Department of Veterans Affairs Office of Inspector General Administrative Investigation VA Secretary and Delegation Travel to Europe Report No. 17-05909-106 February 14, 2018 VA Office of Inspector General Washington, DC 20420 EXECUTIVE SUMMARY   Administrative Investigation   VA Secretary and Delegation Travel to Europe   In April 2017, Secretary of Veterans Affairs David Shulkin accepted an invitation to attend the Ministerial Summit on Veterans’ Affairs in London (London Summit). The purpose of the London Summit was to bring together senior officials from the United States, the United Kingdom, Canada, Australia, and New Zealand to discuss topical issues related to veterans. The London Summit began with a reception on the night of July 18, with meetings on July 19 and 20, 2017. After accepting the invitation, Secretary Shulkin asked his staff to arrange a visit to Copenhagen, Denmark. Working with US Embassy staff in Copenhagen and officials of the Danish government, meetings were scheduled for the morning of July 13 and on July 14. To conduct both visits, Secretary Shulkin led a VA delegation to the meetings in Copenhagen and London—leaving the United States on July 11 and returning on July 21, 2017. After the trip concluded, the Office of Inspector General (OIG) received an anonymous complaint alleging that the trip was a misuse of VA funds because the trip included a significant amount of personal time, including Secretary Shulkin’s attendance at the Wimbledon tennis tournament. The OIG conducted a thorough investigation that resulted in the findings and recommendations detailed in this report. To provide some relevant context, less than two weeks before the start of the trip, Secretary Shulkin issued a memorandum to all VA staff titled, Essential Employee Travel. The memorandum instructed staff that before approving any employee travel, managers must determine whether the travel is “essential” in order to decrease “employee travel and generate savings” within VA. It was in this climate that the VA delegation for the Europe trip included Dr. Merle Bari, the Secretary’s wife, who is a dermatologist in private practice; VA Chief of Staff Vivieca Wright Simpson; then Acting Under Secretary for Health Dr. Poonam Alaigh; and Program Specialist James (Gabe) Gough. Six members of the Secretary’s security detail also went on the trip, with several additional days of advance travel. A VA Ethics Official approved Dr. Bari as an “invitational traveler,” which authorized VA to pay her expenses. The trip cost VA at least $122,334. VA Office of Inspector General The calendar below provides a summary of the planned official business and leisure time for the trip. July 2017  SUNDAY   MONDAY   TUESDAY   WEDNESDAY   THURSDAY   FRIDAY   SATURDAY   ϫ  ϣϢ  ϣϣ  ϣϤ  ϣϥ  ϣϦ  ϣϧ              Arrive London      Transit  Arrive  Copenhagen      (8:35 a.m. GMT)      (aŌer 2 p.m. EDT)          ϣϨ  ϣϩ  ϣϪ  ϣϫ  ϤϢ  Ϥϣ  ϤϤ                          Transit              (1:15 p.m. GMT)    Transit Figure 1. OIG analysis of trip calendar. Scheduled official business1  Scheduled leisure  Secretary Shulkin told OIG investigators that he found the trip substantively valuable to VA’s mission. While in Copenhagen, Secretary Shulkin and other members of the VA delegation had a number of meetings on issues related to Danish veterans’ health issues and their healthcare system, participated in a roundtable lunch with CEOs of Danish healthcare companies, and visited a veterans’ home and hospital. The joint communiqué of the London Summit noted that the delegates discussed a number of issues, including “post-traumatic disorder, rates of suicide and homelessness among veterans, barriers to mental health care, alternative therapies, veteran-centric approaches to the provision of services, and early intervention.” Secretary Shulkin stated that he also worked on other VA matters during the trip when there were no official functions, which is corroborated by his handling of matters relating to a media crisis that developed relating to allegations of substandard care at the Manchester VA Medical Center. The group’s schedule while in Europe, however, included significant personal time for sightseeing and other unofficial activities. While the OIG defers to Secretary Shulkin’s determination as to the value to VA of the three-and-a-half days of meetings in Copenhagen and London, the OIG identified a number of serious derelictions concerning the trip, including the following: 1 Secretary Shulkin stated to OIG investigators that he continued to conduct VA business even when there were no official events. In addition, the official itinerary includes entries for “Executive Time” ranging from one to four hours on July 15, 17, and 18. Security detail records reflect that some of the scheduled executive time was spent on unscheduled tourist activities. VA Office of Inspector General ii 1. VA’s Chief of Staff Made False Representations to a VA Ethics Official and Altered  an Official Record, Resulting in VA Improperly Paying for Dr. Bari’s Air Travel  The OIG found that in April 2017 Chief of Staff Wright Simpson instructed staff to seek approval from VA ethics officials for Dr. Bari to be designated as an “invitational traveler.” This would have authorized VA to pay her expenses on the trip. VA ethics officials initially declined to approve Dr. Bari as an invitational traveler on the grounds that the available information did not show that her presence would serve a “sufficient government interest.” In response, Ms. Wright Simpson became personally involved and communicated directly with VA Designated Agency Ethics Official (DAEO) Tammy Kennedy. The OIG found that in order to obtain a favorable decision, Ms. Wright Simpson falsely represented to DAEO Kennedy that Secretary Shulkin would receive an award while in Denmark, which Ms. Wright Simpson understood to be the criterion that would justify Dr. Bari’s travel at VA expense.2 When Ms. Kennedy asked for additional information about the award that Ms. Wright Simpson told her would be presented to Secretary Shulkin, the following emails were exchanged:  Ms. Wright Simpson to Program Specialist Gough: “Hey, when at the event in Denmark, will Dr. Shulkin be receiving an award or special recognition[?]”  Mr. Gough immediately replied: “Not that I’m aware of. However, all of the planning is still in draft phase, and has not been finalized by Denmark.”  Four minutes later, Mr. Gough sent another email to Ms. Wright Simpson: “We’re working on having a dinner at the US Ambassador’s Residence in honor of SECVA, but that has not been confirmed by US Embassy Copenhagen yet.”  Ms. Wright Simpson then altered this second email, making it appear that Mr. Gough wrote: “We’re having a special recognition dinner at the US Ambassador’s Residence in the honor of SECVA.”  Ms. Wright Simpson then forwarded the altered email to Ms. Kennedy with a note: “Let me know if you need more.”  Ms. Kennedy emailed in response: “Vivieca – This is exactly what I needed. Thanks. I am in the middle of drafting an e-mail which addresses the below and should serve as an approval to proceed.” 2 See Travel Expenses to Attend Awards Ceremony––Spouse of Recipient, 69 Comp. Gen. 38, 40 (Comp.Gen. October 26, 1989, interpreting 5 U.S.C. § 4503 to authorize payment of travel expenses for a federal employee’s spouse to attend an award ceremony in which the employee is the recipient of an award presented by the agency. As detailed in the report, the OIG concluded that this guidance was inapplicable because there was no award being made by VA. VA Office of Inspector General iii The OIG found no evidence that Secretary Shulkin was aware of Ms. Wright Simpson’s false representations or alteration of official records. Based on this email exchange and Ms. Wright Simpson’s prior oral representation that Secretary Shulkin would be receiving an award, Ms. Kennedy approved Dr. Bari as an invitational traveler and VA paid more than $4,000 for her airline ticket. Ms. Kennedy told OIG investigators that she would not have approved the expense reimbursement for Dr. Bari if she had been informed that Secretary Shulkin was not getting an award. Secretary Shulkin did not receive an award or special recognition during this Europe trip. Dr. Bari also did not qualify for VA travel expense reimbursement under any other allowable criteria. Since Ms. Wright Simpson’s false representations and alteration of an official record may have violated federal criminal statutes, the OIG referred this specific matter to the US Department of Justice (DOJ) to consider it for potential criminal prosecution; DOJ decided not to prosecute at this time. 2. Secretary Shulkin Improperly Accepted Wimbledon Tickets  Secretary Shulkin and Dr. Bari attended the Ladies’ Final tennis match at Wimbledon on July 15, 2017, which was the Saturday following the Copenhagen trip and four days before the London Summit meetings began. Secretary Shulkin told OIG investigators that he received tickets for the event from Ms. Victoria Gosling, whom he described as his wife’s friend. According to publicly available information, Ms. Gosling is a UK resident and Head of Social Impact at Auden, a for-profit enterprise; a Military Director at Sage Foundation, the philanthropic affiliate of UK software company Sage Group plc; and a Military Councillor for the Lawn Tennis Association, which is the national governing body for tennis in Great Britain, including Wimbledon. Ms. Gosling also served as CEO of the 2016 Invictus Games held in Orlando, Florida.3 Ms. Gosling not only provided the Wimbledon tickets, but she also hosted Secretary Shulkin, Dr. Bari, and their adult son for lunch before the match at the private members’ dining room at Wimbledon. OIG investigators made at least 19 attempts to contact Ms. Gosling between December 15, 2017, and January 24, 2018. In a January 30, 2018 email response to the OIG’s request for an interview, Ms. Gosling identified Secretary Shulkin and his wife as “friends of mine” and stated that she offered the tickets “to thank them for their personal support to me whilst I was CEO Invictus Games Orlando.” In that email she agreed to talk with OIG investigators, but she did not thereafter respond to the OIG’s efforts to schedule an interview. OIG investigators contacted her by telephone on February 6, 2018, and conducted an unscheduled interview. That interview confirmed Secretary Shulkin’s 3 The international Invictus games are “Prince Harry’s sporting event for wounded, injured and sick Servicemen and women.” (See https://invictusgamesfoundation.org.) VA Office of Inspector General iv account that prior to his acceptance of Wimbledon tickets, he and Dr. Bari only had contact with Ms. Gosling during three official events in the United States. During the course of the 26-minute interview, OIG investigators and Ms. Gosling referred to Dr. Bari only as Secretary Shulkin’s “wife.” Toward the end of the interview, OIG investigators asked whether Ms. Gosling could recall the first name of Secretary Shulkin’s wife. After a long pause, Ms. Gosling was unable to recall Dr. Bari’s name, stating, “You actually -- I think that kept throwing me. I’m actually having a genuine blank here.” Ms. Gosling was unable to recall Dr. Bari’s name before the interview concluded. Federal ethics rules prohibit the solicitation or acceptance of any gift given because of the employee’s official position or if the gift comes from a prohibited source, unless an exception applies.4 Before accepting the Wimbledon tickets, Secretary Shulkin did not seek an opinion from VA ethics counsel as to whether it was appropriate to accept the tickets as a gift. On September 28, 2017, after being notified of a pending Washington Post story about the trip and the Wimbledon tickets, Secretary Shulkin asked VA General Counsel James Byrne to seek an expedited ethics review of his acceptance of the tickets. To conduct the analysis, DAEO Kennedy sent Secretary Shulkin a series of written questions. In response, Secretary Shulkin wrote that Ms. Gosling was a friend of his wife and that “there is no business relationship, but purely a social friendship between the two of them.” Based on the responses to the questions, Ms. Kennedy opined that Secretary Shulkin could accept the tickets based on the “personal friendship” exception to the rule prohibiting the acceptance of gifts.5 The OIG determined that the information DAEO Kennedy obtained from Secretary Shulkin was insufficient to accurately describe his or his wife’s relationship with Ms. Gosling. Dr. Bari first met Ms. Gosling in 2015 at a reception at the British Ambassador’s residence and the two had met at two other official events, including the Invictus Games in Orlando. The OIG did not identify, nor did Secretary Shulkin provide, evidence of a relationship between Dr. Bari and Ms. Gosling sufficient to meet the “personal friendship” exception. The OIG presented the information developed during the investigation about the relationship between Dr. Bari and Ms. Gosling to DAEO Kennedy.6 After reviewing this additional information from the OIG, DAEO Kennedy concluded, the “totality of the documents totally indicate 4 5 CFR 2635.202. See 5 C.F.R. § 2635.204(b) (“An employee may accept a gift given by an individual under circumstances which make it clear that the gift is motivated by a family relationship or personal friendship rather than the position of the employee. Relevant factors in making such a determination include the history and nature of the relationship and whether the family member or friend personally pays for the gift.”) 6 The OIG presented the information to Ms. Kennedy prior to the OIG’s unscheduled interview with Ms. Gosling on February 6, 2018. At the time of the OIG’s discussion with Ms. Kennedy, Ms. Kennedy knew that the tickets were provided to Secretary Shulkin and his wife by Ms. Gosling, but she did not have confirmation that Ms. Gosling had paid for the tickets herself. This additional information, learned from OIG’s discussion with Ms. Gosling, does not change OIG’s conclusion that the friendship exception is inapplicable. 5 VA Office of Inspector General v that they’re not friends, as represented in [Secretary Shulkin’s] response to me.” Ms. Kennedy told OIG investigators that, had she known this information at the time, she would not have given a favorable ethics opinion concerning the acceptance of the Wimbledon tickets. The OIG separately analyzed the relationship between Dr. Bari and Ms. Gosling and also determined that it would not meet the “personal friendship” exception because the gift was not given “under circumstances which make it clear that the gift [was] motivated by a family relationship or personal friendship rather than the position of the employee [emphasis added].”7 Accordingly, the OIG found the acceptance of the Wimbledon tickets to be an improper gift. 3. Secretary Shulkin Directed the Misuse of a Subordinate’s Official Time  The OIG also determined that the Europe trip resulted in a misuse of VA resources. While the delegation spent nine full days in Europe, there were only three-and-a-half days of meetings in addition to a reception the evening before the start of the London Summit. Prior to the trip, Secretary Shulkin directed VA Program Specialist Gough to work with Dr. Bari to plan personal activities for the Secretary and Dr. Bari during the trip. Emails support the conclusion that Mr. Gough made extensive use of official time for planning leisure activities. Mr. Gough effectively acted as a personal travel concierge to the Secretary and Dr. Bari. Personal activities planned for the Denmark trip included touring Amalienborg Palace for the Changing of the Guard; visiting Christiansborg Palace, Rosenborg Castle, and Frederiksborg Castle; taking a boat tour of Copenhagen from Nyhavn Canal; and shopping in Copenhagen. There was also an unplanned excursion across the border to Malmo, Sweden, for dinner on their last day, July 14. For the London trip, planned tourist activities included excursions to the Churchill War Rooms, Buckingham Palace, Kensington Palace, and Westminster Abbey; a Thames River cruise; and visits to St. Paul’s Cathedral, Tower of London (including the Ceremony of the Keys), Tower Bridge, Shakespeare’s Globe, London Eye, and Windsor Castle. The OIG was unable to determine the total amount of official time Mr. Gough spent planning these personal activities at the direction of Secretary Shulkin and Dr. Bari. However, it was clear from the extensive communications between Mr. Gough and Dr. Bari that he spent many hours attending to the personal aspects of the trip on their behalf that exceeded what was required to notify the security detail of their proposed movements. This was time that should have been spent conducting official VA business and not for providing personal travel concierge services to Secretary Shulkin and his wife. 7 5 CFR 2653.204. VA Office of Inspector General vi 4. Inadequate Documentation to Assess the Accuracy and Appropriateness of the  Costs of the Trip  The OIG was able to determine that the trip cost VA at least $122,334. However, the OIG could not be more precise because VA’s documentation was inadequate to assess the accuracy and appropriateness of the trip costs. The OIG did identify discrepancies and potential errors that warrant a closer examination by VA auditors. For example, VA requires travelers to provide a Travel Cost Comparison Worksheet, which compares the actual cost of the trip with the cost of the trip excluding personal travel expenses. No such worksheet was completed for this trip. The OIG found that personal conveniences did impact the cost of the trip. The travel itineraries of Secretary Shulkin, Dr. Bari, and five other members of the delegation departed earlier than previously scheduled from Copenhagen to London in order for the Secretary and Dr. Bari to attend Wimbledon. In addition to the $372 in travel agency transaction fees, this change also added $1,733 to lodging costs because VA paid for an early hotel check-in for six rooms, including for Secretary Shulkin and Dr. Bari. In another example of insufficient documentation, Ms. Wright Simpson’s original roundtrip economy class airfare cost $1,101. However, her ticket was modified so that there was a different connecting city. This change increased the ticket price to $4,041. Travel records are insufficient to determine what justification, if any, was provided for this increased ticket price. There was also an inexplicable overpayment to one of the security personnel of $3,825 for parking and $2,718 for lodging. 5. Misleading Statements to the Media  The OIG further determined that VA issued a misleading statement to The Washington Post about the trip and did not correct the statement despite knowing that it was not entirely accurate. On September 27, 2017, VA public affairs staff learned that The Washington Post was working on a story about the July 2017 Europe trip and that the reporters were seeking information from VA, including about Secretary Shulkin’s attendance at Wimbledon. VA’s Assistant Secretary for Public and Intergovernmental Affairs John Ullyot met with Secretary Shulkin about a response to the upcoming article. Mr. Ullyot told OIG investigators that Secretary Shulkin helped draft the response, including the sentence, “All activities including Wimbledon were reviewed and approved by ethics counsel.” Secretary Shulkin denied having any involvement with the drafting of the response. On the same day that Mr. Ullyot met with Secretary Shulkin, two ethics officials (one of whom was Ms. Kennedy) met with General Counsel Byrne to discuss, among other things, what ethics reviews pertaining to the Europe trip had been conducted. The ethics officials informed Mr. Byrne that the only activity reviewed by them prior to the trip was whether Dr. Bari could be included as an invitational traveler. Mr. Byrne told OIG investigators that the sentence included in The Washington Post story on September 28, 2017, was “generally true” and that he approved it to be released. However, he took no subsequent actions to correct it, even after VA ethics officials informed him VA Office of Inspector General vii that they did not believe it was an accurate statement because ethics officials had not reviewed “all” activities. Moreover, Secretary Shulkin was interviewed at a public forum by a Washington Post reporter on November 9, 2017. As part of that interview, Secretary Shulkin claimed that he paid for the Wimbledon tickets and that they were not a gift from “folks from the Invictus Games or anything like that.” That statement also is not accurate. The OIG is recommending that (1) Secretary Shulkin reimburse VA for Dr. Bari’s airfare; (2) Secretary Shulkin reimburse Ms. Gosling for the cost of the Wimbledon tickets and any other tangible benefits, and if she does not accept reimbursement, that he pay the same amount into the US Treasury; (3) VA take any appropriate administrative action against Ms. Wright Simpson and other individuals concerning the Europe trip; (4) VA audit the expense vouchers, travel authorizations, and the time and attendance records for all travelers and take any appropriate action to correct any errors; and (5) VA assess and enhance its training relating to the topics of travel planning, approvals, and the solicitation or acceptance of gifts. MICHAEL J. MISSAL Inspector General VA Office of Inspector General viii Contents  EXECUTIVE SUMMARY ..................................................................................................i    Introduction ................................................................................................................1    The Europe Trip ...........................................................................................................1    Secretary Shulkin Accepted an Invitation to the Ministerial Summit on Veterans’ Affairs in London, UK............................................................................. 2   Secretary Shulkin Added Denmark to the London Summit Itinerary and Selected a Delegation to Accompany Him............................................................... 2   VA Approved the Request to Pay Travel Expenses for Secretary Shulkin’s Wife .......................................................................................................................... 3   The Chief of Staff Made False Representations to a VA Ethics Official and Altered an Official Record ....................................................................................... 5   Secretary Shulkin Improperly Accepted Wimbledon Tickets.................................. 9   Secretary Shulkin Directed the Misuse of a Subordinate’s Official Time ............. 20   The OIG Cannot Determine the “Essential” Nature of the Travel in Keeping with the Secretary’s Memorandum ........................................................................ 22   The OIG Did Not Fully Assess the Costs to VA.................................................... 23   VA Made Misleading Statements to the Media ..................................................... 25   Conclusion ................................................................................................................. 27   Recommendations.....................................................................................................    29   Appendix A. Relevant Laws, Regulations, Standards of Conduct, and VA Policy..........    30   Appendix B. Excerpted Itinerary from Official Trip Book.............................................    37   Appendix C. Comments..............................................................................................    48   Appendix D. February 11, 2018, Response of the VA Secretary...................................    50   Appendix E. February 12, 2018, Response of the VA Secretary ................................... 79   Appendix F. February 11, 2018, Response of the VA Deputy Secretary ....................... 82   Appendix G. OIG Contact and Staff Acknowledgments...............................................    86   Appendix H. Report Distribution ................................................................................ 