Whistleblower accuses former Trump official of 'abuse of authority' for last day deal with ICE union
Posted February 2, 2021 1:41 p.m. EST
CNN — Former senior Department of Homeland Security official Ken Cuccinelli is accused in a new whistleblower complaint of mismanagement, waste and abuse of authority over a deal he signed with a union representing Immigration and Customs Enforcement officers that endorsed President Donald Trump.
On January 19 -- his last full day in office -- Cuccinelli signed agreements with the union representing 7,500 ICE employees that grants "extraordinary power and benefits" to the union, including the ability to indefinitely delay changes to immigration enforcement policies and practices, according to the complaint provided by the Government Accountability Project and first reported by The New York Times.
The deal expands the range of issues that the agency must bargain with the union over, as well as gives the union the added ability to slow agency activities by requiring its express written approval prior to implementing certain changes, according to the complaint.
The complaint alleges that Cuccinelli abused his authority by entering into the agreements on behalf of ICE because of questions about whether he was lawfully serving as deputy secretary of Homeland Security. His official title was senior official performing the duties of the deputy secretary.
Last year, a federal judge ruled that it was unlawful to appoint Cuccinelli to lead US Citizenship and Immigration Services, the agency he led before joining DHS headquarters. And in August, the Government Accountability Office concluded that Cuccinelli was named to his post as part of an invalid order of succession.
The department disputed the GAO conclusions at the time, calling unsuccessfully on the watchdog to rescind its decision.
The whistleblower complaint, which was sent on Monday to Congress, the Office of Special Counsel and the DHS Office of Inspector General, was brought by a current federal employee who wishes to remain anonymous.
The agreements are an example of the "prior administration's effort in its waning hours to cement a legacy at taxpayer expense," wrote David Seide, Senior Counsel at Government Accountability Project in the complaint.
Cuccinelli disputed the allegations, telling CNN the agreements were done to address unresolved issues.
In a statement, he said, "The union in question has had a significant number of issues that have gone unresolved through multiple administrations. With the advice and counsel of the Office of the General Counsel, I executed appropriate agreements to finally address many of these previously unresolved issues."
"As best I can tell, the primary basis for the complaint is that I did my job well, to the chagrin of the complainer," he added.
When asked why the agreement was signed on his last day in office, Cuccinelli said "that was when the work was completed."
The National Immigration and Customs Enforcement Council did not respond to request for comment.
An ICE spokesperson told CNN on Tuesday the department is reviewing the terms of the union agreement.
"DHS takes whistleblower complaints very seriously and supports the rights of whistleblowers to engage in protected activity. As provided for by statute, the Department is reviewing the terms of the agreement," the agency spokesperson said in a statement.
The agreements came at a time of leadership chaos at the top of ICE. In mid-January, Jonathan Fahey, resigned as acting director of the agency only weeks after assuming the post. A month earlier Fahey's predecessor -- Tony Pham -- departed. Pham had assumed the post last August.
Fahey was replaced by a career official in an acting capacity.
Cuccinelli said, given the timing, it would have been "unfair to put the acting director into such a position" to sign the agreements, when. He had already been working with the general counsel's office to complete the work.
According to the complaint, the Biden administration may have time to undo the union deal, since the agreements are subject to disapproval by the head of DHS if done within 30 days of the date of the agreement.
TSA Administrator David Pekoske is currently serving as DHS acting secretary, while the Biden administration awaits a vote on the confirmation of the President's nominee Alejandro Mayorkas for Homeland Security Secretary.