Todd Shea, and Paul Bock,
New Bedford Resident Office, Boston Division.” HT
19. A review of this document reveals that much of it
is a recapitulation of what Cazenavette had
previously informed Guevara during their early-
September discussion. However, on the second page,
it contains the following relevant statements:

A review of other inspection related
documents revealed that a
Management Review of the situation in
the New Bedford RO. was conducted.
earlier in the year at the direction of
SAC Trouville. Part of that review
centered on the relationship between
the New Bedford RO and the
Massachusetts State Police. In an
interview with SAC Trouville, he stated

A31

that SAs Grenier, Shea, and Bock failed
to support DEA and its mission, and in
fact actively supported the position of
the Massachusetts State Police against
DEA’s_ interests. Additionally, an
interview with a Task Force Officer
raised concerns that SAs Grenier, Shea,
and Bock were not following established
policies and procedures, thus exposing
DEA to unnecessary liability. The TFO
stated that the total disregard of DEA’s
CS. fi.e., confidential source” or
informant! policy by Grenier, Shea, and
Bock would lead to a “Whitey Bulger”
incident (a reference to a _ widely
publicized scandal involving the
impreper handling of organized crime
informants by FBI agents).

Based upon the results of the on-site
inspection, and in concurrence with the
management review conducted by the
Boston Division, I recommend that SAs
Grenier, Shea, and Bock be relocated to
other divisions.

Grenier W-.1, Tab 50, Appellants’ Exh. YY.

Initially, I find, from a review of the four
corners of this document, that, without reading the
referenced management review itself; a reasonable
person would not realize that the appellants were
whistleblewers. There, is absolutely nothing in the
words quoted above to indicate that any of the
appellants had made a protected disclosure; Rather,

A32

all it indicates is that there was a rift in the office
between DEA and the-Massachusetts State Police
and that the appellants sided with the latter. It does
not say, as the Management Review itself does, what
the rift concerned. Also, it does net reveal anything
about Schaefer’s role in the rift or what the
appellants were either saying or doing relative to it
nor does it intimate in any way that either Schaefer
or the quoted task force officer were the subjects of
some of the appellants’ whistleblowing disclosures.

Not surprisingly then, Guevara did not have actual
knowledge of the appellants’ whistleblowing
activity.” Inote that Guevara testified he was aware
that there was some kind of controversy between
DEA and the Massachusetts State Police and that
the appellants had sided with the latter. But he did
not recall the details of it and, he stated, it was of no
consequence in his decision making. HT 47, 72.

In essence then, Guevara’s decision to
reassign was based on the reasons stated in
Cazenavettes September 26, 2002 memorandum,
which, as mentioned above, was a recapitulation of
what Cazenavette orally informed him in early
September, and the documented immediate need for
more agents on the Southwest U.S. border, and the

?® What is surprising is that neither- party, specifically, asked
Quevara, in either his February 24, 2003 or June 17, 2003
hearing appearances, whether he had actual knowledge, before
making his decision to reassign the appellants, that they were
whistleblowers. However, | find it is otherwise clear from all
his other statements that he did not have actual knowledge,
albeit he had constructive knowledge. See text infra.

A33

financial wherewithal to effect the reassignments, an
amount estimated at $350,000.

With respect to this latter point, Guevara
testified that he had his executive assistant find out
before he ordered the subject reassignments whether
there was PCS (i.e., permanent change of station)
money available. HT 60-61. He said there would be
no point in deciding to reassign anyone if there was.
no .financial resource to accomplish it. HT 49. The
answer came back in the affirmative and he did not
otherwise inquire into the amount because PCS
moves “are all so different,” but he did know it would
be “a lot of money.” He also realized that he had to
effect the reassignments before the beginning of the
new fiscal year (i.e., October 1, 2002) when he
expected, from past experience, that there would be
a continuing resolution and a block on the
expenditure of. Items such as PCS money.” HT 61-
62. .

Guevara did not ask Cazenavette if the
appellants had been counseled or put on a
performance-improvement plan. HT 70. This was not
his focus. The “fact that their performance was
questionable was not why I transferred them.” HT

22 Indeed, the agency’s Chief Financial Officer issued a
directive sometime in September 2002 stating, that DEA would
begin FY 2003 under a continuing resolution and particularly
directing that “PCS decisions should be postponed except for
the most mission-critical PCS transfers.” GrenierW-l, Tab 50,
Appellants’ Exh. VV. However, it is clear that the directive
addresses funds to be expended in FY 2003 and has no
relevance to FY 2002 expenditures such as the PCS moves
here.

A34

1062. The conclusion he reached from Cazenavette’s
September 26, 2002 memorandum and their early
September discussion was that “here we had three
agents who had quite a bit of time on the job and I
would consider senior agents and (they) were not
providing the type of leadership, by way of leading
these investigations, and were not fully carrying out
their responsibilities. And I was faced with a
situation where we had gaping needs in the
southwest border.” HT 44.

Guevara testified that he called Trouville on
September 26, 2002 or the -day before” to learn
whether Trouville could backfill the three NBRO
agent positions.*’ HT 1060, 1068-69. Trouville told
him that this could be accomplished, albeit Guevara,
who is ultimately responsible for all agent
reassignments, subsequently reassigned to NBRO a
newly graduated agent from the academy. HT 1078.

It is to be noted that even though the agency
has agents sign a mobility agreement, as the three
appellants did here, Grenier W-l, Tab 50, Agency
Exh. 3A-C, stating that mobility is a condition of
employment, it is rare that an agent is involuntarily
reassigned as happened in this case. The fact is that
Guevara would not have reassigned the appellants

30 Trouville’s handwritten notes show that Guevara called on
September 26, 2002.Grenier W-1, Tab 50, Appellants’ Exh.
DDDD.

3} Backfilling means reassigning special agents within a
division so a particular office like NBRO is not left without
sufficient staff to perform its mission.

A35

were it not for Cazenavette’s recommendation
following the August 2002 headquarters inspection.

From my review of Guevara’s testimony and
from observance of his demeanor while testifying
(twice) at the Board’s hearing, I found his testimony
entirely credible. He was consistent throughout, no
other evidence contradicted his testimony, none of
what he said was inherently improbable, and I found
him to be honest and forthright. See Hillen uv.
Department of the Army, 35 M.S.P.R. 453, 458-62
(1987) (to resolve credibility issues administrative
judge must apply certain factors).

In view of all of the above, I find that
Guevara’s reasons for reassigning the appellants are
strong. The agency needed agents on the Southwest
U.S. border, particularly seasoned, i.e., experienced,
agents, at the same time Guevara reasonably
perceived that three experienced agents needed to be
reassigned away from a situation where they were
not performing acceptably and at a time when there
were ample resources to effect the moves. The
confluence of these three reasons in September 2002,
I find, strongly supports the reassignment actions.
The only way such evidence could be found not
sufficiently strong is if Guevara’s perception relative
to the appellants’ performance was unduly
influenced by reprisal for whistleblowing. And, in
turn, the only way undue influence along these lines
could have occurred is if it came from Cazenavette,
either alone or through others, for example, any of-
Cazenavette’s IN subordinates, particularly the
inspectors who investigated the NBRO.

A36

It is clear that Cazenavette, the Chief
Inspector from January 2002 to May 2003, and now
retired, had no knowledge of the appellants or
Schaefer or the NBRO from any discussions with
anyone or from reading any document before he
arrived in Boston to partake in the NEFD’s
headquarters inspection on August 29, 2002. HT
996-97. The first he heard anything at all about the
situation in NBRO was on the evening of August 29,
2002, when one of his senior inspectors, Richard M.
Dearing, met him in a chance encounter at a
restaurant in downtown Boston.

Dearing was an i In view of the Fact that the appellant has yet to actually be
reassigned, and such action will not happen until an effective
date comes and goes, it is still only a proposed action.

* L.e., the agency’s response file in his IRA appeal

A82

New Bedford Resident office, Boston Division,”
Cazenavette stated his recommendation was based
on these agents’ alleged poor performance exposed
during an on-site inspection conducted by his office,
i.e., the Office of Inspections, on August 19-20, 2002,
as well as on a interview with SAC Trouville in
which he (Trouville) stated that these agents “failed
to support DEA and its mission, and in fact actively
supported the position of the Massachusetts State
Police against DEA’s interests.” See Stay Request
File (SRF), Tab 1, Appellant’s Ex. A. The appellant
asserts that his active, support of certain
Massachusetts State Police officer’s disclosures of
gross mismanagement, abase of authority, etc., made
against his immediate, supervisor, RAC Schaefer,
constituted his whistleblowing—dubbed by the
agency a failure to support DEA--and is now the
overriding reason he is scheduled to be reassigned.