87   VA Office of Inspector General Administrative Investigation—VA Secretary and Delegation Travel to Europe Introduction  The VA Office of Inspector General (OIG) received an allegation from an anonymous source that Secretary of Veterans Affairs David J. Shulkin, VA Chief of Staff (COS) Vivieca Wright Simpson, and then Acting Under Secretary for Health Dr. Poonam Alaigh misused VA funds for travel to Europe and that the trip was more for personal than business reasons. Secretary Shulkin led a VA delegation to Copenhagen and London, leaving the United States on July 11 and returning on July 21, 2017 (Europe trip). The itinerary included a mix of business and tourist activities. The total cost paid by VA for the trip was at least $122,334.8 To assess this allegation, OIG investigators interviewed 29 individuals with knowledge of this matter, some on more than one occasion. Interviewees included Secretary Shulkin; Chief of Staff Vivieca Wright Simpson; then Acting Under Secretary for Health Dr. Poonam Alaigh; General Counsel James Byrne; Assistant Secretary for Office of Public and Intergovernmental Affairs John Ullyot; Assistant Secretary for Operations, Security, and Preparedness Donald Loren; Program Specialist James (Gabe) Gough; VA ethics officials; other VA staff involved in planning the trip; and Secretary Shulkin’s sixmember security detail who accompanied him on the trip. The OIG conducted searches of more than 493,000 emails and reviewed in excess of 12,000 documents. The OIG also reviewed various federal laws, regulations, and VA policy. The Europe Trip   Secretary Shulkin told OIG investigators that he found the trip substantively valuable to VA’s mission. While in Copenhagen, Secretary Shulkin and other members of the VA delegation had a number of meetings on issues related to Danish veterans’ health issues and their healthcare system, participated in a roundtable lunch with CEOs of Danish healthcare companies, and visited a veterans’ home and hospital. In London, Secretary Shulkin and other VA staff attended an international meeting of government ministers from four allied nations to discuss health issues facing veteran communities. The OIG cannot determine the trip’s value to VA, which is a decision that fits squarely within Secretary Shulkin’s discretion. Excluding two travel days, the trip included three­ and-a-half days of meetings, an official evening reception, and five-and-a-half days of personal time. Secretary Shulkin told OIG investigators that he attended to his duties as Secretary even during the portions of the trip where the schedule reflected planned tourist activities. The following is a summary of the trip and a description of the serious derelictions by VA personnel that occurred in connection with the trip. 8 The OIG identified at least $122,334 in direct travel costs related to the Europe trip. There are other direct and/or indirect costs as well, such as employee overtime for members of the security detail, and potentially others. VA Office of Inspector General Administrative Investigation—VA Secretary and Delegation Travel to Europe Secretary Shulkin Accepted an Invitation to the Ministerial Summit on Veterans’  Affairs in London, UK  In April 2017, the UK Parliamentary Under Secretary of State and Minister for Defence Personnel and Veterans invited Secretary Shulkin to attend the Ministerial Summit on Veterans’ Affairs (London Summit) to be held July 18–20, 2017. The summit is held every 18–24 months to address challenges facing the veteran communities of Australia, Canada, New Zealand, the United Kingdom, and the United States.9 Secretary Shulkin accepted the invitation. The agenda for the London Summit began with a reception the evening of July 18, and was followed by two full days of meetings. The theme was “Future Support to Veterans and Mental Health.” The joint communiqué issued after the summit stated that the delegates discussed a number of issues, including “post-traumatic disorder, rates of suicide and homelessness among veterans, barriers to mental health care, alternative therapies, veteran-centric approaches to the provision of services, and early intervention.” Secretary Shulkin Added Denmark to the London Summit Itinerary and Selected a  Delegation to Accompany Him  After Secretary Shulkin accepted the invitation to attend the London Summit, he asked his staff in April to add Denmark to his July 2017 travel plan because he wanted to visit with Danish officials and learn more about their healthcare system. Secretary Shulkin told OIG investigators that he had at least three prior interactions with Danish government officials, and each time, they invited the Secretary to visit Denmark. Secretary Shulkin detailed that he first met with the Danish Ambassador and Crown Prince in 2016 when they visited the Washington DC VA Medical Center. Secretary Shulkin stated that he would not have made a special trip to Denmark, but the opportunity arose to have such a trip coincide with his travel to the London Summit. Secretary Shulkin told OIG investigators that he felt Denmark offered important lessons to VA because of the similarities of the injuries suffered by Danish and US veterans, their technology, and the way they recently organized their healthcare system. He explained that Denmark had consolidated its government hospitals into centers of excellence. Secretary Shulkin said that a comparable reorganization of the VA healthcare system was on his agenda, due in part to the number of underutilized VA facilities. Mr. Gough was asked to assist with the planning and he worked with Danish and US Embassy officials in Denmark to determine a schedule for Secretary Shulkin’s visit. In an email to a contact at the Royal Danish Embassy on April 18, 2017, Mr. Gough asked if 9 In 2014, the United States hosted the summit in West Point, New York. (See VA Press Release, “VA Hosts Senior International Forum and Ministerial Summit on Veterans Affairs” (April 8, 2014), https://www.va.gov/opa/pressrel/pressrelease.cfm?id=2535). VA Office of Inspector General 2 Administrative Investigation—VA Secretary and Delegation Travel to Europe Secretary Shulkin could visit Denmark on July 12 and 13 to “say hello to the Crown Prince, and get a better understanding of the Danish health care system.” In an email to members of Secretary Shulkin’s staff on April 24, 2017, Mr. Gough wrote, They are enthusiastic about hosting Secretary Shulkin in Denmark. They’d like to get a little better idea of his interests in the Danish Health Care System and if there is any location in particular he would like to visit? Anyone in particular he would like to meet? Topics he’s most interested in? etc. In an email to Mr. Gough on April 30, 2017, Secretary Shulkin asked whether the Denmark trip was confirmed for July 13 and 14 so that he could begin to make plans. He said, “Once you know please send me a note.” Mr. Gough replied that he should have solid details by mid-week. The next day, a staff member wrote to Mr. Gough that Secretary Shulkin wanted confirmation of the Denmark trip by “tomorrow.” Mr. Gough replied, I can only work as fast as their embassy works. They have indicated they are excited for the [S]ecretary to go to Denmark, so I’m confident the trip over there is a go. They’re still working on the details of the meetings / visits we would like. Those are what haven’t been confirmed. I’m also working with them on a spousal itinerary. Secretary Shulkin selected Ms. Wright Simpson, Dr. Alaigh, and Mr. Gough to accompany him on this trip, and subsequently, Secretary Shulkin’s and Dr. Alaigh’s spouses were added to the list of travelers (VA delegation).10 Secretary Shulkin told OIG investigators that as then Acting Under Secretary for Health, Dr. Alaigh’s attendance was necessary because the London Summit was focused on veteran healthcare issues, particularly mental health issues, and Dr. Alaigh was responsible for implementing related changes for VA and could speak to these issues. He said he selected Mr. Gough, as he was the person organizing and planning the intergovernmental aspects of the agenda. Secretary Shulkin further stated that he selected Ms. Wright Simpson because she would be able to understand and implement any administrative follow-up measures. VA Approved the Request to Pay Travel Expenses for Secretary Shulkin’s Wife  On June 1, 2017, Ms. Wright Simpson issued a memorandum estimating costs for the trip to be between $5,000 and $8,000 per traveler, inclusive of transportation, lodging, meals, and incidental expenses. She identified Secretary Shulkin, Dr. Bari, Ms. Wright Simpson, Dr. Alaigh, Mr. Gough, and seven security detail as approved to travel. (Only six of the security detail made the trip.) The air transportation cost was $25,478 when the tickets 10 VA paid the air transportation costs associated with Secretary Shulkin’s wife, Dr. Bari. Dr. Alaigh did not seek reimbursement for any expenses associated with her husband’s travel. VA Office of Inspector General 3 Administrative Investigation—VA Secretary and Delegation Travel to Europe were initially purchased, but changes made to the airline reservations resulted in final air transportation costs of $42,230, which included $3,492 in travel agency change processing fees. VA paid $4,312 for Dr. Bari’s air transportation and $10,498 for Secretary Shulkin’s air transportation.11 Dr. Bari did not seek reimbursement for meals and incidental expenses, although she had been authorized to do so. The trip ultimately cost VA at least $122,334. Secretary Shulkin told OIG investigators that his wife had planned to pay for her own airfare and expenses, but that several days after advising his staff that Dr. Bari would accompany him, his staff told him that “VA was going to pay for her trip.” It was Secretary Shulkin’s recollection that his staff first suggested this possibility to him. He stated that it was preferable for VA to pay for her airfare “…so that we could travel together. Because what happens when she books her own airfare, and I do switch my tickets, she is stuck with an unusable ticket.” Secretary Shulkin continued, “…staff told me about this. They told me that they had cleared it through ethics. I don’t deal with those issues. So, I didn’t question that.” Mr. Gough told OIG investigators that while at a reception at the Colombian Embassy on April 27, 2017, Secretary Shulkin asked him if VA would be able to pay Dr. Bari’s expenses for the Europe trip.12 Mr. Gough said he advised Secretary Shulkin that the decision would need to be made by VA ethics officials, but that Mr. Gough would perform “due diligence to see if [the trip] met the requirements.” On or about May 2, 2017, the Office of General Counsel Ethics Specialty Team (Ethics Team) began its analysis of whether VA could pay for Secretary Shulkin’s wife’s travel expenses. The Ethics Team requested information from Secretary Shulkin’s staff, which was not provided until June 2, 2017, when the VA Executive Travel Coordinator contacted the Ethics Team requesting a same-day determination as to the approval of the travel authorization request for the Secretary’s wife.13 11 Secretary Shulkin flew economy class to Copenhagen. However, he and a member of his security detail flew business class on the return trip from London to Washington due to a documented medical necessity by Secretary Shulkin. Federal travel regulations authorize an agent assigned to the Secretary’s security detail to accompany him in business class. 41 C.F.R. § 301-10.123. 12 The recollections of Secretary Shulkin and Mr. Gough appear to differ as to who first asked whether VA could pay Dr. Bari’s travel expenses. May 1, 2017 planning emails between Mr. Gough and a colleague confirm that Mr. Gough had a conversation with Secretary Shulkin at the Embassy of Colombia relating to the trip and that up until that point the trip planners were operating under the assumption that Dr. Bari would pay for her own travel expenses. The OIG does not need to resolve this potential conflict because this fact is not material to the analysis. 13 On May 25, 2017, a travel authorization was created for Dr. Bari by a Special Assistant involved in the trip planning. The Director of Administrative Operations approved it the same day. This approval was improper because the Office of General Counsel had not yet approved Dr. Bari’s invitational travel, nor had she been officially invited. The error was detected in connection with arrangements being made to issue an Official Passport to Dr. Bari (US citizens traveling on official federal government business may not use their personal passports). VA Office of Inspector General 4 Administrative Investigation—VA Secretary and Delegation Travel to Europe An Ethics Team attorney responded, I’ve reviewed this [request for invitational travel order concurrence for Dr. Bari] along with Tammy Kennedy (VA’s designated agency ethics official), and we have not seen sufficient facts to determine that invitational travel orders are permissible in this situation. Tammy has left messages with [a staff member] and the Chief of Staff seeking more details. As [Senior Ethics Attorney, Jonathan Gurland’s] guidance indicates, VA may pay for a spouse’s travel if the spouse’s presence serves a “sufficient government interest.” For example, if the employee is receiving an award or honor, or the travel results in a direct service to the Government…It’s not clear, from the facts presented, that Dr. Bari’s participation serves a “sufficient Government interest.” From the facts we’ve received she will attend the events, which include health-care topics, but it does not appear that she is formally speaking or otherwise providing a direct service to the Government. The VA Executive Travel Coordinator forwarded the Ethics Team attorney’s email to Ms. Wright Simpson, adding, “per the message below from [the Office of General Counsel], it doesn’t appear that VA can approve invitational travel orders for Dr. Bari’s trip to Denmark/London. Standing by for further guidance.” Ms. Wright Simpson responded that she would contact Ms. Kennedy. The Chief of Staff Made False Representations to a VA Ethics Official and Altered an  Official Record   Designated Agency Ethics Official (DAEO) Tammy Kennedy confirmed that on June 2, 2017, she had multiple telephone conversations with an Ethics Team attorney and they agreed that additional information was needed if VA were to approve the request for Dr. Bari’s invitational travel. Based upon the information available, their analysis could identify no direct benefit to VA, and therefore approval could not be granted. Ms. Kennedy told OIG investigators that when she spoke with Ms. Wright Simpson, she described permissible bases upon which the request must be founded. She stated that one such basis included spousal attendance at an event where the Secretary would be receiving an award or honor.14 Ms. Kennedy stated that during the call in response to this information, Ms. Wright Simpson said that Secretary Shulkin was in fact receiving an award from the US Ambassador to Denmark. Ms. Kennedy told OIG investigators that Ms. Wright Simpson sounded “confident” in her statement that Secretary Shulkin was receiving an award from the US Ambassador in Denmark. Ms. Kennedy stated that Ms. Wright Simpson also represented to her that Secretary Shulkin’s travel to Europe, 14 The OIG does not adopt Ms. Kennedy’s legal conclusion that VA may pay for an employee’s spouse to accompany him or her to accept an award from an organization other than VA. VA Office of Inspector General 5 Administrative Investigation—VA Secretary and Delegation Travel to Europe including Dr. Bari’s travel, was “approved by the White House,” but Ms. Wright Simpson could not recall the name of the individual at the White House who approved the trip.15 On that same day, shortly after making the oral representation to Ms. Kennedy that Secretary Shulkin was expected to receive an award, the following emails were exchanged:  Ms. Wright Simpson to Program Specialist Gough: “Hey, when at the event in Denmark, will Dr. Shulkin be receiving an award or special recognition[?]”  Mr. Gough immediately replied: “Not that I’m aware of. However, all of the planning is still in draft phase, and has not been finalized by Denmark.”  Four minutes later, Mr. Gough sent another email to Ms. Wright Simpson: “We’re working on having a dinner at the US Ambassador’s Residence in honor of SECVA, but that has not been confirmed by US Embassy Copenhagen yet.”16  Ms. Wright Simpson then altered this second email, making it appear that Mr. Gough wrote: “We’re having a special recognition dinner at the US Ambassador’s Residence in the honor of SECVA.”  Ms. Wright Simpson then forwarded the altered email to Ms. Kennedy with a note: “Let me know if you need more.”  Ms. Kennedy emailed in response: “Vivieca – This is exactly what I needed. Thanks. I am in the middle of drafting an e-mail which addresses the below and should serve as an approval to proceed.” 15 Ms. Wright Simpson denied that she told Ms. Kennedy that the White House approved Dr. Shulkin’s travel. Ms. Kennedy’s contemporaneous notes of her conversation with Ms. Wright Simpson make reference to a representation by Ms. Wright Simpson that the White House approved the travel. 16 Mr. Gough stated that these two emails were the only communications he had with Ms. Wright Simpson about a reception in Denmark. VA Office of Inspector General 6 Administrative Investigation—VA Secretary and Delegation Travel to Europe The original email Mr. Gough sent to Ms. Wright Simpson and the altered email are depicted here. Original Email sent from Mr. Gough to Ms. Wright Simpson Altered Email sent from Ms. Wright Simpson to Ms. Kennedy17 Figure 2. Dotted lines highlight the alteration in the email thread. After her communications with Ms. Wright Simpson on June 2, Ms. Kennedy advised Ms. Wright Simpson via email that approval would be granted based on her understanding that Secretary Shulkin would be receiving an award. In an email sent a few moments later, Ms. Kennedy sought further clarification and confirmation from Ms. Wright Simpson: Vivieca--Ask Mr. Gough to simply, succinctly set forth the nature of the special recognition please Vivieca. It is in fact an award, correct? In other words, it’s not simply a reception, correct? For the VA’s and Secretary’s protection, I am just making sure that no issues are raised in the future. 17 The 4:56 p.m. time stamp associated with the message “Let me know if you need more” appears out of sequence. This is because this time stamp was recorded by the VA email system in Central Daylight Saving Time. VA Office of Inspector General 7 Administrative Investigation—VA Secretary and Delegation Travel to Europe After initially not responding and receiving a reminder from Ms. Kennedy, Ms. Wright Simpson replied six days later, This is a diplomatic function and he is acting on behalf [of] the USA. Ministerial representatives from Canada, UK, New Zealand and Australia will be in attendance. We will be the biggest country there and instructing them on what we are doing. He will be sharing our best practices at their bequest [sic]. He is a keynote speaker on PSTD [sic]/MH, suicide and access to care for the VA. We are told he will get a special recognition, unfortunately I don’t feel comfortable asking specifically if he is getting an award.18 Ms. Kennedy told OIG investigators that her approval of Dr. Bari’s travel was based on Ms. Wright Simpson’s communications and representations (made at least three times) that Secretary Shulkin was going to receive a special recognition or award.19 OIG investigators showed Ms. Kennedy the original unaltered email that Mr. Gough sent to Ms. Wright Simpson as well as the email that Ms. Wright Simpson sent containing the altered text. Ms. Kennedy stated that based upon this new information, she would not have approved payment of Dr. Bari’s travel.20 OIG investigators questioned Ms. Wright Simpson twice about the altered text in the email she forwarded to Ms. Kennedy. During her first interview, Ms. Wright Simpson initially claimed, “I don’t recall whether I changed his email or not.” After a short break, Ms. Wright Simpson requested to stop the interview so that she could consult with an attorney. OIG investigators stopped the interview. During the subsequent interview in which Ms. Wright Simpson was represented by counsel, she provided evasive responses to the question of whether she altered the email, repeating “I responded appropriately to the email.” Other than her nonresponsive answers, Ms. Wright Simpson maintained that she did not recall whether she altered Mr. Gough’s email prior to forwarding it to Ms. Kennedy. The OIG concluded that Ms. Wright Simpson willfully and knowingly made false representations to a VA ethics official and improperly altered an official record. Since 18 Ms. Wright Simpson’s response to Ms. Kennedy relates to the Secretary’s participation in the London Summit. There had never been a representation that Secretary Shulkin was going to get an award in London. Ms. Wright Simpson’s earlier representations were that Secretary Shulkin was going to receive an award in Copenhagen. 19 The OIG found no evidence that Secretary Shulkin was aware of Ms. Wright Simpson’s false representations or alteration of official records. 20 Secretary Shulkin told OIG investigators that he did not receive an award during the Europe trip. At a luncheon hosted by the Danish Minister of Defence there was an exchange of what Secretary Shulkin described in his interview as “trinkets” that is typical between agencies. The Danish Minister gave a commemorative plaque, and Secretary Shulkin gave an engraved coin. Through counsel, Secretary Shulkin later took the position that the commemorative plaque (which he did not recall receiving during his interview with OIG investigators) was an award. VA Office of Inspector General 8 Administrative Investigation—VA Secretary and Delegation Travel to Europe Ms. Wright Simpson’s false representations and alteration of an official record may have violated federal criminal statutes, the OIG referred this specific matter to the US Department of Justice (DOJ) to consider it for potential criminal prosecution; DOJ decided not to prosecute at this time. Secretary Shulkin Improperly Accepted Wimbledon Tickets  Secretary Shulkin told OIG investigators that his wife is a “big tennis fan.” When he learned that the Wimbledon tennis tournament would be taking place while they were scheduled to be in Europe, he attempted to get tickets. Secretary Shulkin said that he tried to get tickets through commercial websites and found there were no tickets available.21 Secretary Shulkin stated that he obtained the tickets from Vicky Gosling, whom he had met professionally and described to OIG investigators as his wife’s friend. According to publicly available information, Victoria Gosling is a UK resident and the Head of Social Impact at Auden, a for-profit enterprise; a Military Director of Sage Foundation, the philanthropic affiliate of UK software company Sage Group plc;22 and a Military Councillor for the Lawn Tennis Association, which is the national governing body for tennis in Great Britain, including Wimbledon. Ms. Gosling also served as CEO of the 2016 Invictus Games held in Orlando, Florida.23 Secretary Shulkin stated that he and his wife met Ms. Gosling at an event at the British Embassy in Washington, D.C., in 2015. He and his wife also saw Ms. Gosling at two subsequent events—at the Invictus Games in Orlando, Florida in 2016 and at the Canadian Ambassador’s home in Washington, D.C., on April 3, 2017. Six days after the April 3 event at the Canadian Ambassador’s home, the president of a US-based nonprofit organization who was acquainted with Secretary Shulkin emailed him this inquiry: “Vicky Gosling who is on our steering committee for the Global 21 Wimbledon tickets are famously difficult to obtain. See Luke Brown, “Wimbledon 2017: When does it start, how can I get tickets and how much will they cost?” The Independent July 6, 2017, available at: http://www.independent.co.uk/sport/tennis/wimbledon-2017-start-tickets-where-how-much-cost-price-buy-queue­ ballot-live-qualifying-a7801801.html. Tickets are not made available for purchase by the general public until the day before the event. 22 The Sage Group plc holds contracts with various federal agencies. The OIG has not identified a current contract between Sage Group and VA, although a small purchase ($1,147) of Sage software was made by VA in 2007, long before Secretary Shulkin’s tenure. More recently, Sage Group (through the Sage Foundation) has sought support from VA officials for its philanthropic initiatives supporting veterans. For example, on May 3, 2017, the Sage Group plc publicized via Twitter a photo of then Acting VA Deputy Secretary Scott Blackburn and Ms. Gosling at a mental health event sponsored in part by the Sage Group. The tweet announced, “It was great to get Dept Secretary Scott Blackburn’s support for our Veteran Mentorship Programme.” See also, “Sage Announces Global Program to Support Military Veterans Building Business Careers after Service.” Sage plc Press Release. July 27, 2016, (describing “Sage Foundation’s ambition to help more veterans build careers in business after military service,” led by then Sage North American President, a U.S. Navy Veteran). 23 The international Invictus games are “Prince Harry’s sporting event for wounded, injured and sick Servicemen and women,” https://invictusgamesfoundation.org. VA Office of Inspector General 9 Administrative Investigation—VA Secretary and Delegation Travel to Europe Conference and the former CEO of INVICTUS, asked to be introduced to you [emphasis added]–are you fine with me connecting the two of you.” Secretary Shulkin responded, “Glad to connect with Vicky.” Other than the three official events described by Secretary Shulkin, the OIG found no evidence that Secretary Shulkin and Ms. Gosling met again until July 15 at Wimbledon.24 On June 24, 2017, Secretary Shulkin emailed the same acquaintance to request the current email address of Victoria Gosling.25 After receiving it, Secretary Shulkin sent an email to Ms. Gosling on June 25, 2017: I will be traveling to London July 15-20 for a multi-national conference on veteran affairs- I don’t know if you are planning on attending. I’ll be with my wife and son so we hope to see some of the sights of London as well. Not knowing the city would you suggest certain things that we see? Also might you have any suggestions on how we might buy tickets to Wimbledon on the 15th?” Thank so much. David Shulkin, MD Secretary US Department of Veterans Affairs Ms. Gosling responded the same day, Your email has just arrived at a perfect time as The Armed Forces Councillor I am able to purchase one pair of tickets for Wimbledon per day and I had purchased Ladies finals for my sister however she has literally just called to say she can no longer attend on 15th – so consider the pair of tickets yours. Unfortunately the bad news is I am only able to purchase one pair (2 tickets) per day. I will try my best to get a 3rd…I can definitely get a ground pass to gain access to the grounds…I can definitely host all 3 of you in the 24 The communication that Secretary Shulkin agreed to be introduced to Ms. Gosling appears inconsistent with statements that his wife was a friend and the tickets were unrelated to his official position, particularly when viewed in context with other indicators that no personal friendship existed with his wife as described later in this report. In a letter to Inspector General Missal dated February 11, 2018, counsel to Secretary Shulkin provided an affidavit from Ms. Gosling stating that she did not ask the mutual acquaintance for an introduction to Secretary Shulkin in April 2017. During the investigation, OIG investigators interviewed the acquaintance and asked about her email. She confirmed that Ms. Gosling did request that the acquaintance broker an introduction to Secretary Shulkin. 25 In his interview with OIG investigators, Secretary Shulkin speculated that he may have had an outdated email address used by Ms. Gosling when she served as CEO of the Orlando Invictus games. As detailed later in this report, this was the same day that Dr. Bari asked Mr. Gough to try to obtain Wimbledon tickets. VA Office of Inspector General 10 Administrative Investigation—VA Secretary and Delegation Travel to Europe Members Enclosure for lunch which is a fun thing to do (only Wimbledon membership is allowed – General public can’t access)…Let me know if you want the tickets on 15th. Secretary Shulkin forwarded Ms. Gosling’s email to his wife, and also responded to Ms. Gosling accepting the tickets for himself and Dr. Bari to the Ladies’ Finals match, a grounds pass gaining entry to Wimbledon for his son, and an invitation for all three to attend lunch in the private members’ enclosure as guests of Ms. Gosling. Deleted Posting from Ms. Gosling’s Twitter Account  Figure 3. Tweet and photo from Victoria Gosling on July 16, 2017, of Dr. Shulkin and his family. Secretary Shulkin told OIG investigators that his acceptance of tickets to attend Wimbledon was not reviewed by VA ethics officials prior to the trip. He said that he did not ask VA ethics officials “to approve my personal attendances at events,” and “[t]here is no separation between personal and business in the job that I have…this Wimbledon event had absolutely no business connection, whatsoever. It had personal reasons why we were going. I wouldn’t think about clearing with ethics.”26 He stated that after learning of The Washington Post’s “sensational story” about his Europe travel that he decided it would be “a good thing to disclose everything that I know about Vicky Gosling and the relationship and ask for ethics clearance.” 