Tom Devine’s Whistleblower Grift | The American Conservative

Tom Devine, legal director of the Government Accountability Project, is hardly a household name, but his reputation is enormous (and hardly unblemished) in the circles where he operates.

“He’s the face of the whistleblower movement,” Dr. James Murtagh said of Devine. Murtagh is a former professor for the Emory University Medical School, where he blew the whistle on grant fraud. Since that episode, Murtagh has entered into a community of sorts, developing relationships with many other whistleblowers like Jeff Wigand, whose revelation that tobacco companies were withholding studies about the effects of cigarettes inspired the 1999 film The Insider, in which he was portrayed by Russell Crowe.

On this scene, Devine—who has been credited with helping to pass the Whistleblower Protection Act—is a kind of household name. “He’s a pioneer in this obscure area of the law. And there are very few people doing this work,” a former GAP employee said of Devine. GAP, where he has worked since 1979, was created in the aftermath of Daniel Ellsberg’s famous leak of the Pentagon Papers. Since its foundation the organization has represented many prominent whistleblowers in both government and the private sector.

Devine has been at the center of GAP’s efforts, building relationships with high-profile whistleblowers like Frank Serpico. Serpico, portrayed by Al Pacino in the eponymous 1973 film, is a legendary figure among whistleblowers—a former NYPD officer who discovered and exposed widespread graft, he was shot during an undercover drug buy when his backup mysteriously disappeared. Serpico still testified later at the Knapp Commission hearings, which were held due to his initial disclosures. Serpico confirmed to me that he has worked extensively with Devine, having met in person a number of times and kept contact via phone and email. Devine also participated in a recent Reelz documentary about Serpico.

But there is another side to Devine and to GAP. Murtagh agreed with my assessment: at this moment, Devine largely works to benefit himself, often to the detriment of whistleblowers.

That’s not the only criticism. A former employee said the environment at GAP was both toxic and counterproductive:

For a place that claims to champion workplace free speech rights, transparency, and whistleblower protection, GAP was draconian, secretive and retaliatory toward employees.

It was the most toxic place I’ve ever worked. The staffers were good people, but management played favorites both in terms of pay and treatment (men were the beneficiaries), fomented factions among staff as a means of control, and lied to the Board of Directors.

The best way to avoid getting in trouble was not to do any actual work.

Other whistleblowers complained of having to do most of the work, including researching case law and being abandoned late in the process.

Jason Piccolo is a former Immigration and Customs Enforcement (ICE) agent, who blew the whistle on the Obama administration releasing unaccompanied minors to homes without vetting; in some cases, the children were given to molesters and those with criminal records.

He said he was surprised to learn that GAP charged him $5,000 for paper and supplies, though GAP receives funding to take cases. Worse than that, he felt he did all the work, including researching and citing case law. Finally, days before his trial was to start, ICE produced a document which conflicted with part of his story; Piccolo said GAP told him they would need to drop the case as a result, and he was forced to withdraw his lawsuit. He said he found the timing of the discovery of this document suspicious, and thinks it’s possible GAP colluded with ICE.

Not all whistleblowers had complaints.

Thomas Drake is a former NSA whistleblower who, like Edward Snowden, blew the whistle on mass surveillance at NSA. In fact, Drake’s disclosures predated Snowden’s but received far less attention. Like Snowden, Drake was prosecuted criminally, and GAP represented him from 2010-2015; Drake eventually pled guilty to a slap-on-the-wrist charge. He credited GAP, but he said his lawyers have since moved on.

“Tom Devine was never my lawyer at GAP.” Drake said in an email. “And it’s now well over 5 years since I had any active involvement with GAP based on other lawyers there at the time who represented me between 2010 and 2015 but subsequently left GAP.”

Paula Pedene is the former public affairs director at the Phoenix VA Medical Center and she, along with several doctors, provided the initial disclosures about secret waitlists at the Phoenix VAMC, which triggered a nationwide scandal.

Pedene settled with the VA about the initial retaliation which followed, but, like many whistleblowers, continued to experience further retaliation later. A new investigation was started a couple years later; she said she sought GAP’s help and they helped her file an Office of Special Counsel complaint, arguing the investigation was whistleblower retaliation.