. The agency claims that there is no evidence
that Cazenavette was aware of any protected
disclosures made by the appellant. I find this claim
without merit. Cazenavette indicated in his
September 26, 2002 memorandum that he concurred
“with the management review conducted by the
Boston Division.” This review was conducted at
Trouville’s direction’ and he sent it: to DEA
headquarters officials on August 13, 2002. See SRF,
Tab 2, Agency Ex. 1, pp, 1-2. Close perusal of the
review. see SRF, Tab 2, Agency Ex. l.pp. 3-15,
reveals several instances where the inspectors
reported on the unmistakable whistleblowing

> The review was actually conducted on March 19-21, 2002, but
the lengthy report of it, undated in the record, was probably not
forwarded to Trouville until much later.

A83

activities of several agents, including the appellant.®
Furthermore, the first listed recommendation made
by the reviewers, and endorsed by Trouville, was:
“[systematic, across the board transfers/removal of
all assigned personnel (NBRO) appears to be the
only viable solution to what appears to be a long
term, ongoing, institutionalized issue fueled by
preconceived notions and prejudices towards the
RAC.” Id: at p. 15. In sum, I find that in reading the
Boston Division’s review, Cazenavette had to have
seen the obvious references to the appellant’s
whistleblowing disclosures. I thus further find that
Cazenavette had actual knowledge of those
disclosures. Moreover, I find that he recommended
the appellant’s reassignment within a short time
after learning of those disclosures which
recommendation was based in part, as he saw it, on
the appellant’s “failure to support DEA,” i.e., making
disclosures against RAC Schaefer.’

In view of all of the above, I find that the
appellant has established jurisdiction over his
whistleblowing claim and that he has further shown
a substantial likelihood that his whistleblowing
disclosures were a contributing factor in his
proposed reassignment action.

: Many of these are documented in the appellant’s December
30, 2002 reply. Sue SRF, Tab 3.

’ It is unclear from this record but, evidently, someone in upper
DBA management has the authority to actually effect, i.e.,
authorize, the appellant’s reassignment. The parties did not
address this point so I must assume that once Cazenavette
made his recommendation, the appellant’s reassignment was a
forgone conclusion.

A84

Under 5 U.S.C.§ 1221(e)(2), the Board may
not order corrective action “if the agency
demonstrates by clear and convincing evidence that
it would have taken the same personnel action in the
absence of such disclosure,” In making this
determination, the Board generally considers, inter
alia, the strength of the agency’s evidence in,
support of its personnel action and the existence and
strength of any motive to retaliate on the part of the
agency officials involved in the decision. See Visconli
v. Environmental Protection Agency, 78 M.S.P.R. 17,
24 (1998).

In the first stay request order, I found that the
motive to retaliate was weak because’ agency
management welcomed the appellant’s
whistleblowing activity, that it realized that RAC
Schaefer was a poor manager, that the particular
managers responsible for his reassignment were not
the targets of the whistleblowing disclosures, that
management had evidence of the appellant’s
performance problems from the headquarters
inspection, and that management was just tired of
the underlying miserable state of affairs in NBRO
‘and wanted a quick fix. See Greni.er v. Department
of Justice, MSPB Dkt, No. BN-1221-03-0033-5-1
(Nov. 25, 2002)

However, recent revelation of the Boston
Division’s internal management review and the
Office, of Inspections on-site inspection of the
NB.R.O, referenced supra, casts a different light on
the motivation issue. My review of the reports of (the
review and the inspection reveals a management
preoccupation/obsession with reassigning _ the.

A85

appellant and two other similarly situated agents
who were responsible for an alleged failure to
support DEA and its mission. It also reveals a lack of
perception and/or appreciation by management that
any failure to support was founded on the fact that
those agents, including the appellant, rightfully blew
the whistle on RAC Schaefer, a manager whom
Trouville and Cazenavette readily recognized as a
total incompetent but one who somehow also
deserved loyalty and blind obedience from his
subordinates.

I also note in this regard that the on-site
inspection recommended “systematic, across the
board transfers/removals of all assigned personnel,”
see supra, yet Special Agent Daniel Forde, the fourth
agent in the NBRO® and the only non-whistleblower,
is not being reassigned. The agency has to realize
how bad the appearance is of reassigning only the
three whistleblowers while leaving the non-
whistleblower in place.

With respect to the alleged poor performance
of the appellant, I find that the agency has not
sufficiently clarified how many performance errors
he has committed over what time period, how
serious any of these errors really are, how many of
them were really caused by Schaefer to the
appellant’s detriment, and/or how much remedial
instruction/retraining any of them will require to
correct his performance. On top of this is the issue
of the efficacy of reassigning an allegedly

~

* At least it appears that Forde was a fourth agent in NBRO.
The record is not clear exactly when or for how long he was an
NBRO agent

A86

incompetent employee to a geographical area which
seemingly would require a _ reasonably good
performer. Also of note -are the appellant’s
(unrebutted) points that none of his alleged
performance problems have ever been brought to his
attention or attempts made to correct them despite 4
months having elapsed since their alleged discovery.?
In short, I find that the strength of the agency’s
evidence to support the appellant’s poor performance
is weak. |

Accordingly, I find that the balance has
shifted and that the agency’s professed need to
reassign the appellant based on his_ poor
performance and on a need to correct the underlying
miserable state of affairs in NBRO is now not
sufficient enough to outweigh the agency’s
retaliatory motive. I thus find that at this time the
agency has not shown that it will be able to
sufficiently prove by clear and convincing evidence
that it would have taken the reassignment action in
the absence of the appellant’s. disclosures.
Consequently, I find a substantial likelihood the
appellant will prevail on the merits of his IRA
appeal.

The agency argues that a grant of a stay
would result in extreme hardship to it, disrupting
the lives of other special agents and adversely
affecting its mission at NBRO and the Imperial

*T find, in accord with my November 25, 2002 first stay request
order, that the appellant’s reliance on his previous excellent
performance appraisals is misplaced given that they were
authored at the immediate supervisor level by the incompetent
Schaefer.

A87

County office. According to the agency, the
appellant’s continued presence will only regress the
DEA presence and stature in the NBRO area. Also,
there is a shortage of an agent in Imperial County.
The agency’s position is supported by the sworn
statement of Rogelio E. Guevara, Chief of
Operations, DEA. See SRF, Tab 2, Agency Ex, 4

I note that the agency has already approved,
through its Career Board, an extension of the
reporting date of one of three reassigned NBRO
agents up until August 17, 2003. See Bock uv.
Department of Justice, MSPB Dkt. No. BN-1221-03-
0034-S-2 (Dec. 30, 2002). So, there is room for
providing for employee hardships.

Also, the “regression of DEA presence” that
the appellant allegedly would cause-is, I find,
entirely speculative. With Schaefer gone,
relationships between federal/state/local law
enforcement agencies are bound to improve all
around. Schaefer was the problem, not the
appellant. The agency has not sufficiently explained
why the appellant’s presence should cause any
“regression”

The assignment on TDY (temporary duty
assignment) of special agents should alleviate any
shortages the agency may suffer in a particular office
during the short time before I issue my initial
decision in the appellant’s IRA appeal. Certainly,
this will cause the agency to expend some additional
funds, but the amounts pale in comparison to the
amount it would spend in reassigning the appellant

A88

and his two fellow whistleblowers—allegedly (and
unrebutted) $350,000, one way.”

In view-of all of the above, I find that the
agency has not supported a claim of extreme
hardship.

Based on my analysis above, I hereby GRANT
the appellant’s second stay request. The agency is
ORDERED not to reassign the appellant. The
appellant requested that the stay be in place until I
issue my initial decision in the appellant’s IRA
appeal. I find such time limit, reasonable and I so
order no reassignment action until such issuance.” "

FOR THE BOARD:
/s/

William Carroll
Chief Administrative Judge

'° This, of course, would double to $700,000 if the three
whistleblowers were first reassigned and then un-reassigned by
Board order and moved back to NBRO.