26 Three months before Secretary Shulkin received the Wimbledon tickets, he was provided ethics training by VA’s Senior Ethics Attorney that covered the rules relating to VA employees accepting gifts. As discussed later in this report, acceptance of the tickets was improper. The Senior Ethics Attorney told OIG investigators that although he could not specifically recall whether he so-advised Secretary Shulkin, it is his practice when presenting ethics training to “advise employees to contact [the Ethics Team] whenever they have any ethics questions about participation in official matters or outside activities.” VA Office of Inspector General 11 Administrative Investigation—VA Secretary and Delegation Travel to Europe On September 28, 2017, General Counsel Byrne wrote to DAEO Kennedy: “In an abundance of caution, I am asking you or someone on your team [to] conduct an expedited ethics review of [Secretary Shulkin’s] acceptance of tickets to a sporting event in July in the United Kingdom? It is possible there is already an informal opinion in email traffic between your office and [Ms. Wright Simpson]. I have copied Secretary Shulkin on this email.” At 5:02 p.m. EDT the same day, Ms. Kennedy emailed Mr. Byrne and Secretary Shulkin seeking additional information. Ms. Kennedy wrote: I am following up on the following question regarding the Wimbledon tickets. Under 5 CFR 2635.204 (b) there is a gift exception which provides “An employee may accept a gift given under circumstances which make it clear that the gift is motivated by a family relationship or personal friendship rather than the position of the employee. Relevant factors in making such a determination include the history of the relationship and whether the family member or friend personally pays for the gift.” Given this regulatory provision please advise: 1. Who is the friend? Where is he currently employed? What is his position? 2. How long have you known this friend? 3. Where did you initially meet this friend? 4. I am interested in questions that address that this person was more than a mere acquaintance or a business relationship. How often would you and this friend take trips or engage in non- business activities? What were these trips or non-business activities? Who was present at these trips/non business activities? Would you and he often pay for functions/activities for one another? 5. Did this friend pay for this gift or did his company pay for these tickets? 6. If received from his business, under what circumstances did this friend receive the tickets? Were they given without reservation to your friend to use as he/she wished? At 8:07 p.m. EDT Secretary Shulkin responded by paraphrasing and responding to some of Ms. Kennedy’s questions, as follows: Who is friend?—Vicky Golsing [sic] Where is she employed—Vicky was the CEO [of the] Invictus Games in 2016 but has since left that position at the end of 2016. When we talked with her at Wimbledon she was not employed but was looking at a number of options. Her current title that she is using now is strategic advisor for the VA Office of Inspector General 12 Administrative Investigation—VA Secretary and Delegation Travel to Europe Invictus UK delegation- which I believe may be an unpaid position to help the team in preparing for the Toronto games. How long have you known this friend? My wife met Vicky first in October 2015 at the British ambassador residence and have been in touch since then several times. The next time they saw each other in person was at the Orlando Invictus games a little more than a year ago. My wife and she hit it off and have been in contact since and spent some time again on Vicky’s visit to the US when she was here in March 2017. (its hard to get together more when living 5000 miles away). In April Merle told Vicky we were going to London and they made a plan to try to get together. There is no business relationship, but purely a social friendship between the two of them. We spent time at Wimbeldon [sic] with Vicky and her husband. I believe he is active UK military. There was no discussion at all about business or any solicitation of any type. How did you get the tickets? We had contacted Vicky to get together knowing we were going to be in London. A week or so before we arrived Vicky told us that her sister had just told her that she was no longer going to be able to attend Wimbledon and her sister asked Vicky if she could use the tickets. Vicky know[s] Merle loves tennis and she invited us. We offered to pay but she insisted on taking us as friends. Was there a business connection? I am not aware of a business connection to these tickets and they were personal tickets of Vicky’s sister - if there was any other source of these tickets Merle and I were not aware of it. We did not meet or speak to another other people at wimbeldon [sic] as this was purely a social time together. Ms. Kennedy responded to Secretary Shulkin at 8:15 p.m. EDT and advised that based upon the information he provided, “the tickets fit within 5 CFR 2635.204, gift exception, where the gift is based on a personal relationship.” Through counsel, Secretary Shulkin also told OIG investigators that his wife and Ms. Gosling met at an official event in 2015 and “hit it off and remained in touch in the years since.” The OIG requested that Secretary Shulkin produce any documents, emails, or any other information that would corroborate his characterization of the relationship between Dr. Bari and Ms. Gosling. Secretary Shulkin’s counsel only produced a twomessage text exchange dated September 28, 2017, in which Dr. Bari sought to reimburse VA Office of Inspector General 13 Administrative Investigation—VA Secretary and Delegation Travel to Europe Ms. Gosling for the Wimbledon tickets, but Ms. Gosling declined.27 Secretary Shulkin produced no evidence that his wife and Ms. Gosling communicated with one another outside of official events prior the their attendance together at Wimbledon in July 2017. The OIG reviewed Dr. Bari’s telephone records and did not identify any calls between her and Ms. Gosling between July 2016 and February 1, 2018, other than calls on the afternoon of September 28, 2017, when Dr. Bari offered to pay for the Wimbledon tickets. The OIG also did not find any evidence that Dr. Bari and Ms. Gosling spent time together prior to Wimbledon, other than briefly at the three official group events in 2015, 2016, and 2017 where Dr. Bari accompanied Secretary Shulkin. Figure 4. Text message exchange produced by Secretary Shulkin. Through counsel, Secretary Shulkin argues that the form and substance of this text exchange proves that Ms. Gosling and Dr. Bari were friends. With respect to the substance, OIG observes that the exchange is dated September 28, 2017, and therefore cannot be probative of the relationship as of June 25, 2017, when Secretary Shulkin accepted the Wimbledon tickets. Moreover, although Ms. Gosling’s text message includes well-wishes (e.g., “Hope you’re both keeping well!”), this content appears unusual when placed in its context: phone records reflect that at 4:29 p.m. EDT (less than an hour before this message was received), Dr. Bari and Ms. Gosling concluded an 11 minute 22 second phone call. This call commenced immediately after Ms. Gosling emailed Secretary Shulkin (4:17 p.m. EDT) to advise him that she had been contacted by a journalist regarding the Secretary’s attendance at Wimbledon. Dr. Bari and Ms. Gosling conducted another call for approximately 17 minutes beginning at 6:47 p.m. EDT. With respect to form, Secretary Shulkin argues that Ms. Gosling’s use of “x” as a closing is indicative of a close friendship. Cultural observers have described the frequent use of “x” 27 This is the same day that General Counsel Byrne sought to obtain an ethics opinion on an expedited basis to support Secretary Shulkin’s acceptance of the tickets. VA Office of Inspector General 14 Administrative Investigation—VA Secretary and Delegation Travel to Europe as a Briticism that, when compared to similar American salutations, is distinguishable for its casual use and ubiquity.28 Ms. Kennedy based her conclusion that Secretary Shulkin’s acceptance of the Wimbledon tickets was proper based on her understanding that the Secretary and his wife enjoyed a personal friendship with Ms. Gosling. OIG investigators provided Ms. Kennedy with additional information, including emails indicating that Ms. Gosling was seeking an introduction to Secretary Shulkin through an intermediary in April 2017. OIG investigators also provided Ms. Kennedy with email correspondence between Secretary Shulkin and Ms. Gosling on July 15 and 16, 2017 (starting hours after the tennis match), which revealed that Ms. Gosling requested Secretary Shulkin’s assistance in gaining an invitation to the London Summit.29 Based on this information, Ms. Kennedy revised her ethics opinion and stated that, “[Dr. Bari and Ms. Gosling were] not friends, as represented in [Secretary Shulkin’s] response to me.” She stated that the new information was “totally inconsistent with the information that [she] was provided.”30 OIG investigators also asked Ms. Gosling about the nature of her relationship with Secretary Shulkin and his wife. 31 Ms. Gosling summarized, I consider them to be friends. I like them. Do I see them regularly? No, I don’t. . . Basically, due to the fact that I live over here, they live over there. If I lived over there, absolutely, I would spend more time with them, in answer to your question. But I don’t. And, actually, I live a very, very busy life, as they do. So — but, when I go over there, and I was intending to go over there, but I haven’t managed it yet, then I would be absolutely phoning 28 Eva Wiseman, “The joy of x in texts, tweets, and emails” The Guardian, January 27, 2013, https://www.theguardian.com/lifeandstyle/2013/jan/27/joy-x-texts-tweets-emails; Carrie Plitt, “X Please, We’re British,” The Junket, January 22, 2014, http://thejunket.org/2014/01/issue-ten/x-please-were-british/. 29 Secretary Shulkin told OIG investigators that he did not “lift a finger” to assist Ms. Gosling. Ms. Gosling and Secretary Shulkin both told OIG investigators that she obtained an invitation from a source other than Secretary Shulkin. On July 18, 2017, an organizer of the London Summit wrote to Mr. Gough, “Secretary Shulkin may wish to be aware that Victoria Gosling will attend the conference on [Wednesday and Thursday] morning.” Ms. Gosling told OIG investigators that, prior to the Wimbledon outing with Secretary Shulkin, she was already scheduled to attend the London Summit. Based on her communications with Secretary Shulkin in connection with Wimbledon, her statement to OIG investigators appears not to be accurate. 30 The OIG presented the information to Ms. Kennedy prior to the OIG’s unscheduled interview with Ms. Gosling on February 6, 2018. At the time of the OIG’s discussion with Ms. Kennedy, Ms. Kennedy knew that the tickets were provided to Secretary Shulkin and his wife by Ms. Gosling, but she did not have confirmation that Ms. Gosling had paid for the tickets herself. This additional information, learned from the OIG’s discussion with Ms. Gosling, does not change the OIG’s conclusion that the friendship exception is inapplicable. The balance of the information provided by Ms. Gosling during her interview was consistent with the facts that were considered in the OIG’s and Ms. Kennedy’s analysis. 31 The OIG’s interview of Ms. Gosling was conducted on an unscheduled basis on February 6, 2018. OIG investigators identified themselves to Ms. Gosling at the outset of the call and asked if they could interview her. She agreed voluntarily. VA Office of Inspector General 15 Administrative Investigation—VA Secretary and Delegation Travel to Europe them and letting them know that I was [in] the city and I would expect to go to dinner with them. But there you go. That’s how I feel about them. Ms. Gosling’s statement appears to reflect genuine friendliness and good will toward Secretary Shulkin and Dr. Bari. Nonetheless, the objective facts as of the date the gift was made fail to satisfy the personal friendship exception to the prohibition against accepting gifts. Prior to arranging Wimbledon tickets, the interactions between Ms. Gosling, Dr. Shulkin, and Dr. Bari (however affable they may have been) were confined to three official business events, which Ms. Gosling confirmed during the interview. Additionally, during the course of the 26-minute interview, OIG investigators and Ms. Gosling referred to Dr. Bari only as Secretary Shulkin’s “wife.” Toward the end of the interview, OIG investigators asked whether Ms. Gosling could recall the first name of Secretary Shulkin’s wife. After a long pause, Ms. Gosling stated, “You actually -- I think that kept throwing me. I’m actually having a genuine blank here.” She was unable to recall Dr. Bari’s name before the interview concluded. The OIG’s conclusion that neither Secretary Shulkin nor Dr. Bari had a personal friendship with Ms. Gosling, as defined by 5 CFR 2635.204, is also supported by an example accompanying the rule, which clarifies the personal friendship exception. In that example, a government employee meets an individual at an official meeting. Thereafter, they granted each other access to their social media networks and communicated occasionally. Under this scenario, the government employee would not be able to take advantage of the personal friendship exception because “they did not communicate further in their personal capacities, carry on extensive personal interactions, or meet socially outside of work.” As noted, there is no evidence that Secretary Shulkin or Dr. Bari and Ms. Gosling interacted outside of three official functions before the gift of the Wimbledon tickets. Therefore, this example supports that the relationship did not meet the personal friendship exception. An advisory opinion from the Office of Government Ethics explores the circumstance applicable here, where a relationship develops exclusively in connection with official duties: Where a personal relationship develops from an on-going work relationship, it can be very difficult to clearly establish that the gift is not being given because of the employee’s official position. A gift given out of appreciation for some action the employee took, particularly one that relates to an employee’s official responsibilities, is not clearly motivated by a personal relationship. Therefore, an employee bears a considerable burden in establishing that a gift is based on a personal relationship rather than the employee’s Government position. This burden may be exacerbated even further by testamentary gifts where gifts to non-family members may be considered suspect. VA Office of Inspector General 16 Administrative Investigation—VA Secretary and Delegation Travel to Europe One must look to the circumstances surrounding the gift when a personal relationship is at issue. Factors indicating a personal relationship include the length of time of the relationship, the intimacy of the relationship including any family interaction, the nature of personal activities outside the work context, and the frequency of outside contacts.32 In an email response to the OIG’s repeated requests for an interview, Ms. Gosling wrote that “[Secretary Shulkin] and his wife are friends of mine.” As noted earlier, she further stated that she offered the tickets to Secretary Shulkin and his family “to thank them for their personal support to me whilst I was CEO Invictus Games Orlando.”33 Ms. Gosling clarified this statement when she spoke with OIG investigators, Investigator: Now you had mentioned that, um, providing Dr. Shulkin with the tickets was your way to thank him for his support. What did he do exactly to support you for the Invictus Games? Ms. Gosling: — Look, I had the tickets. I enjoy his company. I enjoy his wife’s company. It wasn’t just about thanking him for helping me with support because, actually, I had a, a lot of gratitude for the way that the U.S. in general supported me when I brought the games across. Not just him specifically. I really got on very well with his wife…. Federal ethics rules prohibit the solicitation or acceptance of any gift given because of the employee’s official position, unless an exception applies.34 In this situation, the OIG concludes that Ms. Gosling gave a gift of the Wimbledon tickets because of Secretary Shulkin’s official position.35 Ms. Gosling admits that the tickets were given, in part, to thank Secretary Shulkin, Dr. Bari, and the “U.S. in general” for support in connection 32 Advisory Opinion, Office of Government Ethics, Letter to a Law Firm, March 21, 2006 at 2, https://www.oge.gov/Web/OGE.nsf/All%20Advisories/C72D3145E59B78BF85257E96005FBE03/$FILE/7be85d5 345874af8aaf23f452e5aa7954.pdf?open. 33 The OIG first sought to interview Ms. Gosling on a voluntary basis via an email request on December 15, 2017. Investigators made at least 19 additional attempts to contact her on December 18, 20, 21, and January 9, 23, and 24, using various methods, including email, text, phone, and courier. The OIG received an email from Ms. Gosling on January 30, 2018, stating that she was willing to speak with OIG investigators voluntarily. In that email, she agreed to talk with OIG investigators, but she did not thereafter respond to the OIG’s efforts to schedule an interview. OIG investigators then contacted her by telephone on February 6, 2018, and conducted an unscheduled interview with her consent. 34 5 C.F.R. § 2635.202. 35 Secretary Shulkin accepted the tickets without knowing what Ms. Gosling paid for them (though he did inquire via email at the time, “Just let me know how much I owe you”). Ms. Gosling told OIG investigators that she paid for the tickets with her own funds and that she obtained the tickets at a discount. She was unable to recall the cost of the tickets. Secretary Shulkin stated that the combined market value of the tickets and grounds pass was £344 (approximately $450). The market value of the tickets and grounds pass is “deemed to be the face value” of the tickets and grounds pass. 5 C.F.R. § 2635.203. VA Office of Inspector General 17 Administrative Investigation—VA Secretary and Delegation Travel to Europe with the Orlando Invictus Games.36 Secretary Shulkin’s acceptance of the tickets was contrary to 5 CFR§ 2635.202(b), which prohibits him from accepting gifts based upon his official position. Prior to Wimbledon, there was no evidence that Secretary Shulkin or his wife met with Ms. Gosling at an event other than the three gatherings he attended in his official capacity. In addition, by virtue of her business relationships (whether for profit or not), Ms. Gosling may also meet the definition of a “prohibited source,” which would be another basis for the gift of the Wimbledon tickets to be improper.37 The OIG was unable to fully explore this topic with Ms. Gosling because she did not timely respond to repeated requests to schedule an interview.38 However, Ms. Gosling’s status as a prohibited source is supported by her association with the Invictus Games, an important veterans charitable cause that has accepted support from VA.39 In addition, on July 15, 2017, in connection with soliciting an invitation to the London Summit, Ms. Gosling wrote to Secretary Shulkin and revealed specific business interests that she was pursuing, 2 days of programme looks great particularly with regards to some of the work I'm doing with Invictus Games, the Global Mental Health Strategy, and the corporate work with the Career Transition Partnership, and the Business in the Community work, along with helping veterans transition through the mentoring programme - I would love to be able to attend the lectures if at all possible just to listen to the latest thoughts in this space.40 I am seeing CDS today (Air Marshal ) so I'm happy to ask him if I can attend, failing that I wonder if there's anything you can do so that I can attend in a US/UK relationship capacity having done so much work 36 At least one federal court has interpreted the phrase “circumstances ‘make it clear’ that the motivation is personal” from 5 C.F.R. § 2635.204(b) to mean that the “personal friendship exception is only applicable if the gift is based ‘solely’ on a personal relationship” and that it would be improper for a federal employee to accept a gift given “at least in part on doing business.” Baltimore v. Clinton, 900 F. Supp. 2d 21, 29 (D.D.C. 2012). Here, the OIG concludes that the circumstances of the gift do not “make it clear” that the motivation was personal. 37 5 C.F.R. § 2635.203 states, “Prohibited source means any person who: (1) Is seeking official action by the employee’s agency; (2) Does business or seeks to do business with the employee’s agency; (3) Conducts activities regulated by the employee’s agency; (4) Has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties; or (5) Is an organization a majority of whose members are described in paragraphs (d)(1) through (4) of this section.” 38 When OIG investigators reached Ms. Gosling, she agreed to do the interview and told investigators near the end of questioning that she was in her car. The interview lasted for 26 minutes, which was insufficient to explore all relevant topics. 39 In 2016, VA provided onsite medical care to athletes competing in the Invictus Games Orlando. VA Office of Public Affairs, “Hundreds of injured military Veterans from around the globe to compete in the 2016 Invictus Games: VA to provide onsite medical and mental health support to international athletes in Orlando,” news release, May 6, 2016, https://www.va.gov/opa/pressrel/includes/viewPDF.cfm?id=2786. 40 Ms. Gosling’s email responds to a message sent by Secretary Shulkin during the evening of July 15, 2017 (after the Wimbledon match), in which he forwarded a copy of the London Summit agenda. VA Office of Inspector General 18 Administrative Investigation—VA Secretary and Delegation Travel to Europe with the VA and previous administration for Orlando when bringing the Invictus Games to USA as the CEO? It is never permissible to accept a gift given on the basis of an employee’s official position. However, an employee may accept gift if the circumstances make it clear that the gift was motivated by personal friendship and not the employee’s official position. Similarly, a gift given by a prohibited source may be legally accepted if it falls under an exception to the ethics rules, such as a gift received from someone with whom the employee has a personal friendship. However, as discussed above, neither the VA DAEO nor the OIG believes that there was a personal friendship between Dr. Bari and Ms. Gosling as defined in the rules. The OIG does not find that any other exception to the prohibition against accepting a gift is relevant in this situation. Finally, even if the personal friendship exception did apply in this instance, making the gift permissible, Secretary Shulkin should have considered declining the gift on the basis of federal ethics standards, which he did not do.41 The Standards of Ethical Conduct for Employees of the Executive Branch admonishes employees to “consider declining otherwise permissible gifts if they believe that a reasonable person with knowledge of the relevant facts would question the employee’s integrity or impartiality as a result of accepting the gift.”42 When making this determination, employees “may consider, among other relevant factors, whether: (i) The gift has a high market value; (ii) The timing of the gift creates the appearance that the donor is seeking to influence an official action; (iii) The gift was provided by a person who has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties; and (iv) Acceptance of the gift would provide the donor with significantly disproportionate access.”43 VA policy states that “if after taking these factors into consideration the employee believes that a reasonable person would question the employee’s integrity or impartiality or the integrity or partiality of VA programs or operations, then the employee should not accept the gift.”44 41 Although Secretary Shulkin did offer to repay Ms. Gosling for the tickets, there is no suggestion that this was motivated by a decision to decline a gift on ethical grounds, nor did Secretary Shulkin insist on that basis. Secretary Shulkin told OIG investigators that he did not clear the gift with ethics, and that but for the media inquiry on September 28, 2017, he would not have done so. 42 5 C.F.R. § 2635.201(b)(1); VA policy implementing this rule states that employees “must make a preliminary determination of whether the employee should accept the gift.” (Emphasis added.) VA Designated Agency Ethics Official memorandum, February 23, 2017. (See Appendix A.) 43 5 C.F.R. § 2635.201(b)(2); VA policy implementing this rule states that employees “must consider” the four factors. VA Designated Agency Ethics Official memorandum, February 23, 2017. (See Appendix A.) 44 VA Designated Agency Ethics Official memorandum, February 23, 2017. (See Appendix A.) Secretary Shulkin received in-person ethics training in his office one-on-one with a VA ethics official on March 20, 2017. VA Office of Inspector General 19 Administrative Investigation—VA Secretary and Delegation Travel to Europe Through counsel, Secretary Shulkin stated that the decision whether a “legally permissible gift should be accepted is the employee’s to make,” not the OIG’s.45 The OIG agrees. Here, however, the gift was not legally permissible. Nonetheless, to the extent that Secretary Shulkin believed that the gift was legally permissible, VA policy obligated him to consider declining the gift. Relevant factors in such an evaluation included the reasonable person’s perspective concerning the value of the tickets; the circumstances of the relationship with Ms. Gosling, including her requests for access to an international summit of veterans’ affairs ministers; Ms. Gosling’s association with charities and businesses that have relationships with VA; and other facts discussed throughout this report. Thus, based on Ms. Kennedy’s revised opinion and the OIG’s independent analysis, the gift of Wimbledon tickets, any food, and anything else of value provided to Secretary Shulkin and his family by Ms. Gosling that day was an improper gift given on the basis of his official position. Secretary Shulkin Directed the Misuse of a Subordinate’s Official Time  Mr. Gough told OIG investigators that Secretary Shulkin directed him to coordinate with his wife to schedule the tourist activities that they wanted to do on nonofficial time. Secretary Shulkin corroborated this account to OIG investigators, stating, “I didn’t have any interest in doing this. I basically didn’t care what we did in our off time, and so I said, you deal with my wife.” 46 In an email to a colleague referencing this topic, Mr. Gough wrote, “Boss told me ‘if she’s happy, I’m happy and you’re happy.’” Mr. Gough told OIG investigators that Dr. Bari had “a lot of different suggestions” for tourist activities and that he was responsible for accommodating her requests. Mr. Gough stated that his involvement in the planning was necessary in order to coordinate security coverage for Secretary Shulkin. However, emails reveal that Mr. Gough was serving as a de facto personal travel concierge to the Secretary and his wife by providing detailed tourist planning and travel research services on official time at Secretary Shulkin’s direction. Mr. Gough’s tourist planning activities were in excess of what was reasonably necessary to perform any official security planning duties. For 45 Secretary Shulkin argues that this analysis is nonbinding and hortatory. Indeed, 5 C.F.R. § 2635.201 uses permissive language and there is no penalty for accepting a legally permissible gift. However, Secretary Shulkin is also subject to VA policy implementing this rule, which is more insistent in that it requires employees to preliminarily consider declining a permissible gift. VA Designated Agency Ethics Official memorandum, February 23, 2017. (See Appendix A.) 46 Through counsel, Secretary Shulkin stated that on June 23, 2017 “Mr. Gough on his own initiative undertook the detailed planning of tourist activities. Only when Mr. Gough approached the Secretary with this information did the Secretary refer Mr. Gough to Dr. Bari.” Irrespective of any self-initiated improper use of official time by Mr. Gough, Secretary Shulkin ignores his own stewardship obligations. “An employee shall not encourage, direct, coerce, or request a subordinate to use official time to perform activities other than those required in the performance of official duties or authorized in accordance with law or regulation.” 