“GAP was extremely helpful. Meetings with Congress, letters to OIG, letters to OAWP, and help with letter to Wilkie. Successfully filed OSC case,” Pedene said in an email.

But Devine’s problems extend far beyond a mixed bag of Avvo reviews. Also at the Phoenix VA, he and GAP supported an unreliable whistleblower named Brandon Coleman. Coleman”blew the whistle” on the hospital shutting down his program for addicted veterans, which he framed as cutting off a critical program for vulnerable veterans.

But as I learned in 2019, before blowing the whistle on anything, Coleman was credibly accused of harassing multiple female colleagues, giving the hospital good reason to terminate his program. But Coleman’s disclosures, timed months after the initial waitlist scandal, received little scrutiny, with most just assuming the same VA facility was involved in more malfeasance.

Coleman quickly became a media fixture, both locally and nationally; he also became the first VA whistleblower represented by GAP, which got him a settlement. Then, in August 2017, Coleman was transferred to the VA Office of Accountability and Whistleblower Protection (OAWP), a new office created by the VA Accountability Act, passed in 2017.

Shortly after, Coleman sent this email to Devine: “Hope you [are] enjoying Vietnam. My week in DC has been amazing. Peter O’Rourke the Executive Director of VA Office of Accountability & Whistleblower Protection is interested in speaking at next year’s summit,” Coleman said in the email.

Devine’s response was apparently meant to tease out opportunities for continuing cooperation: “That’s really cool that rational basis for optimism to replace cynicism. When will you be ready to start working on new cases, and what’s your role for them?” Devine emailed in response.

Both would get what they wanted. Devine arranged a panel for OAWP at the 2018 Whistleblower Summit, an annual gathering in D.C. run by Marcel Reid and Michael McCray, two of the ACORN Eight who exposed malfeasance at the Wade Rathke-run community organization. Meanwhile, Devine was granted extensive access at the VA’s new whistleblower office.

Ironically, OAWP became known for poor service and communication. A May 2019 survey of VA whistleblowers by Whistleblowers of America found constant frustration with OAWP and its lack of communication and follow-up. While Coleman was bending over backwards for Devine, concerns about his competence were raised by other whistleblowers. “I received an email after contacting them several times that was cryptic. I contacted Brandon Coleman who emailed me a form that was supposed to have been given to me several months prior. No response after I submitted the whistleblower form,” one anonymous whistleblower stated in a survey about his office.

Though apparently unable even to send forms to those he was tasked with helping within a matter of months, Coleman wasted no time introducing Devine to Peter O’Rourke, a former political operative who became the first OAWP head, and later acting VA Secretary.

“I wanted you to have my boss Peter O’Rourke’s email address. He is the Executive Director of the VA Office of Accountability & Whistleblower Protection. He said he wants to begin the process so we can appear at the Whistleblower Summit next year,” Coleman emailed to Devine. Devine was also being invited to exclusive stakeholder meetings.

“Just wanted to make the introductions. Tom has offered to come in and help train our staff and to build a working relationship as to what people from the legal side are seeing in VA whistleblower cases. We have formed an OAWP council and I think we are meeting again on Oct 25, 2017. Even if you are not available this next meeting Tom, we would like to set something up to have you come in so we can learn from each other,” Coleman said in an email to another OAWP staffer.

Devine then angled to provide training to OAWP. “O’m [sic] glad to volunteer for training with Mr. O’Rourke’s staff on working with whistleblowers most effectively. Have done that for numerous OIG offices,” Devine said to Coleman in an August 24, 2017 email.

Devine’s training collaborations with the U.S. government are apparently far-reaching. “I’m in Serbia doing training of judges and police officers this week for the U.S. Embassy on their law and how to work most effectively with whistleblowers, respectively,” he said to Coleman in an October 5, 2017, email.

Another example of Devine’s influence: in February 2020, House Speaker Nancy Pelosi announced the creation of a House ombudsman to communicate with whistleblowers; Shanna Devine, Tom Devine’s daughter was announced as first head; months later the ombudsman office announced John Whitty, a GAP alumnus, as another key staffer. An email to Nancy Pelosi’s press secretary, Joseph Costello, was left unreturned.

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Once Robert Wilkie took over as Secretary of Veterans Affairs, O’Rourke was sidelined by a move into a departmental sinecure. Tammy Bonzanto took over OAWP and sidelined Coleman. In October 2019, the VA OIG came out with a scathing report of OAWP and O’Rourke’s leadership. In testimony, Bonzanto blamed everything on the previous regime.

