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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:

 

Senator Patrick Leahy is ignoring allegations of misconduct by a judicial nominee

1:06 pm in Uncategorized by MSPB Watch

Senator Patrick Leahy (photo: mcconnellcenter, flickr)

Senator Patrick Leahy (photo: mcconnellcenter, flickr)

How else can one explain the following statement, meant to pressure Senate Republicans to confirm 19 nominees for federal courts, when Leahy is in receipt of allegations that one of them made false statements to a federal judge?

Leahy says the following:

But, month after month and year after year, Senate Republicans find new reasons and new tactics to delay confirmation of consensus judicial nominees for no good reason.

I wonder when I hear some Republican Senators claim credit for progress on nominations — and point to what they like to call “positive action” — how they can ignore the 19 judicial nominations being blocked for no reason.

The Senate should fill these numerous, extended judicial vacancies, not delay final action for no good reason.

I submit to you that making allegedly false statements to a judge is good reason to take pause. While true obstruction may be taking place, the statements above cannot hold across the board. Let’s take our time lest we confirm the wrong person for the post.

Whistleblower Requests Investigation of Department of Justice Lawyers and Nominee for Federal Court

4:35 pm in Uncategorized by MSPB Watch

From a just-released press release:

Whistleblower Requests Investigation of Department of Justice Lawyers and Nominee for Federal Court

Actions by Justice Department lawyers raise concerns about possible cover-up involving the U.S. Merit Systems Protection Board

FOR IMMEDIATE RELEASE

PRLog (Press Release)Jan 31, 2012 -

WASHINGTON — Joseph Carson PE, multiple-time prevailing federal whistleblower and nuclear safety engineer, called for an investigation by the Department of Justice’s Office of Professional Responsibility (OPR) into the conduct of attorneys from the office of the U.S. Attorney for the District of Columbia. The basis for the request stems from a 2007 lawsuit against the U.S. Merit Systems Protection Board (MSPB). The attorneys, Sherease Louis, Rudolph Contreras, and then-U.S. Attorney Jeffrey A. Taylor, argued on behalf of their client, the MSPB, that MSPB’s formal interpretation of a critical federal civil service law had been validated, several times since 1978, when Congress reauthorized MSPB.   However, MSPB’s response to a recent Freedom of Information Act (FOIA) request reveal that no such formal interpretation exists.

One of the attorneys named in the request – Rudolph Contreras – has been nominated for a federal district court judgeship in the District of Columbia court – the very court he apparently made a false argument. The Senate Judiciary Committee approved his nomination with an unopposed voice vote on November 3, 2011. A full Senate vote is due at any time.

The 2007 lawsuit began when Carson sued the MSPB to compel it to comply with its mandate under 5 U.S.C. 1204(a)(3): to “report to the President and to the Congress whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.” Carson contends that the MSPB, in its 34 year history, has never complied with this duty.

“If these allegations are true, it means that the Justice Department colluded with MSPB to cover up the fact that MSPB is in violation of its most critical mandate: to be the guardian of the civil service system by shining a bright light on abuses in federal agencies,” Carson said. “Now, we come to find out that Mr. Contreras is mere days away from being confirmed to the D.C. district court. His nomination should be put on hold until the Senate can get to the bottom of this situation.  This is particularly so as the allegations involve a critical law – perhaps THE critical law – for Congress’s ability to do oversight of the integrity of the entire federal civil service.”

A copy of the request to the Office of Professional Responsibility, as well as letters to the appropriate Senate offices, are available at www.mspbwatch.net.

 

New FOIA request: any MSPB “special studies” of OSC under Scott Bloch and beyond

5:08 pm in Uncategorized by MSPB Watch

The following FOIA request has been made to the Merit Systems Protection Board:

I respectfully request any documents related to 5 U.S.C. 1204(a)(3) regarding any studies, and/or inquiries, discussions, or communications as to whether to conduct such studies, related to the tenure and administration of Scott Bloch at the U.S. Office of Special Counsel for the time period of 2003-2008, as well as the period following his ouster (2008-2011).

It’s common knowledge that Bloch allegedly retaliated against his own staff. If so — if he created a hostile environment inside OSC where fear, favor, reprisal, and/or intimidation ran rampant, then the public interest in a civil service free of prohibited personnel practices was/is likely not adequately protected. This is all the more important because OSC is supposed to protect the rest of the civil service from such harms, so a broken culture there has reverberating effects elsewhere.

My request seeks to find out if MSPB issued, or contemplated issuing, any studies, per its statutory authority, to find out if the public interest was harmed.

Did a nominee for federal judge mislead the court?

12:56 am in Uncategorized by MSPB Watch

That’s what a recent FOIA determination might have revealed.

From my January 19 diary:

On January 18, Chairman Grundmann of the Merit Systems Protection Board granted my appeal in a FOIA request that asked for interpretations pertaining to 5 U.S.C. 1204(a)(3). That statute governs the MSPB’s duty to report to Congress and the President “whether the public interest in a civil service free of prohibited personnel practices is adequately protected.” The FOIA request asked for any interpretations or other documents interpreting that phrase.

I made that request because Justice Department attorneys referred to such an interpretation in a 2007 FOIA lawsuit brought against MSPB by a third party (Joe Carson, a fellow whistleblower).

Now, we find out, there was no such interpretation, at least not one that can be made public.

Here’s the FOIA appeal grant: http://mspbwatch.files.wordpress.com/2012/01/mspb-foia-appeal-granted-no-2012-01-003.pdf

This raises the question: why are DOJ lawyers making legal arguments based on documents that either don’t exist or are secret?

It should be noted that one of the lawyers who signed off on the brief in question has been nominated for a federal judgeship by President Obama in July, 2011.

Further research reveals that the nominee – Rudolph Contreras, Chief of the Civil Division of the U.S. Attorney’s office for the District of Columbia — received what appears to be a unanimous vote out of the Senate Judiciary Committee on November 3, 2011, and a Senate floor vote would be the next step, leading to lifetime tenure on the bench. Federal judges in D.C. deal with a lot of FOIA and other administrative issues (similar to the ones raised by the 2007 lawsuit in question), and Mr. Contreras’ nomination was heralded in part because of his expertise in FOIA and administrative matters. Finally, in response to a question by Senator Chuck Grassley about his interpretive method, Contreras stated that 

If the plain language is unclear, I would deferentially look at the relevant administrative agency’s reasonable interpretation of the provision.