5 C.F.R. § 2635.705. VA Office of Inspector General 20 Administrative Investigation—VA Secretary and Delegation Travel to Europe example, on June 23, 2017, the day before Secretary Shulkin obtained the Wimbledon tickets from Ms. Gosling, Dr. Bari wrote to Mr. Gough, forwarding a series of restaurant and activity recommendations and further inquiring, “Is there earlier flight from Copenhagen? Wimbledon tickets? High tea? Roman baths in [B]ath. Would want to do baths not just tour.” In an email on June 24, Dr. Bari wrote to Mr. Gough: Sites to cover, we can go in any order u think works but we like to be busy, we often don’t spend too much time at palaces or cathedrals. Secretary agrees that need some time to check in with work answer emails or call back each weekday so can be flexible in later afternoon after we do sightseeing. Dr. Bari’s list of sites and activities to cover included Buckingham Palace, Westminster Abbey, the Churchill War Rooms, a Thames River cruise, London Eye, Tower Bridge, Tower of London (including the Ceremony of the Keys), Shakespeare’s Globe, Trafalgar Square, Piccadilly Circus, St. Paul’s Cathedral, Hyde Park, Kensington Palace, and Harrods. She also added events to consider, including Wimbledon, theatre tickets, day trips (to Stonehenge, Windsor, Bath), and high tea. She concluded her email with, “Thanks, I sent restaurants secretary liked under separate pdf.” Although Secretary Shulkin ultimately obtained tickets to the July 15 Wimbledon Ladies’ Final, Dr. Bari had also asked Mr. Gough about obtaining tickets to Wimbledon. Mr. Gough advised Dr. Bari on June 29 that he was attempting to use diplomatic connections to arrange Wimbledon tickets to the Gentlemen’s Final for the Secretary and his wife: I’m asking ppl from the Embassy and the UK government about Wimbledon tickets and have not had much luck. There are still a couple more people who have to get back to me, but this is what I’m looking at price-wise now just on stubhub. [Mr. Gough’s email included a now-expired link to tickets on Stubhub.com for the Sunday, July 16, 2017, Gentlemen’s Final at Wimbledon.] On Friday, June 30, Mr. Gough sent another email responding to Dr. Bari’s inquiries, proposing an itinerary for a day trip that included stops in the UK towns of Windsor and Bath: Dr. Bari – are you free for a call? This is what the Sunday trip would look like to Windsor and Bath. If you’re good with this, please let me know so that I can send this day to all the security teams for them to get to work on…Everything from Trip Advisor to the actual website has the Roman Baths being ruins, and you aren’t able to get in them. It’s more of like walking through ruins. I’ve tried looking around the town of Bath to see if VA Office of Inspector General 21 Administrative Investigation—VA Secretary and Delegation Travel to Europe there is a spa that would allow you to do this, but haven’t been successful. Is there something you found that I didn’t? Dr. Bari responded, “Call me later but i dont think this will work[.]” Mr. Gough forwarded this email exchange to another staff member and expressed frustration with the many requests he had been receiving from Dr. Bari. He wrote, “I would have been finished with this a week ago….” In an email the next day, he told the staff member, “Copenhagen is good to go. Dr. Bari changed a lot of stuff for London, so I’m re-doing a lot of the unofficial stuff today.” The emails support that his planning efforts were not merely incident to the planning of the Secretary’s security detail. Mr. Gough could have appropriately conveyed to the security teams the requisite details pertaining to the Secretary’s leisure time activities without engaging in the extensive research and planning tasks. Personal activities for the Denmark trip included touring Amalienborg Palace for the Changing of the Guard; visiting Christiansborg Palace, Rosenborg Castle, and Frederiksborg Castle; taking a boat tour of Copenhagen from Nyhavn Canal; and shopping in Copenhagen. There was also an unplanned excursion across the border to Malmo, Sweden, for dinner on their last day, July 14. Mr. Gough had official “Trip Book” itineraries printed at government expense for the Secretary and the official party at a cost of $100 each (15 copies). The Trip Book included the following scheduled visits to tourist sites and activities in London: Wimbledon, Thames River Cruise, Trafalgar Square, Churchill War Room, St. James’s Park, Buckingham Palace, Hyde Park, and Kensington Palace, Westminster Abbey, Piccadilly Circus, St. Paul’s Cathedral, Tower of London, Tower Bridge, Shakespeare’s Globe, London Eye, and Windsor Castle. The itinerary section of the Trip Book is included as Appendix B. The OIG Cannot Determine the “Essential” Nature of the Travel in Keeping with the  Secretary’s Memorandum   On June 29, 2017, less than two weeks before the start of the Europe trip, Secretary Shulkin issued a memorandum titled, Essential Employee Travel, which required senior VA leaders to determine whether employee travel in their organization was essential. The stated purpose of this memorandum was to generate savings through decreased employee travel. The OIG cannot determine whether the value of the trip to VA, including the value provided by each participant in the trip, was consistent with the Secretary’s memorandum.”47 47 The composition of the VA Delegation meant that three of VA’s most senior leaders were out of the country together for an extended period. While in Copenhagen, Secretary Shulkin was informed that The Boston Globe was planning to publish a story detailing allegations of substandard care at the Manchester VA Medical Center. Secretary VA Office of Inspector General 22 Administrative Investigation—VA Secretary and Delegation Travel to Europe The OIG Did Not Fully Assess the Costs to VA  The total cost for the VA delegation to travel to Europe in July 2017 was at least $122,334, including $100,987 in traveler-incurred expenses and $21,347 in reimbursements to the US Embassies in London and Copenhagen.48 A breakdown of costs follows:  Total Traveler  Reimbursements  Description  $42,230  Airfare and associated travel agent fees49  $33,888  Lodging per diem  $15,947  Meals and Incidentals per diem  $9,635  US Embassy  Reimbursements  $12,062  $9,28550  Miscellaneous costs, such as airport parking, airline seat upgrades,  checked baggage fees, gratuities, and laundry  Description  US Embassy, London, UK for travel support including vehicles,  chauffeur services, tolls, and parking  US Embassy, Copenhagen, Denmark for travel support including  private wireless internet, driver overtime, vehicles, and baggage  transport  Federal travel regulations and VA policy permit employees traveling on official duty to combine official travel with personal travel under appropriate circumstances. When an employee elects to combine them, including travel by an indirect route for personal convenience, the employee is responsible for paying any additional cost.51 VA requires travelers to provide a Travel Cost Comparison Worksheet, which compares the actual cost of the trip with and without personal travel expenses. Properly prepared travel authorizations help VA and travelers determine when to charge for annual leave, when to Shulkin, Dr. Alaigh, and Ms. Wright Simpson were in contact with VA officials in Washington and decided that they could manage this crisis from Europe in an effective manner. 48 OIG investigators have not analyzed indirect costs, such as staffing, overtime, and other costs not recorded in the travel voucher system or as part of the interagency agreements detailed here. 49 The OIG analysis revealed that the initial cost of the airfare for all passengers was $25,478. The $15,699 increase occurred due to itinerary changes made by some travelers. The largest increase was associated with Secretary Shulkin’s medical need to upgrade his return trip from London to business class. This added $10,355 to the air transportation costs ($5,177 each for Secretary Shulkin and his accompanying security detail member). 50 The OIG did not have access to final cost information from the US Embassy in Denmark. This amount reflects an estimate generated by VA travel planning personnel on June 26, 2017. 51 41 CFR §§ 301-2.2, 301-2.3, 301-2.4, 301-11.21 and VA Travel Administration, Volume XIV, Chapter 1, Appendix D (May 2013); see also Appendix A. VA Office of Inspector General 23 Administrative Investigation—VA Secretary and Delegation Travel to Europe reimburse travel expenses, and who is financially responsible if a traveler becomes ill or is injured while away from the office. On December 7, 2017, a travel coordinator involved in the Europe trip planning told OIG investigators that no cost comparisons were prepared.52 Although the full extent cannot be determined without further auditing by VA, the OIG determined that arrangements made in consideration of personal conveniences did impact the cost of the travel. For example, on June 26, 2017, VA travel staff changed the itineraries of Secretary Shulkin, his wife, and five other members of the VA delegation to depart on an earlier flight from Copenhagen to London in order to accommodate the personal excursion by Secretary Shulkin and Dr. Bari to the Ladies’ Final tennis match at Wimbledon. This change resulted in $372 in travel agency transaction fees.53 This change also added $1,733 to lodging costs because VA paid for an early hotel check-in for six rooms, including for Secretary Shulkin and Ms. Wright Simpson.54 In another example of insufficient documentation, Ms. Wright Simpson’s original roundtrip economy class airfare was issued on June 16, 2017, at a cost of $1,101. On June 22, 2017, her ticket was modified and the new economy class airfare cost $4,041. The dates of the travel remained the same, but the intermediate connection point changed from a 210-minute connection in London to a 320-minute connection in New York. Travel records are insufficient to determine what justification, if any, was provided for this substantially higher-priced routing. The OIG identified other insufficiently documented circumstances, which require further analysis and validation by VA. For example, when a traveler’s meals are otherwise furnished (such as meals included as part of a conference), federal employees must reduce the corresponding meal per diem claimed. Travel records indicate that some, but not all, meeting attendees reduced their meal per diem claims to account for meals furnished during meetings. Documentation was insufficient to determine whether an appropriate basis existed for those attendees who did not reduce their per diem meal claims. In addition, to the extent that any of the travelers combined personal travel with official travel, VA payment for lodging, meals, and incidentals would not be appropriate during periods of personal travel. 52 Secretary Shulkin relies on staff to make travel arrangements and to document approvals and other requirements. VA incurs transaction fees from its travel agent every time a booking is made or changed. Travel records reflect numerous other itinerary changes, totaling $3,492 for all participants. 54 The itinerary reflects a planned arrival at the London hotel between 9:30 and 10:30 a.m. local time. In order to accommodate early occupancy at the London hotel, VA paid for two hotel rooms for each of these six travelers on the night of June 14, 2017—one in Copenhagen (where the delegation spent the night) and the other in London (to ensure immediate access to rooms the following morning upon arrival). 53 VA Office of Inspector General 24 Administrative Investigation—VA Secretary and Delegation Travel to Europe The OIG observed other irregularities, including potential exchange rate errors, doublereimbursement of room taxes that were itemized and also included in the room rate, and one security personnel’s expense voucher that included an inexplicable $3,825 overpayment for airport parking and $2,718 overpayment for lodging. Inadequate documentation makes it impossible for the OIG to determine precisely which costs, if any, should have been borne by the traveler, rather than the government. In addition, the OIG did not review time and attendance records of participants. VA Made Misleading Statements to the Media  VA’s Assistant Secretary for Public and Intergovernmental Affairs John Ullyot told OIG investigators that on September 27, 2017, he first learned that The Washington Post was working on the previously mentioned news story concerning Secretary Shulkin’s July 2017 travel to Europe. The next afternoon, General Counsel Byrne directed his ethics personnel to “conduct an expedited ethics review of [Secretary Shulkin’s] acceptance of tickets to a sporting event in July in the United Kingdom.”55 On September 29, 2017, The Washington Post reported that according to an emailed statement from VA press secretary Curt Cashour, “All of Shulkin’s activities on the Europe trip, including his attendance at Wimbledon, ‘were reviewed and approved by ethics counsel.’” Senior Ethics official Jonathan Gurland told OIG investigators that he had “a bit of a visceral reaction” to The Washington Post article, and Ms. Kennedy said the statement reflected negatively on them professionally. Ms. Kennedy and Mr. Gurland both told OIG investigators that, after reading the article, they contacted General Counsel Byrne to protest the portion of the statement that read, “All activities including Wimbledon were reviewed and approved by ethics counsel.” Mr. Gurland explained to OIG investigators that prior to the Secretary’s travel, VA ethics counsel had only “advised on the one narrow issue” of whether VA could pay for Dr. Bari’s travel expenses. In Mr. Gurland and Ms. Kennedy’s view, ethics counsel did not approve the acceptance of Wimbledon tickets in advance, nor were they ever asked to review or approve “all activities” associated with the Secretary’s July 2017 Europe trip. Mr. Ullyot told OIG investigators that he drafted the September 29 statement using details provided by Secretary Shulkin. He said that Secretary Shulkin dictated portions of the statement, including the phrase “all activities including Wimbledon were reviewed and approved by Ethics Counsel.” Mr. Ullyot provided a hard copy draft statement to 55 Mr. Byrne’s request is time stamped 1:23 p.m. EDT. Counsel for Secretary Shulkin provided the OIG with a text message from Ms. Gosling to Dr. Bari at 5:16 p.m. EDT, declining to accept Dr. Bari’s offer of reimbursement made earlier that day. That was the same text message exchange submitted to the OIG as the only evidence of the personal friendship between Ms. Gosling and Dr. Bari over the previous years. VA Office of Inspector General 25 Administrative Investigation—VA Secretary and Delegation Travel to Europe Mr. Byrne for review and approval. Mr. Byrne stated that he “may have edited some of it, [but] not much because I only look[ed] at this thing for about 20 seconds” prior to giving it “a green light” for release. Neither Mr. Ullyot nor Mr. Byrne could recall whether Mr. Byrne actually suggested any revisions to the statement prior to its approval for release. Secretary Shulkin told OIG investigators that he had “no idea” where that statement originated, and that he did not “deal with the media.” In addition, he said, “I generally don’t write statements for the VA press secretary…I don’t recall ever sitting there and saying to the press secretary, here is what you should say.” He said, “Maybe they showed it to me. I don’t know.” Mr. Ullyot stated that he did not confirm the accuracy of the statement with VA ethics attorneys involved in the review and approval of the Secretary’s activities, but instead consulted only Mr. Byrne. Mr. Byrne told OIG investigators his ethics team was “upset about the optics, like ethics approved the optics of using taxpayer money to go [to] Europe.” He clarified that in his view, the intent behind the statement was to convey that the ethics counsel had “looked at the components of the trip that were reviewable by ethics.” Mr. Byrne acknowledged that it may have been better if the statement read, “all activities requiring an ethics review were reviewed,” rather than “all activities including Wimbledon were reviewed and approved by ethics counsel.” However, Mr. Byrne stated that he was rushed in his review of the statement before it was released. VA did not issue any subsequent statements to clarify the nature, timing, or extent of the ethics review referenced in the September 29 statement. In a video interview with a Washington Post reporter on November 9, 2017, covering a number of issues, Secretary Shulkin addressed questions about his attendance at Wimbledon. Secretary Shulkin: Well, this is your chance. Ask me any question you want. Reporter: Well, all right. The Wimbledon tickets [Secretary Shulkin interjects, “Yes?”], did you buy those? Secretary Shulkin: Yes, they were privately done, no government money. Reporter: Okay. So they weren’t given to you as a gift by folks at the Invictus Games or anything like that? Secretary Shulkin: No, we went with friends. There was no business connection to that and there was no government money and it was on a Saturday for one match and last VA Office of Inspector General 26 Administrative Investigation—VA Secretary and Delegation Travel to Europe time I heard . . . there’s nothing illegal about going to enjoy a sporting event.56 Secretary Shulkin did not disclose to the reporter that the tickets were a gift from the former CEO of the Invictus Games, who was still affiliated with Invictus in another capacity when they met at Wimbledon. Secretary Shulkin explained to OIG investigators that his response “yes” was an acknowledgement to the reporter that he wished to address the question about the Wimbledon tickets, and that he was not responding to the substance of the reporter’s question (“Did you buy those?”) when he said “yes.” The OIG determined that Secretary Shulkin said “yes” twice in this portion of the reporter’s interview.57 The first instance is consistent with Secretary Shulkin’s explanation. The OIG concluded that VA’s statement to The Washington Post on September 29, 2017, was misleading because it stated that ethics counsel had reviewed “all activities” associated with the Europe trip, which was not accurate. The OIG determined that VA’s release of the misleading statement was caused, in part, by ineffective legal review of the statement by Mr. Byrne. Secretary Shulkin compounded the misconceptions caused by VA’s statement by stating that he paid for the tickets and they were not given by someone affiliated with the Invictus Games. Conclusion  Although the OIG does not assess the value VA gained from the Secretary and his delegation’s three-and-a-half days of meetings in Copenhagen and London at a cost of at least $122,334, the investigation revealed serious derelictions by VA personnel concerning the Europe trip. There were five key findings related to poor judgment and/or misconduct: First, VA Chief of Staff Wright Simpson made false statements and altered a document so that the trip expenses for Dr. Bari would be paid for by VA. The OIG referred this conduct to the US Department of Justice (DOJ) for its consideration; DOJ decided not to pursue criminal prosecution at this time. Second, Secretary Shulkin improperly accepted a gift of two tickets and a grounds pass to the Ladies’ Final tennis match at Wimbledon on July 15, 2017. When the OIG provided ethics counsel with additional information, she determined that the tickets should not 56 The OIG agrees that depending on the facts and circumstances, it may not be necessary to seek ethics review for attendance at routine and/or low-cost sporting events with friends. As discussed throughout, the OIG concluded that the relationship between Ms. Gosling and Dr. Bari and Secretary Shulkin did not satisfy the personal friendship exception provided by 5 C.F.R. § 2635.204(b). 57 The full interview is available for viewing at http://wapo.st/2ztOoyC. VA Office of Inspector General 27 Administrative Investigation—VA Secretary and Delegation Travel to Europe have been accepted as a gift. The OIG separately made the same determination with the benefit of even more information adduced in its investigation. Third, Secretary Shulkin directed a subordinate to devote the use of official time to provide personal travel planning assistance to Secretary Shulkin and Dr. Bari in connection with the nonofficial components of the trip. The personal assistance was extensive and went beyond what was needed to inform security personnel of their movements. Fourth, VA’s documentation was inadequate to allow the OIG to assess the accuracy and appropriateness of the costs to VA for the trip, but the investigators’ analysis revealed discrepancies and potential errors that warrant a closer examination by VA auditors. Finally, in response to press attention regarding Secretary Shulkin’s Europe travel, VA issued an inaccurate statement to the press that “all activities” of the Europe trip were reviewed by ethics counsel. Moreover, in an interview with The Washington Post, Secretary Shulkin incorrectly stated that he purchased the Wimbledon tickets and they were not a gift from anyone associated with the Invictus Games. VA Office of Inspector General 28 Administrative Investigation—VA Secretary and Delegation Travel to Europe Recommendations  Recommendation 1: Secretary Shulkin reimburses the $4,312 paid by VA to cover Dr. Bari’s travel costs.58 Recommendation 2: Secretary Shulkin consults with the Office of General Counsel to determine the value of the Wimbledon tickets; grounds pass; and any food, parking, and other tangible benefits Ms. Gosling provided in connection with Wimbledon and reimburse that amount to her. If Ms. Gosling declines to accept reimbursement, Secretary Shulkin reimburses such amount to the US Treasury. Recommendation 3: The Deputy Secretary of Veterans Affairs confers with the Offices of General Counsel, Human Resources, and Accountability and Whistleblower Protection to determine the appropriate administrative action to take, if any, against Ms. Wright Simpson and any other individuals associated with the Europe trip. Recommendation 4: The Deputy Secretary of Veterans Affairs ensures that a thorough audit is conducted of the expense vouchers, travel authorizations, and the time and attendance records for all travelers on the Europe trip. Any overpayments should be reimbursed to VA by the traveler and any required leave adjustments should be made. Detailed results of the audits, including supporting documentation, shall be provided to the Office of Inspector General no later than thirty days following the publication of this report. Recommendation 5: The Deputy Secretary of Veterans Affairs ensures that the Office of General Counsel (i) reviews and enhances the training provided to staff on travel planning, approvals, and the solicitation or acceptance of gifts; and (ii) provides refresher training on these topics to all travelers on the Europe trip as well as all staff involved in the planning and implementation of the trip. 58 Additional reimbursements may be required as identified by the audit in Recommendation 4. VA Office of Inspector General 29 Appendix A Administrative Investigation—VA Secretary and Delegation Travel to Europe Appendix A    Relevant Laws, Regulations, Standards of Conduct, and VA Policy  False Statements  18 USC § 1001 – Makes it a felony for anyone, in any matter within the jurisdiction of the federal government, who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry. 5 CFR § 735.203 – Prohibits federal government employees from engaging in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Government. Standards of Conduct for Employees of the Executive Branch  5 CFR § 2635.201 – (a) Overview. This subpart contains standards that prohibit an employee from soliciting or accepting any gift from a prohibited source or any gift given because of the employee’s official position, unless the item is excluded from the definition of a gift or falls within one of the exceptions set forth in this subpart. (b) Considerations for declining otherwise permissible gifts. (1) Every employee has a fundamental responsibility to the United States and its citizens to place loyalty to the Constitution, laws, and ethical principles above private gain. An employee’s actions should promote the public’s trust that this responsibility is being met. For this reason, employees should consider declining otherwise permissible gifts if they believe that a reasonable person with knowledge of the relevant facts would question the employee’s integrity or impartiality as a result of accepting the gift. (2) An employee who is considering whether acceptance of a gift would lead a reasonable person with knowledge of the relevant facts to question his or her integrity or impartiality may consider, among other VA Office of Inspector General 30 Appendix A Administrative Investigation—VA Secretary and Delegation Travel to Europe relevant factors, whether: (i) The gift has a high market value; (ii) The timing of the gift creates the appearance that the donor is seeking to influence an official action; (iii) The gift was provided by a person who has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties; and (iv) Acceptance of the gift would provide the donor with significantly disproportionate access. * * * (4) Employees who have questions regarding this subpart … should seek advice from an agency ethics official. 5 CFR § 2635.202 – (a) Except as provided in this [regulation], an employee shall not, directly or indirectly, solicit or accept a gift: (1) From a prohibited source; (2) Given because of the employee’s official position. 