The United States Office of Special Counsel (OSC) is a permanent independent federal investigative and prosecutorial agency whose basic legislative authority comes from four federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment and Reemployment Rights Act (USERRA). OSC's primary mission is the safeguarding of the merit system in federal employment by protecting employees and applicants from prohibited personnel practices (PPPs), especially reprisal for "whistleblowing." The agency also operates a secure channel for federal whistleblower disclosures of violations of law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; and substantial and specific danger to public health and safety. In addition, OSC issues advice on the Hatch Act and enforces its restrictions on partisan political activity by government employees. Finally, OSC protects the civilian employment and reemployment rights of military service members under USERRA. OSC has around 120 staff, and the Special Counsel is an ex officio member of Council of Inspectors General on Integrity and Efficiency (CIGIE), an association of Inspectors General charged with the regulation of good governance within the federal government.
Pursuant to 5 U.S.C. § 1214, the U.S. Office of Special Counsel has jurisdiction over most prohibited personnel practice (PPP) complaints brought by executive branch employees, former employees, and applicants for employment (hereinafter simply "employee" or "employees"). When a PPP complaint is submitted, the agency examines the allegations. If OSC finds sufficient evidence to prove a violation, it may seek corrective action, disciplinary action, or both.
By statute, federal employees may not be retaliated against when they disclose information that they reasonably believe evidences the following types of wrongdoing: a violation of law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. The Special Counsel is authorized to receive such disclosures of wrongdoing, but it lacks jurisdiction over PPPs committed against employees of the Central Intelligence Agency, Defense Intelligence Agency, National Security Agency, and certain other intelligence agencies found at 5 U.S.C. §2302(a)(2)(C)(ii).
OSC's primary mission is to protect federal employees and others from "prohibited personnel practices." Those practices, defined by law at § 2302(b) of Title 5 of the United States Code (U.S.C.), generally stated, provide that a federal employee may not take, direct others to take, recommend or approve any personnel action that:
OSC was established on January 1, 1979. From then until 1989, the Office operated as the independent investigative and prosecutorial arm of the Merit Systems Protection Board, also called MSPB, or the “Board.” By law, OSC received and investigated complaints from employees alleging prohibited personnel practices by federal agencies; enforced the Hatch Act, including by providing advice on restrictions imposed by the act on political activity by covered federal, state, and local government employees; and received disclosures from federal employees about wrongdoing in government agencies. OSC enforced restrictions against prohibited personnel practices and unlawful political activity by filing, where appropriate, petitions for corrective and/or disciplinary action with the Board.
In 1989, Congress enacted the Whistleblower Protection Act (WPA). The statute made OSC an independent agency within the executive branch of the federal government, with continued responsibility for the functions described above. It also strengthened protections against reprisal for employees who disclose wrongdoing in the government, and it enhanced OSC’s ability to enforce those protections.
Congress enacted legislation in 1993 that significantly amended Hatch Act provisions applicable to federal and District of Columbia (D.C.) government employees, and enforced by OSC. (Provisions of the Act regarding certain state and local government employees were unaffected by the 1993 amendments.)
In 1994, USERRA became law. It defined employment-related rights of persons in connection with military service, prohibited discrimination against them because of that service, and gave OSC new authority to pursue remedies for violations by federal agencies.
Also in 1994, OSC’s reauthorization act expanded protections for federal employees, and defined new responsibilities for OSC and other federal agencies. It provided, for example, that within 240 days after receiving a prohibited personnel practice complaint, OSC should determine whether there are reasonable grounds to believe that such a violation occurred, exists, or will be taken. The act extended the protections of certain legal provisions enforced by OSC to approximately 60,000 employees of what is now the Department of Veterans Affairs (DVA), and to employees of certain government corporations. It also broadened the scope of personnel actions covered under those provisions. Finally, the act made federal agencies responsible for informing their employees of available rights and remedies under the WPA, and directed agencies to consult with OSC in that process.