The concern raised by last week’s FOIA determination is that Contreras implied to the Court that there was an agency interpretation when, in fact, there was none.

Contreras has been made aware of these concerns and has been asked to respond.

Whatever happens from here on out, this should be looked into before a floor vote takes place.

 

Update: The Senate placed Contreras’ nomination in the Executive Calendar for January 23, 2012. Unsure if this means a vote will take place tomorrow, but is likely soon: http://www.senate.gov/legislative/LIS/executive_calendar/2012/01_23_2012.pdf

MSPB FOIA documents cast doubt on veracity of legal argument by Justice Department lawyers and current judicial nominee

10:55 pm in Uncategorized by MSPB Watch

On January 18, Chairman Grundmann of the Merit Systems Protection Board granted my appeal in a FOIA request that asked for interpretations pertaining to 5 U.S.C. 1204(a)(3). That statute governs the MSPB’s duty to report to Congress and the President “whether the public interest in a civil service free of prohibited personnel practices is adequately protected.” The FOIA request asked for any interpretations or other documents interpreting that phrase.

I made that request because Justice Department attorneys referred to such an interpretation in a 2007 FOIA lawsuit brought against MSPB by a third party (Joe Carson, a fellow whistleblower).

Now, we find out, there was no such interpretation, at least not one that can be made public.

Here’s the FOIA appeal grant: http://mspbwatch.files.wordpress.com/2012/01/mspb-foia-appeal-granted-no-2012-01-003.pdf

This raises the question: why are DOJ lawyers making legal arguments based on documents that either don’t exist or are secret?

It should be noted that one of the lawyers who signed off on the brief in question has been nominated for a federal judgeship by President Obama in July, 2011.

P.S. the 1980 MSPB annual report can be found here: http://mspbwatch.files.wordpress.com/2011/11/mspb-annual-report-1980.pdf

Background:

 

Appeal of an MSPB FOIA Determination

8:09 pm in Uncategorized by MSPB Watch

December 18, 2011

FOIA APPEAL

FOIA Tracking No. 2011-12-002

Chairman Susan Tsui Grundmann
U.S. Merit Systems Protection Board
1615 M Street, NW
5th Floor
Washington, DC 20419

Dear Chairman Grundmann,

This is an appeal of the Merit Systems Protection Board’s (MSPB) determination, dated December 9, 2011,[1] into my Freedom of Information Act (“FOIA”) request dated December 6, 2011.[2]

Background

In that request, I requested the following information:

Legal opinions,
Memoranda,
Interpretive rules,
Statements of policy,
Administrative staff manuals and instructions to staff that affect a member of the public,
Rules of agency organization, procedure, or practice,

Or

Any other documents

Related to any interpretation of 5 U.S.C. 1204(a)(3) regarding whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.

This request does not request or refer to any currently publicly available special studies relating to the civil service and to other merit systems in the executive branch.

The MSPB determination repeated most of the request[3] and stated, in relevant part:

Your request has been processed in accordance with the Merit Systems Protection Board’s (MSPB) regulations at 5 CFR Part 1204 that implements the FOIA.

We have conducted a thorough search of our records and found records that are responsive to your request. We are releasing to you the enclosed copies of the MSPB reports in their entirety.

Those reports are:

Prohibited Personnel Practices – A Study Retrospective (June 2010)
Prohibited Personnel Practices: Employee Perceptions (Aug. 2011)[4]

Grounds for Appeal

Denial of Access to Agency Records

The MSPB’s determination constitutes a denial of access to agency records because the MSPB, in litigation, relied on documents referred to in this request but have not submitted them to requester.[5] In 2007, federal whistleblower and Department of Energy Nuclear Safety Engineer Joe Carson sued the MSPB in federal court, seeking a writ of mandamus to compel the MSPB to comply its duty in 5 U.S.C. § 1204(a)(3) to “report to the President and to the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.” [6]

The MSPB, as represented by Department of Justice lawyers, responded by pointing to a multitude of MSPB studies and alleged that it has complied with this duty, stating:

Each special study and the resulting report addresses an important aspect of the civil service, and provides some information about whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.  The federal government is a large organization and addressing the health of the merit systems is a complex undertaking. By conducting detailed studies of particular aspects of the merit systems and reporting the results of those studies to the President and to Congress, the Board is best able to use its necessarily limited resources to serve the public interest in a prohibited personnel practice free federal government. Simply put, the Board’s special studies and reports, which address comprehensive aspects of the federal civil service, individually and collectively meet the requirements of 5 U.S.C. § 1204(a)(3).[7]

Moreover, and more to the point, MSPB argued the following point:

Finally, at no point has Congress amended subsection 5 U.S.C.§ 1204(a)(3) to redirect the Board’s actions under the statute, despite repeated reauthorizations. See Pub. L. 103-424, § 9, 108 Stat. 4361 (reauthorizing the Board for fiscal years 1993 through 1997); Pub. L. 104-208 § 641, 110 Stat. 3009 365 (reauthorizing the Board for fiscal years 1998 through 2002); Pub L. 107-304, § 2(a), 116 Stat. 2364 (reauthorizing the Board for fiscal years 1993 through 2007). The Supreme Court has held that “[w]hen Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the ‘congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.’” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, (1974)); see Doris Day Animal League v. Veneman, 315 F.3d 297, 300 (D.C. Cir. 2003).[8]

(Emphasis added.)[9] It is precisely the “agency interpretation” authorizing the “Board’s actions” referred to in the preceding paragraph that this FOIA request seeks.  However, the MSPB’s determination contains nothing of the sort.

First, an interpretation by an agency assumes some sort of statement that the agency interprets a statute or regulation a certain way.  Under the Administrative Procedure Act (APA),[10] which governs MSPB, this takes the shape of a “rule”:

”rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefore or of valuations, costs, or accounting, or practices bearing on any of the foregoing[.]

