The following whistleblower disclosure has been filed, pursuant to 5 U.S.C. 1213(g)(1), with the Office of Special Counsel against the Office of Special Counsel:
As part of the Whistleblower Protection Act of 1989, Congress legislatively overturned the March 13, 1981 Office of Legal Counsel opinion, 5 U.S. Op. Off Legal Counsel 77, 1981 WL 30880 (O.L.C.) that limited OSC’s jurisdiction to receive whistleblower disclosures only to current federal employees or applicants for employment. It explicitly did this by creating another sub-section of law, 5 U.S.C. section 1213(g)(1), to apply in situations in which the disclosure was not made by an employee, former employee or applicant for employment and/or the information disclosed was not obtained in connection with the performance of the employee’s duties or responsibilities.
Congress gave OSC discretion about referring such disclosures to the involved agency, it need not make a “substantial likelihood” determination to make such a referral. It underscored the importance of OSC’s greatly increased authority to receive whistleblower disclosures from sources as government contractor employees, members of the armed forces, state employees operating under federal grants, employees of U.S. Postal Service and Postal Rate Commission, and federal employees disclosing information not obtained in the performance of their duties or responsibilities by mandating OSC make a permanent, publicly available record of reports of the agencies received per 5 U.S.C. section 1213(g)(1) – see 5 U.S.C. section 1219(a)(4).
Despite this explicit expression of Congressional intent,*** OSC, for almost 23 years now, has violated the law and the clear Congressional intent by refusing to receive any whistleblower disclosures that it now has the nondiscretionary statutory duty to receive and the statutory discretion to transmit to the involved agency per 5 U.S.C. section 1213(g)(1). Not a single such whistleblower disclosure has been received and transmitted by OSC, as a review of its permanent, publicly available records, a review of its annual reports to Congress, and its response to a FOIA request demonstrate.
This whistleblower disclosure about this apparent willful, long-term, and systemic OSC lawbreaking – lawbreaking that has likely contributed to much loss of life and many billions, if not trillions, of tax dollars wasted or loss to fraud – is being made per 5 U.S.C. section 1213(g)(1) by a former federal employee who did NOT learn of it during his normal job duties and responsibilities. OSC must receive it and inform me whether it will act on it.
OSC’s whistleblower disclosure form, OSC-12, on page ii, explicitly displays OSC’s lawbreaking. It claims, contrary to the explicit words of 5 U.S.C. section 1213(g)(1), that whistleblower disclosures cannot be received if made by anyone other than an employee, former employee, or applicant for employment about their agency or only if such a person obtained the information disclosed (about another agency) in the performance of their duties and responsibilities. OSC also states this unlawful information about these incorrect limitations on who can submit whistleblower disclosures and how they must have obtained the information disclosed in its Annual Reports to Congress and in its guidance, available via itswebsite, about whistleblower disclosures.
***Senate Report No. 100-413 (July 6, 1988) to the Whistleblower Protection Act of 1989, page 27, states as follows:
Subsection (g) is a new section. (g)(1) permits the Special Counsel to refer to appropriate agency heads disclosures made by persons other than an employee, former employee or applicant for employment in the agency which the information concerns, or by an employee who obtained the information in connection with his duties. If the OSC refers such information to an agency head, the agency head must report in writing to the OSC within a reasonable time on what action has been or is being taken on the disclosure and when such action will be completed. The OSC shall inform the complainant of the agency head’s report; if the disclosure is made anonymously, then the OSC obviously is not bound to inform the complainant of the agency head’s report.
112012_OSC 1213(g)(1) disclosure
Cross-posted at MSPB Watch



14 Comments

Hey, MSPB; I know it may not be the thing to do, but I wish you could translate this a little bit for those of us who don’t speak legalese. I get that it’s a big deal, but not quite how.
And if it’s too stupid a request, please know you can ignore it with honor. ;o)
Hope your day’s been a good one. ;o)
wd
Hey, it should have been run thru a plain language machine first, but it was down for the night
Basically OSC accepts disclosures from federal employees for wrongdoing they see on the job. But Congress also allowed OSC to receive disclosures from non fed employees. Contractors, laypeople, employees who blow whistle about things that are not from their own agencies, etc.
Problem is that OSC interpreted away the last paragraph. Im blowing the whistle about that, to, uh, them.
Alas, the government fight against Whistleblowers has increased under Obama. See http://newprogs.org/blog/2011/11/09/whistleblowers-under-democraticrepublican-uni-party
Ta, dear; next time ah’ll lend ya mah plain language machine. Oopsie! NO! That’s mah brain that does that! And I need it, no matter how vacant it may seem to others.
qui tam? judicially noting lost revenue, and a reward for you, that’d be nice…
ianal
wendy, happy new year!
Not a false claim or retaliation complaint, so no money is involved, but OSC’s lawbreaking has contributed to thousands of mishandled whistleblower claims and denial of due process for thousands of feds. This is just another data point to show that a “broken covenant” exists between Presidents, MSPB, OSC, Congress, the courts, the media, unions, private sector attorneys, public interest groups, and the public and law-abiding federal employees. Maybe, just maybe, if these efforts are successful, Congress will recognize it and remedy the problem, if only in part.
http://www.broken-covenant.org and http://www.mspbwatch.net.
Dear MSPB Watch – Thanks for what you’re doing! Your work is more vital than ever.
I thought qui tam was for whistleblowers to help govt from being bilked, however the manner; not limited to false claim or retaliation. Not sure how to put all the words in the legal sentence together, but if OSC is not doing its legally required job and there’s lost revenue provable, then you, the whistleblowing private citizen, can sue them and you are rewarded in a multiple of the damages finding — ??
(my understanding)
Thanks for your support Greenharper. I do it not for fame or glory or money, but because it needs to be done. I hope more citizens become knowledgeable about the obscure institutions at the heart of government accountability, as they play a central role that have great consequences for the rest of society.
You’re right in that qui tam is the general concept whereby private citizens bring a claim with or without the help of the government to redress fraud against the government; in the U.S. federal system it is codified as the False Claims Act, against federal contractors, at 31 U.S.C. 3729 (see http://en.wikipedia.org/wiki/Qui_tam)
That said, my disclosure against OSC is governed by the Civil Service Reform Act of 1978, which is the enabling legislation that created the U.S. Office of Special Counsel and empowers and whistleblower claims against federal agencies in prescribed circumstances, none of which allow for a percentage of recovery. My disclosure is also outside of the scope of the False Claims Act since no federal contractors are involved.
Even if a percentage were allowed, the difficulty would be in putting a dollar figure to the loss incurred… OSC destroys its investigative files after 3 years anyway! http://my.firedoglake.com/mspbwatch/2011/12/20/the-office-of-special-counsel-destroysed-investigative-files-after-only-three-years/
And to you, vision!
I am a whistle-blower, in the really bad days of OSC–2008. Ended poorly for me, really still playing out (and who knew the economy would tank as well?). Now, because of what I do, I am back as a contractor to a federal agency. The insecurity and paranoia I feel is tremendous. I often see bad behavior, that costs taxpayers. Procurement and compliance problems… I really think twice, three times about blowing whistle on what I see. Mission accomplished OSC! Fear is keeping people silent about serious wrong-doing. The president would be proud!
Please keep speaking out like this. This system is too covered up. Fear and reprisal are rampant throughout government.