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Whistleblower accuses Nebraska Ag Department of failing to enforce law governing breeders, rescues

Whistleblower accuses Nebraska Ag Department of failing to enforce law governing breeders, rescues

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A state employee whistleblower has claimed the Nebraska Department of Agriculture has repeatedly failed to enforce a state law governing cat and dog breeders and rescue facilities.

The 39-year employee also told the Nebraska Ombudsman’s Office that the department did not consistently refer animal abuse and neglect by breeders for criminal prosecution.

When whistleblower Rick Herchenbach could not get satisfaction on his observations of failures by the department from officials he reported to there, he said, he went to the State Ombudsman’s Office more than a year ago.

What resulted was a 20-month investigation of Herchenbach’s allegations by Deputy Ombudsman Carl Eskridge and subsequently what the state watchdogs believed was retaliation the department took against Herchenbach, which is also against the law.

Herchenbach said Tuesday he still has his position of program specialist with the department, despite officials saying he would be demoted to the job of inspector.

He said he went to the Ombudsman’s Office because what he saw was disturbing and because cat and dog operators who abuse and neglect animals needed to be held accountable.

Eskridge listed a number of examples of violations by breeders and rescue operations in the recently released report on the investigation, findings and recommendations. The names of the operators were included in the initial report released online, but the report was taken down and names of operators redacted before being again made public Tuesday.

The Journal Star obtained an unredacted version of the report.

In that version, Herchenbach reported a particularly difficult inspection attempt regarding multiple complaints over the course of a year of unlicensed operator Trifecta Bullies Kennel in Waverly. Herchenbach said he got little support from department administration on that inspection and felt traumatized by the incident because the owners were belligerent and angry and blocked his attempt to leave, and law enforcement had to intervene.

In following months, after the owners had vacated the property, Herchenbach reported that he found “deplorable” conditions and concluded that the dogs were not treated humanely.

The owners then moved with dogs and puppies from motel to motel in violation of regulations. Inspectors had difficulty observing the dogs, and what they did see were bad conditions. The Ombudsman’s Office concluded the inspection of the Trifecta facility, together with the “horrors” that occurred to the dogs in subsequent months, provided the rationale for the need to give greater attention to suspected problem operations that are unlicensed.

Another example included a finding by the Ombudsman’s Office that immediate action was needed for problems found with All Hounds on Deck of Walton, but the department failed to provide administrative oversight when the rescue and kennel failed to stop operating after it had surrendered its license. It also failed to take action when veterinary professionals documented serious neglect of some of the dogs.

The department did not fulfill its responsibility under the Commercial Dog and Cat Operator Inspection Act to provide administrative oversight and accountability of operators and nonoperators who violate the law, Eskridge said in his report.

And it did not refer complaints in every instance it should have to county authorities for possible criminal prosecution.

The office found no criminal violations by department Director Steve Wellman or other employees, the report said. But the investigation gave the Ombudsman’s Office “deep concerns” about the department’s unwillingness to zealously enforce provisions of the law.

There is reluctance to require licensing by those operators and facilities that don’t have them, and it is less likely they will be inspected and given corrective orders when needed, the report said.

Wellman said in an email that the report issued by the Ombudsman’s Office does not accurately reflect the State Department of Agriculture’s enforcement of the Commercial Dog and Cat Operator Inspection Act and regulations adopted under the act.

Wellman said he couldn’t comment on the aspect of the report that concerns personnel matters.

On the whistleblower act violations, the report said Herchenbach presented a textbook case when he came forward as a state employee in good standing alleging wrongdoing by the agency.

The department was given a preliminary report on Herchenbach’s allegations in August 2019, and it proceeded to take a series of actions, presumed to be retaliation, against him as the named whistleblower.

The ombudsman’s report alleges that the department conspired with owners of facilities he inspects; subjected him to what he felt was hostile treatment by program manager Tom Dozler during staff conference calls; that Dozler gave him an inaccurate and negative 2019 annual review, completed in April 2020; issued three disciplinary actions in 2020, the first such actions in his nearly four decades of service; and informed him of the department’s intent to demote him to an inspector position.

With those actions, the Ombudsman’s Office found grounds to believe that the department violated the whistleblower act, the report said.

It said that, in many conversations with Herchenbach and those familiar with his work and character, he serves the department with distinction by evidence of his knowledge of the law, his fair and consistent enforcement of regulations and his deep commitment to the mission of the program.

“It takes courage to come forward as a whistleblower, particularly as one nears the end of a long and distinguished career,” Eskridge and Ombudsman Julie Rogers said in the report.

“Mr. Herchenbach has evidenced that courage by voicing his concerns about the problems he has seen from inside the system he knows better than anyone else.”

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