Various publications covering the federal government relayed concerns by outgoing OPM director John Berry over the “denigrat[ion]” of public service while ignoring his role in the Obama Administration’s unprecedented assault on workplace protections for hundreds of thousands of civil servants, via Berry v. Conyers & Northover. (The “Berry” is for John Berry, on behalf of the Office of Personnel Management).

Whistle blowers

That case, which is currently on appeal, has generated the following comments:

Tom Devine, Government Accountability Project:

If the ruling stands, “the merit system will be history.”

Lynne Bernabei, Bernabei & Wachtel, PLLC:

[T]he Obama administration’s support of this position is an integral part of the administration’s increasing secrecy and support of a national security system that is unaccountable.

Judge Dyk, dissenting opinion in Berry v. Conyers & Northover:

The majority completely fails to come to grips with the [Civil Service Reform Act of 1978]. . . the majority’s holding effectively nullifies the statute.

Angela Canterbury, Project on Government Oversight:

Congress must legislate to overturn the wrongheaded over-reach of the Federal Circuit, . . . and to prevent agencies from arbitrarily labeling away the rights of civil servants.

None of the major publications that cover civil service issues mentioned that decision. Instead, we’re treated to this:

Federal Times, April 11, 2013:

After taking over OPM, Berry quickly became known for his optimistic and passionate speeches defending federal employees. As the political winds soured on civil servants in recent years, Berry continued speaking up for feds. At a March labor-management meeting, an angry-sounding Berry warned that the government risks becoming unable to recruit and retain a qualified workforce if it keeps freezing employees’ pay, cutting their benefits, and publicly denigrating them.

Government Executive, April 11, 2013:

Berry has been a vocal champion for federal workers during the last four years, and has a good reputation among lawmakers on Capitol Hill. His exit comes just as federal employees at a number of agencies are starting to feel the effects of sequestration, including furloughs.

The biggest offender seems to be the Washington Post, which served up the following:

Though Berry faced major headaches from computer systems and retiree issues, his greatest frustration was something more fundamental.

“I don’t know if we succeeded in beating back those small-hearted people who somehow feel it is appropriate to denigrate public service,” he said during an interview.

“I don’t know what sort of smallness of mind or heart motivates them, but they need to understand that public service matters. And these jobs are just too important to not be able to recruit the best and the brightest to do them. . . . Do you want Homer Simpson researching cancer for your children’s diseases?”

It was President Obama, Berry’s boss, who, with congressional approval, upset federal workers by freezing their basic pay rates, a freeze now in its third year.

Obama has proposed a 1 percent pay raise for next year, paired with a requirement that employees increase contributions to their pensions.

The freeze happened on Berry’s watch, but it was largely out of his hands.

Meanwhile, Federal News Radio covered its flank a bit by getting positive comments from stakeholders. None of these publications, however, mentioned the decision that could gut civil service protections for hundreds of thousands of employees.

It’s difficult to square Berry’s stated concerns for public servants in the media when he’s trying to strip them of their rights in court. It’s even more difficult to see what’s in it for the free press to give him a pass.
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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.

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
202-566-3100

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.