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Fact Check: GAP Legal Filing Falsely Claims Intelligence Workers Lack External Avenues to Blow the Whistle

7:54 am in Uncategorized by MSPB Watch

In a friend-of-the-court filing dated Dec. 17, the Government Accountability Project argued that a provision in the National Defense Authorization Act of 2012 should be declared unconstitutionally vague as it might chill whistleblowers’ speech. In describing the legal landscape affecting whistleblowers’ rights, however, GAP painted an unduly narrow picture of the avenues currently available.

On page 11, counsel for GAP described the protections in the Whistleblower Protection Act as follows:

The primary legislation affecting federal whistleblowers, the Whistleblower Protection Act of 1989 (“WPA”), provides certain federal employees who report evidence of violations of law, rule or regulation including gross mismanagement, waste of funds, or substantial and specific danger to the public health or safety with some protection, including judicial review.  See 5 U.S.C. § 2302(b)(8).

It noted that “employees in the intelligence community are excluded from the WPA’s protections.”

The brief then continued to state that

[W]histleblowers in the intelligence community . . . are limited to internal administrative avenues. The Intelligence Community Whistleblower Protection Act of 1998 (“ICWPA”) is toothless and creates bureaucratic procedures that makes blowing the whistle an exercise in futility. [Emphasis added.]

This particular claim is false. By law, all executive branch employees have the right to make disclosures of classified (or unclassified) information externally–to the Office of Special Counsel. See 5 U.S.C. § 1213(a)(2). The exemption of intelligence workers from protections against reprisal, found in 5 U.S.C. § 2302(a)(2)(C)(ii), does not affect their right to make disclosures to the Office of Special Counsel.

As such, the ICWPA is not the only avenue to blow the whistle in the intelligence community. Though the WPA does not provide protections against reprisal to intelligence community employees, it does guarantee confidentiality, and an unfiltered channel to the National Security Advisor and relevant intelligence committees in Congress for intelligence-related disclosures. See 5 U.S.C. §§ 1213(h), (j).

Moreover, OSC recently accepted a disclosure from a former FBI employee (FBI is one of the agencies listed in 5 U.S.C. § 2302(a)(2)(C)(ii)), further demonstrating that disclosures by intelligence community employees may be made outside the ICWPA.

Update: In a YouTube video posted Dec. 18, OSC official Bruce Fong (at the 3:31 mark) said that

If your disclosure involves information that you believe might be prohibited from public disclosure, be very careful. You must use a protected channel in order to benefit from the protections of the whistleblower laws. So, if you have information in your disclosure that includes classified information, for example, make sure you use one of the protected channels. The office of inspector general is always a protected channel. So is the Office of Special Counsel. [Emphasis added.]

White House issues policy directive [promises?] national security employees whistleblower protections

5:36 am in Uncategorized by MSPB Watch

gate

(photo: Scott Ableman / flickr)

Update: apparently this directive doesn’t “grant” protections so much as promises them, or something. See the comments below.

Here is a copy of the directive [PDF], obtained from federalnewsradio.com. Here is some background about what it entails:

“Protected disclosure” is defined in this document as follows (emphasis added):

(5) The term “Protected Disclosure” means:

(a) a disclosure of information by the employee to a supervisor in the employee’s direct chain of command up to and including the head of the employing agency, to the Inspector General of the employing agency or Intelligence Community Element, to the Director of National Intelligence, to the Inspector General of the Intelligence Community, or to an employee designated by any of the above officials for the purpose of receiving such disclosures, that the employee reasonably believes evidences (i) a violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(b) any communication described by and that complies with subsection (a)(1), (d), or (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.); subsection (d)(5)(A) of section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q); or subsection (k)(5)(A), (D), or (G), of section l03H of the National Security Act of 1947 (50 U.S.C. 403-3h);

(c) the exercise of any appeal, complaint, or grievance with regard to the violation of Section A or B of this directive;

(d) lawfully participating in an investigation or proceeding regarding a violation of Section A or B of this directive; or

(e) cooperating with or disclosing information to an Inspector General, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General,

if the actions described under subparagraphs (c) through (e) do not result in the employee disclosing classified information or other information contrary to law.

This raises an interesting question: why doesn’t this definition include the Office of Special Counsel as an authorized recipient of (presumably classified) information?