'' | expect to hold a hearing in early February 2003 and issue my initial
decision in March or April 2003. At that time I will either order
corrective action or not. If corrective action is ordered, it will perpetuate
the no-reassignment date. If corrective action is not ordered, the agency
will be free to reassign the appellant.

A89

CERTIFICATE OF SERVICE
I certify that the attached Document (s) was (were)
sent by regular mail, unless otherwise indicated

below, this day to each of the following:

Appellant

Christopher W. Grenier
25 Apple Tree Lane
Harrington, RI 02 8 06

Appellant’s Representative’s, by FAX
Peter H. Noone, Esq.

AVERY DOOLEY POST & AVERY,
LLP

Attorneys at Law

90 Concord Avenue

Belmont, MA 02478

Agency's Representative(s), by FAX
Imelda L. Paredes, Esq.

U.S. Department of Justice
DEA Headquarters

Office of Chief- Counsel (CCA)
2401 Jefferson Davis Highway
Alexandria, VA 22301

Kenneth L. Bates

U.S. Office of Personnel Management
Employee Relations Division

1900 “E” Street, N.W., Room 7412
Washington, DC 20415

A90

DECEMBER 31, 2002
Date

/S/

JOYCE REYNOLDS
PARALEGAL SPECALIST

A91

Memorandum

Subject
Boston Field Division On-Site Inspection
(FFS: 170-02)

Date
OCT 29 2002
To: Asa Hutchinson
Administrator
From /s/
George J. Cazenavette, III
Chief Inspector

I have approved the Office of Inspections (IN)
report concerning the inspection of the Boston Field
Division. The report and your letter of transmittal to
SAC Trouville are attached hereto.

Two issues cause me special concern. The first
is the unacceptable situation extant at the New
Bedford Resident Office (RO). IN recommended, and
I approved the issuance of 11 Findings. Among the
Findings were serious deficiencies in the program
areas of Enforcement Effectiveness, Evidence
Handling, Confidential Source(CS) Management,
Imprest Fund Management, Seized Assets,
Accountable Property, Fiscal Operations, Security,
and Space and Utilities

Three Special Agents (SA) assigned to the RO,
SAs Christopher Grenier, Todd Shea, and Paul Bock
were determined by Inspectors to have failed to
properly execute their assigned duties. IN reviewed

A92

the collateral duty list for the office and found SA
Grenier was responsible for seized and recovered
monies, imprest fund, and office safety. SA Shea was
responsible for drug evidence, accountable property,
and office security. SA Bock was responsible for
nondrug evidence. IN determined the neglect of duty
by SAs Grenier, Shea, and Bock in respect to these
critical program areas led to the deficiencies
encountered by IN.

SAs Grenier, Shea and Bock contributed to, or
were the basis for, the deplorable office conditions,
the general lack of cleanliness, and lack of security
at the New Bedford RO. The actions, or lack thereof,
by SAs Grenier, Shea, and Bock were significant
contributing factors to the issuance of the Evidence
Handling, Enforcement Effectiveness, CS
Management, Space and Utilities, Security, and
Security Sweep Findings. Each of these Findings are
directly attributable to SAs Grenier, Shea, and Bock.
Inspectors observed general lack of respect for DEA
procedures and property and near complete
indifference toward the DEA mission on the part of
SAs Grenier, Shea, and Bock.

Through a random review of investigative
files, IN identified a serious lack of effectiveness im—
the New Bedford RO enforcement operation. IN
determined that approximately 50 percent of the
cases were in the Summary Report format and
merely claimed arrests and seizures. These
investigative files did not contain any documentation
of DEA presence, participation, and/or follow-up
investigation. These investigations were opened
upon information being supplied from the police

A93

departments that participate in the New in the New
Bedford RO task force. The office had not conducted
a Title III investigations during the last three fiscal
years and did not initiated an OCDETF
investigation in the past year and a half. The office
had only four active CSs (approximately .36 CSs per
law enforcement officer); approximately half the
national average. The enforcement effectiveness
review also revealed that SAs Shea and Bock had
not established a CS in the past year.

During the review of the drug evidence
program, SA Shea, in an effort to explain his
inability to produce the required logbooks, told the
Inspectors that the New Bedford RO only seized
drugs during normal office hours. IN’s investigative
file review found several instances where drug
evidence had been stored in the office overnight.

A Management Review of the situation in the
New Bedford RO was conducted earlier in the year
at the direction of SAC Trouville. Part of that review
centered on the relationship between the New
Bedford RO and the Massachusetts State Police.
During SAC Trouville’s management interview with
IN, he stated that SAs Grenier, Shea, and Bock
failed to support DEA and its mission, and in fact
actively supported the position of the Massachusetts
State Police against DEA’s interest. IN’s interview of
a Task Force Officer raised concerns that SAs
Grenier, Shea, and Bock were routinely ignoring
established policies and procedures, thus exposing
DEA to unnecessary liability. The TFO stated that
the total disregard of DEA’s CS policy by Grenier,
Shea, and Bock vould lead to a “Whitey Bulger

A94

incident” (a reference to a widely publicized scandal
involving the improper handling of organized crime
informants by FBI agents).

Based upon the results of the on-site
inspection, and in concurrence with the management
review conducted by the Boston Division, I
recommended to the Chief of Operations and to the
Deputy Administrator that SAs Grenier, Shea, and
Bock be reassigned to other divisions to promote the
efficiency of the service. Clearly, an immediate effort
was required provide an environment conducive to
an effective DEA presence in the New Bedford
Resident Office’s area of responsibility. Continued
strong support of SAC Trouville’s efforts will be
required to produce the desired result:

The second issue concerns the deficiencies in
the 2001 division inspection conducted by ASACs
Carol Cooper and John Mahoney. The Division
Inspection Program (DIP) report indicates that the
named ASACs inspected the mandatory programs
within their areas of responsibility. The report also
states that certain programs were reviewed and no
deficiencies were noted or that deficiencies were
identified and presumably addressed. The IN on-site
inspection identified numerous deficiencies in the
areas of evidence handling, investigative file
management and management effectiveness within
the reporting elements supervised by ASAC Cooper
and ASAC Mahoney.

The day to day responsibility for management
_of any DEA division lies with the Assistant Special
Agents in Charge. In this case, the performance of

A95

ASAC Cooper and ASAC Mahoney is less than
acceptable. I have recommend that SAC Trouville
consider proposing formal discipline.

A copy of the memoranda to SAC Trouville
expressing my views in this regard is attached for

your information.

Attachment

A96

MEMORANDUM

Subject
Management Review of the New Bedford Resident
Office and Cape Cod Task Force (FFS 140-01)

ee Date
To:
Mark R. Trouville
Special Agent in Charge
New England Division
From

Rodney G. Benson
Assistant Special Agent in Charge
New England Field Division

Introduction:

Pursuant to your directive, from march 19
through March 21, 2002, myself along with RAC
John Dudley (Springfield RO), GS Dave Golia
(OCDETF Coordinator), and GS Leo Ducey
(Manchester RO) (Management Review Team-MRT)
conducted an internal management review of the
DEA Cape Cod Task Force (CCTF) and the New
Bedford Resident Office (NBRO). The purpose of the
review was to assess current office operations and
management as well as operational effectiveness. In
addition to the management review, I investigated
Allegations as Conduct Unbecoming concerning
NBRO RAC John Schaeffer. This part of the review

A97

was conducted by myself and GS Ducey and is
detailed in a separate report.

The CCTF became a DEA funded office in
1987. Prior to that time, the office was primarily ©
founded by and managed by the Massachusetts
State Police (MSP). The MSP troopers, specifically
John Allen and Robert Melia, were the original
founders and leaders of the task force. They
remained in the CCTF despite being promoted to
Detective Lieutenant and _ Lieutenant (Lt.),
respectively. The consensus of CCTF personnel
revealed that the MSP and specifically the Lts. were
highly thought of and in some cases, idolized. In
September of 1999, John Schaefer reported to the
CCTF as the RAC from the Vienna County Office.
Shortly thereafter, CCTF personnel indicated that a
power struggle ensued between RAC Schaefer and
the two Lts. This tension and friction continued to
mount and in November of 200i the CCTF was
dissolved and all Task Force Officers were removed
from the group. The bitterness and hate towards
DEA and specifically RAC Schaefer concerning the
demise of the CCTF is prevalent and addressed in
this review. It should be noted, that the NBRO was
opened by RAC Schaefer in May 2000 and the RAC
physically sat at that location and had managerial
oversight for both offices until January 2002. At this
time, RAC Schaefer has managerial oversight for
only the NBRO.

