BBG Watch Commentary
The Washington, D.C. law firm, Themis PLLC, has broadened its $400 million class action lawsuit, Lee, et al. v. United States of America, Case No.15-1555C, which it filed on December 21, 2015 in the United States Court of Federal Claims and amended on March 7, 2016 on behalf of individuals who provided “personal services” to the Broadcasting Board of Governors (BBG) while allegedly being treated as independent contractors under purchase orders, personal services contracts, or blanket purchase agreements.
In describing the amended complaint, Themis said that many BBG contract employees who had contacted the firm helped it uncover additional evidence that the BBG was intentionally underpaying them. In the first few pages of the amended complaint, the law firm summarizes the BBG’s alleged law-breaking and the ways it harmed BBG contract employees.
The Inspector General of the Department of State (“OIG”) recently uncovered this and other widespread illegalities in the BBG’s acquisition of personal services and issued a report on the BBG’s wrongdoings. In response to the OIG’s findings, the BBG admitted that the very purpose of mis-labeling the contracts was to underpay Plaintiffs and Class Members in knowing violation of law.
The BBG was consciously cheating Plaintiffs and Class members out of the incomes and benefits they deserved while exploiting their faithful and sometimes dangerous service to the United States on the cheap. According to certain internal memoranda, the BBG knew that the more openly “we treat contractors like federal employees” in accordance with their actual service, “the greater the chance we will have to withhold and pay taxes as if they are employees, and that they can claim rights to . . . federal employee benefits such as health insurance.” READ MORE
Some of the BBG’s International Broadcasting Bureau (IBB) executives under whom these practices allegedly occurred are still occupying senior agency positions under new BBG CEO and Director John Lansing. He delivered his report to the board at its meeting last month but did not mention the $400 million class action lawsuit. Mr. Lansing has been on the job since September 2015.
Some of the senior BBG executives linked to hiring of contract employees without congressional authorization are believed to be advising John Lansing on these issues. They were in charge of day-to-day operations at the agency when the alleged “widespread illegalities in the BBG’s acquisition of personal services” occurred. Some of them were seen participating in the open board meeting at BBG headquarters in Washington, D.C. on February 26, 2016.
In addition to John Lansing, the meeting was attended by Chairman Jeffrey Shell (via video), Governor Matthew Armstrong, Governor Leon Aron (via telephone), Governor Ryan Crocker, Governor Michael Kempner, Governor Karen Kornbluh, Governor Kenneth Weinstein, and Under Secretary for Public Diplomacy and Public Affairs Richard Stengel.
At the February open board meeting, none of the Governors asked any questions about the management’s treatment of BBG contractors or the class action lawsuit. According to annual Office of Personnel Management (OPM) surveys, the BBG has some of the lowest employee morale rating among all federal agencies. BBG’s regular federal employees have been expressing dissatisfaction with the BBG management in these surveys for many years. Contract employees, however, are not included in OPM’s Federal Employee Viewpoint Surveys (FEVS). Their morale is believed to be even worse.
In summing up the February 26 board meeting, the acting chairman of the Board for that session, Michael Kempner, was quoted as saying that there is “a whirlwind of positive change” under John Lansing’s leadership. But one of Voice of America’s (VOA) senior correspondents, who does not wish to be identified, told some of his colleagues that he has not heard of any changes at VOA since Mr. Lansing took over as the agency’s CEO. John Lansing announced the hiring of his new BBG chief of staff and new CFO. There was also a change in the position of the Russian Service director at Radio Free Europe / Radio Liberty (RFE/RL) which was well received by employees, but serious management problems at RFE/RL are continuing under a temporary leadership. VOA also has not had a permanent director for many months.
U.S. lawmakers are losing patience with the agency. A press release issued by the House Committee on Foreign Affairs on February 23 referred to the Broadcasting Board of Governors as “This Broken Agency … Losing the Info War to ISIS & Putin.” On March 10, the Nigerian Federal Ministry of Information and Culture has posted on its official website a statement referring to accusations that the Voice of America Hausa Service news coverage is skewed in such a way that it favors Boko Haram terrorists. The Nigerian government’s statement urges VOA to correct the perception of biased reporting. A Broadcasting Board of Governors official called the Nigerian government minister’s allegations “pretty absurd.”
Among a constant stream of recent controversies involving the BBG, Themis announced this week that it has added an additional Plaintiff and class representative to its lawsuit against the agency. Also according to Themis, new contract employees continue to contact the firm and joining the class action.
Themis said that since the BBG also underpaid the congressionally authorized “personal services contractors,” the firm has restructured the language of the complaint to clarify that they are included in the Class. This clarification may be of particular importance to former PSC employees, the firm said.
Themis said that additional information has helped the firm understand that the people operating under the new subcontracts continue to be underpaid. The firm has added claims to address that ongoing underpayment. Lawyers for the firm stated that anyone who still contracts with the BBG — as a POV, a PSC, or a subcontractor – is still being underpaid. The longer the case goes on, the larger the damages will grow, Themis said.
According to the firm, independent contractors providing personal services to the BBG are potential members of the class. Themis points out that it does not matter whether the BBG calls an independent contractor a POV or a PSC, or uses some other term. “If you were providing personal services, you may be entitled to compensation for the higher pay and greater benefits provided to federal government employees,” the firm stated on its website.
The class action lawsuit seeks back pay and other financial compensation for all qualifying individuals who opt-in to the class. The firm stated that independent contractors providing personal services to the BBG must affirmatively join the class to benefit from any recovery. The special Themis PLLC webpage provides information how to join the class action lawsuit, why contractors should consider joining now, how the firm claims it will protect their confidentiality, and what they might be able to recover at no cost to themselves.
The main Themis PLLC website address is: http://www.themis.us.com.
The Themis PLLC special BBG class action lawsuit information page address is: http://themis.us.com/BBGLitigation/.
While the BBG has been hit with many employment related lawsuits in recent years, the new $400 million class action lawsuit comes close in the amount of money which was sought and won by plaintiffs in the Hartman gender discrimination case filed by women who were denied employment by VOA and BBG’s predecessor agency, USIA. After many years of litigation, the agency eventually agreed to settle the Hartman case in 2000 at a cost to U.S. taxpayers of over half a billion dollars ($508 million).
In announcing the settlement of the Hartman case, the Broadcasting Board of Governors stated in 2000 that “it underscores the continuing need for effective mechanisms and procedures to ensure that discrimination does not occur, that equal opportunity does exist, and that a case such as Hartman can never happen again.”
Last year, the BBG lost another employment lawsuit over the 2009 illegal RIF (reduction-in-force) of Office of Cuba Broadcasting (OCB – Radio and TV Marti) employees. Some agency officials reportedly wanted to challenge the court’s ruling but were overruled by BBG chairman Jeff Shell. Those OCB employees were given back their jobs and lost earnings, but current and former employees and contractors at the Voice of America and at some of BBG’s non-federal entities, particularly Radio Free Europe / Radio Liberty (RFE/RL), continue to complain. Rather than diminishing, allegations of discrimination and arbitrary treatment of various classes of employees increased and employee morale fell as the agency was being run in recent years by a new group of career bureaucrats on behalf of the part-time board.
ALSO READ: Washington Post expanded column offers new details on Voice of America contracting scandal, BBG Watch, November 24, 2014.
Agency few Americans use generates controversy, this time with contractors, Joe Davidson, The Washington Post, November 24, 2014.
OIG Audit of the Broadcasting Board of Governors Administration and Oversight of Acquisition Functions
BBG Briefing Paper on Use of Contractors
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