In written testimony (pdf), Von Spakovsky said the accusation that he'd retaliated against career lawyers was "simply untrue" because he lacked the authority to transfer or fire employees. He admitted, however, that he'd modified the performance evaluations of certain career attorneys, but said that such changes were approved by the Deputy Assistant Attorney General -- at the time, Bradley Schlozman, who's been heavily criticized for politicizing the Division. He asserted that there's "no evidence that any information included in any evaluation was false" and added that he was "unaware" that any appeals to those changes were successful.
In fact, three voting section attorneys successfully appealed such changes, Joe Rich, the former chief of the voting section, told me. Two more appeals were unsuccessful. The appeals were handled by senior political appointees in the Division.
The changes von Spakovsky made to the evaluations focused on minor details -- in one case, literally a footnote -- and criticized the attorney for sloppy work. Such a negative addition to a civil servant's evaluation can be detrimental to future prospects of a promotion or work elsewhere.
"To pick something that picayune, I was astounded," said Rich, a nearly 40-year veteran of the Civil Rights Division. As section chief, Rich completed the evaluations, which were then passed up to von Spakovsky. "You're trying to give an overall view of the type of work, the quality of work." Von Spakovsky and Schlozman only made such changes (seven in all), Rich said, to the evaluations of attorneys who made recommendations with which von Spakovsky disagreed.
The changes to the evaluations were minor and highly disputable. One former attorney said that von Spakovsky criticized the attorney's failure to mention in a footnote that the case cited had been appealed (even though there had not yet been a ruling). "What I resented was that I was someone who cared deeply and passionately about minority voting rights, and that's the reason I was singled out," that attorney told me. Another former attorney was criticized for taking a position that was later embraced by the Department. That same attorney had actually received a section award for outstanding performance the same year that von Spakovsky inserted the negative remark.
There's evidence that von Spakovsky not only changed the lawyers' evaluations, but also stifled their bids to appeal the changes. Contrary to the grievance process outlined in a Justice Department order, the appeals to those changes went unanswered for more than a year (grievances are supposed to be resolved in less than thirty days).
The grievances were settled only after one attorney spoke directly with Assistant Attorney General Alex Acosta, then the head of the Civil Rights Division, during an exit interview. "I just wanted to leave with closure," the attorney told me. But even though the appeals had been addressed to Acosta and it had been nearly fourteen months since the attorney had filed his grievance in the fall of 2003, Acosta said he'd never seen it; "He'd never heard of it, never heard of the evaluations being changed, had no knowledge of grievances pending." Nevertheless, Acosta "showed concern" about the changes, the attorney said.
The next day, the attorney received a call from Sheldon Bradshaw, another senior political appointee in the Division. "He apologized and seemed embarrassed that he didn't have knowledge of the grievances. He said he'd found them on von Spakovsky's desk." The attorney's appeal was granted, and Bradshaw told the attorney that the other grievances would be resolved.
Referring to von Spakovsky's testimony that he was "unaware" that any appeals were successful, the attorney said "I don't know why he wouldn't know."
A call to von Spakovsky's office at the Federal Election Commission was referred to the White House. The White House did not respond to a request for comment.
This isn't the first time that Von Spakovsky's testimony has been called into question. He changed one aspect of his spoken testimony in his subsequent written testimony after Department veterans challenged it.
In the spring of 2005, four months after Bradshaw discovered the appeals, the second attorney -- whose footnote had attracted von Spakovsky's ire -- finally got a meeting with Bradshaw. "He sat back and listened as I highlighted the fact that I did very good work and was one of the more hard working attorneys in the section and that it was unfair to be penalized for something that was so tangential. ... He seemed to agree," the attorney said. "That's why I was surprised to get a letter that said they'd denied my request." The attorney left the section a year later.
Calls to Bradshaw and Acosta for comment were not returned.
Note: Here is the text of von Spakovsky's written testimony about the evaluations:
The Letter [one sent from six voting section veterans opposing von Spakovsky's nomination] also falsely states that I engaged in "retribution" against certain employees. That is simply untrue, particularly since I had no authority to transfer or terminate the employment of any employee. The Authors complain that performance evaluations were changed to supposedly "retaliate" against employees for disagreeing with the legal conclusions of the Front Office. That is categorically untrue and there is no evidence that any information included in any evaluation was false....
I reviewed evaluations for accuracy in rating the performance of the employee. For example, if an employee had written a legal memorandum that recited the wrong holding of an applicable legal case, or failed to discuss relevant case law, I might recommend that information be included in the performance evaluation. The vast majority of performance evaluations were ultimately approved with no changes; a small number that failed to include certain legal errors that had been made by the employee were brought to the attention of the Deputy Assistant Attorney General and the Chief of the Section. The Deputy Assistant Attorney General made the final decision on the content of the performance evaluation after discussions with the Section Chief. Under the rules governing career employees, they have the ability to appeal any part of their performance evaluations with which they disagree. I am unaware of any such appeals that were successful. I advised both the Section Chief and the Deputy Assistant Attorney General of instances in which material information regarding the legal performance of employees was not included in a performance evaluation. There was absolutely nothing improper in doing so -- it was my job.