After all, OSC is authorized by law to receive classified disclosures. So where does it fit in with this new scheme? In fact, OSC appears only once, in a discussion regarding assessing the efficacy of provisions deterring retaliation, on page 5. Why not educate employees about the OSC option? The document calls on national security officials to provide guidance for individual officers or employees regarding what disclosures are protected (also on page 5).

For more on this issue, see the following:

The White House may be in for a surprise regarding the Special Counsel’s independence

11:41 am in Uncategorized by MSPB Watch

The White House.

(Photo: Chris Christner / Flickr)

Politico is reporting that the White House is rejecting calls for the Office of Special Counsel to investigate alleged national security leaks:

“No,” press secretary Jay Carney said when asked whether the president would agree to have the Office of Special Counsel investigate alleged leaks of classified information regarding U.S. intelligence operations. “The president,” Carney said, “insists that his administration take all appropriate and necessary steps to prevent leaks.”

However, the Office of Special Counsel is an independent agency and its leader, Special Counsel Carolyn Lerner, cannot be removed except by “the President only for inefficiency, neglect of duty, or malfeasance in office.

In addition, OSC has the following duty:

(a) The Office of Special Counsel shall

(3) receive, review, and, where appropriate, forward to the Attorney General or an agency head under section 1213, disclosures of violations of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

So, you see, if the Special Counsel receives allegations from employees or former employees who have direct information regarding the leaks, the law mandates that the Special Counsel receive and process such disclosures, without interference from the White House.

Here, I’m afraid Jay Carney may be speaking out of turn as it is not for the President to agree or disagree should the OSC receive allegations.

 

Is it time to reexamine the Office of Special Counsel’s informal resolution practice?

8:46 pm in Uncategorized by MSPB Watch

Statement of the Problem

The Office of Special Counsel interprets 5 U.S.C. § 1214, the statute dealing with its investigation of prohibited personnel practices (PPPs), in a way that deprives employees of protection from PPPs, limits its administrative flexibility, engenders a culture of retaliation and lawbreaking in the federal government, violates reporting requirements, and denies the public the right to know the full extent and occurrence of retaliation and other PPPs in the civil service.

What the Law Requires

5 U.S.C. § 1214, together with 5 U.S.C. § 1212, are the statutes whereby OSC derives its authority to protect federal employees from prohibited personnel practices.

Section 1212 is the general mandate for OSC to protect employees from PPPs:

(a) The Office of Special Counsel shall—

(1) in accordance with section 1214(a) and other applicable provisions of this subchapter, protect employees, former employees, and applicants for employment from prohibited personnel practices;

(2) receive and investigate allegations of prohibited personnel practices, and, where appropriate—

(A) bring petitions for stays, and petitions for corrective action, under section 1214

Section 1214 is more detailed, and provides the duties OSC must abide by and the powers it may exercise, in its discretion. A table has been provided for ease of reference:

[Download here]

The key provisions are § 1214(a)(1)(A), §§ 1214(b)(2)(B)-(D), and § 1214(e).

Section 1214(a)(1)(A): OSC’s Duty to Investigate PPPs

5 U.S.C. § 1214(a)(1)(A) states as follows:

(a)(1)(A) The Special Counsel shall receive any allegation of a prohibited personnel practice and shall investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken. [Emphasis added.]

Note that this section involves two duties, using mandatory language – one to receive allegations and another to make a preliminary investigation as to whether reasonable grounds exist that a PPP took place. (Notably, OSC was sued at least twice for failing to make this preliminary investigation. In the D.C. Circuit, the federal appeals court held that OSC can be taken to court to enforce this duty. In the Sixth Circuit, the federal appeals court there reached the opposite conclusion.)

Section 1214(b)(2)(B)-(D): Reporting Occurrences of PPPs Which Require Corrective Action to MSPB

5 U.S.C. § 1214(b)(2)(B)-(D) states as follows:

(b)(2)(B) If, in connection with any investigation, the Special Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken which requires corrective action, the Special Counsel shall report the determination together with any findings or recommendations to the Board, the agency involved and to the Office of Personnel Management, and may report such determination, findings and recommendations to the President. The Special Counsel may include in the report recommendations for corrective action to be taken.
(C) If, after a reasonable period of time, the agency does not act to correct the prohibited personnel practice, the Special Counsel may petition the Board for corrective action.
(D) If the Special Counsel finds, in consultation with the individual subject to the prohibited personnel practice, that the agency has acted to correct the prohibited personnel practice, the Special Counsel shall file such finding with the Board, together with any written comments which the individual may provide. [Emphasis added].