In November 2001, Congress enacted the Aviation and Transportation Security Act, creating the Transportation Security Administration (TSA). Under the Act, non-security screener employees of TSA can file allegations of reprisal for whistleblowing with OSC and the MSPB. Approximately 45,000 security screeners in TSA, however, could not pursue such complaints at OSC or the Board. OSC efforts led to the signing of a memorandum of understanding (MOU) with TSA in May 2002, under which OSC reviews whistleblower retaliation complaints from security screeners, and recommends corrective or disciplinary action to TSA when warranted.
The Whistleblower Protection Enhancement Act of 2012 (WPEA) became law on November 27, 2012. The WPEA strengthens protections for federal whistleblowers by removing loopholes that deterred federal employees from disclosing waste, fraud, abuse, and mismanagement. It also removes restrictions that narrowed the scope of what constituted a “protected disclosure” under the Whistleblower Protection Act. In addition, it enhances OSC’s ability to hold managers and supervisors accountable for retaliating against whistleblowers, and it bolsters remedies available to federal whistleblowers who have been the victim of retaliation. Finally, it expands whistleblower reprisal protection to employees of the TSA.
On December 28, 2012, President Obama signed the Hatch Act Modernization Act of 2012 into law. This update to the Hatch Act of 1939 allows most state and local government employees to run for partisan political office, many of whom were prohibited from running for partisan office under the original Hatch Act. Under the new law, state and local government employees are no longer prohibited from running for partisan office unless their salary is paid for completely by federal loans or grants. As a result of the Hatch Act Modernization Act, many state and local government employees will be able to participate more actively in governance of their communities.
According to congressional testimony by Tom Devine, legal director of the non-profit Government Accountability Project:
The Watergate investigation of the 1970s revealed a Nixon administration operation to replace the non-partisan civil service system with a politically loyal workforce dedicated to partisan election goals. Every agency had a shadow “political hiring czar” whose operation trumped normal civil service authority of personnel offices. Then-White House Personnel Office chief Fred Malek teamed up with Alan May to prepare the “Malek Manual,” a guide to exploiting loopholes in civil service laws to drive politically undesirable career employees out of government and replace them with applicants selected through a political rating system of 1-4, based on factors such as campaign contributions and future campaign value. The Watergate Committee’s finding of the abuses led to creation of the Ink Commission, whose exhaustive study and recommendations were the foundation for the Civil Service Reform Act of 1978, including creation of the Office of Special Counsel to see that this type of merit system abuse never happened again.
Nevertheless, even with the strong impetus for its creation, under President Carter, the Office languished with no permanent head, funding, or White House support.
Though not as productive as it could have been, as a young agency in 1979, the Office of Special Counsel filed two requests for corrective action with the Merit Systems Protection Board. In Frazier, four deputy U.S. Marshals were threatened with geographic reassignment for blowing the whistle and exercising their appeal rights. In Tariela and Meiselman, two high-level Department of Veterans Affairs employees were threatened with reassignment for disclosing violations of laws, rules, and regulations. In its first year, the Office of Special Counsel also requested legislation regarding many concerns, among them whether the Special Counsel has litigation authority in court, and it asked for administrative independence from the Merit Systems Protection Board, of which it was a part.
When Ronald Reagan was elected president in 1980, he appointed Alex Kozinski to head the OSC. Within 14 months of his appointment, 70 percent of attorneys and investigators at the office's headquarters were either fired or had resigned. Mr. Kozinski “kept a copy of the Malek Manual on his desk,” according to Devine’s testimony. Devine added:
He used its techniques to purge the professional civil service experts on his own staff, and replace them with employees who viewed whistleblowers as crazy troublemakers disloyal to the President. He taught courses to federal managers on how to fire whistleblowers without getting caught by OSC investigators, using the OSC Investigations Manual as a handout. He tutored Interior Secretary James Watt on how to remove a whistleblowing coal mine inspector from the Department of Interior. The OSC became what one Senate staffer called “a legalized plumbers unit.”