Further, under the APA, all rules promulgated by an applicable agency must be published in the Federal Register, except for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”[11]

Second, the Freedom of Information Act requires each agency to “make available to the public information as follows:”

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency;[12]

and to “make available for public inspection and copying—“

(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register[.][13]

The MSPB’s determination contains no such requested interpretations or statements of policy, nor are they published in the Federal Register.

Finally, despite the MSPB’s official position the 2007 litigation cited above, MSPB Chairman Susan Tsui Grundmann stated the following in her October 2009 Senate confirmation hearing:

The Board’s statutory studies function is also a significant part of the agency’s responsibility. Study reports issued by the Merit Systems Protection Board are highly regarded in the Federal human resources management community and by the stakeholders of the Board. If confirmed, I plan to work with my fellow board members as well as the Office of Policy and Evaluation to continue this record of excellence. In particular, I pledge to report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is adequately protected.[14]

Requester respectfully submits to the MSPB that this appeal poses an opportunity to fulfill this pledge, by releasing any agency interpretations that interpret 5 U.S.C. § 1204(a)(3) so they may be evaluated by the public and challenged if contrary to Congress’ intent.

Alternatively, MSPB’s Determination Constitutes a Failure to Act

In the alternative, if such agency interpretations do not exist, then MSPB’s response constitutes a failure to act.[15] The FOIA request requested documents responsive to the polar question posed by Congress the Civil Service Reform Act of 1978:[16] “whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.”[17] Such a question, by its phrasing, requires a “yes” or “no” answer.[18]

Anticipating that MSPB might answer this request by forwarding copies of its currently-available special studies, the request noted that it was “not request[ing] or refer[ing] to any currently publicly available special studies relating to the civil service and to other merit systems in the executive branch.”  Such studies, including the two included in MSPB’s response, are not responsive and do not answer Congress’ polar question in 5 U.S.C. § 1204(a)(3).[19] As such, assuming no responsive interpretations exist, the correct response should have been “no responsive records exist.”

Adequacy of Search

Finally, the MSPB’s determination noted that  “we have conducted a thorough search of our records and found records that are responsive to your request.” However, an open question exists as to whether such a search included the Office of General Counsel, or any other office that might contain a legal interpretation referred to above.

Appendices

Appendix A:   FOIA Request No. 2011-12-002, dated December 6, 2011
Appendix B:   MSPB Determination to FOIA Request No. 2011-12-002, dated December 9, 2011
Appendix C:   Complaint or Petition for Writ of Mandamus, Joseph Carson v. U.S. Merit Systems Protection Board, Case 1:07-cv-00445-PLF (D.D.C. 2007)
Appendix D:   Exhibits to Appendix C
Appendix E:    Respondent’s Response to Show Cause Order and Motion to Dismiss Petition for Writ of Mandamus, Carson v. MSPB, Case 1:07-cv-00445-PLF (D.D.C. 2007)
Appendix F:    Carson v. MSPB, 2008 WL 441509 (D.D.C. Feb. 19, 2008)
Appendix G:   U.S. Senate Committee on Homeland Security and Governmental Affairs Hearing on the Confirmation On the Nomination of Susan Tsui Grundmann to be a Member and Chairman of the U. S. Merit Systems Protection Board, Statement for the Record (Oct. 20, 2009)


[1] Attached as Appendix B.
[2] Attached as Appendix A.  This request was made pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) and 5 C.F.R. § 1204.12(8), as a representative of the news media. The request and all related documents are, or will be, made available at www.mspbwatch.net, an accountability blog maintained by requester that is “intended to ensure that MSPB, the U.S. Merit Systems Protection Board, adheres to its mission of ‘protect[ing] Federal merit systems and the rights of individuals within those systems.’”
[3] The omitted portion is as follows:

This request does not request or refer to any currently publicly available special studies relating to the civil service and to other merit systems in the executive branch.

[4] I contend that such reports constitute “currently publicly available special studies relating to the civil service and to other merit systems in the executive branch,” as required under 5 U.S.C. § 1204(a)(3). They are also available at http://www.mspb.gov/studies/index.htm.
[5] See 5 C.F.R. § 1204.21(a)(2). Alternatively, if no responsive interpretations exist, the correct determination should have been “no responsive records exist” – see page 5 below.
[6] See Complaint or Petition for Writ of Mandamus, Joseph Carson v. U.S. Merit Systems Protection Board, Case 1:07-cv-00445-PLF (D.D.C. 2007), attached as Appendix C with exhibits as Appendix D.
[7] Respondent’s Response to Show Cause Order and Motion to Dismiss Petition for Writ of Mandamus, Carson v. MSPB, Case 1:07-cv-00445-PLF (D.D.C. 2007), attached as Appendix E.
[8] See id.
[9] Unfortunately, the court did not consider the merits of this question as it found that it did not have jurisdiction to issue the writ of mandamus. Carson v. MSPB, 2008 WL 441509 (D.D.C. Feb. 19, 2008), attached as Appendix F. Carson told requester that three other courts have reached the same conclusion.
[10] See 5 U.S.C. § 551 et seq.
[11] See 5 U.S.C. § 553(b).
[12] See 5 U.S.C. § 552(a)(1)(D).
[13] See 5 U.S.C. § 552(a)(2)(B).
[14] U.S. Senate Committee on Homeland Security and Governmental Affairs Hearing on the Confirmation On the Nomination of Susan Tsui Grundmann to be a Member and Chairman of the U. S. Merit Systems Protection Board, Statement for the Record (Oct. 20, 2009), attached as Appendix G (emphasis added).
[15] See 5 C.F.R. § 1204(a).
[16] October 13, 1978, Pub.L. 95-454, 92 Stat. 1111.
[17] Currently codified in 5 U.S.C. § 1204(a)(3).
[18] Also known as a “polar question.”
[19] The two studies included in MSPB’s determination are symptomatic of the problem giving rise to the FOIA request: MSPB comes close to saying “no, the public interest is not adequately protected,” but it has never done so.  Requester, and the public at large, are entitled to an answer to the specific question posed by Congress.

