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Speak No Evil

Why a federal whistleblower was taken off the case at DIA.

John Deans learned a hard lesson about office politics: Be careful what you say about your boss. Particularly if you're a federal employee investigating possibly illegal fund diversions at Denver International Airport and your boss happens to be the godfather of DIA.

Last year Deans, a criminal investigator with the U.S. Department of Transportation, told another federal official that he suspected U.S. Attorney Henry Solano, DOT Inspector General Mary Schiavo and Secretary of Transportation Federico Pena--Denver's former mayor and DIA point man--of working together to persuade the Federal Aviation Administration to release $35 million to the City of Denver, despite Deans's ongoing probe into the diversion of federal airport funds to non-airport uses.

Less than a month after that conversation, Deans was taken off his much-hampered investigation and transferred to San Francisco. He was subsequently fired for alleged insubordination and improper conduct, and last January he was prohibited from giving a deposition in a civil lawsuit brought by DIA official Richard Boulware, who has made similar charges about the city's misuse of airport funds.

However, a recent report by the Office of Special Counsel, an independent federal agency that investigates claims of retaliation against whistleblowers, concludes that the DOT's allegations against Deans are "unsupportable." The scathing report charges that Deans was fired because he "uncovered and reported to his superiors information about possible diversions of funds from the Denver airports which had the potential to be politically embarrassing to high level government and community leaders."

The OSC has recommended that Deans be reinstated to his post in Denver. Deans, who could not be reached for comment, is on administrative leave while officials mull the OSC findings. But in an affidavit filed a few weeks ago in the Boulware lawsuit, Deans stated that although he was prepared to testify about illegal diversion of federal aviation funds at DIA during both the Pena and Wellington Webb administrations, he had been prevented from giving his deposition on the orders of U.S. Attorney Solano.

Solano, a friend and political ally of Pena's whose family lawyer is Pena's brother, Alfredo, denies having played any role in Deans's dismissal or in blocking his testimony. While he did ban Deans from working with his office based on concerns about Deans's "biases" and professional conduct, Solano says he "was a little surprised that Deans was removed." He adds that an assistant in his office prepared a motion on behalf of DOT to block Deans's deposition but that the motion was never filed. "The Department of Transportation makes the decision on whether he can testify about his work as a federal employee," he says.

Last summer Solano removed himself from two federal grand jury investigations of DIA to stem charges of potential conflicts of interest. An investigation by the Justice Department's Office of Professional Responsibility cleared him of any involvement in the transfer of Deans. But the OSC's review of the affair charges that Deans's ouster was triggered by questions he'd aired about Solano and his links to Pena.

A former FBI man who regularly received high ratings from his DOT superiors, Deans is no stranger to high-profile political tussles. In 1994, while in the midst of a public-corruption probe of Utah's state transportation department, he was indicted in connection with a convoluted federal wiretap case; all charges against him were dismissed by the judge for lack of evidence halfway through the trial. But even that bizarre episode was merely a prelude to the morass Deans found when he began asking questions about how federal aviation funds were being used in Denver.

According to the OSC report, the investigator's troubles began early in 1995, when City Attorney Dan Muse complained to Solano about Deans's inquiry into Denver's spending of airport money for attorneys and lobbyists. Muse apparently believed Deans was leaking information about the investigation to reporters. Deans denied being the source of the leaks, but he continued to run afoul of members of Solano's office on other matters.

In February 1995 Deans was asked not to interview employees of the mayor's office as part of his diversion probe, for fear of jeopardizing an airport investigation being conducted by Solano's office that focused on the Webb administration and contractor King Harris. Deans told OSC investigators that he complied with the request, but Solano charges that Deans continued to pursue the case in various ways. That month Solano flew to Washington to ask DOT Inspector General Schiavo for a special team of auditors and special agents to assist his investigation, but he "specifically asked that Deans not be appointed to the team," the OSC report states.

Shortly after Solano's meeting with Schiavo, the FAA released a payment of $35 million in airport funds to Denver. Deans found the timing odd. At a "youth coaches meeting," he discussed the payment with Assistant U.S. Attorney Paul Johns, giving Johns the impression that he suspected Solano, Schiavo and Pena had, as the OSC report puts it, "somehow improperly conspired to persuade the FAA to release the funds."

Johns, who had clashed with Deans on other issues related to Deans's investigations, wrote a memo about the conversation and turned it over to his boss; Solano dispatched it, along with other memoranda concerning Deans's conduct, to Washington. That prompted a visit to Solano from Tod Zinser, the DOT's deputy assistant inspector general for investigations. Zinser instructed department auditors not to discuss issues of airport fund diversions with Deans. On March 20, 1995, at Zinser's request, Solano wrote a letter to Schiavo stating that his office would no longer work with Deans. That same day, Deans was notified that he was being reassigned to San Francisco. He was dismissed three months later.

In its review of the charges, the OSC found little evidence to support the "draconian" transfer and termination of Deans. "The timing of actions by Solano and Zinser is persuasive evidence" that Deans was removed not for legitimate reasons but for his whistleblower activities and for exercising his right to free speech, the report concludes.

Solano says he never discussed FAA funding with Schiavo (a Bush appointee, he points out) or Pena and was "troubled" by Deans's remark. "I was offended by it," he says. "There's never been a question about my honor, my integrity or my truthfulness and candor." But he describes the personal affront as the least of his disagreements with Deans.

"An investigator should not be talking about such matters in a social context," he says. "When you couple that with some of the other incidents that took place, there was a pattern of problems."

Department of Transportation officials did not respond to requests for comment about the OSC findings. Although a federal personnel board has ordered Deans's temporary reinstatement in Denver, he still hasn't been put back on active duty, prompting the OSC to petition the board for immediate enforcement and possible penalties, including a request to withhold Zinser's salary if DOT fails to comply with the board's order.

To date, none of the numerous city, state and federal probes into DIA have uncovered any evidence of criminal wrongdoing with respect to diversion of airport funds. Three separate DOT inquiries into the city's handling of airport spending have resulted in minor disputes about proper use of airport monies, but otherwise the city has been given a relatively clean bill of health by the feds. Yet Boulware's suit continues to press the charges made by Deans and others that illegal diversions did occur, ranging from the fees paid to law firms and lobbyists to more than $400,000 set aside for planning the Gateway Project, a private development on land adjacent to DIA.

The Boulware suit is scheduled for trial next month. City officials are currently seeking to have it thrown out on technical grounds. If they are unsuccessful, then Deans may finally have an opportunity to tell what he knows where it might matter the most: in a courtroom.

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