Devine also testified that:
Mr. Kozinski’s abuses were the major catalyst for passage of the Whistleblower Protection Act of 1989, and he was forced to resign.
Under the WPA, the Office of Special Counsel became an independent agency.
As an example of its work during the 1990s, in 1995, OSC received a complaint that a high-ranking employee sexually harassed six subordinates. “The complaint alleged that the respondent engaged in repeated and varied unwelcome and offensive conduct over an approximate seven year period, including pressure and requests for dates and sexual favors, unwelcome sexual gestures and advances, and conditioning job offers on the granting of sexual favors.” OSC was able to settle the case with the victims and harasser, who was suspended for sixty days and permanently removed from a supervisory position.
A whistleblower from NASA disclosed to the Office of Special Counsel that officials at the Lyndon B. Johnson Space Center (JSC) “created and were perpetrating a serious risk to public safety, such as the in-flight failure of a space shuttle, by ignoring their own specifications and safety margins for the effects of electromagnetic interference between and among systems within a given space shuttle.” The whistleblower continued that “for a period of ten years, from 1989 to 1999, NASA allowed shuttles to be sent into space when the EMI levels of the vehicles exceeded established safety margins…” As a result of this disclosure, “NASA has stated that it will commit appropriate resources, including oversight and coordination, to improvements in the EMC program.”
In 2002, the Office of Special Counsel announced a program to help federal agency heads meet the statutory obligation to inform their employees about the rights, remedies, and responsibilities of the Whistleblower Protection Act under 5 U.S.C. § 2302(c). The certification program offered guidance and enumerated five steps required for meeting the statutory obligation. In the early 2000s under Elaine Kaplan’s tenure as Special Counsel, the office received disclosures regarding a team of undercover security agents employed by the Federal Aviation Administration (FAA) that traveled to airports around the world to investigate airport security systems, “in order to provide the FAA with realistic data on the state of aviation security.” A former Special Agent with the FAA who conducted these investigations disclosed that the FAA “deliberately covered up … findings that reflected negatively on the airline industry.”
From 2005 to 2007, OSC under Special Counsel Scott Bloch received disclosures regarding air traffic control problems at the Dallas/ Fort Worth International Airport. According to an Office of Special Counsel press release, air traffic controllers alleged that there was “a management cover-up of air traffic control operational errors” in the “safe separation between aircraft under their control.”
In 2006, the Office of Special Counsel announced that it was able to win reemployment and back pay for an injured Iraq war veteran who “sustained serious injuries in the line of fire.” According to an Office of Special Counsel press release, “When honorably discharged from military service, his injuries prevented Harris [the veteran] from returning to the job he held for ten years as a Postal Carrier at a U.S. Post Office in Mobile, Alabama. Rather than looking for an alternate position for him, though, the postmaster sent Harris a letter saying that there was no work available for him,” in violation of USERRA.
The agency attracted public attention in April 2007 when it began an investigation of alleged White House political pressure on federal civil servants. Senior Bush political adviser Karl Rove was reported to be a subject of the investigation.
After Bloch's tenure, the agency’s website was modified to make it clear that OSC viewed sexual orientation and gender discrimination as prohibited personnel practices: "OSC has jurisdiction over allegations of discrimination based on conduct that does not affect job performance, which includes sexual orientation discrimination. In certain cases, EEOC may also have jurisdiction over claims of sexual orientation discrimination, such as a claim of sexual stereotyping, i.e., discrimination for failing to conform to a gender stereotype."
Upon becoming Special Counsel, Carolyn Lerner greatly expanded the agency’s Alternative Dispute Resolution Unit. In fiscal year 2011, the number of successful mediations increased from 50 percent to 77 percent, and nearly 3.5 times the number of mediations yielded settlement.
The first months of her tenure saw intense activity and public response, and the agency received plaudits for its revitalization.
