In March 2023, the Project On Government Oversight (POGO) called for President Joe Biden to remove Social Security Administration Inspector General Gail Ennis for failing the essential duties of her mission. The office Ennis oversees has issued crushing fines to elderly people, people with disabilities, and those already struggling to make ends meet and allegedly retaliated against whistleblowers alongside other misconduct and mismanagement. However, more than four months after POGO’s letter, Ennis is still at her post, and reports of whistleblower retaliation continue against a backdrop of disfunction.
A failure to address these many issues is an ongoing threat to the nation’s system of oversight, as inspectors general must adhere to the “highest ethical principles.” President Biden must remove Ennis from power. Further, Congress needs to better protect whistleblowers and support inspectors general by making it easier for them to report on waste, fraud, and abuse of power.
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Problems at the Social Security IG
In May 2022, Washington Post veteran reporter Lisa Rein published the first of several articles exposing the mismanagement of an anti-fraud program housed in the Social Security Administration’s Office of the Inspector General. Rein focused on the administration’s Civil Monetary Penalty program, which levies fines to recoup government money after someone has received improper disability benefits.
Since the inception of the program in 1995, attorneys at the Social Security Administration considered the financial state, age, and other mitigating factors of those who had received overpayments when assessing fines. A few years ago, however, that changed. And two whistleblowers — Joscelyn Funnié and Deborah Shaw — raised the alarm about the change in protocol and the exorbitant fines being levied against 83 people who could least afford to pay them. But increased penalties were not the only shift. The Social Security Administration’s chief counsel also changed the policy so staff no longer assessed an individual’s financial state before calculating the fines. A total of less than $700,000 in fines levied in 2017 ballooned to $11.5 million over a seven-month period ending in mid-2019 — and it’s unclear if that figure represents the total scope of the issue.
These penalties were cruel and disproportionate. Those facing fines were typically low-income people, elderly people, or those with a disability, and the changes to this program were devastating. Gail Deckman shared her story with the Washington Post, and it illustrates the impact these fines have had on those just trying to get by. Deckman continued to receive Social Security disability benefits for four years after her partner died from cancer. She did not realize the error and was hit with a fine of nearly $120,000 — roughly three times the amount of what she received by mistake. She does not have the money to repay the fine, so Social Security is garnishing what she was going to receive upon retirement. Instead, she continues to work at her minimum wage job and will not be able to retire until she is 83 in 2032.
In addition to mishandling the anti-fraud program, Ennis’ office faced other issues under her tenure as inspector general. Attorneys trying to protect the integrity of the program faced ongoing whistleblower retaliation, which they told POGO continues to this day. Dozens of auditors, investigators, and other staff have quit or retired, many indicating frustration with the office’s leadership. During the pandemic, Ennis monitored investigators’ computers and disciplined or terminated several agents for being away from their desks, even though that’s typical during an investigation. This tactic fueled a no-confidence vote from the Federal Law Enforcement Officers Association. In 2022, employees ranked the OIG 431 out of 432 subcomponents of the federal government, assigning particularly low scores in categories related to effective leadership. The pace of audits and reports issued by the office has dramatically slowed, and while the number of reports is not a proxy for the overall quality of oversight, it’s reasonable to expect staff departures to impact the office’s ability to perform meaningful oversight.
In the aftermath of Rein’s reports, the Social Security IG office found itself at the center of multiple investigations, and the problematic fines program was paused. In May 2022, the acting Social Security commissioner announced a full investigation, and shortly after, the Council of the Inspectors General on Integrity and Efficiency’s (CIGIE) Integrity Committee also opened a probe, which prompted comment from the Biden administration encouraging the body to move swiftly. The Office of Special Counsel is also investigating claims of whistleblower retaliation. Also in 2022, the Office of Personnel Management audited the IG office’s workforce planning strategy, which raised concerns about staff departure, and is currently digging more deeply into Ennis’ hiring practices. In December 2022, the Senate Finance Committee announced its own bipartisan investigation into the watchdog office over fears that mismanagement may be impeding its ability to perform oversight. Senator Ron Wyden (D-OR), Chair of the Senate Finance Committee, sent a letter to Ennis in July 2023, expressing his ongoing concerns about her performance.
It is worth noting that IG Ennis is a member
of CIGIE’s Integrity Committee, one of the bodies reportedly investigating her office. When asked if Ennis had recused herself from the probe, CIGIE provided POGO the following statement: “While CIGIE cannot confirm or deny that IG Ennis has recused herself from an investigation, or that she is the subject of an investigation, the IC adheres to a policy of transparency and recusal, as appropriate, to mitigate the existence or appearance of conflicts of interest. The IC’s rules on recusal are detailed in section 3.K. of its Policies and Procedures.”
Prima Facie Retaliation
The Social Security inspector general’s office would have continued to levy outrageous fines on those least able to pay if not for two brave whistleblowers, Joscelyn Funnié and Deborah Shaw, who stated they continue to experience retaliation at the hands of IG Ennis. This retaliation has impacted their lives financially, emotionally, and professionally.
In 2019, Funnié raised concerns to Ennis about the Civil Monetary Program, which she helped oversee as assistant inspector general. Shaw, a veteran attorney in the program, also raised her concerns to the IG. A few months later, Shaw and Funnié were escorted out of OIG headquarters, and after that, Funnié was fired and Shaw demoted. Both appealed their cases to the Merit Systems Protection Board, which protects federal employees against prohibited personnel practices, including whistleblower retaliation. The Office of Special Counsel, which investigates complaints of retaliation against whistleblowers, has also opened an investigation.
