MSPB may harm whistleblowers — and OSC — with a proposed rulemaking project based on a legislative move struck by two unions in 1994.

At issue are a statute and a regulation: 5 U.S.C. 7121(g) and 5 C.F.R. 1209.2. Section 7121(g) requires employees fighting an agency action to choose between a union grievance, an MSPB direct appeal, and a personnel complaint at OSC. More on this statute below.

5 C.F.R. 1209.2 describes those appeals over which MSPB has jurisdiction:

–Otherwise Appealable Action appeals – a/k/a direct appeals, those which allow non-probationary employees to challenge terminations or suspensions directly at the MSPB; and

–Individual Right of Action appeals – the mechanism added by the Whistleblower Protection Act of 1989, which allows whistleblowers to file a complaint at OSC and then appeal at MSPB without losing any rights for having gone to OSC.

In 1994, however, two unions sought to force whistleblowers to choose between unions, OSC, or MSPB, with the stated objective of making OSC compete for relevancy.

Mark Roth, then General Counsel of AFGE, had this to say (page 17):

AFGE views the alternative forum option offered by [5 U.S.C. 7121(g)] as a direct acknowledgement that the OSC has failed to act in a timely and effective manner. . . . I would stress that the bill neither allows multiple bites of the same apple nor does it abolish outright the OSC. . . . [W]e believe that by breaking up the Special Counsel’s monopoly and requiring that office to compete with others, this bill may provide that office with the necessary incentive to provide a quality product in order to survive or it will see its whistleblower market go elsewhere.

Problematically, this strikes at the core innovation of the Whistleblower Act of 1989 — the IRA — which sought to give whistleblower two bites at the same apple – once at OSC, and another at MSPB,  if necessary to achieve justice following OSC’s failures. Moreover, experience has shown that the competition envisioned by AFGE has not made OSC more relevant. Now, it may serve to undercut OSC and harm whistleblowers.

Tim Hannapel of NTEU revealed the NTEU’s key goal as protecting the union grievance procedure (page 20):

We are also very much in favor of the bill’s attention, as Mr. Roth just testified, to the role of the negotiated grievance procedure for resolving disputes that arise in the workplace. . . . Together with the recognition of the plenary powers granted to the arbitrator, the salutary objectives of that grievance procedure would be much easier to realize. We believe that the combination of these significant improvements should lead to greatly expanded protections for whistleblowers. . . . Third, we suggest that even more attention be paid to the negotiated grievance procedures, possibly by making it the exclusive administrative remedy for items that fall within its scope, and this would honor the significance of the labor/management relationship that is embodied in the collective bargaining agreements. . .

How would the revised 5 C.F.R. 1209.2 work?

Now, MSPB is seeking to interpret section 7121(g) by revising 5 C.F.R. 1209.2 in the following manner:

–Currently, if the whistleblower is terminated, goes to OSC, and then files the IRA, he can still fight the agency action on the merits, in addition to bringing up a whistleblowing reprisal defense. Plus, he can bring a 2302(b)(9) or discrimination defense.

–Under the proposed change, however, if the the whistleblower is terminated and files a complaint with OSC, when he files the IRA at MSPB, the only issues in play would be the whistleblowing prima facie case, the agency’s clear and convincing defense, and nothing else. No opportunity to fight the termination on the merits (i.e., argue he didn’t do what he is accused of doing), or bring a 2302(b)(9) or discrimination defense.

In other words, if this revision is implemented, MSPB would be asking a whistleblower to choose between filing right away at MSPB and preserving all of his rights, or going to OSC and giving up some. In addition to harming whistleblowers’ rights, it would also make OSC a less attractive option.

If that were not enough, this proposed change was met with approval by the following whistleblower-hostile agencies:

–Will A. Gunn, General Counsel, Department of Veterans Affairs: “We agree with the Board’s decision to promulgate regulations that overrule Massimino and bring Board practice into compliance with the requirements of 5 U.S.C. 7121(g).”

–Catherine L. Kessmeier, Deputy Assistant General Counsel, U.S. Navy: “We support the MSPB’s new interpretation of section 7121(g). That statute permits employees affected by an appealable action to elect ‘not more than one of’ three remedies: an MSPB appeal, a grievance, or an OSC complaint with the potential of an IRA appeal to the MSPB. By adjudicating IRA appeals of otherwise appealable actions in the same manner as direct appeals, the MSPB effectively allows employees to elect two remedies, and OSC complaint and an MSPB appeal. By adjudicating those IRA appeals in the same manner as IRA appeals of non-appealable actions, the Board would give effect to section 7121(g) and to the employee’s election under that statute. Including notice of the right to make an election under section 7121(g) and the ramifications of such an election would not impose a substantial burden on the agency.”