In July and October 2011, OSC requested and obtained stays from the MSPB in three whistleblower retaliation cases—those of David Butterfield of the Department of Homeland Security, Franz Gayl of the U.S. Marine Corps and Paul T. Hardy, a member of the U.S. Public Health Service. On a matter related to the case of Franz Gayl, OSC filed an amicus brief in October with the MSPB, arguing that the Board should afford greater due process protections to employees who are suspended without pay because of the suspension of a security clearance. Also in October, Lerner called for reform of the Hatch Act, which OSC is charged with enforcing. Lerner sent draft legislation to Congress, proposing changes in the enforcement structure, an end to the prohibition on state and local candidacies linked to federal funding, and other changes. These changes were largely accepted by Congress in the form of the Hatch Act Modernization Act, which became law on January 28, 2013. It modified penalties under the Hatch Act to allow for disciplinary actions in addition to removal for federal employees and clarified the applicability to the District of Columbia of provisions that cover state and local governments. Additionally, it limited the prohibition on state and local employees running for elective office to employees whose salary is paid completely by federal loans or grants.
During this same period, the OSC released a report from its Disclosure Unit detailing the complaints of three U.S. Port Mortuary whistleblowers and the subsequent statutorily-required investigation by their agency, the U.S. Air Force. The report, which included numerous accounts of the mishandling of remains of U.S. service members and their families, received considerable media and congressional attention. Subsequently, OSC reported to the U.S. Air Force that three mortuary supervisors had retaliated against the whistleblowers and should be disciplined.
The Office of Special Counsel continue to receive numerous disclosures from FAA employees, including air traffic controllers, regarding ongoing safety concerns at United States airports. According to an OSC press release in 2012, the agency has received 178 disclosures from FAA whistleblowers since 2007, with most regarding aviation safety. After investigating the whistleblowers’ allegations, the Department of Transportation substantiated 89% of the Office of Special Counsel’s referrals. In 2012 alone, OSC received cases concerning air traffic controllers sleeping in the control room, using cell phones, improperly overseeing airline inspection/maintenance programs, allowing unauthorized aircraft to fly in U.S. airspace, and allowing risky landing maneuvers at airports.
In April 2011, the Office of Special Counsel entered into a three-year “Demonstration Project” with the U.S. Department of Labor to enforce the Uniformed Services Employment and Reemployment Rights Act (USERRA), which, according to the Office of Special Counsel, “prohibits employment discrimination against veterans and members of the National Guard and Reserve and entitles them to reinstatement in their civilian jobs upon their return from military duty.” Under the Demonstration Project, the Office of Special Counsel will “receive and investigate certain USERRA complaints involving federal agencies.” In September 2012, at the Office of Special Counsel’s request, the MSPB granted a stay request for civilian employees of the Army who were subject to harassment after disclosing that their supervisor had violated law, rule, and regulation by “falsifying and destroying patient records.”
2012 and 2013 also saw legislative success for OSC with the Whistleblower Protection Enhancement Act and Hatch Act Modernization Act.
A major set of cases handled by OSC concerned veterans’ safety at VA hospitals, particularly in Jackson, Mississippi. According to a letter Special Counsel Lerner sent to President Obama, “These whistleblower disclosures are the latest, and most severe, in a persistent drumbeat of concerns raised by seven Jackson VAMC employees to OSC in the last four years. Throughout this process, the Department of Veterans Affairs (VA) has consistently failed to take responsibility for identified problems. Even in cases of substantiated misconduct, including acknowledged violations of state and federal law, the VA routinely suggests that the problems do not affect patient care.” There have been issues of unauthorized and unlicensed VA employees writing prescriptions for narcotics and understaffing in primary care units. Whistleblowers have also alleged that “a radiologist failed to read thousands of images or misread them, leading to missed diagnoses. Medical records were falsified to cover up these errors. Management knew of these problems and did not notify patients or require a full review of the images in question.”