5 CFR § 2635.204(b) – An employee may accept a gift given under circumstances which make it clear that the gift is motivated by a family relationship or personal friendship rather than the position of the employee. Relevant factors in making such a determination include the history of the relationship and whether the family member or friend personally pays for the gift. Example 3 to paragraph (b): A Peace Corps employee enjoys using a social media site on the internet in his personal capacity outside of work. He has used the site to keep in touch with friends, neighbors, coworkers, professional contacts, and other individuals he has met over the years through both work and personal activities. One of these individuals works for a contractor that provides language services to the Peace Corps. The employee was acting in his official capacity when he met the individual at a meeting to discuss a matter related to the contract between their respective employers. Thereafter, the two communicated occasionally regarding contract matters. They later also granted one another access to join their social media networks through their respective social media accounts. However, they did not communicate further in their personal capacities, carry on extensive personal interactions, or meet socially outside of work. One day, the individual, whose employer continues to serve as a Peace VA Office of Inspector General 31 Appendix A Administrative Investigation—VA Secretary and Delegation Travel to Europe Corps contractor, contacts the employee to offer him a pair of concert tickets worth $30 apiece. Although the employee and the individual are connected through social media, the circumstances do not demonstrate that the gift was clearly motivated by a personal relationship, rather than the position of the employee, and therefore the employee may not accept the gift pursuant to paragraph (b) of this section. 5 CFR § 2635.702 – An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations. 5 CFR § 2635.704 – An employee has a duty to protect and conserve Government property and shall not use such property, or allow its use, for other than authorized purposes. 5 CFR § 2635.705 – (a) Unless authorized in accordance with law or regulations to use such time for other purposes, an employee shall use official time in an honest effort to perform official duties. An employee not under a leave system, including a Presidential appointee exempted under 5 U.S.C. 6301(2), has an obligation to expend an honest effort and a reasonable portion of his time in the performance of official duties; (b) An employee shall not encourage, direct, coerce, or request a subordinate to use official time to perform activities other than those required in the performance of official duties or authorized in accordance with law or regulation. Office of Government Ethics (OGE) – OGE Letter, March 21, 2006. A letter sent by OGE in response to a request for an advisory opinion stated, in part, under the section titled “Legal Authority”: The Standards of Conduct ban an employee’s receipt of gifts given by prohibited sources or because of one’s official position…. Gifts clearly motivated by a family relationship or private friendship, however, are excluded from this prohibition…. An employee may not use this exception to solicit or coerce the offering of a gift…. Where a personal relationship VA Office of Inspector General 32 Appendix A Administrative Investigation—VA Secretary and Delegation Travel to Europe develops from an on-going work relationship, it can be very difficult to clearly establish that the gift is not being given because of the employee’s official position…. Therefore, an employee bears a considerable burden in establishing that a gift is based on a personal relationship rather than the employee’s Government position…. Factors indicating a personal relationship include the length of time of the relationship, the intimacy of the relationship including any family interaction, the nature of personal activities outside the work context, and the frequency of outside contacts. VA Designated Agency Ethics Official – Memorandum to All VA Employees, issued by Tammy Kennedy on February 23, 2017, stated, 1. Effective January 1, 2017, the U.S. Office of Government Ethics (OGE) amended the Standards of Ethical Conduct for Employees of the Executive Branch (the Standards) regulations with regards to gifts. The most significant revision affects the process for how we as Federal employees are to review gifts from sources outside of the Federal Government to determine if we may accept the gift. OGE has added a values-based element to the process, concerned that employees may not sufficiently analyze appearance issues and instead may focus exclusively on whether a gift can be accepted under a regulatory gift exception. 2. The standards now require that when offered a gift from someone outside the Government the employee must make a preliminary determination of whether the employee should accept the gift. Specifically, the employee is asked to consider whether a reasonable person with knowledge of the relevant facts would question the employee’s impartiality or integrity, or the impartiality or integrity of VA’s programs and operations, as a result of accepting the gift. 3. In making this preliminary determination, the employee must consider four factors: value, timing, identification of donor, and access to employees of the Department. Does the offered gift have a high market value? Does the timing of the gift create the appearance that the donor is seeking to influence an official action? Does the donor have interests that may be substantially affected by the performance or nonperformance of the employee’s official duties? Would acceptance of the gift provide the donor with significantly disproportionate access to VA or VA employees? 4. After taking these factors into consideration if the employee believes that a reasonable person would question the employee’s integrity or impartiality or the integrity or impartiality of VA programs or operations, then the employee should not accept the gift. Only if the employee believes that the employee’s or VA’s integrity will not be questioned should the employee then move on to the question of whether acceptance of the gift is legal. VA Office of Inspector General 33 Appendix A Administrative Investigation—VA Secretary and Delegation Travel to Europe VA’s Ethics Specialty Team can assist with this preliminary determination as well as the subsequent question of the legality of acceptance. 5. Should you have any questions, the contact information for [the Ethics Specialty Team] is attached. Federal Travel Regulations and VA Travel Policy  41 CFR § 300-3.1 – Defines invitational travel as Authorized travel of individuals either not employed or employed (under 5 U.S.C. § 5703) intermittently in the Government service… when they are acting in a capacity that is directly related to, or in connection with, official activities of the Government. Travel allowances authorized for such persons are the same as those normally authorized for employees in connection with TDY. VA Travel Administration, Volume XIV, Chapter 1, Section 010202, February 2017 – Subsection (B)(1) Invitational travel involves VA paying for the travel of a non-Federal employee, a Federal employee traveling in a non-duty status, or consultants (not under an agreement or contract with VA).… Invitational travelers are not considered to have an “official permanent duty station” within the general meaning of that term. However, these individuals may be allowed travel and transportation expenses while traveling on official business for the Government away from their home or regular place of business and while at the place of employment or service for the Government. 41 CFR §§ 301-2.2, 301-2.3, 301-2.4 – (301-2.2) [an] agency may pay only those expenses essential to the transaction of official business…. (301-2.3) [an employee] must exercise the same care in incurring expenses that a prudent person would exercise if traveling on personal business. (301-2.4) [the] agency will not pay for excess costs resulting from circuitous routes, delays, luxury accommodations or services unnecessary or unjustified in the performance of official business. 41 CFR § 301-11.21 – (a) In general, [an employee] will be reimbursed as long as [the employee’s] travel status requires [their] stay to include a non-workday, (e.g., if [the employee is] on travel through Friday and again starting VA Office of Inspector General 34 Appendix A Administrative Investigation—VA Secretary and Delegation Travel to Europe Monday [they] will be reimbursed for Saturday and Sunday), however, [the] agency should determine the most cost effective situation (i.e., remaining in a travel status and paying per diem or actual expenses or permitting [the employee to] return to [their] official station). (b) [The employee’s] agency will determine whether [the employee] will be reimbursed for non-workdays when [they] take leave immediately (e.g., Friday or Monday) before or after the non-workday(s). VA Travel Administration, Volume XIV, Chapter 1, Appendix E, May 2013, sets forth specific procedures to be followed when combining personal and official travel. Section B(2) of Appendix E instructs employees to “use a Travel Cost Comparison Worksheet to compare official travel to official/personal travel.” The worksheet is then “reviewed as the cost comparison by [the] approving official.” Federal Regulations and VA Policy for Electronic Mail Records  36 CFR § 1234.34 – Electronic records may be destroyed only in accordance with a records disposition schedule approved by the Archivist of the United States, including General Records Schedules. VA Directive 6301, Procedures for Handling Electronic Mail Records – (2)(a) All Government employees and contractors are required by law to make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency. In addition, Federal regulations govern the life cycle of these records: they must be properly stored, preserved, and available for retrieval, and may be disposed of only in accordance with authorized records control schedules. * * * (3)(b) Users of VA electronic mail systems will not alter or improperly dispose of any electronic mail message, record of transmission and receipt date, or attachment (such as a document) which meets the definition of a Federal record received or created on these systems. VA Handbook 6301, Electronic Mail Records – (2)(f) All VA employees are subject to the provisions of 36 CFR … as it pertains to electronic mail. VA Office of Inspector General 35 Appendix A Administrative Investigation—VA Secretary and Delegation Travel to Europe (2)(g) Electronic mail messages are records when they are made by VA under Federal law or in connection with public business; and are preserved or are appropriate for preservation as evidence of organization, functions, policies, decisions, procedures, operations, or other activities of the Government, or because of the information value of the data in them. (2)(h) Prior to deletion of an electronic mail message, independent consideration will be made by the sender and the person who receives the electronic mail message whether or not it meets the definition of a Federal record. If so, then the message, along with essential transmission and receipt data must be preserved for each electronic mail record in order for the context of the message to be understood. VA Office of Inspector General 36 Appendix B Administrative Investigation—VA Secretary and Delegation Travel to Europe Appendix B     Excerpted Itinerary from Official Trip Book59   59 OIG did not verify each scheduled activity in order to determine whether there were any deviations from the planned itinerary. VA Office of Inspector General 37 Appendix B Administrative Investigation—VA Secretary and Delegation Travel to Europe VA Office of Inspector General 38 Appendix B Administrative Investigation—VA Secretary and Delegation Travel to Europe VA Office of Inspector General 39 Appendix B Administrative Investigation—VA Secretary and Delegation Travel to Europe VA Office of Inspector General 40 Appendix B Administrative Investigation—VA Secretary and Delegation Travel to Europe VA Office of Inspector General 41 Appendix B Administrative Investigation—VA Secretary and Delegation Travel to Europe VA Office of Inspector General 42 Appendix B Administrative Investigation—VA Secretary and Delegation Travel to Europe VA Office of Inspector General 43 Appendix B Administrative Investigation—VA Secretary and Delegation Travel to Europe VA Office of Inspector General 44 Appendix B Administrative Investigation—VA Secretary and Delegation Travel to Europe VA Office of Inspector General 45 Appendix B Administrative Investigation—VA Secretary and Delegation Travel to Europe VA Office of Inspector General 46 Appendix B Administrative Investigation—VA Secretary and Delegation Travel to Europe VA Office of Inspector General 47 Appendix C Administrative Investigation—VA Secretary and Delegation Travel to Europe Appendix C    Comments  The Office of Inspector General received two written responses from the VA Secretary and one from the VA Deputy Secretary, which are appended in full to this report as Appendices D, E, and F, respectively. The following comments were submitted by VA, through the Deputy Secretary, in response to the recommendations in the Office of Inspector General’s Report: Recommendation 1: Secretary Shulkin reimburses the $4,312 paid by VA to cover Dr. Bari’s travel costs. Comments: The Secretary does not agree with the OIG conclusions of fact and law relating to this recommendation as presented in the OIG report, however he will consult with the Office of General Counsel and if it is determined that he should reimburse the Department for any part of Dr. Bari's travel costs he will do so. Recommendation 2: Secretary Shulkin consults with the Office of General Counsel to determine the value of the Wimbledon tickets; grounds pass; and any food, parking, and other tangible benefits Ms. Gosling provided in connection with Wimbledon and reimburse that amount to her. If Ms. Gosling declines to accept reimbursement, Secretary Shulkin reimburses such amount to the US Treasury. Comments: The Secretary does not agree with the OIG conclusions of fact and law relating to this recommendation, however, he will consult with the Office of General Counsel and if it is determined that he should reimburse Ms. Gosling for any aspect of his attendance at Wimbledon, he will do so. (If Ms. Gosling declines to accept reimbursement, the Secretary will reimburse such amount to the U.S. Treasury.) Recommendation 3: The Deputy Secretary of Veterans Affairs confers with the Offices of General Counsel, Human Resources, and Accountability and Whistleblower Protection to determine the appropriate administrative action to take, if any, against Ms. Wright Simpson and any other individuals associated with the Europe trip. VA Office of Inspector General 48 Appendix C Administrative Investigation—VA Secretary and Delegation Travel to Europe Comments: The Department has been inappropriately compelled and had an inadequate opportunity to review and respond to the Inspector General's report and the evidence that accompanied it. When the Department has completed its review the Deputy Secretary will in inform OIG as to whether it will accept this recommendation. Recommendation 4: The Deputy Secretary of Veterans Affairs ensures that a thorough audit is conducted of the expense vouchers, travel authorizations, and the time and attendance records for all travelers on the Europe trip. Any overpayments should be reimbursed to VA by the traveler and any required leave adjustments should be made. Detailed results of the audits, including supporting documentation, shall be provided to the Office of Inspector General no later than thirty days following the publication of this report. Comments: The Department has been inappropriately compelled and had an inadequate opportunity to review and respond to the Inspector General's report and the evidence that accompanied it. When the Department has completed its review the Deputy Secretary will in inform OIG as to whether it will accept this recommendation. Recommendation 5: The Deputy Secretary of Veterans Affairs ensures that the Office of General Counsel (i) reviews and enhances the training provided to staff on travel planning, approvals, and the solicitation or acceptance of gifts; and (ii) provides refresher training on these topics to all travelers on the Europe trip as well as all staff involved in the planning and implementation of the trip. Comments: The Department has been inappropriately compelled and had an inadequate opportunity to review and respond to the Inspector General's report and the evidence that accompanied it. When the Department has completed its review the Deputy Secretary will in inform OIG as to whether it will accept this recommendation. VA Office of Inspector General 49 Appendix D Administrative Investigation—VA Secretary and Delegation Travel to Europe Appendix D     February 11, 2018, Response of the VA Secretary   VA Office of Inspector General 50 Justin V. Shur Molo Lamken LLP 600 New Hampshire Avenue, N.W. Washington, D.C. 20037 T: 202.556.2005 F: 202.536.2015 jshur@mololamken.com www.mololamken.com February 11, 2018 By Email The Honorable Michael J. Missal Inspector General Department of Veterans Affairs 801 I Street, N.W. Washington, D.C. 20001 Re: Response to Administrative Investigation Draft Report: VA Secretary and Delegation Travel to Europe Dear Mr. Missal: We write in connection with your February 7, 2018 Draft Report concerning your Office’s investigation into the VA Secretary’s official travel to Europe in July 2017. While we appreciate the important role of the Inspector General in protecting against fraud, waste, and abuse, we have grave concerns about your draft report. When you appeared before the House Appropriations Subcommittee on Military Construction, Veterans Affairs, and Related Agencies, you explained that VA OIG reports “must be accurate,” “must be fair,” and “must be objective.” This report is none of those things.1 The draft report cannot be published in its current form. It ignores critical facts, presenting a one-sided version of events that casts aside evidence contradicting your chosen narrative. It improperly applies the relevant regulations, at times mischaracterizing them. And it imposes subjective and arbitrary criteria for evaluating the propriety of the Secretary’s actions. Examples of our specific concerns are discussed further below. 1 We understand information contained in this report has been leaked to USA Today. We are deeply troubled by this development. As you know, the report and its contents cannot be disclosed to anyone other than in connection with official review and comment. We trust that you will refer this serious breach of confidentiality to the Council of the Inspectors General on Integrity and Efficiency (“CIGIE”) for investigation by an independent Inspector General. 51 The Hon. Michael Missal I. -2- February 11, 2018 The Trip Was Immensely Valuable to the VA As an initial matter, the report states that you were unable to determine the value of the trip to the VA. Draft Rpt. 19. Determining the value of the trip is, of course, outside your area of competence and expertise. It is the Secretary who is responsible for the care of the more than 20 million veterans in America. It is part of his job to continually learn about and actively participate in the developing issues facing veterans. As the Secretary explained in his voluntary interview, the trip was immensely valuable to his work and the VA’s mission. The Secretary was able to participate in hours of substantive meetings during his visit to Copenhagen, meeting with the Danish Ministry of Health to discuss the Danish healthcare system; participating in a roundtable discussion to discuss strategies for solutions to the population of aging veterans; and taking part in a question-and-answer session with the Danish Minister of Defense regarding veterans’ policies. Likewise, the Five Eyes Ministerial Summit on Veterans’ Affairs in London—which has regularly been attended by past VA Secretaries— was valuable given the Summit’s focus on mental health issues facing veterans. Thus, it is obvious that the trip qualified as “essential” travel as described in the Secretary’s June 29, 2017 Memorandum. To suggest that the Secretary’s participation in these conferences may not have been sufficiently valuable demonstrates a fundamental lack of understanding of the Secretary’s work and the VA’s mission. Secretary Shulkin did nothing wrong in traveling to Europe to meet with, and learn from, America’s allies. Attending the conferences in Copenhagen and London was a valuable opportunity to strengthen the bond among allied countries whose retired soldiers are facing the same struggles as American veterans, and to engage in an idea and information exchange that will only improve veteran care on both sides of the Atlantic. II. Secretary Shulkin Did Not Improperly Accept Wimbledon Tickets Your report notes that Secretary Shulkin, his wife, and his son attended Wimbledon as the guests of Victoria Gosling and her husband. They did so on the intervening Saturday between the meetings in Copenhagen and London. You suggest that the Secretary’s acceptance of those tickets violated the federal gift regulations. Your analysis is highly flawed, both factually and legally. Most troubling is your repeated failure to disclose evidence that reveals the Secretary did nothing improper.2 Ultimately, the Secretary violated no ethical regulations in accepting the tickets. That conclusion is supported by the attached expert declaration of Andrew D. Herman. A. The Tickets Were Not a Prohibited Gift The federal gift regulations only prohibit government employees from accepting a gift from a “prohibited source”—someone who “[d]oes business or seeks to do business with the 2 See Council for the Inspectors General on Integrity and Efficiency, Quality Standards for Investigations 14 (Nov. 15, 2011) (“CIGIE Quality Standards”) (requiring that IG reports contain “exculpatory evidence and relevant mitigating information”). 52 The Hon. Michael Missal -3- February 11, 2018 employee’s agency”—or from someone who gave the gift because of the employee’s official position. See 5 C.F.R. §§ 2635.201(a), 2635.202(b), 2635.203(d). Ms. Gosling is neither. Herman Decl. 19, 21. She made clear that she offered the Wimbledon tickets to the Secretary out of friendship and not because of his official position. See, e.g., Gosling Decl. ¶¶ 14-15. Indeed, your office recognized that Ms. Gosling’s statements during her interview “reflect [a] genuine friendliness and good will toward Secretary Shulkin and Dr. Bari.” Draft Rpt. 14. Ms. Gosling, moreover, made clear that she would have offered the tickets to the Secretary even if he were not a government official. Gosling Decl. ¶ 15. Ms. Gosling also is not a prohibited source. See Herman Decl. ¶ 19; 5 C.F.R. § 2635.203(d). You state that Sage Group—for whose charitable affiliate Ms. Gosling apparently works—holds contracts with various federal agencies. Your report does not mention, however, that the VA is not among them. Ms. Gosling did not do business with the VA, and she was not seeking to do business with the VA. Gosling Decl. ¶ 2. Neither did any employer of Ms. Gosling’s. Id.3 Notably, your report makes no finding to the contrary.4 Nonetheless, you state that the “prohibited source” requirement “would be another basis for the gift of the Wimbledon tickets to be improper.” Draft Rpt. 16. That is wrong for two reasons. First, you make no finding that Ms. Gosling was a prohibited source. Herman Decl. ¶ 16. Second, your approach turns the proper legal analysis on its head. The conclusion that Ms. Gosling is a prohibited source is not “another basis” for finding the gift improper; it is, in fact, a threshold question. Id. ¶ 22. Your analysis fails at that threshold. Because federal employees are prohibited only from accepting gifts from prohibited sources or gifts given because of their official position, and because you have not established that either occurred here, that should have been the beginning and the end of your analysis. Herman Decl. ¶ 22. B. Section 2635.201(b) Does Not Prohibit Acceptance of the Tickets Having failed to show that Secretary Shulkin was prohibited from accepting the tickets, you nonetheless insist that he acted improperly under 5 C.F.R. § 2635.201(b) because acceptance of the tickets would lead “a reasonable person [to] question [his] integrity or impartiality.” Draft 3 Your report states that Sage Foundation “has sought support from VA officials for its philanthropic initiatives supporting veterans,” and identifies as the support an instance where then-Acting Deputy Secretary Scott Blackburn posed for a photo at a mental health event sponsored by Sage Foundation. Draft Rpt. 9 n.20. You do not appear to have interviewed Mr. Blackburn or to have asked him about this event. Had you done so, you would have learned from Mr. Blackburn that the VA offered no financial support to Sage Foundation for that event. 4 However, you state—without identifying any supporting evidence—that “[b]y virtue of her business relationships, . . . Ms. Gosling may also meet the definition of a ‘prohibited source.’ ” Draft Rpt. 16 (emphasis added). That sort of innuendo—unsupported by any reasoned analysis and evidence, and falling well short of an affirmative finding— has no place in an objective, impartial, and unbiased report. Indeed, CIGIE’s Quality Standards caution that “conjecture [or] unsubstantiated opinion” should play no role in an investigative report. Your prohibited source analysis cannot be reconciled with that admonition. If your investigation could not substantiate the allegation that Ms. Gosling was a prohibited source, your report should say so. It should not assert without any factual basis that Ms. Gosling “may” have been one. 53 The Hon. Michael Missal -4- February 11, 2018 Rpt. 15; see also 5 C.F.R. § 2635.201. You neglect to mention, however, that § 2635.201(b) is a “non-binding standard,”5 that applies only to the acceptance of “an otherwise permissible gift[ ],” 5 C.F.R. § 2635.201(b) (emphasis added). Herman Decl. ¶¶ 24-25. Your suggestion that this hortatory regulation applies thus admits that the Secretary was legally entitled to accept the tickets. Moreover, your office is without authority to opine on the applicability of § 2635.201(b). As the Office of Government Ethics (“OGE”) has explained, “[§ 2635.201(b)] does not change the fact that the determination as to whether a legally permissible gift should be accepted is the employee’s to make.” 81 Fed. Reg. at 81,642. (emphasis added); see also Herman Decl. ¶¶ 2, 5. Your report’s failure to disclose any of this simply underscores its lack of objectivity and its bias. Regardless, § 2635.201(b) does not apply here. You accurately identify the four factors relevant to an analysis under that provision, but you provide no meaningful analysis of how those factors apply here. Draft Rpt. 15. Indeed, you discuss only one of those four factors—the value of the gift. The Wimbledon tickets were no doubt valuable, but not as valuable as you say. Your report improperly relies upon the value of the tickets on the secondary market to suggest that the tickets were worth thousands more than their actual value. See Herman Decl. 28-29. In particular, you note that the “lowest asking price” for tickets to the 2018 Ladies’ Finals at Wimbledon on unspecified “commercial websites” was £1,205.00 (approximately $1,760), and you suggest that the cost of attending the 2017 match would have been comparable. Draft Rpt. 9 n.19.6 But the face value of the tickets that Secretary Shulkin and his wife received was £155 each, and the ticket for their son cost £34.7 The exchange rate for U.S. dollars to pounds sterling on July 15, 2017 was 1.3. Thus, the total value of the tickets that Ms. Gosling provided was approximately $450—well below the $3,500 value suggested in your report. Moreover, the other factors—the one’s you do not discuss—weigh heavily in the Secretary’s favor. See Herman Decl. ¶¶ 30-32. For example, nothing about “the timing of the gift creates the appearance that the donor is seeking to influence an official action.” 