Specifically, the OIG report cited a mentorship program which Coleman personally started. The program was supposed to restart whistleblower careers, but participation in the program often required whistleblowers to remain quiet and work with managers they haf previously disclosed. The program was roundly rejected by whistleblowers and discontinued by Bonzanto.

Meanwhile, Jamie Fox, another VA whistleblower, has accused GAP of coaching Coleman to lie about her situation. She said in 2019 that she learned her medical records were unprotected and being accessed by her hospital’s managers. She said she reached out to Coleman and OAWP but became discouraged when an OAWP staffer told her that OAWP had no jurisdiction to investigate her case. Days later, she began criticizing Coleman on Twitter.

Coleman responded by flagging a months-old meme and reporting it as a threat to his superior. This triggered a Kafkaesque set of events. Fox was visited by the FBI at her home. Then local Sheriff’s Deputies came and told her that she would need to be involuntarily committed. Fox stayed in a psych ward for 48 hours and then was terminated. Her settlement included a written statement from the VA that she never made a threat, but long after the settlement Coleman continued to claim she threatened him—claims made at GAP’s direction, as shown in a document received through a Freedom of Information Act (FOIA) request.

Fox prepared a statement for Congress, which is below.

  Declaration Jamie Fox 2020-06-11

Sean Higgins is another prolific VA whistleblower; in a 2017 USA Today article, Higgins was credited with over thirty disclosures. Echoing Jason Piccolo, Higgins said GAP made him do most of the work, providing little help. The case languished for two years with no resolution before he lost, even though this was the third time he had been terminated, and he got his job back both times previously.

Lastly, when another VA whistleblower, James DeNofrio from the Altoona VA, began criticizing Coleman, Devine sent an email to OAWP asking he be held accountable.

“And not sure I understand what type of questions are being sought? i.e., one direction would be whether agency is willing and able to hold DeNofrio accountable. Another would be questioning for his evidence,” Devine wrote on October 9, 2019 to Coleman and another OAWP staffer. DeNofrio said that “holding accountable” is commonly understood in these contexts as code for starting an investigation or other form of retaliation against a whistleblower.

All this has created friction for the Whistleblower Summit. When the OAWP panel was announced for the 2018 Whistleblower Summit, several VA whistleblowers complained because they viewed OAWP as feckless. Another panel was added to the slate—this one openly criticizing OAWP.

According to McCray, GAP is one of the Summit’s key sponsors. “Tom Devine is the Legal Director for the Government Accountability Project (GAP). Tom Devine supports the summit and GAP has sponsored events during the conference. Tom organizes panel[s] and GAP sponsors event[s] during the Whistleblower Summit, typically the reception on National Whistleblower Appreciation Day, which is one of our signature events,” McCray said in an email.

While many VA whistleblowers, like Higgins and DeNofrio, said they won’t participate if Devine remains invited, McCray defended GAP’s legal director:

On the one hand using whistleblowers for financial gain, aptly describes all whistleblower law firms. However, some are for-profit and others are public interest firms.

However, if this question implies that Tom Devine is profiting by intentionally sabotaging whistleblower cases? NO, to the best of my knowledge, I have no reason to believe that to be true. For decades, Tom Devine has been one of the world’s leading whistleblower advocates. As a result, many whistleblowers seek out his assistance. Unfortunately, you can’t help every whistleblower or win every case. Many people are disappointed if GAP won’t take or doesn’t win their case. I have experienced this disappointment.

But DeNofrio said Devine’s behavior strikes at the core of whistleblowing—that he is no friend of whistleblowers and should have no role in any whistleblower gathering.

Coleman did not respond to my emailed request for comment, and while Devine declined to answer any of my questions, he said this in an email instead:

I won’t be responding to your queries, because I don’t trust either your good faith or professionalism. If you want to keep trashing GAP or Brandon, will respond on the record where you can’t distort. GAP and Brandon have pursued free speech rights for [whistleblowers] with all our hearts and souls. You seem to have made the same commitment to pissing on us.

Michael Volpe has worked as a freelance journalist since 2009, after spending more than a decade in finance. He’s based in Chicago.