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:
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.
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.