5 C.F.R. § 2635.201(b)(2)(ii); Herman Decl. ¶ 30. You identify no official action whatsoever that Ms. Gosling’s gift was intended to influence. Nor do you assert that Ms. Gosling is “a person who has interests that may be substantially affected by the performance or nonperformance of ” the 5 Standards of Ethical Conduct for Employees of the Executive Branch; Amendment to the Standards Governing Solicitation and Acceptance of Gifts from Outside Sources, 81 Fed. Reg. 81,641, 81,641 (Nov. 18, 2016) (emphasis added). 6 Stating that you were “not able to determine the availability and cost of 2017 Wimbledon tickets on commercial websites after the tournament concluded,” you instead rely on the secondary market value of tickets to the 2018 Wimbledon tournament. However, you could have determined this information simply by accessing Wimbledon’s website, which when accessed two days ago still listed 2017 ticket prices. See Tickets and Ticket Prices, 2017 Tickets, https://www.wimbledon.com/en_GB/atoz/tickets_and_ticket_prices.html (last accessed Feb. 9, 2018). 7 OGE has made clear that the value of ticketed events is the face value of the ticket, not any inflated value the tickets may have on the secondary market. See Legal Advisory to Designated Agency Ethics Officials Presidential Inaugural Events, OGE Informal Advisory Letter LA-16-11, 2016 WL 7404631, at *1 (Dec. 20, 2016); Standards of Ethical Conduct for Employees of the Executive Branch, 57 Fed. Reg. 35,006-01 (Aug. 7, 1992) (rejecting argument that tickets be valued at higher than face value). 54 The Hon. Michael Missal - 5 - February 11, 2018 Secretary’s official duties. 5 C.F.R. § 2635.201(b)(2)(iii); Herman Decl. ¶¶ 20-21, 31. And nothing about the tickets provided Ms. Gosling with “significantly disproportionate access.” 5 C.F.R. § 2635.201(b)(2)(iv); Herman Decl. ¶ 32. In short, while you emphasize that all four factors “must [be] consider[ed],” Draft Rpt. 15 n.29, you in fact only consider one—the value of the gift, making that factor outcome-determinative. If OGE intended that to be the analysis, it would simply have prohibited federal employees from accepting gifts over a certain value. Ultimately, you have no authority to second-guess an employee’s decision to not decline a permissible gift under the non-binding and hortatory standard of § 2635.201(b). In any event, your insufficient analysis involving one of the four appropriate factors simply underscores that § 2635.201(b) did not counsel rejection of the gift here. C. The Personal Friendship Exception Is Irrelevant Your conclusion that the Secretary should not have accepted the Wimbledon tickets is based on the “personal friendship” exception under the gift rules. But that exception is only relevant if the tickets were a prohibited gift (e.g., if Ms. Gosling was a “prohibited source”). As discussed above, the tickets were not a prohibited gift and thus the personal friendship exception is irrelevant. Herman Decl. ¶ 22. In any event, your application of the personal friendship exception, though legally irrelevant, is deeply flawed. And, most problematically, it rests largely on evidence and testimony that was procured through your investigator’s misconduct and improper questioning. 1. The Personal Friendship Exception Would Justify Acceptance of the Tickets You have concluded that the personal friendship exception does not permit acceptance of the tickets because, in your view, Ms. Gosling and the Secretary’s wife are not in sufficiently close contact—that they did not email or text frequently enough to meet your standard of friendship. Draft Rpt. 13-15. The “closeness” of the friendship is not the standard. Rather, the exception applies so long as the gift is given “under circumstances which make it clear that the gift is motivated by a . . . personal friendship.” 5 C.F.R. § 2635.204(b) (emphasis added). The exception is not limited to situations where the friends are “close.” So long as the gift is motivated by the friendship—whatever the strength of the bond—the exception applies. Here, it is clear that Ms. Gosling’s gift of the Wimbledon tickets was motivated by her personal relationship with Dr. Bari and the Secretary. Ms. Gosling told you that herself when you interviewed her. As she explained, “I enjoy [the Secretary’s] company. I enjoy his wife’s company. . . . I really got on very well with his wife.” Draft Rpt. 16. And Ms. Gosling reiterated those sentiments in her declaration. Gosling Decl. ¶¶ 3-5, 7, 9, 13-14. The Secretary, moreover, explained during his interview that Ms. Gosling and his wife were friends. And you do not dispute that Dr. Bari and Ms. Gosling were friendly on three separate occasions when Ms. Gosling had traveled to the United States: at events hosted by the British Embassy, the Invictus Games, and the Canadian Embassy. Id. ¶¶ 3-5, 7; Draft Rpt. 9. At these events, Ms. Gosling and 55 The Hon. Michael Missal -6- February 11, 2018 Dr. Bari chatted and enjoyed each other’s company in a purely social context. Id. 8 (It was the Secretary—not his wife—who attended these functions as a government official and who had official duties to perform.) You also decry what you perceive to be the lack of emails, text messages, and phone records between Dr. Bari and Ms. Gosling, as if the quality of a friendship can be measured in emojis. But you wholly ignore the substance of the communications that you did receive: Those are not the communications of business associates with a purely professional relationship. Indeed, few co-workers sign their emails with “kisses.”9 Your failure to reveal the substance of this text exchange in your report and acknowledge that it supports a showing of friendship between Ms. Gosling and Dr. Bari simply underscores that your office did not approach this investigation in an objective and unbiased manner.10 8 You characterize these interactions as “brief [ ].” Draft Rpt. 13. That is pure conjecture. You cite no evidence and invoke no testimony establishing the length of Ms. Gosling’s and Dr. Bari’s interactions, and your finding on this point is highly improper. See CIGIE Quality Standards, at 11. Ms. Gosling, moreover, described the interactions differently, saying that she spoke with Dr. Bari at length during these events. Gosling Decl. ¶ 7. 9 See Nadine Epstein, A Whole Lot of History Behind ‘X’ and ‘O,’ Kiss and Hug, The Wash. Post (Feb. 13, 2014), https://www.washingtonpost.com/lifestyle/style/a-whole-lot-of-history-behind-x-and-o-kiss-and-hug/2014/02/ 13/0c3e218a-9341-11e3-b46a-5a3d0d2130da_story.html?utm_term=.c852bb1171e3. 10 Your report also fails to acknowledge that the Secretary repeatedly offered—both before Wimbledon and after— to pay Ms. Gosling for the tickets. Instead, you suggest that the Secretary only offered to pay for the tickets after The Washington Post inquired about them. But you ignore the Secretary’s testimony—and supporting email—that he repeatedly offered to pay Ms. Gosling for the tickets prior to that. For example, on July 4, 2017, the Secretary wrote Ms. Gosling, “Yes it would be great to be able to use your sister’s tickets . . . just let me know how much I 56 The Hon. Michael Missal - 7 - February 11, 2018 You similarly fail to acknowledge that Ms. Gosling’s own statements “corroborate the purported closeness of the relationship over several years.” Ms. Gosling told you—twice—about her friendship with Dr. Bari and the Secretary. Indeed, you admit that Ms. Gosling’s statements “reflect genuine friendliness and good will” toward the Secretary and his wife. Draft Rpt. 14; see also Gosling Decl. ¶¶ 3-5, 7, 9, 13-14. If that is not corroboration, nothing is. Finally, you suggest that an example in the rule establishing the personal friendship exception supports your conclusion that the exception does not apply to the Wimbledon tickets. However, you misrepresent the example. According to your account, the example involves a government employee who met an individual at an official meeting. The two thereafter “communicated occasionally.” Draft Rpt. 15. That is not accurate. The example actually states that the “two communicated occasionally regarding contract matters” and “did not communicate further in their personal capacities, carry on extensive personal interactions, or meet socially outside of work.” 5 C.F.R. § 2635.204(b) (emphasis added). That makes all the difference: The example makes clear that, aside from connecting on social media, all interactions between the two individuals were work-related. That does not describe the relationship between the Secretary’s wife and Ms. Gosling. To the contrary, Dr. Bari and Ms. Gosling did communicate in their personal capacities, did have personal interactions, and did meet socially. That Dr. Bari and Ms. Gosling met at events attended by the Secretary as a government official does not make the interactions between Dr. Bari and Ms. Gosling any less social. Indeed, their topics of conversation related to tennis and other personal matters, not having anything to do with business. Gosling Decl. ¶¶ 3-5, 7. 2. Your Report Relies on Evidence Adduced Through Investigative Misconduct Most problematic about your personal friendship analysis, however, is the extent to which you rely on evidence gathered through highly improper, highly suggestive, and highly unreliable questioning techniques. Your report acknowledges that, after the trip, Ethics Counsel reviewed the Secretary’s acceptance of the Wimbledon tickets and determined acceptance of the gift was proper.11 You now dismiss the opinion that Ethics Counsel rendered. According to your report, Ethics Counsel has now reversed that opinion based on “additional information” that your investigators provided her. Because it is unclear from your report what additional information you provided to Ethics Counsel, we requested a copy of the transcript of your interview of her. The portion of the transcript we received clearly reveals the questioning that yielded the “revised opinion” was highly improper and highly suggestive. It involved long narrative expositions from owe you.” Your report makes no mention of this correspondence. And if your investigators asked Ms. Gosling whether the Secretary ever offered to pay for the tickets, her response is not mentioned in your report. 11 Your report appears critical of the fact that Ethics Counsel did not review acceptance of the Wimbledon tickets until after the trip. See Draft Rpt. v, 11-13 & n.25. During Secretary Shulkin’s interview, however, your office commended the Secretary for seeking out such review: A representative of your office told the Secretary that he “appreciate[d] the fact that” Secretary Shulkin “initiated that” ethics review. “That was good,” he said. 57 The Hon. Michael Missal - 8 - February 11, 2018 not only describing evidence for the witness, but also providing own conclusions about what the evidence meant and how, in his View, it demonstrated the impropriety of the Secretary?s actions. For example, after showing Ethics ormsel an email from the Secretary to Ms. Gosling, in which the Secretary referred to ?my wife? and ?my son,? said: I mean, in my world as an investigator, I pick up on nuances like that, that?s what I?m trained to do?to, to kind of get to where I need to go. And, um, that was a clear indicator to me that the relationship that [the Secretary] described between his wife and Vicky Gosling, uh, was much different here in this June 25th email than it was in the September 28th email. He?s referring to her, you know, as my wife, when if they?re good friends, he, he should?he would?ve said Merle. I mean that?s just?that?s just the?that?s very common, and it?s almost beyond reasonable doubt, 99 percent of the time, people would say if, if they were that good of friends, as he described here, they?re going to?he?s going to say Merle. He?s not going to say my wife. And that?s, again, it?s, it?s, it?s not the end-all, the be-all. You know, it?s not the whole?it?s not like, okay, that, that proves something. Uh, it just?it, it, it?s, it?s very, very telling. Well, a husband referring to his wife in that sense very signi?cant and is very telling because it?s, it?s out of place. It just?it?s, it?s, 11h? it?s very?it, it tells you?it tells me, a trained investigator, that there?s something wrong with the relationship. Now, it may not be?it may not be long?a long term problem, but it could be that they had a ?ght that morning, (laughter), or there?s some riff, there?s something going on there. We also see it when?where he?s [the Secretary] talking about in the third party sense where he?s, you know?he can?t?he can?t tell Vicky Gosling the name of his wife because really, they?re not friends. And that?s the idea behind, behind how, how we look at that. Again, it?s not totality proof or anything, it?s just in, in the big context of things. Unsurprisingly, when next asked Ethics Counsel if that email changed her opinion, she responded that it did. improper questioning continued. For over 1 teen pages of transcript from Ethics Counsel?s interview (pp. 86:17 through 101 13), described in great depth the evidence and information that he believed demonstrated that the Secretary had acted improperly. He provided the witness with his own conclusions from that evidence. And perhaps most troubling, downplays and dismisses evidence that favors the Secretary. As demonstrated by the transcript, questioning runs far afield of Quality Standards for Investigations, which admonish investigators that ?[e]vidence must be gathered . . . in an rmbiased and independent marmer.? CIGIE Quality Standards, at 8. Indeed, 58 The Hon. Michael Missal - 9 - February 11, 2018 authorities across the country have recognized that suggestive questioning such as that employed by is not only improper, but uniquely unsuited for uncovering the truth. Experts in this area have found that questions where an interviewer rovides his own opinion are particularly inappropriate and should be avoided.12 Given employed these improper techniques when questioning Ethics Counsel, her responses simply cannot be trusted. They carry little weight, if any at all. While went to great to describe and characterize for Ethics Counsel evidence that he believed showed the Secretary acted improperly, neglected to provide Ethics ormsel with additional information that supported the Secretary?s acceptance of the gift. apparently did not provide Ethics Counsel with the text message exchange between Dr. Bari and Ms. Gosling, or Ms. Gosling?s statements that ?[Secretary Shulkin] and his wife are friends of urine,? or with yoru? own finding that Ms. Gosling exhibited ?genuine friendliness? toward the Secretary and his wife when you interviewed her. Draft Rpt. 14. - also did not ask Ethics Counsel to opine on whether Ms. Gosling was a prohibited source. Nor did he ask Ethics ormsel to balance the four ?2635.201(b) factors. These facts and issues are all critical to the ethics analysis and all support the Secretary?s acceptance of the tickets, yet does not appear to have given Ethics Counsel an opportunity to consider them. More concerning, however, is what the conduct of sa 5 about the bias and objectivity of your investi ation more broadly. Notably, interview of Ethics Counsel occrured before interview of Secretary Shulkin. Given the opinions and conclusions ex ressed by during his interview of Ethics Counsel, it is hard to see how i could have approached the Secretary?s interview with an open mind or how he could have ?not allow[ed] . . . personal observations or conclusions to affect? his interrogation of Secretary Shulkin. as the IGIE Quality Standards require. Likewise, his statements in Ethics Counsel?s interview demonstrate that he could not have given objective consideration to the information the Secretary provided dru?ing the interview. Indeed, that lack of objective consideration is apparent from the face of yoru' report, which repeatedly demands external corroboration of any information provided by the Secretary?even in the absence of any reason to distrust what the Secretary has said?but accepts as gospel the testimony of other individuals that interviewed. As you know, when we left Secretary Shulkin?s interview, we were seriously troubled by the conduct of - who led the questioning. We raised these concerns in a letter to our ormselor, Christopher Wilber. Oru' review of excerpts from the transcript of interview of Ethics Counsel has only ampli?ed our concerns and calls into question the credibility and validity of all other testimony quoted in your draft report. We re uest the entire transcripts of all interviews conducted in this investigation. If or other investigators, have conducted those interviews in the same manner that interviewed the Secretary and Ethics Counsel, there is very little to trust in your report. 12 See, Gavin E. Oxburgh et The Question of Question Ir?pes in Police Interviews: A Review of the Literature from a and Linguistic Perspective. 17 The Int?l J. of Speech. Language. the Law 46. 60 (2010). 59 The Hon. Michael Missal - 10 - February 11, 2018 In any event, the “additional information” that, according to you, prompted Ethics Counsel to reverse her determination does not support the conclusion that the Secretary should not have accepted the Wimbledon tickets. Draft Rpt. 14. You say that additional information included: (1) “emails indicating that Ms. Gosling was seeking an introduction to Secretary Shulkin through an intermediary,” and (2) emails in which “Ms. Gosling requested Secretary Shulkin’s assistance in gaining an invitation to the London Summit.” Id. The intermediary’s emails do nothing to undermine the Ethics Counsel’s initial conclusion that acceptance of the tickets was proper. They convey pure hearsay, and there is good reason to doubt the credibility of the author. It simply makes no sense that Ms. Gosling would request an introduction to Secretary Shulkin when she had met him three times prior. Id. at 9. Glaringly, when your investigators interviewed Ms. Gosling, they apparently never asked her about this topic, once again refusing to seek out information that might explain or mitigate suspicions that the investigators harbored. Had they done so, they would have learned that Ms. Gosling did not, in fact, ask for an introduction to the Secretary in 2017. Gosling Decl. ¶ 6. Nor does Ms. Gosling’s request for assistance in securing an invitation to the Summit alter the outcome of the analysis. Ms. Gosling obtained that invitation from other sources and, as the Secretary told you, he did nothing to help Ms. Gosling obtain an invitation to the Summit. We are also concerned that the Executive Summary prominently featured the fact that Ms. Gosling could not remember Dr. Bari’s first name when you interviewed her. Draft Rpt. iv, 16 n.33. Its prominence in the Executive Summary seems designed to make headlines, not objectively report the facts. That you relegate this fact to a footnote in your analysis— demonstrating that Ms. Gosling’s memory lapse is relatively unimportant—illustrates this point. In any event, Ms. Gosling attributed her memory lapse to a mental block and to the conduct of your investigators when they interviewed her. Gosling Decl. ¶ 8.13 Your emphasis on that memory lapse makes something out of nothing. Such mental blocks happen all the time. History abounds with examples of people momentarily and embarrassingly forgetting information that they obviously know. The Chief Justice, for example, famously forgot the Oath of Office during President Obama’s 2009 Inauguration.14 And Canada’s Prime Minister, Justin Trudeau, embarrassingly forgot to mention Alberta when listing all of Canada’s provinces during a speech.15 And neither the Chief Justice nor the Prime Minister, when their memories failed, faced the rigors of strenuous questioning by adversarial investigators. Ultimately, Ms. Gosling had no business before the VA. Ms. Gosling and Secretary Shulkin’s wife were friends—as Ms. Gosling herself told you. Under those circumstances, there was nothing improper about the Secretary’s acceptance of the Wimbledon tickets. 13 Ms. Gosling’s account of her interview seems particularly credible given your harassment in trying to secure the interview (attempting to contact Ms. Gosling 22 times over the course of seven weeks, Draft Rpt. 16 & n.33) and your investigators’ conduct in the interviews of Secretary Shulkin and Ethics Counsel. 14 Jeff Zeleny, I Really Do Swear, Faithfully: Obama and Roberts Try Again, The N.Y. Times (Jan. 21, 2009), http://www nytimes.com/2009/01/22/us/politics/22oath html. 15 Avi Selk, ‘We Already Know You Hate Alberta’: How Justin Trudeau Managed To Insult an Entire Province, The Wash. Post (July 2, 2017), https://www.washingtonpost.com/news/worldviews/w.p/2017/07/02/we-already-know­ you-hate-alberta-how-justin-trudeau-managed-to-insult-an-entire-province/?utm_term=.7a680384a8d7 60 The Hon. Michael Missal III. - 11 - February 11, 2018 The Secretary’s Statements to the Media Were Not Misleading You accuse the VA—and the Secretary—of making misleading statements to The Washington Post. Nothing about the Secretary’s statements was misleading. On November 9, 2017, Secretary Shulkin sat for a nearly hour-long interview with The Washington Post’s Ed O’Keefe. They discussed many of the most pressing issues facing veterans today, including veterans’ mental health and improvements in VA care. Mr. O’Keefe also raised the Secretary’s trip to Europe, asking whether the Secretary bought the Wimbledon tickets. According to your report, the Secretary responded, “Yes, they were privately done, no government money.” You interpret the Secretary’s response as indicating that he had purchased the tickets himself, which you believe is misleading. As the Secretary explained during his interview with your agents, however, his initial response to the question—“yes”—was not a substantive response to the question but an affirmative indication that he would be happy to address that issue. Inexplicably, your report does not mention the Secretary’s explanation for his answer to this question. And the substantive response the Secretary gave—that the Wimbledon tickets were “privately done” with “no government money”—was entirely accurate. You further suggest that the Secretary was misleading when he responded to Mr. O’Keefe’s question about whether the Wimbledon tickets were a gift from “folks at the Invictus Games.” Draft Rpt. 23-24. Your agents never asked the Secretary about this response during his interview, and your office has not until now raised any concerns about the Secretary’s response to this question. Had these concerns been raised, the Secretary would have explained that his answer was entirely truthful. When Ms. Gosling offered the tickets, she was no longer the CEO of the Invictus games, instead holding a role as an unpaid strategic advisor to the UK delegation. And she in fact purchased the tickets (for her sister, initially) with her own money. Gosling Decl. ¶ 10. The cost of the tickets was not paid for or reimbursed by the Invictus Foundation. Finally, you suggest that the VA press office issued a misleading statement to The Washington Post on September 29, 2017. Specifically, you take issue with the statement that “all activities including Wimbledon were reviewed and approved by Ethics Counsel.” As Secretary Shulkin explained in his interview, he had nothing to do with the drafting of that statement.16 The statement, moreover, was true with respect to the Wimbledon tickets—when the VA press secretary emailed that statement to The Washington Post around noon on September 29, 2017, Ethics Counsel had reviewed and approved the Wimbledon tickets. Moreover, to the extent the statement could have been drafted more clearly, it is apparent that the statement was the result of haste, not an intentional effort to mislead. Jim Byrne, the VA’s General Counsel, for example, explained that he reviewed the statement for “about 20 seconds” before clearing its release. And the VA press secretary’s statements to The Washington 16 You suggest the Secretary’s testimony on this point conflicts with the testimony of John Ullyot, the VA’s Assistant Secretary for Public and Intergovernmental Affairs. But your report gives no reason to credit Mr. Ullyot’s testimony over the Secretary’s, and you make no specific finding regarding the Secretary’s participation in the drafting of the press statement. 61 The Hon. Michael Missal - 12 - February 11, 2018 Post included inaccuracies that, if corrected, would have benefitted the Secretary. For example, the VA press secretary told The Post that Dr. Bari’s “[m]eals and incidentals were covered under per diem.” That was not true: Dr. Bari never received a per diem or reimbursement for meals and incidentals. Your report does not discuss these inaccuracies, which seriously undermine your suggestion that the VA and the Secretary engaged in a campaign to mislead the media. Your accusation that the Secretary misled The Washington Post is particularly puzzling, given the Secretary’s open and professed commitment to transparency. Indeed, Secretary Shulkin has taken the extreme action of posting on the VA website details regarding all his travel, including the means of transportation and the composition of the delegation. No other agency has been so transparent. And, even beyond the topic of his official travel, the Secretary has worked hard to make sure that all components of the VA are held to the highest standards of transparency to ensure accountability and guarantee that the civil servants who serve America’s veterans are the best in government. IV. Secretary Shulkin Reasonably Relied on Approval from VA Ethics Officials Concerning His Wife’s Travel at Government Expense Dr. Bari accompanied Secretary Shulkin—as spouses of cabinet members often do—as an invited guest to the conferences in both Copenhagen and London. Indeed, other spouses or significant others of the Secretary’s foreign counterparts were present at the London conference, too. Your report, however, takes issue with the fact that the VA paid for Dr. Bari’s coach-class airfare to and from Europe. Dr. Bari’s invitational travel, however, was approved by Ethics Counsel. You question the validity of that approval because you allege that the VA Chief of Staff altered emails in order to obtain that approval. The Secretary had nothing to do with the process of obtaining approval for his wife’s official travel. In fact, Secretary Shulkin and Dr. Bari were prepared to pay for Dr. Bari’s travel as they had always done previously. It was only when staff approached the Secretary to suggest Dr. Bari’s travel could be reimbursed that Secretary Shulkin became aware that was a possibility.17 He neither was aware of nor approved any communications between his staff and Ethics Counsel. Your report, however, does not make that clear. Regardless, when Secretary Shulkin learned through his staff that Dr. Bari’s invitational travel had been approved by Ethics Counsel, he was entitled to rely on that approval—regardless of your allegations of impropriety arising from emails that the Secretary never saw and never approved. 