In May 2022, an administrative law judge with the Merit Systems Protection Board (MSPB) ruled that Shaw had been the victim of prima facie whistleblower retaliation by the OIG. The judge ordered the agency to reinstate her to her previous position and restore her back pay and benefits. However, the inspector general’s office has appealed the ruling. (The office’s Chief Counsel, Michelle Murray, is responsible for the appeal, and she is also Shaw’s second-line supervisor and coordinator of the agency’s whistleblower protection program.) The appeal means that much of this remedy has been put on hold until Shaw’s case is heard, which could take years, as the MSPB is facing a huge appeals backlog.
Shaw reported that since returning to work, she has been denied projects in her area of expertise and forced to do nonlegal busywork, and that her colleagues were instructed to document anything she said related to her case and report it to management. Further, in a twist out of a spy thriller, Shaw learned that a file she was accused of losing was anonymously left in the mailbox of another office within the OIG. She was never officially told of its return, despite it being at the heart of one of the charges leveled against her.
Like Shaw, Funnié had to finance her own case to the MSPB. She settled with Ennis’ office as her legal bills accumulated. When Funnié returned to work in December 2021, she was not given a performance plan for more than seven months, she said, and the plan she eventually received did not include senior-executive-level work. She continues to be the target of retaliation and is shut out of meaningful work she did prior to blowing the whistle. The OSC investigations looking at retaliation against Funnié are ongoing, and she has also filed a case with the Equal Employment Opportunity Commission (EEOC).
Shaw and Funnié have paid a high price for exposing waste, fraud, and abuse at the Social Security Administration, and they have still not been made whole. Worse still, their experiences underscore that even when whistleblowers reach a favorable outcome in their initial case, they can remain vulnerable back at their agencies.
It’s also worth noting that whistleblower retaliation within an office of the inspector general is particularly grievous, as one of the inspector general’s most important jobs is to protect government whistleblowers against retaliation.
Protecting whistleblowers is a critical mandate of inspectors general. But also key to rooting out waste, fraud, and abuse is reporting accurate and complete information to Congress. The exorbitant fines levied by the Social Security IG office have helped spotlight a longstanding issue facing IG oversight — the semi-annual reports each office is mandated to produce, commonly referred to as SARs. The Inspector General Act of 1978 (as amended) specifies reporting requirements for IGs, and historically these requirements have prioritized what’s easy to report.
In POGO’s 2018 report on the 40th anniversary of the IG Act, we noted that Congress needed to “increase the emphasis on qualitative reporting on issues concerning public health and safety and individuals’ constitutional rights.” Recent reforms have reduced the number of redundant reporting requirements and allowed IGs to link to previously published reports to reduce reporting in multiple places. But additional changes are still necessary to encourage IGs to submit more meaningful reports.
The Washington Post reports on civil monetary penalties at the Social Security IG’s office indicated that pressure over submitting updates to Congress may have played a role in the sharp increase of fines. This possible connection is backed up by Deborah Shaw, who told POGO, “I think they just increased the penalties to puff up the numbers so they could put it in the semi-annual reports to Congress. And it was shocking.”
The office’s reports suggest as much: The semi-annual report covering October 1, 2018 through March 31, 2019, emphasizes the more than nine million dollars in fines levied by the program during this timeframe, versus $2.4 million from the period immediately before, and $3.1 million in the period after. The most recent semi-annual report, covering October 1, 2022 through March 31, 2023, demonstrates a continued reliance on data (mandated by Congress) that is easy to report, including the number of reports issued (seven), the office’s “monetary accomplishments” ($76.5 million), and the penalties and assessments it imposed ($284,000 — not a surprising drop given that the civil monetary penalty program is still on hold).
Given all the issues noted in the sections above, it’s particularly striking that not a single SAR during IG Ennis’ tenure mentions staffing issues or any claims of whistleblower retaliation.
While statistics, dollars, and other quantitative measures will always be a part of any semi-annual report, the reports fall short of meaningful oversight when they focus on what’s easy to report, instead of deeper, systemic issues. Congress must improve the quality of this important oversight tool. In the coming months, POGO will dive more deeply into what’s required in these reports, and look to build on the reforms passed at the end of the 117th Congress.
More immediately, there must be changes within the Office of the Inspector General at the Social Security Administration. The work done by the Social Security Administration is essential to the health and wellbeing of so many people in our country, many of whom are elderly, have a disability, or are struggling to make ends meet. The public deserves a fully functioning watchdog overseeing this important work, and the roughly 100 individuals at the heart of this story, such as Gail Deckman, are entitled to have their fines reassessed. The courageous whistleblowers at Social Security OIG, Joscelyn Funnié and Deborah Shaw, deserve to be made whole after trying to protect those who are supposed to be served, not persecuted, by our government.
The retaliation that they experienced and continue to face further creates a chilling effect, making it less likely that others will speak out when encountering something wrong. MSPB must continue to work through its backlog of cases and hear the appeal of Shaw’s case, and OSC needs to finish its investigation into these matters.
Congress needs to pass stronger whistleblower protections, especially regarding temporary relief, attorney’s fees, and allowing whistleblowers to bring cases directly to court. And CIGIE’s Integrity Committee should finish and publish its investigation as expeditiously as possible.
Finally, it must be recognized that Inspector General Ennis presides over an office that appears to be unable to fulfill its critical mission. Staff departures, reduced oversight and output, and whistleblower retaliation are the rule, not the exception. POGO will continue to work to strengthen whistleblower protections and reform the reporting requirements to better focus on meaningful oversight, but President Biden must remove Inspector General Ennis.
This story was updated on August 7, 2023. Changes note that the whistleblowers raised concerns about the change in the protocol for assigning fines as well as the size of the fines, reflect that Funnié was not placed on unpaid leave before her termination, and more accurately characterize the fines themselves.