A review of these studies is instructive:

Prohibited Personnel Practices – A Study Retrospective (June 2010):

“MSPB has conducted extensive research to examine the occurrence of prohibited personnel practices in the Federal Government, as well as adherence to their complement, the merit system principles. . . . [T]he Federal Government still has work to do to ensure a workplace free of prohibited personnel practices.” (Cover letter page);
“One of the statutory missions of the U. S. Merit Systems Protection Board (MSPB) is to study Federal merit systems to determine if the Federal workforce is being managed in adherence with the merit system principles and is free from prohibited personnel practices (PPPs).” (Page 1);
“Over the past 30 years, MSPB has conducted extensive research to examine the occurrence of prohibited personnel practices in the Federal Government, as well as adherence to their complement, the merit system principles.” (Page 2);
“For fiscal year 2010, MSPB is launching a multi-pronged research effort to examine the prevalence of prohibited personnel practices in the Federal Government.” (Page 2);
“Nevertheless, the ideals of a fully representative workforce and fair treatment of all employees have not been wholly realized.  Although a statistical analysis of the Federal workforce confirms that diversity has increased, that analysis also shows that progress has been uneven.” (Page 6);
“[W]ork remains to be done in creating a workplace where employees can raise concerns about organizational priorities, work processes, and personnel policies and decisions without fear of retaliation, and where managers can respond to such concerns openly and constructively.” (Page 16);
“These trends are good news, though in that report we acknowledge that the Federal Government still has work to do to ensure a workplace free of prohibited personnel practices.  Employees continue to express concerns about how agencies fill jobs and distribute awards.  While the trust between employees and supervisors has improved over time, it remains an area to be strengthened.” (Page 25) (emphasis added).

Prohibited Personnel Practices: Employee Perceptions (Aug. 2011):

“The purpose of this report is to discuss the extent to which Federal employees perceive that PPPs are occurring and to educate readers on the meaning and importance of the PPPs.” (Page iii);
PPPs in the Federal Government are serious, but they also appear to be increasingly uncommon.” (Page iii);
“The primary purpose of this report is to provide Congress and the President with important information about the health of the Federal merit systems—in this case, the declining rate of perceptions that a PPP has been committed in the Federal service.” (Page 1) (emphasis added).

Appeal (with exhibits): MSPB FOIA Appeal No 2011-012-002

Background:

 

Four Nuclear Regulatory Commissioners blow whistles to the White House about NRC Chair’s abusive, “erratic” behavior

3:07 pm in Uncategorized by MSPB Watch

An excerpt from the New York Times:

Another chapter is out in the continuing and very public story of conflict within the Nuclear Regulatory Commission, which has now taken the form of a battle of snail mail.

A letter addressed to the White House chief of staff and signed by four of the five commission members was circulated Friday criticizing the fifth member, Gregory B. Jaczko, its chairman, and expressing “grave concerns” that his deficiencies as a leader could compromise nuclear safety. It was dated Oct. 13. A similar letter was sent directly to Dr. Jaczko.

And this week, a rebuttal letter from Dr. Jaczko, also addressed to William M. Daley, President Obama’s chief of staff, said the other four members were improperly trying to involve themselves in management affairs, which in a reorganization of the commission in 1980 became the chairman’s sole responsibility. Dated Dec. 7, the letter said that the rest of the commission had “taken an approach that is not as protective of public health and safety as I believe is necessary.”

For relevant context on how such breakdowns in the civil service occur, see this letter from Joe Carson, Nuclear Safety Engineer at the Department of Energy:

December 10, 2011

Chairman Jaczko
Commissioner Svinicki
Commissioner Apostolakis
Commissioner Magwood
Commissioner Ostendorff

Nuclear Regulatory Commission

Washington, DC 20555

Subject: The “broken covenant” of Civil Service Reform Act of 1978; significant and persistent deficiencies in scope and implementation of engineering ethics; and your mission and your disputes about your various authority in executing it

Dear NRC Commissioners,

I am writing because of a NY Times story, “New Discord at NRC,” today about your dispute, which links to your respective letters to the White House.1 I have already established that you cannot demonstrate objective compliance with your fundamental duty to NRC employees – to ensure they are adequately protected from reprisal, discrimination, personal favoritism, or other types of “prohibited personnel practices (PPPs),” so they can perform their duties in a trustworthy fashion, per the merit system principles. How else can you possibly claim to be complying with your duty to “prevent PPPs” at 5 U.S.C. section 2302(c), if you cannot do this?

But I do not blame you, because you cannot do this by yourself. Congress, per the Civil Service Reform Act of 1978, assigned the duty to “protect (NRC) employees from PPPs” to the Office of Special Counsel (OSC), per (what is now) 5 U.S.C. section 1214, and assigned the Merit Systems Protection Board (MSPB) the duty to conduct oversight of OSC and NRC in interpreting and applying their respective duties to determine whether NRC employees are adequately protected from PPPs, per 5 U.S.C. section 1204(a)(3). But OSC interpreted away, at its creation, its essential duty to “protect” by claiming it never has to tell anyone when it determines a PPP has occurred, and MSPB enabled OSC by claiming it never has to conduct oversight of OSC or NRC to determine whether NRC employees are adequately protected from PPPs. This is detailed, in boring, nuclear safety grade, detail at www.broken-covenant.org and http://mspbwatch.wordpress.com/.

So, maybe Chairman Jaczko took a page from OSC’s and MSPB’s playbooks in claiming he does not have to tell other NRC Commissioners what they believe they need to know to comply with their statutory duties for nuclear and public health and safety.

The NRC Inspector General report about Chairman Jaczko’s actions about terminating the NRC’s review of DOE’s license application for Yucca Mountain determined he did not break any laws.2 But it was silent to the most relevant question – did he abuse his authority? “Abuse of authority” is a legal phrase with defined meaning in federal civil service law – it is not just a subjective “eye of beholder” combination of sounds.3 Perhaps the NRC IG feared retribution to make such a finding, so he was silent to it.

As I understand rule of law in USA, the Office of Legal Counsel (OLC) of the Department of Justice should be the final referee in Executive Branch about your respective authorities. I also understand you have the authority to task OLC to issue its opinion on your concerns.4

I played a significant role in the American Nuclear Society (ANS) issuing a new code of ethics about 7 years ago.5 I regret it, it is nothing but worthless eyewash in practice – ANS has yet to ever investigate a member for violating it or taking any action to uphold it when an ANS member claims to have been so foolhardy to put it ahead of their economic self-interest and to be suffering employer retribution for it, even when legally established.