17 Your report states that, according to VA employee Gabe Gough, the Secretary asked if VA could pay his wife’s expenses. The Secretary made no such request. As the Secretary explained during his interview, until his staff informed him that VA could pay his wife’s expenses as an invitational traveler, the Secretary’s wife had planned to pay for her own airfare. Draft Rpt. 4. You note that your office did not need to resolve the conflicting memories between the Secretary and Mr. Gough. Id. at 4 n.11. Your report, however, does precisely that: “The OIG found that after Secretary Shulkin asked in April 2017 if VA could pay for his wife’s travel expenses . . . .” Id. at ii. Regardless, even by Mr. Gough’s account, the Secretary acted appropriately by relying on the approval of Ethics Counsel. 62 The Hon. Michael Missal V. - 13 - February 11, 2018 The Secretary Was Not Involved In or Aware of VA’s Travel Documentation for the Europe Trip Your report suggests that the VA delegation provided inadequate documentation to determine the appropriateness of certain travel expenses. Your analysis is incomplete and raises concerns better addressed by the VA at large rather than directed at the Secretary. Secretary Shulkin was not involved in coordinating travel for the delegation or otherwise planning the day-to-day travel arrangements for the official trip. These tasks were rightfully delegated to his staff. That is not unusual. The Secretary’s reliance upon his staff for travel coordination and submission of paperwork is particularly appropriate, given that the Travel Office staff is well versed in the applicable rules and regulations, and this trip concerned travel for other members of the VA. Secretary Shulkin did nothing wrong in relying on his staff to submit and prepare such paperwork. Indeed, your office might appropriately be concerned if the Secretary were spending his time completing administrative paperwork rather than focusing on the important work of improving the healthcare and benefits that America provides its veterans. VI. The Secretary Did Not Improperly Direct the Misuse of Official Time and Did Not Violate Any Regulations by Touring Cultural Sites You accuse the Secretary and his wife of inappropriately requiring VA Program Specialist Gabe Gough to assist in planning visits for the delegation to tourist and cultural sites. According to your report, “Secretary Shulkin directed [Mr. Gough] to coordinate with his wife to schedule the tourist activities that they wanted to do on nonofficial time.” Draft Rpt. 17. Your report ignores, however, that Mr. Gough began planning those tourist activities before Secretary Shulkin told him to do anything. On June 23, 2017, Mr. Gough emailed the Secretary: “Sir, I wanted to run what we’ve been planning for the London section of the trip by you.” Mr. Gough goes on to explain that the delegation can purchase a “London Pass” to “cover all entry fees” at the various tourist sites. And Mr. Gough says he had “thought about a trip to Stonehenge, but it’s 2 hours away.” Mr. Gough concludes by inviting the Secretary and Dr. Bari to let him know if they are interested in any sites or restaurants that he has not already included in the itinerary. Thus, Mr. Gough on his own initiative undertook the detailed planning of tourist activities. Only when Mr. Gough approached the Secretary with this information did the Secretary refer Mr. Gough to Dr. Bari. And, as the Secretary explained in his interview, he referred Mr. Gough to his wife only because, as you might expect, he was too busy to be concerned with the details of planning tourist activities. Your failure to disclose that it was Mr. Gough who initiated the detailed planning of tourist activities, and that it was Mr. Gough who approached the Secretary, is troubling. It presents yet another example of your willingness to cherry-pick facts that support your sensationalist narrative rather than objectively report what happened. Regardless, Mr. Gough had good reason to be involved in planning the non-official events during the trip. As he told you himself, his involvement was necessary to coordinate security coverage for Secretary Shulkin. Draft Rpt. 17. That effort involved coordination not just with the Secretary’s security detail, but also with officials at the American Embassies in London and Copenhagen. Indeed, it was security—through Mr. Gough—that suggested the 63 The Hon. Michael Missal - 14 - February 11, 2018 delegation purchase the London and Copenhagen passes. You suggest that Mr. Gough’s “planning efforts” went beyond those required to coordinate security, saying that he could have done so “without engaging in the extensive research and planning tasks.” Draft Rpt. 18. But as we explained, Mr. Gough initiated those planning efforts on his own. Dr. Bari, moreover, engaged in her own planning. For example, she reached out to her own contacts in London to identify potential tourist sites. And she researched on her own restaurants and sites to visit both in London and Copenhagen. To the extent Dr. Bari relied upon Mr. Gough to schedule visits and generate an itinerary, she did so because any non-official activities had to be coordinated with official activities, VA events, and the schedules of the other members of the delegation. It would have been improper and unrealistic for Dr. Bari to engage in the necessary communications with VA personnel, the security detail, and diplomatic staff in order to undertake all that planning herself. Your report also appears to criticize the Secretary for attending any tourist activities at all. Your criticisms are both misplaced and unreasonable. As an initial matter, the color-coded calendar purporting to show “Scheduled official business” and “Scheduled leisure” is false and misleading. See Draft Rpt. ii. You have labeled Tuesday, July 11 a “Day in Transit.” But, until he left for the airport that afternoon, the Secretary spent the day treating patients at the New York VA. July 11 was thus a workday. Your calendar also suggests that the delegation scheduled leisure for half the day on Thursday, July 13. In reality, the delegation attended official events through 2:30 p.m., and then resumed official events later that evening for an official dinner hosted by the American Embassy. Your report should reflect the official nature of those events. Finally, your report fails to designate Saturday, July 15—the day the Secretary traveled from Copenhagen to London—as a “Day in Transit.”18 Your calendar also does not take account of the fact that, during the periods you have labeled “Scheduled leisure,” the Secretary was working. Even as the delegation was touring cultural sites, the Secretary was taking phone calls, answering emails, and tending to VA business. He even gave a radio interview during this time. You acknowledge that the Secretary told investigators about those efforts during his interview, yet you stop short of making a finding that the Secretary did in fact work throughout the trip. Draft Rpt. 1. That too evinces an unwillingness to accept the Secretary’s testimony even when it goes unchallenged and even when you could easily have corroborated it. For example, you reviewed over 12,000 documents and searched 493,000 emails. Surely, those documents included evidence of the Secretary’s efforts on behalf of the VA while overseas, but you do not mention them. You interviewed 28 individuals in connection with this investigation, including the Secretary’s six-member security staff and other members of the delegation. You could have asked them about the Secretary’s efforts, but apparently did not. Your investigators’ failure to do so is yet one more instance of them seeking out information to further their chosen narrative while suppressing or ignoring information that bolsters the Secretary’s testimony. 18 We have attached to this letter a calendar that more accurately reflects the Secretary’s approximate use of his time during the trip. 64 The Hon. Michael Missal - 15 - February 11, 2018 More fundamentally, there was nothing improper about the Secretary taking time to tour sites of historical and cultural significance while in London and Copenhagen. VA travel policy expressly permits employees to combine official travel with personal travel. See VA Travel Admin. Guide 9-10. And, as you might expect, the Secretary’s hours of work are not limited to the standard nine-to-five workday. Indeed, the Secretary is exempt from the typical annual- and sick-leave rules, meaning he can take vacation only as the demands of his job allow. See 5 C.F.R. § 630.211(a)(3). (Rest assured, the Secretary’s “vacations”—to the extent they can be called that, given how much he works during those times—are few and far between.) 19 Nor was it improper for the Secretary to remain in Europe between the two conferences. Indeed, the travel regulations would have allowed the delegation to return to the U.S. only if “substantial cost savings” resulted. 41 C.F.R. § 301-11.23(b). You make no effort to show that flying the entire VA delegation to the U.S. from Copenhagen, only to return to London two days later, would have yielded such savings. In any event, your report—and its misleading calendar—does not adequately represent the number of hours Secretary Shulkin spent on official business. As explained during the Secretary’s interview, the vast majority of his time in Copenhagen and London was spent on official duties.20 Any sightseeing by the Secretary was incidental to the substance of the trip. * * * We left the Secretary’s interview on December 14 with grave concerns about the objectivity and the fairness with which your office was pursuing this investigation. As we explained in our December 21 letter, the conduct of the investigators who interviewed the Secretary left us worried that those investigators were intent on portraying the Secretary unfavorably and were not impartially obtaining and evaluating the facts. Your Counselor, Mr. Wilber, responded that “it is the policy of OIG to review the facts and evidence collected in any matter . . . objectively and fairly.” He assured us that your office “will do so here.” That promise appears to have gone unfulfilled. As we have explained above, your report presents a one-sided account of the circumstances surrounding the Secretary’s trip to Europe. It omits critical facts and pieces of evidence that contradict your chosen narrative and that make clear the Secretary has done nothing wrong. Indeed, it seems obvious that your investigators have failed in some instances to even pursue such evidence. And your investigators have relied on interrogation techniques that have long since been recognized as unfair, unreliable, and abusive. Your report, moreover, confuses and misapplies legal standards in an effort to manufacture violations where none exist. 19 Your report also mentions shopping in Copenhagen and Malmo, Sweden (only a 30 minute train ride from Copenhagen). The Secretary and his wife, however, bought nothing on the trip, except perhaps a few souvenirs for VA staff. 20 Your report notes that during the trip there was a “crisis” unfolding at the Manchester VA. Draft Rpt. 19 n.34. The Secretary met that crisis head-on, issuing a statement in a press release and moving swiftly to remove the officials responsible for the substandard care at Manchester. 65 The Hon. Michael Missal - 16 - February 11, 2018 Even after you provided us with a copy of your draft report, your office’s tactics seem intentionally designed to prevent a full airing of the facts and circumstances underlying the trip. For example, your staff provided a draft copy of the report very late in the evening on Monday, February 5, and on February 7, provided us a revised draft that included information from a recently conducted interview of a key witness. Nonetheless, you set a February 9 deadline for submitting a response. Thus, where standard OIG practice appears to allow up to 30 days for a response, you initially afforded us less than five days. And, although your staff acknowledged that no external pressures mandated the tight turn-around for our response, our request for more time was met with an extension of less than 48 hours, setting the deadline at 6:00 p.m. on Sunday, February 11. Given the serious nature of the issues raised herein, your draft report cannot be published in its current form. Substantial revisions are needed to ensure that the report accurately describes the events in question and conveys findings that are appropriately supported by the facts. We trust that after reviewing this submission you will reach the same conclusion. However, if you do not and decide to publish your report without addressing all the problems we identified, we demand you include a copy of this submission and its supporting documentation in its entirety as an appendix to your final report. Sincerely, Justin Shur Eric Nitz Emily Damrau Encls. 66 Declaration of Andrew D. Herman I, Andrew D. Herman, hereby declare as follows: 1. I am a member of Miller & Chevalier, Chartered, located in Washington, DC. I am submitting this declaration at the behest of counsel for Secretary of Veterans Affairs David Shulkin, in response to the Draft Report prepared by the Office of Inspector General (OIG) for Veterans Affairs (“Draft Report”). The statements and information in this declaration are based on my analysis of the Draft Report; my review of applicable regulations and published guidance from the United States Office of Government Ethics (OGE) and others; and my close to 20 years of experience as an attorney practicing in the area of government ethics. 2. As set forth in greater detail below, it is my opinion that, under applicable ethics regulations, Secretary Shulkin’s acceptance of Wimbledon tickets was proper; the OIG does not establish that Secretary Shulkin received an improper gift. The Draft Report utilizes 5 C.F.R. § 2635.201 to find impropriety. That provision, however, is a subjective, non-binding standard that does not create liability under the OGE’s Standards of Conduct. While the Draft Report also utilizes certain terms applicable to 5 C.F.R. § 2635.202, the general gift prohibition, it presents neither facts nor analysis establishing a violation of that regulation. Background and Qualifications 3. I graduated from the University of California, Hastings College of the Law in 1996. In 1999, I joined the law firm of Brand, Lowell & Ryan, where I practiced until 2013, when I joined Miller & Chevalier, my current firm. During my career, I have represented members of the United States Senate and House and their staff before the Senate and House Ethics Committees. Overall, I have represented more than two dozen clients in congressional ethics matters. I currently represent several clients in ethics cases pending before the House Committee on Ethics. I have also represented individuals and entities in ethics-related civil litigation, including serving as counsel in two trials related to civil ethics charges brought by the United States Department of Justice. I counsel several nonprofit organizations, labor unions and lobbying firms on campaign finance rules, lobbying disclosure and compliance with applicable ethics rules and regulations. I am frequently quoted in the media regarding newsworthy ethics issues. Ethics Regulations Relating to Analysis in the Draft Report 4. The Draft Report evaluates Secretary Shulkin’s acceptance of tickets to the Wimbledon Ladies’ Final Match on July 15, 2017, from Victoria Gosling. 5. The Draft Report first cites to 5 C.F.R. § 2635.201, the OGE regulation titled “Overview and considerations for declining otherwise permissible gifts.” In promulgating the regulation, the OGE described § 2635.201 as “a non-binding standard that can assist employees in considering whether to decline an otherwise permissible gift.” See 67 Standards of Ethical Conduct for Employees of the Exec. Branch; Amendments to Standards on Acceptance of Gifts, 81 Fed. Reg. 81,641, 81,641 (Nov. 18, 2016) (to be codified at 5 C.F.R. pt. 2635). The OGE also noted that “an employee will not face disciplinary action in the event that someone later subjectively disagrees with the employee’s analysis” regarding whether a gift is permissible. Id. at 81,642. 6. Section 2635.201 asks employees to consider several factors in assessing whether to accept an otherwise permissible gift: “(i) The gift has a high market value; (ii) The timing of the gift creates the appearance that the donor is seeking to influence an official action; (iii) The gift was provided by a person who has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties; and (iv) Acceptance of the gift would provide the donor with significantly disproportionate access.” 5 C.F.R. § 2635.201(b)(2). 7. While the Draft Report does not cite to 5 C.F.R. § 2635.202, the OGE regulation establishing a “[g]eneral prohibition on solicitation or acceptance of gifts,” it discusses concepts relating to that section—including gifts from a “prohibited source,” gifts given because of an employee’s “official position” and the “personal relationship” exception to the rule. As such, for the purposes of my analysis, I have assumed that the Draft Report utilized § 2635.202 in concluding that Secretary Shulkin accepted an improper gift. 8. Sections 2635.202(a) & (b) establish that an employee may not solicit or receive a gift from a “prohibited source” or because of the “employee’s official position.” Section 2635.203(d) defines a “prohibited source” as any person who: “(1) Is seeking official action by the employee’s agency; (2) Does business or seeks to do business with the employee’s agency; (3) Conducts activities regulated by the employee’s agency; (4) Has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties.” 9. Section 2635.203(e) states that a “gift is given because of the employee’s official position if the gift is from a person other than an employee and would not have been given had the employee not held the status, authority, or duties associated with the employee’s Federal position.” 10. Section 2635.204(b) addresses the “personal relationship” exception to the prohibition on certain gifts: “An employee may accept a gift given by an individual under circumstances which make it clear that the gift is motivated by a family relationship or personal friendship rather than the position of the employee. Relevant factors in making such a determination include the history and nature of the relationship and whether the family member or friend personally pays for the gift.” 11. The Draft Report also discusses the market value of the tickets at issue. Section 2635.203(c) provides that the “market value of a gift of a ticket entitling the holder to food, refreshments, entertainment, or any other benefit is deemed to be the face value of the ticket.” 2 68 Relevant Factual Background 12. Secretary Shulkin traveled to London as the leader of a delegation attending the Ministerial Summit on Veterans’ Affairs, held from July 18-20, 2017. Draft Report at 2. Secretary Shulkin was invited to attend the Summit by the United Kingdom Parliamentary Under Secretary of State and Minister for Defence Personnel and Veterans. Id. The Summit, which is held every 18-24 months, addresses “challenges facing the veteran communities of Australia, Canada, New Zealand, the United Kingdom, and the United. States.” Id. 13. Secretary Shulkin accepted two tickets to the Wimbledon tennis Ladies’ Final Match on July 15, 2017, from Victoria Gosling. The Draft Report describes Ms. Gosling as a “UK resident and the Head of Social Impact at Auden, a for-profit enterprise; a Military Director of Sage Foundation, the philanthropic affiliate of UK software company Sage Group plc; and a Military Councillor for the Lawn Tennis Association, which is the national governing body for tennis in Great Britain, including Wimbledon. Ms. Gosling also served as CEO of the 2016 Invictus Games held in Orlando, Florida.” Draft Report at 9. However, when they spoke at Wimbledon, Ms. Gosling informed Secretary Shulkin that she “was not employed but was looking at a number of options.” Id. at 12. Under Applicable Ethics Regulations, Secretary Shulkin’s Acceptance of Wimbledon Tickets Was Proper 14. In concluding that Secretary Shulkin accepted an improper gift, the Draft Report does not cite to 5 C.F.R. § 2635.202, the general prohibition on the solicitation or acceptance of certain gifts. I interpret this omission as a tacit admission by the OIG that, after an extensive investigation, it cannot conclude that Secretary Shulkin violated that prohibition. However, the Draft Report does rely on terminology derived from the regulation. See Draft Report at 15-16. 15. Section 2635.202 bars federal employees from soliciting or accepting a gift from a “prohibited source,” or one given because of the employee’s “official position.” 16. The Draft Report asserts that, “[b]y virtue of her business relationships (whether for profit or not), Ms. Gosling may also meet the definition of a ‘prohibited source.’” Draft Report at 16. Beyond offering this equivocal statement—and failing to cite to the relevant gift prohibition—the Draft Report makes no attempt to assess whether Ms. Gosling’s interests at the time she made the gift qualify her as “prohibited source,” as defined by § 2635.203(d)(1) through (5). 17. The Draft Report provides no evidence that Ms. Gosling—whom Secretary Shulkin believed was unemployed at the time of their meeting (see Draft Report at 12)—was seeking official action from the VA, doing business with the VA, conducting activities regulated by the VA or had interests that might be substantially affected by Secretary Shulkin’s official duties. A substantive “prohibited source” analysis would require that the OIG assess Ms. Gosling’s actual interests relating to Secretary Shulkin and the VA at 3 69 the time that she made the gift. In the absence of such an assessment by the OIG, there is no basis for the Draft Report to conclude that Ms. Gosling was a “prohibited source.” 18. The Draft Report does assert that Ms. Gosling “requested Secretary Shulkin’s assistance in gaining an invitation to the London Summit” that Secretary Shulkin was attending. Draft Report at 14. Although Secretary Shulkin informed the OIG that he did not assist Ms. Gosling in any way (id. at 14 n.26), the purported request is not material to the “prohibited source” analysis. If it occurred, Ms. Gosling’s request for assistance in attending the London Summit would not implicate any of § 2635.203(d)’s factors relating to official actions that could be undertaken by Secretary Shulkin or the VA. 19. In light of the facts presented in the Draft Report, it is my opinion that Ms. Gosling was not a prohibited source at the time that she made the gift to Secretary Shulkin. 20. The Draft Report also asserts, without citing to the term’s regulatory definition, that Ms. Gosling provided the tickets because of Secretary Shulkin’s “official position.” Draft Report at 15. In reaching this conclusion, the Draft Report states, “[p]rior to Wimbledon, there was no evidence that Secretary Shulkin or his wife met with Ms. Gosling at an event other than the three gatherings he attended in his official capacity.” Id. at 15-16. 21. Without further explanation and analysis, the OIG’s conclusion is a non sequitur. That Secretary Shulkin first met Ms. Gosling in his official capacity (years before he was Secretary) in no way establishes that he received the gift because of his current position. See Example 1 to 5 C.F.R. § 2635.203(e) (where free tickets are offered to “all members of the Cabinet,” a gift is given because of employee’s official position). Both Secretary Shulkin and Ms. Gosling repeatedly disclaimed any official connection and the OIG presents no evidence that Ms. Gosling provided the tickets because of Secretary Shulkin’s position, rather than because of their preexisting personal connection. 22. Because the Draft Report (1) does not find that Secretary Shulkin’s receipt of the tickets violated § 2635.202’s general prohibition on gifts, and (2) does not establish that Ms. Gosling was a prohibited source, there is no need to address whether the “personal relationship” exception is applicable pursuant to § 2635.204(b). 23. In concluding that “Ms. Gosling gave a gift of the Wimbledon tickets, which were very valuable on the secondary market, because of Secretary Shulkin’s official position,” the Draft Report cites to and relies on 5 C.F.R. § 2635.201. Draft Report at 15. This conclusion incorrectly applies the plain language of the regulation and the OGE’s interpretation of the hortatory language. 24. Section 2635.201 imposes no prohibition on an employee’s acceptance of a gift. Instead, it creates “a non-binding standard that can assist employees in considering whether to decline an otherwise permissible gift.” See 81 Fed. Reg. 81,641, 81,641 (Nov. 18, 2016) (emphasis added). 4 70 25. While the OIG may subjectively believe that Secretary Shulkin should not have accepted the Wimbledon tickets, § 2635.201 does not provide authority for the OIG to impose any sanction. As OGE General Counsel David J. Apol wrote in a December 21, 2016 legal advisory to Designated Agency Ethics Officials, “[t]he new section makes clear that an employee who accepts a gift permitted under an applicable exception will not be deemed to have violated the Standards of Conduct.” 81 Fed Reg. at 81,649 (to be codified at 5 C.F.R. § 2635.201(b)(3)).” 26. Even if the OIG simply wishes to indicate its subjective disapproval of Secretary Shulkin’s acceptance of the tickets under § 2635.201, the Draft Report fails to assess adequately the four elements listed in § 2635.201(b)(2)(i-iv) that “employees may consider when determining whether to decline an otherwise permissible gift.” 81 Fed. Reg. at 81,642-81,643. 27. The Draft Report only directly addresses the “market value” of the tickets. See § 2635.201(b)(2)(i) (a relevant factor is whether tickets have “high market value”). This assessment is also the source for the OIG’s recommendation that Secretary Shulkin reimburse the cost of the “tangible benefits” provided by Ms. Gosling. Draft Report at 25. 