Note that although section 1214(b)(2)(B) uses the word “shall,” it is only conditioned on OSC making the discretionary determination that there are reasonable grounds that a PPP has occurred which requires corrective action (see “If… the Special Counsel determines”). In addition, the “which requires corrective action” qualifier sets section 1214(b)(2)(B) apart from section 1214(a)(1)(A), as follows:

Section 1214(a)(1)(A) requires OSC, upon receiving allegations, to determine whether reasonable grounds exist that a PPP took place.

Section 1214(a)(2)(B) allows OSC to determine whether reasonable grounds exist that PPP took place which requires corrective action - in other words, to determine whether the PPP requires corrective action. If OSC makes this discretionary determination, it must then report it to the MSPB and other listed entities, after which prosecution may follow.

It’s important to mention at this point that only MPSB can provide required corrective action. An agency may provide corrective action, voluntarily, at any point. But Congress, when drafting the predecessor statute to 5 U.S.C. § 1214, was explicit in that only MSPB may provide corrective action of this sort, H.R. Conf. Rep. 95-1717, Oct. 5, 1978, page 134. The reason for this distinction is that corrective action may not be required if the agency can demonstrate that it would have taken the same personnel action in the absence of whistleblowing (in the context of reprisal for whistleblowing), or that no nexus exists between the agency’s personnel action and the protected employee activity (in the context of reprisal for exercising one’s rights). Only an MSPB hearing can afford the parties the opportunity to present evidence and render a judgment whether corrective action is required under the law.

So far, I’ve made a distinction between OSC’s duty to determine whether reasonable grounds exist that a PPP occurred and OSC’s discretionary power to determine whether a PPP requires corrective action by the MSPB. Under the second scenario, a record would exist at MSPB.

However, does the law require public reporting of PPPs where OSC did not determine that corrective action is required, for whatever reason – that is, where it had no occasion to go to MSPB?

Section 1214(e): Public Reporting of Civil Violations, Including PPPs Where OSC Did Not Determine Corrective Action Is Required

Section 1214(e) states as follows:

(e) If, in connection with any investigation under this subchapter, the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred other than one referred to in subsection (b) or (d), the Special Counsel shall report such violation to the head of the agency involved. The Special Counsel shall require, within 30 days after the receipt of the report by the agency, a certification by the head of the agency which states—

(1) that the head of the agency has personally reviewed the report; and

(2) what action has been or is to be taken, and when the action will be completed.

This provision is worth analyzing in detail, because OSC has interpreted it over the years in a way that is inconsistent with what the law seems to require (more on this below).

Section 1214(e) reads as follows:

“If, in connection with any investigation under this subchapter”: that is, subchapter II of Chapter 12 of Chapter II of Title 5, the subchapter that encompasses the statutes governing OSC’s operations;

“the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred”: so far, this is a very broad mandate – “any” violation of “any” law, rule, or regulation, except for…

“other than one referred to in subsection (b) or (d), the Special Counsel shall report such violation to the head of the agency involved.”: subsection (b) deals with PPPs “which require corrective action.” (Recall that PPPs are violations of law – 5 U.S.C. § 2302(b)). As discussed in much detail above, these are not any PPPs, but only those for which OSC has exercised the discretionary power to determine that corrective action from MSPB is required. This is where the distinction above becomes critical — unless OSC takes the additional step of determining that a PPP requires corrective action from MSPB, it falls under the reporting obligations of section 1214(e). Recall that PPPs which require corrective action will already be reported elsewhere – MSPB. Section 1214(e) is what ensures that other PPPs get reported to the public and are not buried.

In addition, subsection (b) does not include other prohibited activites that fall under OSC’s enforcement jurisdiction, such as ones that fall under 5 U.S.C. § 1216.

Subsection (d) deals with violations of law that implicate criminal activity – these violations get reported to the Attorney General, which ensures that the violations gets reported somewhere.

Finally, purely civil violations that do not fall within sections 1214 or 1216 are covered by section 1214(e).

