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 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.”
For purposes of this nonprecedential single-member decision in this ex parte proceeding, I accept OSC’s assertion that the Former Employees’ inability to report perceived wrongdoing to the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.
OSC Granted Stay in Challenge to Commerce Department Gag Clauses
FOR IMMEDIATE RELEASE CONTACT: Ann O’Hanlon, (202) 254-3631; email@example.com
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.”
Reflections from Obama Administration Whistleblower Appointments
September 19, 2011, Washington, D.C.
Moderator: Bea Edwards, Government Accountability Project Executive Director
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.
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