The NRC Inspector General found former NRC Commissioner Merrifield violated some conflict of interest requirements of the federal civil service. This was publicized in the Washington Post.6 In doing so, he also violated aspects of the ANS Code of Ethics. I brought this to the appropriate attention of ANS leadership, the 10 or so former NRC Commissioners who belong to ANS, and others. Everyone stuck their head in the sand and pointed me to someone else, demonstrating the “broken honor code” implementation basis of engineering ethics.7

Commissioner Ostendorff – you knew me in Navy Nuclear Power School. When Admiral Rickover interviewed me, he asked me why I wanted to be in his program and I told him I wanted to be a better engineer. Be careful what you ask for, I suppose, because my being a “better engineer” includes the unpopular assignment to call out my profession about the significant and persistent deficiencies in its code of ethics – which forms an essential part of the engineering, as any other, profession.

Commissioner Magwood – you have known me a bit via our common membership in ANS and common employment in DOE.

Chairman Jaczko – we met about my concerns as a Department of Energy whistleblower when you were on Senator Reid’s staff.

Everyone in nuclear profession would be better served by clarity about your respective roles – as applied in specific instances – not just in theory. Everyone in federal civil service would be better served by clarity about the respective responsibilities of agency heads, the Special Counsel of the Office of Special Counsel, and Members of the Merit Systems Protection Board for ensuring members of federal civil service are adequately protected from PPPs. Everyone on planet earth in 2011 would be better served if the members and leaders of engineering profession would find the moral courage to acknowledge and address the significant and persistent deficiencies in the scope and implementation of engineering ethics.

You have sworn duties for a reason – and not just to burnish your resumes for your next career move – and I am bringing serious, well evidenced, far-reaching concerns to your attention and they are certainly relevant to nuclear safety. Please act in accordance with the merit system principles, your oaths of allegiance, and standing as nuclear professionals, in considering them, because you do have the influence and/or authority to substantiate or dispel them.

Respectfully,

Joe Carson, PE

Copy: Relevant Stakeholders in Government, media, and elsewhere

1. www.nytimes.com/2011/12/10/us/new-discord-at-nuclear-regulatory-commission.html?scp=1&sq=nrc&st=cse

2. See http://republicans.energycommerce.house.gov/Media/file/Hearings/Environment/061411/IGREPORT.PDF

3. See 5 U.S.C. sections 1213(a)(1)(B), 2301(b)(9), and 2302(b)(8)

4. See 28 U.S.C. sections 510-512, 28 C.F.R. section 0.25, and www.justice.gov/olc

5. See www.new.ans.org/about/coe/

6. See www.pogo.org and perform a search on “merrifield” to locate the NRC IG report

7. See http://srhrl.aaas.org/newsletter/per/archives/per43.pdf for a short article on the broken state of engineering ethics

 

New FOIA litigation in progress, aimed at clarifying ethical issues at MSPB

6:16 pm in Uncategorized by MSPB Watch

Back in August, a suit was filed (with exhibits) by [8-time prevailing whistleblower and federal nuclear safety engineer] Joe Carson against MSPB in federal district court, over MSPB’s refusal to comply with a FOIA request. In his request, reprinted below, Carson raises worthy questions regarding the ethical duties of the MSPB chair, currently occupied by Susan Tsui Grundmann. Take a look.

*****

Freedom of Information Act (FOIA) REQUEST

May 28, 2011
Mr. Bernard Parker, FOIA Officer
U.S. Merit Systems Protection Board
1615 M Street NW
Washington, DC 20419

fax at (202) 653-7130 <FOIAHQ@mspb.gov> <www.mspb.gov>

Subject: New FOIA request based on Chairman Grundmann’s May 24, 2011 denial of my FOIA appeal in FOIA no. CB11-171

Dear Mr. Parker,

As MSPB leadership knows, I contend there is a 32 year-long “broken covenant” by Civil Service Reform Act of 1978 (CSRA). I contend that the government (i.e. Courts, Congress, the Government Accountability Office (GAO), the President, the Office of Special Counsel (OSC), the Merit Systems Protection Board (MSPB), and agency heads) have failed to ensure federal employees are adequately protected from reprisal and other types of prohibited personnel practices (PPPs) as they do their duties in a trustworthy fashion, per the merit system principles - the fundamental objective of the CSRA.

My contentions are detailed at <www.broken-covenant.org>. I contend that thousands of loyal patriotic federal employees, foolhardy enough to put duty to the Constitution and the common good before their personal economies were unlawfully betrayed for doing so since 1979. I contend America is much diminished and more threatened as a result. Furthermore, I contend that if my concerns are substantiated at the Office of Legal Counsel of the Department of Justice, it is GOOD NEWS for America in that: 1) a previously unidentified significant causal factor to much which has befallen and besets America has been exposed, and 2) it can readily be corrected.

If my contentions are substantiated, then the Merit Systems Protection Board – the 3 person Board – for past 32 years, its lawyer members and the lawyers in its Office of General Counsel and Office of Policy are, in my opinion, most responsible. Only MSPB has the positive, nondiscretionary, statutory duty to conduct oversight, via its special studies function at 5 U.S.C. section 1204(a)(3), of the Office of Special Counsel’s interpretation of and compliance with its nondiscretionary statutory duties to protect federal employees from PPPs, most specifically its duty to report its determinations of PPPs at 5 U.S.C. section 1214(e), and agency heads interpretation of and compliance with their nondiscretionary statutory duties to prevent PPPs, per 5 U.S.C. section 2302(c).

I am a licensed professional engineer (PE) employed in the Department of Energy as a nuclear safety engineer. I was so foolhardy as to put my positive legal and professional duty to be a “mandated reporter,” when necessary, to protect others related to my professional duties for their health and safety, regardless of possible job/career retribution. PE’s are “mandated reporters” in such circumstances, I acted consistent with that duty. My actions played a positive, perhaps significant, role in the passage of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) of 2000, by which over 65,000 diseased, disabled, or prematurely deceased Department of Energy contractor workers (or their survivors) have received over 7 billion dollars in compensation. So, as I now see it, I have done my positive legal and professional duty, as great personal and professional cost, as a licensed professional employed by a government agency because other licensed professionals employed by a government agency – attorneys who served on the 3 person Board during past 32 years – betrayed their duty to enforce the laws entrusted to them, particularly section 1204(a)(3).