Synopsis:

The management review consisted of
interviewing all personnel currently assigned to the

A98

CCTF and the NBRO as well as conducting a Self-
Inspection of several program areas. It should be
noted that NEFD ASAC Carol Cooper conducted a
Self-Inspection of the CCTF in the latter part of
2001. ASAC Cooper’s Self-Inspection revealed a long-
standing situation where DEA _ enforcement
requirements were being circumvented as a matter
of convenience by Task Force Officers and Special
Agents alike with the focus of efforts being on low-
level targets. ASAC Coopers report described a
hybrid system of enforcement and case management,
i.e. combining Massachusetts State Police methods
and evidence handling procedures with those of
DEA. This caused confusion in tracking operational
issues through investigative files. A similar sysemt
was used with the employment of Confidential
Sources.

The MRT’s Self-Inspection focus was to
determine whether’ corrections had _ been
implemented since the Self-Inspection by ASAC
Cooper and determine overall adherence to DEA
policies and procedures. This involved the review of
case files, confidential source files, evidence handling
and related issues. In regards to the Self-Inspection
review, the MRT discovered deficiencies both at the
CCTF and the NBRO concerning case files,
confidential source files, and evidence handling. All
deficiencies were brought to the attention of RAC
Schaefer and GS Ferguson for corrective action and
are detailed further later in this report. It should be
noted that the MRT did note corrective action by GS
Ferguson and RAC Schaefer relative to action items
uncovered during ASAC Coopers Self-Inspection.

A99

The interview of CCTF and NBRO personnel
were designed to evaluate the current state of
affairs, the morale of assigned staff and the quality
of overall management relative to the NBRO and the
CCTF. At the conclusion of the subject interviews,
the combined assessment of ASAC Benson and GS
Ducey was that these offices, given the current
circumstances in their totality have, at best, been
ineffective. The recent arrival of GS Ferguson at the
CCTF should resolve some, if not all, of the issues
there. However, several problems remain in effect
especially at the NBRO and are detailed later in this
report.

I. Cape Cod Task Force (Interview of
Personnel):

On March 19, 2002, myself and GS Ducey
interviewed all staff present, assigned to the CCTF.
SA Daniel Hutchinson was away on temporary
assignment and was subsequently interviewed on
March 28, 2002. The following personnel were
interviewed:

Michael Ferguson, GS

Diane Thompson, Office Assistant
Thomas Millar, SA

Daniel Hutchinson, SA

Sean Balcom, Task Force Officer (TFO) —
Detective, Barnstable PD

Paul Cara, TFO — Detective, Plymouth PD

As mentioned above, the CCTF became a DEA
funded office in approximately 1987. Prior to this,
the office was primarily founded by and managed by

A100

the Massachusetts State Police (MSP). Among those
MSP Troopers involved, John Allen and Robert
Melia, were the original founders and leaders of the
tas force. Subsequently, upon the arrival of RAC
Schaefer in September of 1999, a power struggle
ensued between RAC Schaefer and the two Lts.
Ultimately, the MSP were removed fromt eh CCTF
over poor relations (previously documented in other
memos by ASAC Carol Cooper). |

In summary, the interviewees thought the
RAC was “strange”, had a bar temper and made
disparaging remarks about both the SAs and TFO’s.
The RAC was often heard to say, “The Cape will be
my legacy; good or bad.” (no further explanation).
Each of those interviewed (from both the CCTF and
the NBRO) related a story in which RAC Schaefer
called Lt. Allen outside to fight after a long
argument. While all agreed there was no fight, no
one admitted to witnessing the incident. This
became a common theme throughout the interviews:
many of the problems have grown in scope as a
result of rumor and hearsay.

In general it was revealed that RAC Schaefer
made “life long enemies” with the MSP, and other
undisclosed local departments, for DEA. In fact,
more than one person stated that it was
embarrassing the way DEA treated MSP (removing
the MSP from the CCTF) — during one interview the
interviewee was moved to tears when disclosing this
issue. Also, several CCTF SA’s and TFO’s indicated
that when they would request assistance from the
NBRO, agents and task force officers assigned to the
NBRO would have to sneak out to assist the CCTF

A101

with cases in New Bedford because the RAC would
not allow them to help. It is believed that the RAC
did not want to see the MSP Lts. Succeed.

Also, several interviewees described an
incident in January 2001 when RAC Schaefer was
called to Boston to meet with ASAC Cooper and
rumors circulated that the RAC was to be removed
from the office. After the meeting in Boston, several
of the interviewees heard the RAC was enroute back
to the office. Some staff members indicated that they
affixed weapons to their belts while others left the
office entirely. This was done as a safety precaution
as it was speculated that the RAC had been relieved
of his position and would be in a very unstable
mental state — capable of “going postal”.

II. Cape Cod Task Force (Self-Inspection):

The CCTF is located on the second floor of a
small office building. The space meets minimal
security needs for the maintenance of case files and
none of the retention of Confidential Source files.
The dismissal of the Massachusetts State Police
(MSP) from the Cape Cod Task Force and the arrival
of a new Group Supervisor, have had an immediate
impact on case and CS management issues at Cape
Cod. The most visible change has occurred in the
number of open cases. CS Michael Ferguson has
taken immediate steps to close cases where there is
no DEA involvement, but substantial MSP interest,
transferring any exhibits in DEA custody to that
agency. During the management review, it was
noted that ten cases had been closed and an
additional ten cases were pending closure. This is in

A102

accordance with GS Ferguson’s stated objectives
outlined in his January 22, 2002 memorandum titled
“2001 Self-Inspection” concerning increasing the
caliber of investigation and focusing on long term
cases to comply with the Division’ Filed
Management Plan.

A. Enforcement Files

GS Golia and RAC Dudley reviewed eight
open cases in order to evaluate the impact of the
Self-Inspection on how cases are managed in the
office. The most consistent deficiency is that no cases
~at the CCTF are inputted into the National Drug
Pointer Index (NDPIX). The Secretary commented
that this had not been done for a couple of years. It
should also be noted that the office does not make
use of SF 702 forms, Security Container Check
Sheets for safes, as required in section 8615.5 of the
Planning and Inspection Manual. The following
observations were made concerning the content of
the reviewed files. Cases found to be in compliance
are not mentioned.

CZ-01-0040

* Case is overdue for a status report. Last status
completed 9-17-2001.

* Nine non-drug exhibits appear on the DEA 7a.

* Exhibit N-11, $120 OAF was deposited into the
MSP safety deposit box.

CZ-01-0043

A103

* Last report written on case October 2001.
CZ-01-0049

* No status reports written on the case since August
2001.

CZ-01-0054
* No status reports written to the case file since 9-1-
2001.
* Four (4) drug exhibits listed on one DEA 7.
CZ-02-0007
* At least one investigative report one month late
CZ-02-0008
* No witness on money list for purchase of exhibit 1
(2-26-2202)
* No DEA-6 for Acquisition of exhibit 1.
* DEA 284 in file, but no notation on its use for the
acquisition of exhibit 1.
CZ-02-0011
* No G-DEP 202 in file
B. Confidential Source Files

Due to the temporary nature of the facilities of

CCTF, all Confidential Source (CS) files are
maintained at the Divisional Office. However, the

A104 .

CCTF has duplicate, informal files for operational
needs. At the time of the review, the office
maintained five active confidential sources, with the
establishment of another pending. The majority of
active Confidential Sources have been established
since the arrival of GS Ferguson. Seven active and
deactivated Confidential Source files were selected
for this review. No Confidential Sources were
available for interview. As noted in ASAC Cooper’s
memorandum, a reason for deficiencies may be the
retention of the files at the Divisional office. This ©
requires documents being handled by many different
people before they make their way from the CCTF to
the file in Boston compounding the chance of loss or
misfiling. The following summarizes the information
gleaned from the review.

CS01-104444 — Deactivated

* No CS statements for exhibit purchases
CS00-101049 — Deactivated

* Case initiation report missing.

* Reactivation for security payment on 3-26-2001,

contains no mention of calendar year cap remaining.

CS01-103473 -— Deactivated (concurrent use,
therefore some deficiencies may apply to other
offices)

* Debriefings are not thorough.

* No witness signature on CS statement.

