The United States Immigration and Customs Enforcement Agency has publicly rebuked a former official for giving testimony as a paid expert witness for GEO Group.
The Testimony
Former Immigration and Customs Enforcement (ICE) employee Tracey Valerio was retained by GEO Group to give testimony in Ugochukwu Goodluck et. al v. The Geo Group. Valerio was retained to defend the Geo Group, a large private prison and immigrant detention company that is also ICE’s biggest contractor.
The lawsuit charged GEO with violating minimum wage laws by paying immigrants who are locked up in prison as little as $1 a day to do work such as cleaning toilets or working in the kitchen. Critics of the program, which was authorized by a 1950 immigration law, say that paying immigrant detainees below minimum wage is unlawful because they have not been convicted of or pleaded guilty to any crime; therefore, there is no reason to exclude them from minimum wage law.
Valerio provided a sworn written statement indicating that she was responsible for “the development and implementation of ICE’s budget and all agency contracting was under my purview and supervisory responsibility.” Valerio stated that “ICE could not expend more than $1.00 a day for detainee wages in a ‘detention center’ without Congress setting a higher rate and appropriating the funds needed to pay the higher rate.”
Alleged Violation of the Touhy Regulations
ICE attorney Anne M. Rose wrote in a letter to the court, “As Ms. Valerio was not authorized to speak on behalf of the agency or provide the information contained in the declaration submitted, ICE objects to the submission of the declaration to the extent that it purports to be provided on behalf of the agency or express agency views.” In her letter, Rose explained that Valerio’s testimony was a violation of the Touhy regulations.
According to 6 C.F.R. §§ 5.41-5.49, or the Touhy regulations, the service of subpoenas, court orders, and other demands or requests for official information must be served on the DHS Office of the General Counsel (OGC). The Touhy regulations are an “absolute condition precedent to obtaining testimony or other information from a Department of Homeland Security (DHS) employee of which ICE is a component, and the regulations must be complied with before the DHS or ICE may respond to any such request.” Why the regulation would apply is unclear, given that Valerio was a former employee, not an employee, and was expressing her own understanding of ICE’s policies, not ICE’s official views.
Ethical Concerns
Valerio appears to be one of many top officials at ICE and the Federal Bureau of Prisons who quit their positions and then went on to take a lucrative position at GEO or another private prison company. There are laws that exist that are intended to mitigate the ethical concerns that are created when these types of job moves are made.
The Procurement Integrity Act specifically prohibits former federal officials from accepting compensation for at least one year from companies to which their agencies awarded a contract worth $10 million or more.
GEO won several contracts worth over $10 million during Valerio’s last year as ICE’s executive associate director for management and administration. GEO won more than $327 million in funding during the 2018 fiscal year.
A countervailing ethical concern, however, is the agency’s attempt to silence a former employee who has relevant expert information about the agency’s practices. The Procurement Integrity Act was intended to close the revolving door that allowed government employees to use their government connections to benefit private businesses. The concerns addressed by the Act do not necessarily implicate an independent expert who is retained by a business to provide testimony.