–Jessee C. Alexander-Hoeppner, Attorney-Adviser, Department of State: “We support the proposed changes to [section] 1209.2 pertaining to the Board’s jurisdiction.”

How did we get here?

The brain trust behind the statute forcing this change is none other than NTEU’s Elaine Kaplan and Tim Hannapel, and AFGE’s Mark Roth. Kaplan and Hannapel later became the Special Counsel and Deputy Special Counsel, respectively, in 1998 (and were subsequently given an award by POGO). Ms. Kaplan is currently General Counsel of the Office of Personnel Management, and also provided comments to this project (but not about section 1209.2).

What’s next?

It depends on what MSPB does in the beginning of June. They may issue this proposed revision for notice-and-comment rulemaking, or not, depending on the feedback they received. More news as it happens.

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at www.mspbwatch.net/digest.

Justice Department Withheld Evidence of Flawed Forensic Procedures Used in Criminal Cases in the 1990′s: The Washington Post reports that the Department of Justice failed to notify defendants or their attorneys of possibly exculpatory evidence of flawed forensic procedures. FBI whistleblower Dr. Frederic Whitehurst disclosed improper procedures in the FBI crime lab almost 20 years ago, which led to a nine-year DOJ task force to determine if any defendants were wrongfully incarcerated. The Post notes in a separate article that the DOJ task force “operated in secret and with close oversight by FBI and Justice Department brass — including [then-Attorney General Janet] Reno and [FBI Director Louis] Freeh’s top deputy — who took steps to control the information uncovered by the group.” The National Whistleblowers Center, which counts Dr. Whitehurst as a director, has more coverage of this story.

Office of Special Counsel Roundup: The Office of Special Counsel issued a rare subpoena in the case of Pinal County (Arizona) Sheriff and Congressional candidate Paul Babeu, who is being investigated for violating the Hatch Act. The Arizona Republic reports that ”[t]he special counsel is looking into allegations that Babeu and several key aides were working on his congressional campaign with county resources or while on the clock.”

Special Counsel Carolyn Lerner is quoted in a Federal News Radio article about the GSA conference spending scandal. Lerner states that “[t]he value of this isn’t just about the $820,000. It’s really also about the scrutiny it brings to government waste by this one example. . . . Congress is holding hearings. Agencies now are going to be treading more carefully about the way they are spending money.”

Elsewhere, Senior Legal Advisor to the Special Counsel Jason Zuckerman speaks at a panel about ethical culture in government. Zuckerman notes that “[w]e are seeing a huge increase now in people who blow the whistle” and that “[w]e are getting about 2,800 in prohibited personnel practice complaints annually; two years ago, it was about 2,200. In 2002, it was about 1,600.”

Below the Fold:

–The Senate Committee on Homeland Security and Governmental Affairs reports S. 743, the Whistleblower Protection Enhancement Act, to the Senate.

–The prosecutor in charge of the bungled Thomas Drake whistleblower prosecution is leaving the Department of Justice.

–A whistleblower who exposed GSA’s excessive conference spending testifies in front of Congress.

–Following the conference scandal at the GSA, the nonprofit watchdog Cause of Action wrote to OMB seeking a government-wide audit of agencies’ adherence to whistleblower laws. Separately, CoA is seeking from the Office of Special Counsel any whistleblower complaints it received about the GSA.

–LGBT activists plan to press the White House to sign an executive order prohibiting federal contractors from sexual orientation discrimination. Here’s a profile of one of the groups involved.

–A U.S. soldier blows the whistle on photos of troops posing with corpses in Afghanistan.

–A whistleblower from the Department of Veterans Affairs files a retaliation complaint with the Office of Special Counsel after disclosing “improper accounting measures regarding PTSD treatment of veterans.”

–Despite promising to strengthen the Federal Election Commission and “nominate members committed to enforcing our nation’s election laws,” President Obama has yet to come through on either promise.

–Julian Assange, founder of Wikileaks, launches a talk show on Russia Today.

–A State Department whistleblower alleges a high-level U.S. official engaged in sexual relations on the roof of the U.S. embassy in Iraq.

–The chief of police at UC-Davis is stepping down following a scathing report about the widely-condemned pepper spray incident there last November.

–A federal judge rules against CIA whistleblower “Ishmael Jones,” who wrote a scathing book without the agency’s permission. The whistleblower will forfeit all book profits to charity.

–NSA whistleblower William Binney discusses the agency’s billion dollar surveillance facility in Bluffdale, Utah.

–The Center for Progressive Reform looks at how OSHA became stymied by anti-regulatory causes.

–Slate looks at how America came to torture its prisoners.

–An ex-UK ambassador comes out in support of Bradley Manning.

–The mastermind behind the Watergate efforts to discredit Pentagon Papers whistleblower Daniel Ellsberg has died at the age of 80.

–Walmart covered up a massive bribery scandal in Mexico.

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