Why has this gone on for 32 years? As I understand Chairman Grundmann’s reasoning in denying my FOIA appeal, she is really not the Chair of MSPB, with a positive legal duty to ensure MSPB is properly interpreting and complying with its non-adjudicatory statutory duties to protect the Merit Systems in the Executive Branch from PPPs – and to “blow whistles” as a “mandated reporter,” if it is not. Instead, she has an attorney-client relationship MSPB, her government employer. Because MSPB is her client, she must as a licensed attorney – what she was before becoming Chair of MSPB and what she will continue to be when her term at MSPB ends – hold paramount MSPB’s interests – not those of the federal civil service when the two come into conflict. Therefore she is a “mandated NON-reporter” about MSPB’s failures or possible failures to properly interpret and comply with its nondiscretionary duties regarding conducting special studies and oversight of Office of Personnel Management regulations.

Additionally, Ms. Grundmann has a background as a lawyer employed by federal employee unions, so she had an attorney-client relationship with them. In my opinion, federal employee unions have devolved to become low-level protection rackets, which use fear of PPPs to sell union memberships at about $400 -$500/year to federal employees. Federal employee unions, in my close observation and experience, benefit from the “broken covenant” of the Civil Service Reform Act of 1978 – they do NOT want federal employees to be adequately protected from PPPs by agency heads and OSC, because if they were, then they would be even less likely to voluntarily pay union dues. Federal employee unions want status quo – “OSC is the last place an employee alleging a PPP should go” – to continue because it helps sell union memberships.

In fact, federal employee unions were the chief advocate of a 1994 law that put severe restrictions on federal employees represented by federal employee unions (i.e. their members and prospective members, only about 20% of federal employees represented by federal employee unions actually pay their dues), seeking protection from PPPs at OSC, per 5 U.S.C. section 7121(g). They did this to make their remedy for PPPs – binding arbitration – more exclusive. Why? To help sell union memberships, to pay the exorbitant salaries of their officers and their employed attorneys.

So, federal employee unions and their lawyers want and benefit from a broken, lawbreaking fraud of federal law enforcement agency at OSC – one that is “the last place a federal employee alleging a PPP should go,” and lawbreaking enabler of OSC’s fraud at MSPB.

To clarify my understanding of Ms. Grundmann’s ethical obligations as a licensed attorney who is Chair of MSPB and who was previously employed by Federal employee unions, I submit a FOIA request for any responsive records for the following:

  1. -Any records relevant to Ms. Grundmann’s duties to be a “mandated reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years.
  2. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years.
  3. -Any records relevant to Ms. Grundmann’s duties to be a “mandated reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years.
  4. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years.
  5. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman MSPB if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years, because she was previously employed by federal employee unions, which possibly benefitted from the government lawbreaking, because fear of PPPs helps sell union memberships.
  6. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman MSPB if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years, because she was previously employed by federal employee unions, who benefitted from the government lawbreaking, because a broken, lawbreaking fraud of an OSC – “the last place a government employee alleging a PPP should go” – and a lawbreaking MSPB that enables it, helps sell federal employee union memberships.
  7. -Any records related to any evaluation MSPB has conducted of its interpretation of and compliance with its non-discretionary statutory duties at 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f).
  8. -Any records related to any consideration MSPB has made of telling the President, Congress or anyone else that its interpretations of and compliance with 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f) during past 32 years is suspect.
  9. -Any records related to any consideration MSPB has made of seeking interpretations from the Office of Legal Counsel of the Department of Justice of its interpretations of 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f) during past 32 years.
  10. -Any records related to MSPB’s compliance with its nondiscretionary statutory duty to conduct reviews of OPM rules and regulations for possible PPP’s, per 5 U.S.C. sections 1204(a)(4) and/or (f)(1)(A), on its own motion.
  11. -Any records of any written complaints received from the Office of Special Counsel (OSC), requesting such a review, per section 1204(f)(1)(c),
  12. -Any records of any “special studies” conducted by MSPB, per sections 1204(a)(3) and (e)(3), that considered MSPB’s and OSC’s compliance with their positive, nondiscretionary, statutory duties to proactively review any OPM rule or regulation for possible PPP’s.

I will pay up to $100 for the records I seek.

Respectfully,

Joseph Carson, PE

*****

This suit will be tracked at http://mspbwatch.wordpress.com/litigation/

For more information, see www.broken-covenant.org and please sign a related White House petition here.

Meet your federal whistleblower protectors

10:14 pm in Uncategorized by MSPB Watch

Reflections from Obama Administration Whistleblower Appointments

September 19, 2011, Washington, D.C.

Moderator: Bea Edwards, Government Accountability Project Executive Director

Panelists:

Paul Igasaki, Administrative Review Board;
Carolyn Lerner, Office of Special Counsel;
Susan Tsui Grundmann, Merit Systems Protection Board

Bea Edwards: Okay, we’re ready to begin the first session of the afternoon, thanks everybody for being here. This is my first national whistleblower assembly as Executive Director of GAP. I’m Bea Edwards. I became the Executive Director when the previous director left to join the Office of Special Counsel with our first speaker, Carolyn Lerner.

I’d just like to say a few things as we begin. One of the speakers this morning, Tony Schaffer, spoke about the idea that in Washington, the truth is negotiable. And that is a very chilling idea. And it is a chilling idea because, if you think about it, if the truth is negotiable, then what happens when the negotiations end? What happens is that there is an official truth, which becomes an unquestionable kind of doctrine. And that happens in governments, it can happen. We know, those of us in this community know, that whistleblowers are a very effective way to challenge official truths. Those of us who are a little bit older will remember that it used to be called The Big Lie. That was the phrase during the Cold War, the idea that if you said something often enough, loudly enough, in enough places, it became accepted as the truth, even if it bore no relationship to the facts. And so there’s a long history and tradition of playing fast and loose with the truth. But whistleblowers challenge official truths and they are one of our most effective challenges.