According to a Washington Post article, as of May 2014, OSC had “63 open cases involving VA health, safety, or scheduling violations.”
OSC has also received numerous disclosures from whistleblowers from the Department of Homeland Security regarding abuse of a particular overtime provision called “administratively uncontrollable overtime,” according to Washington Post articles and congressional hearings before the Senate Committee on Homeland Security & Governmental Affairs and the House Committee on Oversight and Government Reform.
In December 2013, President Barack Obama’s “Second Open Government National Action Plan for the United States of America” made certification in the Office of Special Counsel’s 2302(c) Certification Plan mandatory for all agencies.
A January 2014 disclosure concerned wasteful Army contracts amounting to over $1 million. The Army substantiated the whistleblower’s disclosures. According to an Office of Special Counsel press release, “The Army’s Intelligence and Security Command at Fort Belvoir, Virginia, agreed to an $8 million annual contract with Silverback7, Inc. to hire and pay dozens of contract employees in various fields.” These contracts, however, duplicated existing ones, and there was insufficient oversight to ensure Silverback7 hired the employees after the Army paid for the contract. The Army’s own report concluded that it violated the “Bona Fide Needs Rule, the Purpose Statute, and the Defense Federal Acquisition Regulations.”
In April 2014, the Office of Special Counsel filed its first disciplinary action complaints related to political discrimination at the Merit Systems Protection Board in thirty years, aided by changes due to the Whistleblower Protection Enhancement Act. The three complaints were against Customs and Border Protection officials who are “alleged to have violated civil service laws” by “unlawfully manipulat[ing] the hiring process to select” candidates who had “close affiliation with the campaign to elect Barack Obama, the Obama Administration, and CBP’s politically appointed commissioner.” According to an Office of Special Counsel press release, “The complaints charge two of the three CBP officials with discriminating in favor of political appointees and against other potential candidates. They did so by improperly intervening in the hiring process to convert non-career political appointees into career appointments (known as ‘political burrowing’).”
On June 26, 2003, President George W. Bush nominated Scott J. Bloch for the position of Special Counsel at the Office of Special Counsel; he was confirmed by the U.S. Senate on December 9, 2003. On January 5, 2004, he was sworn in to serve a five-year term. Bloch was a lightning rod for controversy. His first major actions as head of the Office were to choose as deputy a lawyer who had publicly taken a position against the "homosexual agenda," and to hire young lawyers from Ave Maria School of Law, the conservative school founded by Domino's Pizza billionaire Tom Monaghan.
On May 6, 2008, the Federal Bureau of Investigation served warrants on OSC headquarters in Washington D.C. as well as on Mr. Bloch's home, seizing computers. It was alleged that when Bloch's refusal to follow up on cases of discrimination based on sexual orientation was leaked to the press, he retaliated against career employees by creating a field office in Detroit. He was removed as Special Counsel on October 23, 2008. He was subsequently found to have obstructed the investigation by removing material from his computer. He pleaded guilty to criminal contempt of Congress but then successfully withdrew his plea upon learning that he would be sentenced to prison.
During the Bloch era, the OSC was criticized for (1) very rarely recognizing legitimate whistleblowers, typically only when the whistleblower had already prevailed elsewhere; (2) taking too long to investigate meritorious cases; (3) using a conservative litmus test in hiring; (4) discouraging federal whistleblowers from using their legal protections, and (5) generally siding with the federal administration instead of with the whistleblowers it was supposed to protect.
On March 22, 2007, U.S. Senator Daniel K. Akaka (Democrat, Hawaii), Chairman of the Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia, held a hearing on "Safeguarding the Merit System Principles." In his opening statement, Sen. Akaka stated, "organizations that help whistleblowers claim that OSC has gone from being their first option for relief to their last choice since OSC no longer works with agencies to achieve informal relief and the percentage of corrective actions and stays has been cut in half since 2002."
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