* No case initiation reports.

* No initial debriefing reports. :

A105

CS00-101536 — Deactivated

* No case initiation report. .
* One DEA 103 is photocopy only, no green copy.

CS02-106989 — Active

* No case initiation report.
CS02-107163 — Active

* No initial debriefing report.
CS 01-103802 — Active

* No case initiation report.

C. Evidence Handling

The CCTF is located in temporary quarters,
which has placed physical limitations on secure
evidence holding facilities. The office uses standard,
locked, roadside mailbox for the temporary storage of
drug evidence en route to the Northeast Regional
Laboratory or on hold for court, with an
accompanying hardbound logbook. The contained is
also used for the temporary holding of non-drug
evidence. The non-drug evidence room has its own
alarm, but has an unbarred window that could
theoretically allow access from the _ outside
(theoretical given that the Office is on the second
floor). At the time of the visit, the evidence custodian
was out of State for training and the alternative was

A106 ~

not familiar with how inventory control files were
maintained. The hardbound ledger conforms to the
requirements of Agent’s Manual 6681.72, but the
method used does not allow, or neglects to use,
notation as to the document that releases an exhibit
_after acquisition, e.g: DEA 12, DEA 48a, which is a
requirement of the Agent’s Manual.

Five exhibits were selected at random from
the ledger to determine the accuracy of record
keeping. Three were located and appropriate
documentation was in the inventory control file.
However, under CZ-00-0041, the log shows exhibits
N-3, N-4, N-5, N-6 and N-10 were taken for court on
11-1-2001, but no DEA 12 or DEA 48a is in the
inventory control files or the case file, reflecting the
movement of the exhibits and no notation is in the
ledger indicating their return.

Under CZ-00-0031, no inventory control file
could be located for exhibits. It should be stressed
that the Agent who assisted with this portion of the
review was not familiar with the filing system in the
non-drug evidence room. The file may be in an
inactive/closed inventory file, which could not be
located.

The office does not have a separate container
for seized and recovered moneys, nor does it have a
safe deposit box for the more permanent storage of
such items. Prior to the departure of the MSP
troopers, seized monies and OAF were lodged in
their safety deposit box. Some justification for
deficiencies can be made because of the ongoing
temporary nature of the facilities at the CCTF, and

A107

given the fact that the MSP were taking charge of
seized and recovered monies. However, full
compliance with evidence handling should be
implemented to maintain the integrity of the
process, especially seized and recovered monies.

Ill. New Bedford Resident office (Interview of
Personnel):

On March 20 and 21, 2002, respectively, myself and
GS Ducey interviewed the current staff assigned to
the NBRO. Additionally,.on March 21, 2002, GS
John Dudley and GS David Golia met with two TFOs
who had recently departed the NBRO. Overall , the
following personnel were interviewed:

John Schaefer, RAC

Heather Zemotel, DynCorp (Ms. Zemotel
rotates between both offices)

Paul Bock, SA

Christopher Grenier, SA

Todd Shea, SA

Daniel Ford, SA

Robert Jacob, TFO — Detective, Fall River PD
Jeff Silva, TFO — Sergeant (Sgt.), New
Bedford PD

Celeste Carbrale, TFO — Deputy, Bristol
County Sheriffs Office

William Delaney, TFO — Sgt., MSP

Dennis Ledo, former TFO — New Bedford PD
Dean Fredricks, TFO — New Bedford PD

The following is a synopsis of the interviews
conducted at the NBRO. Most, if not all of those
interviewed related the same stories. For example,

A108

on the subject of morale, everyone agreed that
morale was very poor due to the overriding sense of
tension within the NBRO. Much of this tension is
carried over from the problems experienced with the
MSP and CCTF. Additionally, because of poor
decisions made by the RAC regarding personnel and
case management, the perception of those
interviewed was that the RAC is the cause of this
office having such a high turnover of TFOs. Of
particular mention was the loss of TFOs Ledo and
Sousa referred to as the major case-makers and
backbone of the NBRO. Also, due to bar relations
with other agencies throughout the region, the
NBRO received very little cooperation and few
referrals. In fact, according to the interviewees, the
Bristol County District Attorney (DA) would not call
the RAC for any reason.

Subsequently, all personnel are on edge and
divided along the same lines as the CCTF. Each
person revealed that the underlying problem
revolves around DEA’s relationship with the MSP
and the RAC’s mental state. Again, the relationship
with the MSP is tenuous at best and documented
both above (CCTF) and below (RAC Schaefer’s
interview). Pursuant to these “battle of egos” over
control, the RAC was often seen visibly upset. When
questioned about this struggle for control, most of
the staff (including DEA employees) supported the
MSP, viewing the RAC position as administrative in
nature — the MSP Lts. had formulated and approved
all operational plans and directed all enforcement
activities on the street. Another oddity associated
with the MSP was that they were attached to the
District Attorney's C-PAC Team and detailed out to

A109

the CCTF> As such, they were not assigned to the
CCTF on a fulltime basis, thus, subject to call-out by
the C_PAC and obligated to serve collateral
functions at the C-PAC.

Regarding the RAC’s mental state, the
consensus of those interviewed was that the RAC is
mentally unstable. He appears to be preoccupied,
forgetful and subject to unpredictable mood swings.
He is described as being mentally unstable and
possibly a danger-to himself and/or others as
illustrated by the time he sat alone at his desk,
eating lunch with a Kevlar helmet on backwards
(this was described as irrational behavior and not
meant to be a joke). On another occasion he was
heard sitting at his desk dry firing a pistol during a
time period when tension in the office was
particulariy high. Additionally, the RAC was
described as condescending, berating and
unapproachable.

The RAC was also accused of not allowing the
SA/TFOs to do their job. He was blamed for closing
out a case which was later absorbed by Boston
Group Three’s Title III investigation and resulted in
the seizure of 240 kilograms of cocaine. The view of
those interviewed was the NBRO had information
relative to the target of the seizure and his telephone
# from a NBRO CS, yet the RAC wanted no part of
it. Later, after the Group Three seizure, the RAC
supposedly blamed the former case agent for closing
out the case, thereby excluding the NBRO from
having a role in such significant enforcement
activity.

A110

The RAC was also held responsible for the
high turnover rate and subsequent lost of
investigative opportunities. Because some TFOs
were unable ot get along with the RAC, and/or
pressured by the RAC, they asked to be removed
from the task force. Shortly after their departure two
specific TFOs were involved in major investigations
which, according to those interviewed, should have
had DEA/NBRO involvement. For example, a
recently removed Fall River detective conducted an
investigation resulting in the seizure of one kilogram
of heroin. Prior to the TFO’s departure, the NBRO
had opened an investigation (CZ-00-0025) on this
trafficking group. This case was closed and taken
with the departing TFO. Also, on the Saturday prior
to these interviews, a similar situation occurred in
New Bedford when a recently removed TFO seized
approximately $1 million (formerly CZ-00-0024). The
NBRO had no role in this event either.

As a result of ongoing problems, the NBRO
had been ineffective to the point that very little
enforcement action had even been attempted. One of
the very few operations, recently conducted, was
conveyed over and over again as an illustration of
the RAC’s ineffectiveness as a leader. The
investigation was a reverse sting whereby the
undercover agents were selling oxycotin in the
Dartmouth area of Massachusetts. Allegedly, the
RAC made several tactical and judgmental errors.
First, the RAC chose to assign himself as the
primary “eye” and recipient of the kel transmissions,
yet, the RAC failed to give detailed account of the
undercover/suspect movements or updates relative
to the conversations. Second, the RAC repositioned

A111

the bust van “out of the play” and reassigned those
vehicles which were to have covered a likely
money/counter surveillance vehicle to other
undisclosed assignments. Third, despite obvious and
developing problems during the course of the
negotiations (ie-a long verbal struggle between the
suspect and the U/C, one suspect observed possibly
arming himself) no reasonable command decisions
were made by the RAC, to include the ultimate
arrest order. When the arrest order was given by
another agent, several suspects were allowed to
escape due to poor prior planning and lack of
coordination. Later, an after action meeting didn’t
include the three arrest team members making the
critique mostly ineffective. When this incident was
brought to the attention of the Acting SAC Tom
Pasquarello all reports were sent to Boston.
According to those interviewed, the RAC rewrote the
arrest report “to support his position” and the
original DEA-6 has since disappeared.