The people who spoke this morning I think made it clear that whistleblowing is dangerous business and that we need, not only the laws that protect those whistleblowers but also the enforcement of those laws. And that brings us to our panel this afternoon because speaking with us this afternoon are those officials here in Washington who are helping to establish credibility and effectiveness in the organizations and agencies that do enforce whistleblower laws.

Our first speaker is Carolyn Lerner. She is the Special Counsel at the Office of Special Counsel. She has been a lifelong civil rights attorney and a specialist at alternative dispute resolution. She is now dedicated to establishing the credibility of the Office of Special Counsel. It is my pleasure to introduce her.

Carolyn Lerner: Thank you. Thank you very much Bea. Thank you for including me on your program here today. I’m delighted to be here. And I’m honored to be on this panel with Susan Grundmann and Paul Igasaki. Saturday will be my 100th day as Special Counsel. And, as expected, there is much to be done and a lot to learn. And I know this audience in particular wants to help get me educated. I’m really glad to be here today.

It’s no secret that the Office of Special Counsel has been through some tough times. I expect that many of you who are here have some doubts about whether things will be any different with new leadership. So, in my brief remarks today, I want to tell you a little bit about my background, the perspective that I bring to the Office of Special Counsel, and then I’m going to share with you some of the actions that we’ve taken already and goals for my term.

Before I was appointed by President Obama, I was, as Bea mentioned, an employment lawyer for twenty years. The last fourteen of which I was a partner at the law firm that I helped to found, Heller, Huron, Chertkof & Salzman. The firm primarily represents individuals, both federal workers and private sector employees, in employment discrimination and civil rights cases. Before leaving my firm, one of my most recent and satisfying cases involved a translator for the Voice of America, the overseas U.S. radio station that the U.S. government runs. The translator was also part of a rock group that made a music video opposing the Iraq war. For this, she was fired. We took the case to court, alleging First Amendment violations against the government. And, as many of you probably know, cases against the government are tough. Indeed, in our case, the government challenged our right to be in court and tried to get the case dismissed using qualified immunity as their defense. But after years of litigation, the U.S. District Court, and then the D.C. Circuit Court of Appeals, ruled in our favor.

Through working on these types of cases, I am well aware of the effect that government actions can have on individuals. And I’m familiar with the frustrations and limits of litigation. Perhaps, as a result, I’ve developed a strong interest in alternative dispute resolution. I’ve taught mediation at George Washington University Law School, I’ve been a mediator for the U.S. District Court and the EEOC, and as an advocate, I’ve use mediation frequently when I represented private individuals. It is this problem solving approach that I bring to the Office of Special Counsel.

Before talking about my goals for the agency, I want to introduce my team that will help me implement these goals. I asked a number of people who are well-known to this community to come join me and the agency and I’m thrilled that they agreed. I want to introduce our Deputy Director, Mark Cohen. Mark, would you stand?

Mark, as Bea mentioned, was the Executive Director at GAP before he came to the OSC. Jason Zuckerman, would you stand?

Jason is our senior legal counsel. He was a partner at the law firm of – it’s called the Employment Law Group. He is a well-known expert in whistleblower law. And finally, our Director of Policy and Congressional Affairs, Adam Miles. Adam, would you stand?

Adam worked at GAP before he went to the House Oversight Committee. He was also instrumental as many of you may know in drafting the Whistleblower Protection Enhancement Act. I am just delighted that Mark, Jason, and Adam are with me.

In our first three months at the agency, and it really has only been three months, Mark, Jason, and I have been spending a lot of time listening to both the dedicated career staff at the agency and meeting with a wide range of stakeholders. We’ve heard some terrific suggestions and we’re already taking some concrete steps to implement many of them.

I want to share with you some of our priorities. As you know, the agency has several important roles, but it has always had a special mandate to protect government whistleblowers. And at a time when our country is in a fiscal crisis, this role has never been more important. There is no question that government workers are in the best position to waste, fraud, and unsafe practices.

We recently took a look at our disclosure cases, and over the past two years alone, we calculated that whistleblowers who had come to our agency had saved the government about $8 million dollars. This 8 million doesn’t even include the savings from disclosures about potential threats to lives, health, and safety that could have resulted in catastrophic losses of lives and money, but for the disclosures. And though these employees perform an important service, studies have shown that about 80% of whistleblowers in the private sector regretted having come forward because of the negative consequences that they’ve suffered. This is also consistent with the experience that we’ve had at the Office of Special Counsel, where about 80% of our whistleblowers also expressed some concerns about retaliation after having come forward.

Creating an environment within government where open dialogue about problems is accepted an indeed encouraged is one of my primary goals as Special Counsel. And though it’s only been three months, I think we’re already making a bit of a change. We’ve already increased the number of OSC employees who work on whistleblower reprisal complaints. This week, in fact, we’re starting the retaliation pilot project at the agency that’s going to focus exclusively on retaliation cases. Several attorneys in this project are being detailed from other units at the agency. This commitment of additional resources should reduce the backlog and get relief to whistleblowers more quickly.

We must also do a better job communicating. People who come to our agency should that they have had a full and fair opportunity to be heard. To that end, we’re working with our Complaints Examining Unit to communicate more with complainants at the start of the process, and when a case is referred to the Investigation and Prosecution Division for investigation, we will contact complainants early on in the process and ask for suggestions.

Having represented employees, I know how frustrating it is to have to wait for an agency to complete its investigation. Especially when an employee is out of work or suffering ongoing retaliation or harassment. One action that we can take is to exercise our authority to seek stays from the MSPB. Indeed, one of my first acts as Special Counsels was to obtain a stay in the firing of a whistleblower, so we would have an opportunity to investigate the matter before the agency took action against the employee.

I also know from experience about the benefits of early mediation. I strongly believe that mediation can help both complainants and agencies obtain quicker and better results. This will also benefit the OSC. Having cases settle will allow us to use our very limited resources to investigate and litigate other cases. So, I’m working to expand our capacity and capability to mediate more cases so we can offer this as an option to more complainants at the beginning of an investigation.

