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OSC: Commerce Dep’t Inspector General Gagged Employees From Blowing Whistle

11:17 am in Uncategorized by MSPB Watch

In a Kafkaesque turn of events, the Office of Special Counsel is alleging that top officials in the Commerce Department Office of Inspector General threatened subordinate employees with negative performance reviews if they didn’t sign non-disclosure agreements that barred them from exercising their rights to blow the whistle and petition Congress.

The Special Counsel petitioned the Merit Systems Protection Board to stay enforcement of the non-disclosure agreements, which she argued are an “any other significant change in duties, responsibilities, or working conditions” in retaliation for the employees’ potential for blowing the whistle – a/k/a their “perceived whistleblower” status.

The Special Counsel said in a press release Nov. 30 that “[b]ecause the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.”

MSPB Member Mark A. Robbins, in a single-member decision, Nov. 29 granted the stay request for 45 days, adding that

For purposes of this nonprecedential single-member decision in this ex parte proceeding, I accept OSC’s assertion that the Former Employees’ inability to report perceived wrongdoing to the appropriate authorities as a result of signing the nondisclosure agreement may constitute a “significant change in duties, responsibilities, or working conditions” under 5 U.S.C. § 2302(a)(2)(A)(xi).“

Other examples of “any other significant change in duties, responsibilities, or working conditions” may be found here.

From OSC’s press shop:

OSC Granted Stay in Challenge to Commerce Department Gag Clauses

CONTACT: Ann O’Hanlon, (202) 254-3631;

WASHINGTON, D.C./November 30, 2012 –

The Merit Systems Protection Board (MSPB) yesterday granted a stay requested by the Office of Special Counsel (OSC) prohibiting enforcement of unlawful gag clauses in settlement agreements between the Commerce Department’s Office of Inspector General (OIG) and four former employees of the OIG, each of whom was coerced into signing an agreement under threat of harm to their career prospects and future employment. The order is available here.

The agreements prohibit employees from voluntarily communicating with OSC or Congress. The employees were told that manufactured negative performance appraisals would be shared with prospective employers if the employees did not sign the nondisclosure agreements.

The MSPB’s action means that the personnel actions taken or threatened to be taken by OIG senior management must cease for 45 days, giving OSC further time to investigate the allegations. These personnel actions include the threatened communication with prospective employers and the imposition of significant changes in the employees’ working conditions.

The order concludes that an agreement restricting employees’ ability to report wrongdoing is a change in working conditions and is therefore a personnel action under the Whistleblower Protection Act.

In addition, the order applies the Lloyd-LaFollette Act, a 1912 law codifying the rights of federal employees to blow the whistle to Congress.

Because the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.

“OSC is committed to ensuring that agencies do not interfere with whistleblowing to Congress,” said Special Counsel Carolyn Lerner. “We are pleased that the MSPB has granted the stay so that OSC can further investigate this matter.”

Anatomy of an Oversight Breakdown

5:39 pm in Uncategorized by MSPB Watch

Earlier today, a nominee of one party appeared in front of a lone Senator of the opposite party. These men traded cordial remarks while discussing the future of the nominee’s legal and political career. Mark A. Robbins, nominee for the Merit Systems Protection Board, appeared in front of the Senate Homeland Security and Government Affairs Committee, which was represented solely by Senator Daniel Akaka.

Akaka began by introducing Robbins, who was flanked by his parents and many of his friends. After going over his resume, Akaka swore in Robbins and handed him the floor. Here’s what Robbins had to say.

This was followed by a few softball questions, and the matter was over and done with in less than an hour.

What did not take place:

Any serious discussion of the MSPB’s current difficulties, Robbins’ plans for helping to remedy them, and whether MSPB will fulfill its mandate as originally designed by Congress. To hear it from Robbins’ himself (and I was there), you would think that MSPB was doing just fine and was in no need of any course correction.

My blog – its very reason for existence – is proof to the contrary.

Sadly, Akaka played along with this charade, and the NGOs who deign to represent the whistleblower and good government community (and who indeed have a near-monopolistic hold on Congress’ attention) were nowhere to be found. Not one word has been uttered from the press shops of GAP, POGO, MISC, or NWC about Robbins’ nomination. Maybe maintaining cordial relations is more important than holding government officials’ feet to the fire; maybe discussions take place behind closed doors and out of public sight; maybe it doesn’t really matter who the nominee is as long as the whistleblowers keep coming in through the front door.

The Civil Service Reform Act was signed into law in 1978. At the time, it was landmark legislation that was motivated by the abuses of the Watergate scandals. The Whistleblower Protection Act was passed in 1989, a year before the Americans with Disabilities Act. The ADA has achieved public renown and near-constitutional status. No one would think of repealing it or letting its provisions go unenforced. But how many Americans have heard of the CSRA or WPA? How many know the turbulent history of the Office of Special Counsel, assuming they’ve even heard of it? How many realize that the WPA is one of the least observed laws in the U.S. Code?

It’s been over a dozen years since whistleblower legislation was passed by Congress. But do these new, enhanced laws matter if they can be gutted and ignored before the ink dries?

It’s not enough to pass new laws, or to make sure the ones in the books are enforced. If we really care about good government, it’s also important to raise the profile of these laws to near-constitutional levels. It starts by practicing transparency, by asking the tough questions regardless of impact on personal relationships, and by looking past transactional, beltway politics.


Letter to Mark A. Robbins, GOP Nominee for MSPB Member

9:20 am in Uncategorized by MSPB Watch

December 21, 2011

Mr. Mark A. Robbins, Esq.
Executive Director (acting)
Election Assistance Commission
1201 New York Avenue, N.W.
Suite 300
Washington, D.C. 20005

Subject: The Future of the Merit Systems Protection Board

Dear Mr. Robbins,

Congratulations on your nomination to the Merit Systems Protection Board (MSPB).

We are current and former federal employees who have utilized the services of the MSPB and/or the U.S. Office of Special Counsel (OSC).  In our experience, these agencies have contributed to a much more diminished civil service than the one envisioned during their creation by the Civil Service Reform Act of 1978.[1]

We contend that MSPB has been out of compliance with its positive statutory duty to conduct “special studies” focusing on whether federal employees are adequately protected from prohibited personnel practices (PPP’s), including the whistleblower reprisal type PPP, per 5 U.S.C. § 1204(a)(3). This issue has given rise to numerous suits and FOIA requests, none of which has dispelled these concerns.[2]

We seek your input, either before, during, or after your confirmation hearings (pursuant to questions for the record), to address the special studies concern as well as other pressing matters, such as:

The disparity between evidentiary standards for granting stays (“preliminary relief” is a better description) when sought by OSC and when sought by employees;

The lack of an Inspector General at MSPB;

How the “election of remedies” of 5 U.S.C. 7121(g), by including filing a complaint with OSC, creates a perverse incentive for federal labor unions to want OSC to be ineffective;

Requiring OSC to file a 5 U.S.C. § 1214(e) report with the Board to establish jurisdiction for corrective action; and

Ethical obligations for MSPB attorneys, including any attorney Board Members, when MSPB fails to comply with the law.

You are not yet employed by MSPB, therefore it is not yet your client, and you are not precluded by attorney-client ethics from speaking frankly about its interpretation of, and compliance with, 5 U.S.C. § 1204(a)(3), as well as the issues listed above.

We look forward to your views on these pressing matters.

[1] See and for more information.
[2] A current FOIA appeal is pending in front of Chairman Grundmann, seeking any agency interpretations ostensibly relied upon by the MSPB in court to justify MSPB’s position regarding 5 U.S.C. § 1204(a)(3). See for more information.

Letter to Mark Robbins