During the course of the last two years the
NBRO staff recalled being interviewed a minimum of
three times. Each time they were interviewed by
ASAC Carol Cooper. 2n each occasion they
explained their concerns about morale within the
office and the RAC. The three interviews occurred at
the Self-Inspection, during the Fall of 2000 and in
the beginning of 2001.

At the Self-Inspection, many of the same
issues were raised, but no action was taken. In the
Fall of 2000, two TFOs left the NBRO (details above)
causing TFO/MSP Lt. Robert Costa to call ASAC
Cooper and voice his concerns. Pursuant to this call,

A112

ASAC Cooper came to the NBRO the next day and
interviewed all personnel. The following day, the
RAC was called to Boston to meet with ASAC
Cooper. Upon returning to the NBRO, the RAC
allegedly threatened SA Grenier saying, “What goes
around comes around.” SA Grenier, in turn, wrote a
memo to ASAC Cooper outlining the threat.
Accordingly, the RAC was told to have a group
meeting wherein he apologized to the group for the
threat and the problems within the office. The RAC
supposedly stated that all was a result of
miscommunications and a difference of opinion. He
then asked for a second chance. When the same
problems began to occur within two weeks, three
agents complained again to ASAC Cooper. They were
called up to Boston and told by ASAC Cooper to
“make it work” because the RAC’s transfer was
imminent. Upon hearing this news the RAC
allegedly retaliated with threats of poor evaluations
and the scrutinization of cell phone tolls. SA Shea
indicated that in previous discussions in early 2001
with ASAC Cooper, SA Shea was told that the RAC
was being replaced and a date on when the transfer
would occur. On a Friday in early 2001, SA Shea
stated that RAC Schaefer was called to Boston to
meet with Division management. SA Shea believed
at this meeting, RAC Schaefer was going to be
relieved form command. Following the meeting in
Boston, SA Shea stated that he received a call from
RAC Schaefer, who indicated to SA Shea that he was
returning to the NBRO. SA Shea stated that when
he heard of the RAC’s return to the office, most of
the NBRO personnel went home while others armed
themselves thinking the RAC would go “postal”.

A113

On the occasion of the third set of interviews
(beginning of 2001), many of the local chiefs were
interviewed by ASAC Cooper as well as those int eh
office, according to those interviewed. Supposedly,
most of the chiefs said they could not get along with
the RAC. :

In December 2001, SA Todd Shea believed he
was targeted by the RAC by being sent on temporary
duty (TDY) to Rhode Island to assist in a Title III (T-
3) investigation. SA Shea stated the TDY was
punitive because the drive to Rhode Island from his
home was about 80 miles one way. According to SA
Shea there was no T-3 and upon complaining to the
ASAC the TDY was rescinded by then Acting SAC
Pasquarello within three days. SA Shea again
thought he was being targeted by the RAC when the
Office Assistant at the CCTF tipped SA Shea that
the RAC was auditing his leave balance (SA Shea
had taken 13 Sick Leave days during said fiscal
year). No action was ever taken.

During this time RAC began replacing TFO’s
with those believed to be loyal to him and referred to
as “rats” by the remaining group members. On one
occasion an archived DEA-6 was ordered from the
warehouse because information within the report
contained disparaging remarks about recently
arrived TFO Sgt. Al Silva. According to those
interviewed, the report stated that TFO Silva, a New
Bedford PD Detective, had been receiving kickbacks
from a tow company in November of 1999. The
interviewees believed such an officer should not be
assigned to a DEA task force. TFO Silva stated that
this investigation had been unfounded. He went on

A114

to say that he, himself, recently transferred from the
Internal Affairs unit within his department. Despite
this, on one occasion TFO Silva called SA Gazarra in
Boston’s Tech Group to maké an inquiry regarding
TFO credentials. When he gave his name and off
location, SA Gazzara asked him if he was the “rate”.
Later, in December of 2001, TFO Silva found a
chopped off rat’s tail on the roof of his OGV (TFO
Silva maintains photos). It should be noted that
these allegations against TRO Silva have not been
substantiated.

Another TFO, Bristol County Deputy Sheriff
Celeste Cabral was accused of leaking information
on an ongoing case. It was later determined that the
source of the accusation was a Bristol County
Sheriffs Captain and brother of former MBRO
TFO/MSP Trooper Bob Andrade. No other action
was taken relative to this accusation. In March
2002,TFO Cabral recalled calling Boston’s Tech
Group for a DEA-284 authorization. At that time,
upon hearing her name and office, SA Gazarra asked
her if she was “Schaefer’s snitch”. TFO Cabral also
revealed that due to her “neutral” position within
the group, she has experienced not being answered
on the radio while on operations. TFO Cabral fears
that this behavior could repeat itself if she called for
cover, thus becoming a safety issue. Aware of the
situation, the Bristol County Sheriff has ordered
locking cabinets for TFO Cabral and asked her if she
would like to leave. She chose to stay for now.

RAC Schaefer had the following responses to
the above allegations:

A115

Upon arrival at the CCTF the RAC quickly
found that the task force had been run by the MSP.
He called it a DEA funded C-PAC: all DEA-7’s, 7a’s
and Standard Seizure Forms (SSF) were written as
“information only”. Barnstable County C-PAC
money was used and re-used with no regard for the
evidentiary or recovered funds procedures. Also,
body wires were for safety only and not recorded. On
one occasion, the RAC observed SA Bock destroying
a kel tape recording. When confronted, SA Bock
states recording were never made and not necessary
in state court. When the RAC insisted a DEA-284 be
completed for authorization and a tape be kept in
evidence, SA Bock became defense and defiant.
Additionally, the Confidential Source policy in place
at the CCTF was not that of DEA. According to RAC
Schaefer, Management and Inspection condoned and
commended the CCTF for its policies and efforts to
date. Another issue was that although the MSP
would not work full time with the CCTF, they
received all of their overtime funding through
OCDETF and U.S. Customs. Additionally, the MSP
received the majority if not all asset sharing monies.
Eventually, the Barnstable PD Chief wrote a memo
dated (9/22/00) requesting his department receive its
rightful share.

As for the alleged threat the RC made to MSP
Lt. Allen: The two men were arguing in the RAC’s
office. The Lt. accused the RAC of being a coward
because the RAC “never went on the street”.
According to the RAC, he responded by asking the
Lt. if it would make him feel better if they went
outside to fight (the Lt. is supposedly a very large
man in contrast to the RAC’s:size). The Lt. retorted,

A116

“Is that a threat?.” The RAC said, “Fuck you.” In
the end, there was no fight and the RAC claims he
later told ASAC cooper of the incident and
apologized to the Lt. Upon arrival at the newly
opened NBRO, the RAC told representatives of the
MSP that they were not in charge nor would they be
allowed to operate under a “hybrid” system as they
had at the CCTF. As often happened, this prompted
a telephone call from TRO/MSP Lt. Bob Costa to
ASAC Cooper. Lt. Costa told the ASAC the RAC
threatened the MSP by stating MSP were in the
RAC’s “crosshairs”. (The RAC maintained that his
constant pipeline of his agents and TFO’s to the
ASAC diminished his authority at the NBRO).
Pursuant to Lt. Costa’s call, ASAC Cooper responded
to the NBRO and interviewed all personnel.

On 4/27/01, the RAC’s wife received a call at
her place of employment. The female caller told the
RAC’s wife that she and the RAC were having an
affair. This call came one day after the RAC had an
argument with Lt. Melia. The RAC was informed of
the call by his wife who already knew of a past affair
the RAC had when the two were separated.
Subsequently, she was not upset. It should be noted,
however, that the one person the RAC had told about
the past affair was SA Shea. Further, the name
used by the alleged “mistress: was that of SA Shea’s
neighbor and the voice of the “mistress” was that of
SA Shea’s then girlfriend (The RAC knew the
girlfriend and recognized her voice.) The RAC
maintains a copy of the taped conversation between
his wife and the “mistress”.

A117

As a result of the above suspicions, then SAC
Mazzilli told the RAC to transfer SA Shea.’ In
reality. In realty, SA Shea was sent to Rhode Island
TDY , instead. This TDY, however, was rescinded by
A/SAC Pasquarello within three days. According to
RAC Schaefer, each time he begins to turn things
around in a positive way DEA Boston becomes
involved, undermining the RAC’s position and/cr
authority.