We’re also taking action to make the OSC more accessible. Thirty years after it was created, many federal employees are still unaware of this agency. I was amazed when I was nominated into this position how many people would ask me, “What is the OSC?” They also wanted to ask me “Why are you interested in taking this job?” but that’s another story. I am determined to improve our outreach to federal employees and to make the agency more accessible and well-known.

One concrete step that we will take is revamping our website. We want to improve it to make it a better resource for federal employees both about their rights and to make filing a complaint easier. Recently, both GAP and POGO, very generously, provided helpful recommendations for improvements to the website. We’re grateful for their work on this and we hope to implement many of their suggestions.

In closing, I want to reiterate to you: my mission at OSC is to make this public service agency as robust and vibrant as it can be. We will listen, we will be timely, and we will resolve cases with justice. But there is a lot to do, and we know we can’t do it alone. So I’m asking you of some things, too. Please work with us: share your thoughts and ideas for how we can move the agency forward together. And, finally, please be patient. All of this is going to take some time.

Finally, thank you for what you do, and what you’ve done to advance the same, larger cause. I look forward to working with all of you.

Bea Edwards: And our second speaker will be Susan Grundmann, she is the chair of the Merit Systems Protection Board. Civil liberties and labor rights attorney also. She’s also served as general counsel for the National Federation of Federal Employees. Under Chairman Grundmann, MSPB provided justice for Teresa Chambers, who is a very important member of our community. Ms. Grundmann.

Susan Grundmann: Thank you Bea and Tom Devine and GAP for this gracious opportunity to meet with you and speak with you about our mission and our values,  our goals and our challenges.

So let’s talk a little bit about MSPB and some changes. Our focus as you’ve seen is probably a little different than the last board. Whereas prior to 2009, the focus had been on national security, and as a result, processing cases much faster, particularly through legislative reforms at DoD and DHS.

Now this board has viewed things a little bit differently. And we view that it is time to return back to basics and refocusing upon those principles upon which we were founded under the Civil Service Reform Act, and of course, they are the merit principles, they are the nine rules that are the foundation of federal employment. They are what makes civil service civil. Including, in particular, protection for reprisal for whistleblowing. And this principle is important for a number of reasons. Because it is key, as Carolyn mentioned, to good government. Preventing fraud, waste, and abuse, preventing violations of law, rule and regulation, protecting individuals from a significant and substantial danger to their health and well-being.

So we have, first of all, recommitted to these principles in our strategic plan, and our strategic plan is not just to protect the merit principles but to promote a workforce that is free of prohibited personnel practices, including protection from reprisal for whistleblowing.

Now this plan was developed in conjunction with my stakeholders, one of which is GAP, and has consistently been a great voice in this community.

We recommit to these principles daily, through our adjudication functions, our statutory functions. The first being that we’ve issued a number of precedential decisions ordering corrective action for whistleblowers and remanded cases back for full merits hearing to the AJs. In fact, we’ve issued one last week, King v. Army.

In our second statutory mission, which is to issue reports to the President and the Congress on the health and well-being of the civil service, at the end of last year we’ve issued a whistleblower report wherein we noted that Congress has continually attempted to address these issues and we urged Congress to be aware of the difficulties that a potential whistleblower would encounter when navigating this particularly difficult area of the law.

Now coming up this year we will be issuing an additional report which, internally, we refer to as whistleblower Number Two and it highlights a series of best practices that agencies should follow in building an environment where federal employees can come forward without fear of reprisal.

Finally, we refocused, not just on prevention, but promotion, through education, of the meaning and the value and the spirit of these principles. As some of you may know, we feature a merit principle every month on our website. This month, coincidentally, it is protection from reprisal for whistleblowing. [inaudible]

We also, like Carolyn said, embarked on a series of aggressive outreach, not just to employee groups and union groups who understand these types of issues but to management groups and to good government folks and to affinity groups to educate them as well.

Finally, with the advent of social media, we Tweet these principles repeatedly throughout the year. And we’ve added a new gadget if you will — we have a new mobile app which will allow you to download our cases, our studies, and our other public media wherever you go.

[inaudible] the power of training in education. But we do our limitations. And first in the area of adjudication. We are enforcing the law. We are not writing the law. We are bound by the Whistleblower Protection Act and its letter. And we’re also bound by our case precedent from our reviewing court, that being the Federal Circuit, the key case being Hoffman v. OPM. And let me give a shout out to my guy here, this is Jim Issman, he is our general counsel. He argued Hoffman vs. OPM. He argued on behalf of Hoffman.

But let me mention what Hoffman means. It brings to light some of the limitations of the Whistleblower Protection Act, primarily two of them: that disclosures are not protected if they’re made within an employee’s chain of command, which is the natural place that an employee would go to with an experienced wrongdoing. You go to your supervisor first. The other area that’s highlighted by this case is that disclosures are not protected if they are made within the employee’s scope of duties, which is, again, the natural environment that employees would be exposed to wrongdoing. Now this is different than Chief Judge Igasaki’s area of the law, so he’s got some other protections that the Whistleblower Protection Act does not [inaudible].

The second area is that our, well while we can educate and promote these narrow principles, we don’t have the authority unilaterally to change policy, nor do we have the authority unilaterally to change culture, which leads me to this upcoming report, which will urge agencies to create a culture whereby disclosure of wrongdoing is not okay, but is actually going to be encouraged.

Now this report finds that the fear of reprisal and actual reprisal is still there at the same percentage as it was in 1992, which is a little bit daunting, because if you think about it, back in 1992 there was no No FEAR Act yet. So even in the wake of the No FEAR Act, people are still experiencing these same types of issues.

So, what we’re going to urge first and foremost is that agencies assure their workforce that management will not be requiring absolute proof of wrongdoing. That a mere reasonable suspicion is going to be enough. Even minor wrongdoing, this is a quote from the report, is still wrongdoing.

When individuals bring potential wrongdoing to management’s attention, we urge agencies to give that report serious consideration, including referring that report to an impartial individual or office if necessary, like the IG. And even after investigation, if the charges are not verified, management should tell the employee that the investigation was taken seriously and that individual did right by coming forward. So this is a lot to look forward to in this report. I commend it to you, it’ll be out around Halloween, no timing, the timing is not suspect here, but I leave it to you to embrace and I encourage you to take it forward to support your position. Thank you very much.