All told, the only things that may not be reported to the head of an agency under section 1214(e) are criminal violations and PPPs which require corrective action.

This analysis is reflected in this flowchart and the Powers and Duties table above.

OSC Practice

Shortly after its founding, in 1978, the Office of Special Counsel reported to Congress the ways in which it handles whistleblower retaliation complaints. It included the following description, on pages 17-18:

In a much larger number of cases, agencies agreed to take corrective action recommended by the Special Counsel without submission of an investigative report and formal recommendations to the agency head. In some instances, simply bringing the allegation to the attention of appropriate agency officials resulted in corrective action for the complainant. In other cases, agency officials agreed to or initiated corrective action after being notified of the Special Counsel’s intent to file a petition for stay of personnel action with the Board.

In addition, avoidance of a public record of a personnel related problem is sometimes an incentive for an agency to resolve the matter to the satisfaction of the employee and the Special Counsel.

The Annual Reports for 1981 contains a similar description:

Although the office filed no new complaints requesting the Board to order agencies to take corrective action during 1981, agencies frequently corrected situations giving rise to employee complaints during the course of a Special Counsel inquiry. When a complaint is resolved informally, there is no need for the Special Counsel to submit formal recommendations to the agency head or to file complaints for corrective action with the Board.

Agency officials are normally agreeable to correcting a problem once it is brought to their attention by the Special Counsel, even where an investigation may not lead to a finding of a prohibited personnel practice. Where it appears that the facts will show that an agency official’s action resulted from a prohibited personnel practice, the agency usually will agree to correct the problem to avoid having it brought to the attention of the agency head or being made public by a Special Counsel complaint filed with the Board.

The Annual Reports for 1987-1996 contain the following description:

The Prosecution Division reviews completed full field investigations to determine whether the inquiry has established any violation of law, rule or regulation, and whether the matter warrants corrective or disciplinary action, or both. OSC may have discussions with an agency about a case at any point of the investigation or analysis in order to obtain a mutually agreeable resolution. Otherwise, the Special Counsel may refer the matter in writing to the agency head under 1214(b)(2)(A) with a recommendation for corrective action.

Finally, if an investigation discloses a violation of any law, rule or regulation not otherwise within the enforcement authority of OSC, the Special Counsel sends a report of OSC’s findings to the agency head concerned under 1214(e) for certification of any action to be taken on the matter.

The Annual Report for 1998, for instance, contains the following description:

Where an investigation discloses a violation of any law, rule or regulation not otherwise within the enforcement authority of the OSC, the Special Counsel sends a report of the OSC’s findings to the agency head concerned under 1214(e) for certification of any action to be taken on the matter. The OSC reports evidence of any possible criminal violations identified during an investigation to the Department of Justice pursuant to 1214(d).

How to Harmonize OSC Practice with the Law

OSC should reinterpret section 1214 as follows:

–OSC is required it to make a determination as to whether reasonable grounds exist that a PPP occurred.

–If so, it sends letter to the offending agency’s head and requires a certification within 30 days as to what will be done.

–If the agency refuses to take adequate steps, OSC may proceed to either terminate the case while publicizing online the letter and the agency certification, or refer the case for prosecution and seek corrective action at MSPB.

–Either way, the whistleblower benefits over the status quo: chances increase that the agency will correct the situation on its own, but if it does not, it will have to reveal its litigation strategy before a lengthy and costly legal case commences.

What are the Consequences of OSC’s Misinterpretation of 5 U.S.C. § 1214?

There is no legal basis for OSC’s reading that section 1214(e) exempts from its reporting requirement all violations of law “not otherwise within the enforcement authority of OSC” [i.e. sections 1214 and 1216]. Section 1214(e) is quite specific that the only items not required to be reported by OSC are criminal violations and those PPPs which require corrective action. There is no justification for OSC’s giving agencies an incentive to informally correct the personnel issue in exchange for foregoing a PPP determination report. In other words, secret negotiations that bury the facts of agency retaliation are not authorized by law. In fact, the opposite is true – the facts must be reported: by OSC or by MSPB.

Avoiding making these reports – and failing to maintain the public database of them as required under 5 U.S.C. § 1219(a)(3) – has led, in my experience and perspective, to a culture of retaliation and lawbreaking to take root and flourish in the federal civil service. Much money and public trust has been wasted because one of the watchdogs of the civil service has interpreted away a key duty.