IV. New Bedford Resident office (Self-Inspection):

The New Bedford Resident Office )NBRO) has
been located on the third floor of a once commercial
shopping mall since June 2001. They are due to
move into new space in June/July 2002. The office
does not have a secretary and according to RAC
Schaeffer, he is the one who does the filing. The
space consists of two large rooms, with no private
office space for the RAC or secure space for cause
files and evidence room. The entire facility has one
alarm. Case files are located in bar locked file
cabinets. The office does not have access to
FIREBIRD, NCIC or NLETS. No closed
investigative files are maintained at the NBRO, all
are sent to the Divisional office for safekeeping.
According to RAC Shaefer, the DEA 381 log is
maintained by the CCTF. Like the CCTF, NDPIX
entries are not made on G-DEP, DEA 202s, nor are
entries made into the NDPIX database for NBRO
cases. Nine open cases were reviewed.

A. Enforcement Files

CZ-02-0001

A118

*Duplication of use of exhibit N-1
CZ-02-0009

*No case initiation report on file
CZ-01-0006

*No money listed for the purchase of exhibit 1.
*No CI statement for purchase of exhibit 1.

CZ-01-0012

*Money list has incorrect format.

One of the statements identified on ASAC Cooper’s
Self-Inspection was that properly redacted
Confidential Source statements were located in the
relevant case bulk file and not the case file itself.
RAC Shaeffer addressed this in his response to the
Self-Inspection, but one case file reviewed was still
found to have the redacted statements in the bulk
file.

B. Confidential Source Files
All Confidential Source files are maintained at the
Divisional Office. A total of six active or deactivated

files were reviewed.

CS00-100609 — Active

*No CI statement for acquisition of exhibit 11.
*No CI statement for the acquisition of exhibit 15.

A119

*No DEA 12 in file for payment over $3,000 (showing
GS 15 approval)

CS01-105185 — Deactivated

*No case initiation report in file.
_*No signed statement by Confidential Source.

CS01-102598 — Deactivated
*No case initiation report for CZ-00-0025

One confidential source, CS01-103836, was
interviewed on 3-20-2002, without the presence of
controlling agents. The CS has been active for about
six months and his/her reason for cooperation is
assistance in obtaining resident alien status. He/she
was aided in entering the USA by Agents for the
purpose of developing an investigation. According to
the responses of the CS to questions non his/her
handing.

C. Evidence Handling

The non-drug evidence vault is a room whose
temporary nature is obvious from the chicken wire
that forms the barrier from the end of the sheet-rock
walls that are about twelve feet high, to the ceiling.
The room has no alarm of its own. Inventory files
were (closed and active) found to be well maintained.
The non-drug inventory ledger complies with the
requirements of Agency’s Manual section 6681,72.
Fur non-drug exhibits were selected at random from
both the inventory control files and the non-drug log
book. All supporting documents, i.e., DEA 12, DEA

A120

7A or DEA 48A were on hand for the exhibits
selected and the exhibits were readily located. Like
the CCTF, the evidence room has anon-barred
window with theoretical access possible from the
outside (theoretical since the window is on the third
floor). ij

There is no drug storage facility at the NBRO.

Like the CCTF, the NBRO has a lockable, roadside
mailbox for the short-term storage of drug evidence
that they have had for about two months. But since
it has not been bolted to the floor, it has never been
used and there are not entries in the overnight (or
otherwise) log. When questioned where drugs are
stored immediately after seizure or for court,
reviewing agents were told that the RAC had a two
drawer combination Mosler safe, but there is no log
for that safe. With regard o seized and recovered
monies, when reviewing agents asked for the related

~ logbook, they were show a log with a single incoming
entry in October 2001, no outgoing entry. A short
time later, SA Grenier, seized and recover monies
custodian, provided agents with a second log
showing both incoming and outgoing entries for the
exhibit in the original log. There was no adequate
explanation for the two logs. As with the drug
evidence, seized and recovered monies are stored in
the Mosler safe. At the time of the visit, there were
no monies in the safe, however there was a gun
(exhibit). The office does not have a bank safety
deposit box for long term safe storage of seized and
recovered monies. In addition to housing seized
weapons, seized and recovered monies and the
temporary storage of drug evidence, the Mosler safe
also serves the security needs of the RAC. This

A121

violates the need to keep monies and guns separate
from other non-drug evidence and drug evidence
separate fro non-drug. Government funds are also
stored in the safe.

SA Grenier serves as both the sub-principal
cashier and the seized and recovered monies
custodian which violates the proper segregation of
financial duties. (See DVO Bulletin 01-02, dated 6-
5-2001, Segregation of Duties Policies.)

Conclusions:

*During the course of these interviews, the majority
of the interviewees related that these interviews
constituted the second and/or third occasion they
were spoken to by a representative of DEA Boston
management — ASAC Carol Cooper. Subsequently,
each person had reservations about speaking with
ASAC Benson and GS Ducey, in addition to
questioning DEA’s lack of desire and professionalism
in dealing with this issue.

*It’s apparent that RAC Schaefer walked into a
setting laced with a long established history, unique
politics, institutionalized (non-DEA) practices and
strong personalities. Any change brought about by
the RAC, or attempt to regain control of the CCTF
and NBRO was met with fierce opposition.

*It became readily apparent that these offices were
faced with a negative political environment both on
Cape Cod and in the New Bedford area; dissention
among the staff (both DEA and Task Force Officers)
weakened the role of the RAC; and, a division of

A122

listed personnel on opposite sides of all issues based
upon cliques and personalities destroyed all
comradery and teamwork.

*The morale, specifically within the NBRO, reflects
not only insubordination and a lack of regard for one
another, but raises serious concerns about
agency/officer safety.

*At the epicenter of each and every negative issue,
according to these interviews, is the RAC. All of the
related problems seem to radiate from a sense of
division within the office. The underlying reason for
this division is clearly two schools of thought
separating the offices into two camps: those who hae
taken the side of the RAC and those who continue to
disagree with him. Those who oppose the RAC may
have taken these disagreements to extreme, even
hurtful measures. Most troubling of all is that this
camp is made of a representative sampling of both
offices, to include DEA employees. These DEA
employees include CCTF office Assistant Diane
Thompson and NEBRO Special Agents Shea and
Bock. Based on the removal of the CCTF Officers
and Lts., it appeared to ASAC Benson and GS Ducey
that these employees developed a “personal” hatred
toward RAC Schaefer and made efforts to try to
remove RAC Schaefer from his position.

*Good, bad or indifferent, the ultimate driving force
behind the woes of these offices appears to be
personality and philosophical differences.

Recommendations:

*Systematic, across the board transfers/removal of
all assigned personnel (NBRO) appears to be the
only viable solution to what appears to be a long
term, ongoing, institutionalized issue fueled by
preconceived notions and prejudices towards the
RAC. These problems appear to have been rooted
some time ago and allowed to fester up to their
present state.

*Close supervision and the utmost support provided
to the CCTF, combined with continued negotiations
between DEA and the Massachusetts State Police
)MSP); as well as all other regional counterparts, in
an attempt to find middle ground on the issue of
reestablishing the CCTF as an effective drug
enforcement unit, under the leadership of DEA.

*Reestablishment of the CCTF, to include non-
supervisory MSP representatives.

*Both offices will require close supervision during
what’s sure to be a slow and tentative reconstruction
period.

Atch

cc: John B. Brown III (HQ/AD)
Roger E. Guevara (HQ/OC)
James L. Capra (HQ/OCX)

A124

Memorandum

Subject

Recommendation for Transfers: Special Agents
Chris Grenier, Todd-Shea;and Paul Bock

New Bedford Resident Office

Boston Division

7

Date
SEP 26 2002
To
Rogelio E. Guevara
Chief of Operations
From /s/
George J. Cazenavette III
Chief Inspector

During the period August 19-30, 2002, the
Office of Inspections (IN) conducted an on-site
inspection of the Boston Division. As part of that
inspection, the New Bedford Resident Office (RO)
was inspected August 19-20, 2002

IN recommended that 11 finding be issued to
the New Bedford RO in the following program areas-
Enforcement Effectiveness, Division Inspection
Program, Performance Evaluations, Evidence
Handling CS Management, Imprest Fund
Management, Seized Assets, Accountable Property,
Fiscal Operations, Physical Security/Security Sweep,
and Space and Utilities.