28. The OIG states that it “was not able to determine the availability and cost of 2017 Wimbledon tickets on commercial websites.” Draft Report at 9 n.19. Instead, the OIG determined that the price for 2018 Wimbledon tickets on “commercial websites” was “£1,205.00 (approx. $1,760).” Id. This analysis does not comport with the OGE’s regulation for determining the market value of a gift. 29. Section 2635.203(c) provides that the “market value of a gift of a ticket entitling the holder to food, refreshments, entertainment, or any other benefit is deemed to be the face value of the ticket.” See also Legal Advisory to designated Agency Ethics Officials Presidential Inaugural Events, OGE Informal Advisory Letter LA-16-11, 2016 WL 7404631, at *1 (Dec. 20, 2016); Standards of Ethical Conduct for Employees of the Executive Branch, 57 Fed. Reg. 35,006-01 (Aug. 7, 1992) (considering and rejecting argument that tickets should be valued at an amount higher than face value). The 2017 Wimbledon website—which has remained accessible on the internet at this URL: https://www.wimbledon.com/en_GB/atoz/tickets_and_ticket_prices.html—lists the maximum value of the 2017 Centre Court tickets as £155 (approximately $215) and No.1 Court standing admission at £34 (approximately $46). Ms. Gosling told the OIG that she purchased the tickets at a “discount.” Draft Report at 15 n.31. Accordingly, these prices listed by Wimbledon represent the maximum price at which OIG may value the tickets. 30. While the Draft Report ignores the other considerations in § 2635.201, their application does not support its conclusion either. The second factor asks whether the “timing of the gift creates an appearance that the donor is seeking to influence an official action.” § 2635.201(b)(2)(ii). The Draft Report demonstrates that the timing of the gift was simply tied to the date of the tennis match, rather than any official action by Secretary Shulkin. Draft Report at 10. 5 71 31. Section 2635.201(b)(2)(iii) asks whether “the gift was provided by a person who has interests that may substantially affected be the performance or nonperformance of the employee’s official duties.” As I discussed in paragraphs 20 and 21, there is no indication in the Draft Report that Ms. Gosling provided the gift for any official reason. 32. Finally, the single meal shared by the group does not satisfy the “frequent” interactions contemplated by § 2635.201(b)(2)(iv)’s “significantly disproportionate access” consideration. See 81 Fed. Reg. at 81,643 (disproportionate access “concern can arise in connection with gifts such as frequent” events). 33. After examining the information contained in the Draft Report, it is my opinion that, under applicable ethics regulations, Secretary Shulkin’s acceptance of Wimbledon tickets was proper. Because the Draft Report incorrectly applies both the plain language of the regulations and the OGE’s interpretation of those regulations, it is also my opinion that the Draft Report does not establish that Secretary Shulkin received an improper gift. I declare under the penalty of perjury that the foregoing is true and correct. Executed on February 11, 2018 Andrew D. Herman 6 72 DECLARATION OF VICTORIA GOSLING. O.B.E. 1. Victoria Gosling. O.B.E.. declare as follows: 1. I am a citizen of the United Kingdom and an Officer of the Order of the British Empire. I currently reside in England. 2. I retired from the Royal Air Force in April of 2017. As of July 2017. I held a number of part-time jobs. At no point since my retirement have I done business with the Department of Veterans Affairs (VA), nor have I sought to do business with the VA. Likewise. none of my employers have done business with the VA or sought to do business with the VA during that time. 3. I have known VA Secretary David Shulkin and his wife. Merle Bari. since 2015. and I consider them my personal friends. I ?rst met David and Merle in 2015 at an event at the British Embassy in the United States. 1 immediately recognized that there was a lot of synergy between Merle and myself. We both are avid fans of tennis and got along very well. 4. I saw David and Merle again in 2016. when I was CEO of the Invictus Games. Orlando was hosting the Games that year. and David and Merle were attending. As at the British Embassy. Merle and I carried on like old friends. We discussed tennis and other personal matters. For the two of us. the conversation was purely social. We never discussed business. In fact. I don?t know what 'business? we could even have discussed! 5. In April 2017. I met up with David and Merle again. As always. it was wonderful seeing them. Merle and I of course discussed tennis. We also generally caught up with what was going on in each other?s lives. 6. I understand that, around this timc.? a mutual acquaintance. reached out to David saying that I had asked her for an introduction to David. I never asked 73 -to introduce me to David. I had. of course. knovm David for several years by that point. I do not know why-nade that inquiry of David. Perhaps there was a misunderstanding. 7. When I saw Merle at those events in 2015. 2016. and 2017, my conversations with her were not superficial. To the contrary. we spent significant amounts of time chatting. Whilst David may have been attending these functions in his capacity as a government official. I never felt like my conversations with Merle were official govemment business or professional in any way. I felt like I was talking with a personal friend?because I was. I genuinely enjoyed spending time with Merle. and I think she likewise enjoyed spending time with me. To be honest. I think Merle was grateful that she had a friend to talk to at events like these. David would often be ?making the rounds? among the guests. Having the opportunity to talk tennis with me probably made these events more tolerable for Merle. 8. Given the nature of my interactions with Merle. it was somewhat embarrassing for me when was recently interviewed by representatives from the VA Office of Inspector General and could not remember Merle?s name. The investigators unexpectedly called me on my mobile phone whilst I was driving on a very busy highway. I felt like the investigators were twisting my words and trying to put words in my mouth. At the very end of the interview. the investigators?who had only referred to Merle as David?s ?wife??asked me what David?s ?wife? was called. Given the nature of the interview, I felt put on the spot and I was already lIustered and could not remember Merle?s name. I do. in fact. know Mcrle?s first name. I do consider her my friend. 9. I haven?t visited the United States for a while. however. should I be planning a visit. then I would definitely make contact with Merle and David to see if we could meet up. I would hope that, whenever Merle and David travel to London. they would let me know. Our 74 relationship was such that I would have been upset if I?d found out that Merle was in the UK. and had not reached out to connect. I was thus very excited when Merle mentioned to me that she and David would be visiting London. I told her that we all had to arrange a time to meet up?her, David, myself, and my husband. 10. Sometime in June 2017, David emailed me to ask for recommended tourist sites in London and to inquire where he might be able to purchase tickets to Wimbledon. His timing was fortuitous. I was the Military Councillor to the Lawn Tennis Association, which is a voluntary position and entitles me to purchase a book of tickets which includes a pair of tickets to each day of Wimbledon at a discounted rate. I had purchased two tickets for my sister on July 15 which cost me a total of ?155. Right before I read David?s email, my sister had called to say that she was no longer able to attend the match. 11. Because I had the extra pair of tickets, I offered them to David out of friendship. I knew how much Merle loves tennis, and I knew how much she would enjoy Wimbledon. I also invited Merle, David, and their son to join me and my husband for lunch prior to the match. I had so enjoyed spending time with them?particularly Merle?in the United States that I looked forward to seeing them in London. Their visit to Wimbledon was delightful. We of course talked a lot about tennis, and even discussed attending the US. Open when I visited the United States. 12. David offered to pay me for the tickets?several times, in fact. Even before we attended the match, David had emailed to ask how much he owed me. He raised the subject again in person when we met in London. Each time, I politely declined. I invited David and Merle as my friends and guests. I wasn?t going to accept their payment for the time we enjoyed together. Moreover, it is important to note that the LTA restrictions on purchasing a book of 75 discounted Centre Court tickets prevent me from ?selling on? tickets to a third party. I simply told them that Merle could repay me by taking me out to dinner the next time I visited the United States. 13. Admittedly, I don?t communicate with Merle and David as much as I would like. With three children and an active professional life, I don?t have much time. (In fact, months will sometimes pass when I don?t speak to my own sister.) The time difference and distance between London and the United States only makes things more dif?cult. But as I explained above, I would always make an effort to meet up with David and Merle when I travel to the United States, and I would be deeply hurt if they did not let me know when their travels brought them to the UK. That we do not trade emails on a weekly or daily basis, that we do not regularly chat on the phone?none of that, for me at least, diminishes the value of our friendship. 14. I gave the Wimbledon tickets to Merle and David because I considered them my friends. Merle and David are generally very supportive and helpful people. David has done so much for veterans in his country and mine. I felt that taking Merle and David to Wimbledon would be a nice way to thank them for their personal support of me over the years. I never suggested to David or Merle that the Wimbledon tickets were a ?thank you? for anything, though. 15. I did not give the tickets to David because of his position or for anything David had done in his position. In fact, if David had rejoined the private sector and reached out to me as he had done, I would have done exactly the same thing?offered him and Merle the tickets. taken them to lunch, and enjoyed their company. I neither expected nor asked David to do anything for me in exchange for the tickets. Nor did David offer to do anything?or actually do anything?for me in exchange for the tickets, other than his several offers to pay for them. I also 76 did not buy the tickets speci?cally for Merle and David. It just so happened that my sister had to cancel. If my sister had not cancelled, I would not have offered them the tickets. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 1/ Executed on: February 2018 - ?14 Victoria Gosling. In: 77 Calendar for July 2017 Of?cial Trip to Europe July 2017 Sunday Monday Wednesday Saturday 15 9 10 Secretary treats 12 patients at NY VA Danish conference Arrive in Copenhagen Transit to London Danish conference Transit to Copenhagen Attending to VA work: Attending to VA work U.S. Embassy dinner to VA work 16 18 21 Transit to U.S. London conference London conference Attending to VA work; Reception for London Attending to VA work Attending to VA work conference I Signifies time on official work or events 78 Appendix E Administrative Investigation—VA Secretary and Delegation Travel to Europe Appendix E     February 12, 2018, Response of the VA Secretary   VA Office of Inspector General 79 THE SECRET ARY OF VETERANS AFFAIRS WASHINGTON February 12, 2018 The Honorable Michael J. Missal Inspector General Department of Veterans Affairs 801 I Street, N.W . Washington, D.C. 20001 Re:: Administrative Investigation Draft Report Dear Inspector General Missal: This letter is in reference to the report concerning your administrative investigation into my official travel to the conferences in both Copenhagen and London . Shockingly, it appears a draft version of the report has already been leaked from your office before I had an opportunity to respond . What is more troubling, though , is that the report does not appear accurate or objective, and it contains the thread of bias. A report of this nature is a direct assault on my spouse , my character, and my unblemished record of service to the Veterans Affairs Administration . I am proud of my 32 year career as a physician and a medical administrator. Under the previous administration , I agreed to leave the private sector, displacing my family , to serve the Veterans Affairs Administration . My duty has been to serve our nation's veterans and provide them with the care and service they deserve. In light of historical integrity problems that have plagued the VA, I have also made it a core objective to root out corruption and negligence. I am proud that my service has granted me the ability to serve as Secretary under President Donald J. Trump. I identify several problems with the accuracy of your report, as well as the way you have conducted this ongoing investigation. The current draft report, which I received on February 7th , ignores critical facts, improperly applies the relevant regulations, and draws conclusions based on subjective and arbitrary criteria. It appears to present a foregone conclusion regardless of the full facts of the matter. First, I take serious issue with how you've depicted my wife, Merle. Merle has made many sacrifices throughout my career in government, including the routine purchase of train travel and cancellation of office hours in her private physician practice to join me in Washington . In the case of our European trip last Summer, my wife was officially invited to accompany me - as spouses of cabinet members often do - to the conferences in both Copenhagen and London . Your office has attempted to make political fodder of her being by my side, made possible by taking a commercial flight in a coach seat that was pre-approved by our ethics department. To be clear, it was the VA that suggested her travel be paid for by the VA, as has been the practice for other spouses in similar situations. To clarify once again , I had nothing to do with the process of obtaining approval for my wife's travel or otherwise planning the day-to-day travel arrangements. Those tasks were delegated to my staff, and I reasonably relied on them to comply with all applicable rules and regulations. It is outrageous that you would portray my wife and me as attempting to take advantage of the government. 80 Second, your report forms an inappropriate judgment regarding what my family chooses to do with our free time on a Saturday afternoon. My wife and I did what millions of people do every day. We went to a sporting event, on our personal time, with a friend . Our friend neither has business with nor seeks to do business with the VA She purchased her tickets privately, and we offered to reimburse her on several occasions - a fact your office is aware of but chose to disregard in your report. Third , the entire report seeks to question and undermine the validity of the trip and its importance to furthering the work of the Veterans Administration. As already explained but disregarded in your report, I met with the Danish Ministry of Health to discuss healthcare implementation and the Danish Minister of Defense regarding veterans' policies. The Five Eyes Ministerial Summit on Veterans' Affairs in London - which has regularly been attended by past VA Secretaries -was similarly valuable given the Summit's focus on mental health issues facing veterans. It is a part of my job to continually learn about and actively participate in the developing issues facing veterans. To suggest that such meetings have an indeterminate value reflects a fundamental misunderstanding of my duties and the mission of the VA as a whole. I also want to express that I am deeply concerned over how your office has conducted this investigation over the past several months. Despite going through proper channels and seeking independent approvals, providing transparent accounting of my travel , and fully cooperating with your investigation , you have treated the staff of the Veterans Administration , my wife , and my friends with extreme contempt, bordering on badgering and harassment. Your staff's conduct related to this investigation reeks of an agenda. Your portrayal of this trip is overall and entirely inaccurate. When someone shines a flashlight on a problem at the VA, I have publically invited floodlight scrutiny of the issue, so I fully understand the importance of your Office's mission . If you had properly considered my testimony and recognition of the facts of this case , however, I am confident that you would have concluded that I have conducted myself properly, ethically and in­ line with how I have always served the Veterans Administration. Substantial revisions are needed to ensure that the report accurately describes the events in question and conveys findings that are appropriately supported by the facts. I look forward to working with you to correct this report. It is unfortunate that your initial report, which has already been leaked , is so fundamentally flawed . It is important that moving forward we all remain focused on the continued improvements required for our country's veterans. Despite the unfair allegations of this report directed at me and having done nothing improper, it is essential that our veterans know that all of VA's resources are dedicated to this single purpose. I have submitted additional information detailing my concerns with this draft report and ask for your consideration of this new information that has not yet been properly considered . If after full and fair consideration of these additional items, it is still your recommendation that I reimburse the Treasury for the coach airfare and the costs associated with the tennis event to my wife's friend , I will comply. David J. Shulkin , M.D. 81 Appendix F Administrative Investigation—VA Secretary and Delegation Travel to Europe Appendix F     February 11, 2018, Response of the VA Deputy Secretary   VA Office of Inspector General 82 THE DEPUTY SECRETARY OF VETERANS AFFAIRS WASHINGTON February 11, 2018 The Honorable Michael Missal Inspector General Office of the Inspector General U.S. Department of Veterans Affairs Subject: VA Response to Final Draft Report of Investigation on the ?Administrative Investigation of VA Secretary and Delegation Travel to Europe?. Dear Mr. Missal: Due to the unique nature of this report with allegations involving the Secretary of Veterans Affairs Secretary I have assumed, with his approval, the responsibilities of agency head for thepurposes of responding to this report. On February 5th I received a copy of the Department of Veterans Affairs Office of the InSpector General draft report on the ?Administrative Investigation of VA Secretary and Delegation Travel to Europe?. I was informed a copy was also provided to the VA Secretary. On Thursday morning, February 8th, I received from the OIG another version of the final draft of this report of investigation. I again was told at that time that I had until COB Friday, the following day, to review the report and provide the Department?s comments to those recommendations directed to me for action. I immediately had questions about those recommendations and whose responsibility it was to respond to the- recommendations one and two which involved the VA Secretary. Subsequently at 10:31 AM on Thursday I received what I was again informed was a final amendment to the recommendations. That same Thursday evening the VA General Counsel sent the Inspector General an email stating that the time frame OIG had established for the Department to review and respond to the draft report was inadequate to enable the Department to properly review the report and extensive supporting documentation and provide an informed decision on whether to agree. or disagree with the recommendations. On Friday morning February 9th the Counselor to the Inspector General responded to the General Counsel saying that the IG was willing to ?extend? the deadline for the Department?s response from COB today until 6:00 PM Sunday, February 11th. Even with the new deadline the Department would have had less than two work days [three and a half total days] to review and consider its response. I believe this is entirely inappropriate and contrary to the established procedures of the 016 of granting 30 days in other cases, especially those of lesser significance. It is important that the Department have adequate time to carefully understand and evaluate the DIG draft report and develop a response to agree or disagree with the report recommendations. OIG has 83 been conducting its review of this matter for more than six months. The evidence files'that OIG has provided that serve as the basis for the report are extensive. The report raises significant legal issues which the Office of General Counsel and the must have the opportunity to consider before the Department can concur in your recommendations. I can conceive of no legitimate rationale for not providing the Department a reasonable opportunity to perform its due diligence. suggest that imposing this extraordinary short deadline calls into question whether the IG has conducted a complete and objective review of these matters. As the Counselor'to the i-G stated in hisemail to the General Counsel, ?a 30 day time period [for responding to 016 draft report's] is-common?i. However the rationalization that in this case there are only five recommendations and no specific action by the Department is required in order to respond is an inaccurate characterization of the report and is unreasonable when considering the impact on the agency, the Secretary and others involved in the report. The report involves complex legal issues. The facts relating to initiation and authorization of the various travel arrangements are not clear. lam also concerned that the draft report reflects that there was significant consultation with the VA Designated Agency Ethics Official and that it appears that the Secretary acted in compliance with advice that the DAEO gave. Understanding the confusion or alleged misrepresentation of the facts as presented in the report upon which the DAEO opined is very important to the Department and is not apparent on the face of the report. Professionalism, due diligence and due process expect and require me to conduct a thorough review of the report and the large volume of supporting documentation. I am not aware of any occasion when the IG has so restricted the Department?s opportunity to review a report. The inexplicable denial of a reasonable time to respond and urgency to publish the report compels a concern whether there is some unarticulated motivation by the lG to act outside the acceptable and experienced protocols for response times. Although I have not had an opportunity to review the documentation that accompanies it, I am inordinately concerned that the report as written appears to take every opportunity to cast the VA, the Secretary and others identified in the report in the least favorabie light through negative commentary or inferences. Recommendation 1 The Secretary does not agree with the OIG conclusions of fact and law relating to this recommendation as presented in the OIG report, however he will consult with the Office of General Counsel and if it is determined that he should reimburse the Department for any part of Dr. Bari?s travel costs he will do so. Recommendation 2' 84 The Secretary does not agree with the OIG conclusions of fact and law relating to this recommendation, however, he will consult with the Office of General Counsel and if it is determined that he should reimburse Ms. Gosling for any aspect of his attendance at-Wimbledon, he will do so. (If Ms. Gosling declines to accept reimbursement, the Secretary will reimburse such amount to the U.S. Treasury.) Recommendations 3 The Department has been inappropriately compelled and had an inadequate opportunity to review and respond to the Inspector General?s report and the evidence that accompanied it. When the Department has completed its review the Deputy Secretary will in inform OIG as to whether it will accept this recommendation. Recommendations 4 The Department has been inappropriately compelled and had an inadequate opportunity to review and respond-to the Inspector General?s report and the evidence that accompanied it. When the Department has completed its review the Deputy Secretary will in inform as to whether it will accept this - recommendation. Recommendations 5 The Department has been inappropriately compelled and had an inadequate opportunity to review and respond to the Inspector General?s report and the evidence that accompanied it. When the Department has completed its review the Deputy Secretary will in inform OIG as to whether it will accept this recommendation. ?omas G. 85 Appendix G Administrative Investigation—VA Secretary and Delegation Travel to Europe Appendix G     OIG Contact and Staff Acknowledgments   OIG Contact For more information about this report, please contact the Office of Inspector General at (202) 461-4720 Acknowledgments Office of Investigations Linda Fournier, Director Alexander Carlisle, Deputy Director Charles Millard, Senior Administrative Investigator Domingo Alvarez, Administrative Investigator Jason James, Administrative Investigator Jacob Lay, Administrative Investigator Leanne Shelly Watkins, Administrative Investigator Michael Smith, Administrative Investigator William Tully, Administrative Investigator Office of the Counselor to the Inspector General Christopher Wilber, Counselor to the Inspector General Clifford Stoddard, Attorney Advisor R. James Mitchell, Attorney Advisor Office of eDiscovery Debbie Crawford, Program Manager Scott Eastman, Supervisory Management and Program Analyst Ashley Shingler, Management Analyst Office of Inspector General Martha Plotkin, Special Assistant to the Inspector General VA Office of Inspector General 86 Appendix H Administrative Investigation—VA Secretary and Delegation Travel to Europe Appendix H    Report Distribution  VA Distribution Secretary and Deputy Secretary Veterans Health Administration Veterans Benefits Administration National Cemetery Administration Assistant Secretaries Office of General Counsel Non-VA Distribution House Committee on Veterans’ Affairs House Appropriations Subcommittee on Military Construction, Veterans Affairs, and Related Agencies House Committee on Oversight and Government Reform Senate Committee on Veterans’ Affairs Senate Appropriations Subcommittee on Military Construction, Veterans Affairs, and Related Agencies Senate Committee on Homeland Security and Governmental Affairs National Veterans Service Organizations Government Accountability Office Office of Management and Budget Report Suspected Wrongdoing in VA Programs and Operations: 1-800-488-8244 www.va.gov/oig/hotline VA Office of Inspector General 87