What Can Be Done?

The issue of OSC’s interpretation of 5 U.S.C. § 1214 is the subject of a FOIA request I made in December 2011. I anticipate a response by August 2012. In the meantime, I will forward this information to OSC as a whistleblowing disclosure pursuant to 5 U.S.C. § 1213(g)(1). I will update once I receive OSC’s response.

Office of Special Counsel reverses course, begins adhering to law following a disclosure filed against it

3:01 pm in Uncategorized by MSPB Watch

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_disclosure_closure_1204_2302-516 (pdf)

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OSC File No. DI-12-1143 (pdf)

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See also:

 

OSC may be unlawfully turning away whistleblowers from the intelligence community

6:34 am in Uncategorized by MSPB Watch

This is the conclusion derived after a frenzy of research, discussion, and contentious debate with an OSC official over the past couple of days.

To sum up: The Civil Service Reform Act of 1978 authorized OSC to accept classified disclosures from all agencies, including intelligence agencies, in 1978. Some classified disclosures may have been sent to OSC, according to a senior OSC official, but he would not elaborate if they were from intel agencies.

However, a number of years ago, the chief of OSC’s Disclosure Unit, Catherine McMullen, told a fellow whistleblower, Joe Carson, that OSC will not accept disclosures from agencies exempt from its prohibited personnel practice (PPP) jurisdiction by 5 U.S.C. 2302(a)(2)(C). In other words, if you were retaliated against and you work at CIA, NSA, FBI, etc., OSC does not have jursidiction over your PPP complaints. However, McMullen (or her predecessor or superior), expanded this to mean that OSC cannot accept disclosures from CIA, NSA, FBI, etc. This is contrary to law.

Additional evidence: this MSPB special study about the Tennessee Valley Authority.  TVA, much like NSA, CIA, etc., at the time this report was issued, was exempt from OSC’s PPP jurisdiction (a/k/a the “whistleblower protections” below). Check out page 44:

Tennessee Valley Authority special study (page 44)

Why did MSPB conclude that because OSC could not protect TVA employees from reprisal, TVA employees could not complain about violations of law? The two functions – protection from PPPs and processing of whistleblower disclosures – do not depend on one another. Perhaps MSPB spoke with OSC, which at the time of the report was an autonomous office within MSPB, and derived that conclusion from it.

More evidence: members of the national security community are not aware of OSC being available to process their disclosures. At least one prominent whistleblower who sacrificed much swears that if he could have gone to OSC, he would have, and he conferred with whistleblowing attorneys before his ordeal began.

Another whistleblower did not go to OSC, did not even know about OSC, and only later did MSPB impose the requirement to go to OSC to people in his situation:

The MacLean decision means that, in some cases, the [Sensitive Security Information] disclosure is protected only if it is made to the agency’s Inspector General, to another employee designated by the head of the agency to receive such disclosures, or to the Office of the Special Counsel.

More evidence: neither OSC’s regulations, nor their website, nor their OSC Form 12 clarifies how it will handle processing of classified information (other than say it will direct the information to Congress and the National Security Advisor). OSC’s annual reports make no mention of any disclosures of classified information.

Which brings us to today’s Office of Special Counsel. Joe Carson raised these concerns to Carolyn Lerner via email recently, which prompted a denial by a subordinate, who said that

OSC has instituted several precautions to handle classified disclosures, including, but not limited to, the use of a locked safe to keep any such materials, and limiting access to such materials to employees that have the right type of clearance. In addition, OSC will soon place additional information on its website about the submission of classified disclosures.

However, after several discussions via email and a telephone conversation between me and the OSC official, Carson wrote to this official that

I can assure you that creating, storing, sharing and transmitting classified information is highly regulated – special phones, special fax machines, special printers, double safes, double (or more) envelopes, special markings, “need to know” and authorized access, etc.

OSC simply does not have the physical capability to accept disclosures containing many, if not most, types of classified information and never has.   Dave Pardo told me that you told him that OSC receives classified disclosures by meeting with whistleblower physically in its DC office.  What if the whistleblower is not in DC?  (For example, say she (the whistleblower) works for CIA as a NOC in mid-east?  Does OSC have a room that receives regular screening for presence of “bugs”?  Such rooms  exist in Dept. of Energy facilities in Oak Ridge, to allow discussion of some types of highly classified information.

