In 2010, whistleblower and federal employee Joe Carson made a disclosure to OSC regarding broken covenant – the systemic non-enforcement of critical civil service laws by Presidents, Special Counsels, the MSPB, and agency heads, for the past 34 years. Carson alleged, and still does, that “MSPB has failed to comply with its nondiscretionary duty to conduct ‘special studies’ of OSC’s compliance with its obligations to protect federal employees from reprisal and other types of PPPs pursuant to 5 U.S.C. 1204(a)(3).”
At the time, OSC noted that
[W]e can only transmit information to agencies and request reports when the information obtained is transmitted by an employee who obtained the information in connection with the performance of the employee’s duties, or the information transmitted pertains to the agency where the employee is employed. Because you did not obtain the information you transmitted to OSC in connection with the performance of your government duties, nor did the information you obtained pertain to the agency where you are employed, we are unable to take further action concerning your allegations.
The problem is that this is contradicted by 5 U.S.C. 1213(g)(1), and today, OSC has all but admitted as much.
Responding to a disclosure I made about OSC’s allegedly unlawful non-compliance with section 1213(g)(1), OSC reversed course, noting that
Section 1213(g)(1) grants the Special Counsel the discretionary authority to refer to an agency head information from a federal employee, former employee or applicant who reasonably believes the information evidences wrongdoing either 1) within an agency other than the one where the individual is employed, or 2) where the information is obtained outside the performance of the individual’s duties.
In other words, if Carson were to make the same disclosure against MSPB today, OSC would not be able to claim it has no jurisdiction to review it. Whether it would do so, however, would be a discretionary call by the Special Counsel.
Here’s OSC’s 2010 letter to Carson, with their letter to me right underneath.
OSC File No. DI-12-1143 (pdf)
- MSPB Watch files whistleblower disclosure against Office of Special Counsel
- MSPB’s special studies mandate: is it being met?