(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.

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:

• MSPB Watch files whistleblower disclosure against Office of Special Counsel
• MSPB’s special studies mandate: is it being met?

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