Simply put, the indicia of OSC handling highly classified disclosures from intelligence community employees is not there. Moreover, the answer to this question should not be this difficult to pin down.*

What is really going on?

I think, and this is something shared by Carson, that OSC has been turning away whistleblowers from intelligence agencies, and when confronted about this (and other issues), OSC officials stop “acting in the interests of employees” and faithfully implementing the law, and begin acting as attorneys who must zealously advocate for their client, the Office of Special Counsel. This involves minimizing adverse consequences for any liabilities or wrongdoing, protecting one’s turf, and evading accountability. We’ve seen this kind of behavior from the Special Counsel herself. Now we see it from her subordinates.

To make matters worse, legal ethics don’t really have an answer for the dilemma encountered at OSC.

To be continued.

*Is there a chance that I’m wrong about this and this is a misunderstanding? Yes. But I am raising these concerns based on a reasonable belief that something is wrong at OSC, having witnessed too many whistleblowers throw away their careers or get prosecuted by Obama’s DOJ and not even know that this option exists.

 

MSPB Watch files whistleblower disclosure against Office of Special Counsel

8:14 pm in Uncategorized by MSPB Watch

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

What’s a 1214(e) report and why does it matter?

12:05 am in Uncategorized by MSPB Watch

5 U.S.C. 1214(e) states that,

If, in connection with any investigation under [5 U.S.C. 1214 or 1216], the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred other than one referred to in subsection (b) or (d) [prohibited personnel practice requiring corrective action, or criminal violation], the Special Counsel shall report such violation to the head of the agency involved.

The Special Counsel shall require, within 30 days after the receipt of the report by the agency, a certification by the head of the agency which states

(1) that the head of the agency has personally reviewed the report; and

(2) what action has been or is to be taken, and when the action will be completed.

Essentially, we’re talking about the Special Counsel’s non-discretionary duty to report to the agency head, and then the public per 5 U.S.C. 1219(a)(3), that a violation of law occurred (“The Special Counsel shall maintain and make available to the public - (3) a list of matters referred to heads of agencies under subsection (e) of section 1214, together with certifications from heads of agencies under such subsection;”).

There’s been some wrangling back and forth between OSC and litigants about what falls under 1214(e). Apparently, OSC has interpreted this provision over 30 years ago to say that it doesn’t cover anything within its “enforcement jurisdiction” - e.g., any violations of prohibited personnel practices (PPPs) or other civil service violations, and that it has the discretion to report violations outside its jurisdiction - e.g., civil violations of say, environmental laws. Inexplicably though, in recent litigation, OSC, through DOJ, said that it does not have the authority to report violations outside its jurisdiction.

Litigants such as Joe Carson contend that OSC’s supposed statutory reading of 1214(e) is erroneous, and that OSC’s duty to report violations of its own civil service rules is clear: 1214(e) applies when OSC determines that a PPP exists/will take place/took place. Further, it has the discretion to determine if corrective action is required, and when it does so, OSC shall report the violation to MSPB, the agency, OPM, and possibly the President, pursuant to 1214(b)(2)(B). Doing so suffices to meet the requirements of 1214(e). Either way, reporting of some sort (either thru 1214(e) or 1214(b)(2)(B) in case of corrective action) has to take place when a PPP occurs.

Why is this important?

Well, to analogize to whistleblower disclosures under 5 U.S.C. 1213, when OSC reports that there was a violation of non-civil-service law, it catches the public’s attention:

Would a public report that an agency retaliated against a whistleblower or discriminated against a federal employee on the basis of favoritism catch on as much as the Air Force scandal did? Probably not, but it’s likely that a few hundred or even thousand such violations in a year would.

Which is why the Civil Service Reform Act of 1978 required the OSC to make such reports to the agency head and then make them available to the public, per 1219(a)(3). After all, whistleblower disclosures are made available on the OSC’s website here.

But where, on OSC’s website, or even their physical files, is the public database for 1214(e) reports? And where’s the legal interpretation of 1214(e) that ostensibly allows OSC to escape its reporting mandate?

 

How to blow the whistle in the federal government (flowchart)

11:50 am in Uncategorized by MSPB Watch