A125

The New Bedford RO is staffed by an acting
Resident Agent in Charge (RAC), three Special
Agents (SA) and Task Force officers. Two of the SAs
are GS-13s and one a GS-12. Inspectors determined
that SAs Chris Grenier, Todd Shea, and Paul Bock
failed to properly execute their assigned and
collateral duties. IN reviewed the collateral duty list
for the office and found SA Grenier was responsible
for seize and recovered monies, imprest fund, and
office safety. SA Shea was responsible for drug
evidence, accountable property, and office security.
SABock was responsible for nondrug evidence IN
determined the lack of oversight by SAs Grenier,
Shea, and Bock in the above mentioned critical
program areas was a significant contributing factor
_in the issuance of these Findings. All three SAs
assigned to the New Bedford RO contributed to, or
were the basis for, the deplorable office conditions,
the general lack cleanliness, and lack of security at
the New Bedford RO. The actions, or lack thereof, by
SAs Grenier, Shea, and Bock were significant
contributing factors to the issuance of the Evidence
Handling Enforcement Effectiveness, CS
Management, Space and Utilities, Security, and
Security Sweep Finding-These Findings were
directly attributable to SAs Grenier, Shea, and Bock.
IN noted a general lack of respect for DEA, DEA
property, and indifference toward the DEA mission
displayed by SAs Grenier, Shea, and Bock.

Through a random review of investigative
files, IN found the New Bedford RO was not
conducting enforcement operations in an effective
and efficient manner. IN _ determined that
approximately 50 percent of the-cases were in the

A126

Summary Report format and claimed arrests and
seizures. These cases did not contain any
documentation of DEA presence, participation,
and/or follow-up investigation, these cases were
opened upon information being supplied from the
police departments that make up the task force in
the office. The office had not conducted any Title ITI
investigations during the last three fiscal years and
had not initiated an OCDETF investigation in the
past year and a half. The office had only four active
CSs or approximately .36 CSs per law enforcement
officer (LEO). This figure is approximately half the
national average of .68 CSs per LEO. The
enforcement effectiveness review also revealed that
SAs Shea and Bock had not established a CS in the
past year.

While conducting the review of the drug
evidence program, SA Shea told the Inspectors that
the New Bedford RO only seized drugs during
normal office hours, as an explanation for not having
the required logbooks. IN’s investigative file review
found several instances where drug evidence had
been stored in the office overnight.

A review of other inspection related
documents revealed that a Management Review of
the situation in the New Bedford RO was conducted
earlier in the year at the direction of SAC Trouville.
Part of that review centered on the relationship
between the New Bedford RO and_ the
Massachusetts State Police. In an interview with
SAC Trouville, he stated that SAs Grenier, Shea,
and Bock failed to support DEA and its mission, and
in fact actively supported the position of the

A127

Massachusetts State Police against DEA’s interests.
Additionally, an interview with a Task Force Officer
raised concerns that SAs Grenier, Shea, and Bock
were not following established policies and
procedures, thus exposing DEA to unnecessary
liability. The TFO stated that the total disregard of
DEA’s CS policy by Grenier, Shea, and Bock would
lead to a “Whitey Bulger incident” (a reference to a
widely publicized scandal involving the improper
handling of organized crime informants by FBI
agents).

Based upon the results of the on-site
inspection, and in concurrence with the management
review conducted by the Boston Division, I
recommend that SAs Grenier, Shea, and Bock be
relocated to other divisions.

cc: Asa Hutchinson
Administrator

John B. Brown,
HJ Deputy Administrator

A128

Memorandum

Subject i

Management Review of the

New Bedford Resident Office and
Cape Cod Task Force (FFS 140-01)

Date August 13, 2002

To
Charles H. West
Deputy Chief Inspector
Office of Inspections
From /s/
Mark R. Trouville
Special Agent in Charge

New England Field Division

In the latter part of March 2002, I ordered an
internal management review of the New Bedford
Resident Office (NBRO) and the DEA Cape Cod Task
Force (CCTF). The purpose of the management
review was to assess the overall operation,
management and effectiveness of both offices. This
was as a result of issues raised during the NBFD
2001 Self Inspection and conversations with former
New England Field Division (NEFD) SAC Mazzilli
and current ASAC Carol Cooper. I assigned NEFD
ASAC Rodney Benson overall responsibility for the
review and ASAC Benson was assisted by one NEFD
RAC and two G/S’s. The results of this review are
attached for your information.

A129

Based on the review conducted, I believe that
there has been a history of mismanagement and lack
of appropriate oversight in both offices. The
combination of ineffective or “Acting” DEA
supervisors and the presence of very senior
Massachusetts State Police (MSP) officers lead to the
abdication of DEA’s leadership role in the offices.
RAC Schaefer, upon his arrival, did not possess the
needed diplomatic nor management skills to
properly reassert DEA’s leadership role. His heavy
handed attempts appear to have been met with
rebellion not only from the MSP officers, but also
from several of our Special Agents. Upon my arrival
and initial assessment of the situation, I directed
that the Cape Cod office no longer report to RAC
Schaefer, but report directly to ASAC Cooper. My
plans to change leadership of the New Bedford office
were resolved when RAC Schaefer retired in August
2002.

With the arrival of GS Ferguson, I believe the
Cape Cod Office is now on the proper course. I have
recently selected an Agent from the Providence RO
to assume the duties of Acting RAC in New Bedford
until a selection for a permanent RAC can be made.
Liaison with the New Bedford Police Chief has
resulted in a continued loyalty to the NBRO.
Discussions with the MSP will continue as we move
forward in our efforts to refocus the NBRO.

: Any questions may be directed to me at 617-
557-2118.

Atch

A130

cc: John B. Brown III (HQ/AD)
Roger E. Guevara (HQ/OC)
James L. Capra (HQ/OCX)

A131 -

247

as problems with the Mass. State Police. We did
discuss that these agents were working low level cases
with the Mass. State Police instead of doing their job
as DEA agents and trying to work a case up which is
much harder and takes a lot more effort.

Q Cazenavette had said the agents had taken a
side with the Mass. State Police?

A Yes.

Q And that’s precisely what Mr. Benson's
management review réport indicates? |

A Yes, it's basically the same, it's similar. Again,
not with the depth, but yes.

- Q And Cazenavette said these agents had taken
the side of the Mass. State Police with respect to the
complaints against John Schaefer?

A I don't understand the question.
Q When Cazenavette said these agents had

taken the side of the Mass. State Police, it was in
reference to the complaints against John Schaefer?

A I don't know that to be true, Counselor.

My understanding and impression of what he was
discussing was he was taking their side in the problems
that were at the office. I don't know that he ever
mentioned a complaint.

A132

Q Doyou recall your deposition?

Yes.

You were under oath then, true?

> O P

Yes, I apologize, yes.

Q And I asked you on page 107, did Cazenavette
discuss Schaefer at that time? You answered no. Did
he discuss the Mass. State Police? You answered a
little bit, that was part of the problem. He felt that
these three agents had, and I hate to say, taken a side
but there is really no other way to say it, taken a side
with the Mass. State Police in the beef with
management there, with Schaefer, and that they were
not performing DEA cases at DEA levels.

A Yes, but you asked me about complaints and
nowhere do I recall a conversation about complaints,
that's what I said to you.

Q When Cazenavette said these agents had taken
a side with the Mass. State Police, it was in reference
to the beef with John Schaefer?

A Reference, and that's my phrase, beef.

Q Meaning?

A The disagreement between the agents and
Schaefer, yes.

A133

Q Page 15 of Agency Exhibit 1. This is Benson's
management review report, the last page?

A Yes.

249
Q And Benson mentions that at the epicenter of
each and every negative issue, according to these
interviews, is the RAC?
A Yes.
Q And that was John. Schaefer?
A Yes.

Q And you discussed that with him, with Mr.
Benson back in March?

A Yes

Q And he states that there were two schools of
thought separate one office into two camps?

A Just a second. Where are you, sir?

Q The same paragraph, I jumped ahead trying to
speed it up but take your time.

A Ail right. Go ahead, sir.
Q And what Benson meant by two schools of

thought were those -who were against the RAC and
those who were for him?

A134

A He clearly states in the rest of the sentence,
those who have taken the side of the RAC and those
who continue to disagree with him.

Q And that's consistent with what you said, taking
the side in the beef with the RAC?

A Yes, that's true.

(Pause)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1619%3A2. Public record. Not legal advice.