October 28, 2008

 

Ms. Elaine Kaplan, Esq.

Senior Deputy General Counsel in, NTEU

1750 H St, NW

Washington, DC 20006

 

Mr. Tim Hannapel

Office of General Counsel, NTEU

1750 H St, NW

Washington, DC 20006

 

Subject: Critique on your recent article

“Reinvigorating OSC: Suggestions for Next

Administration” and request for your active

assistance in advancing the objectives of OSC Watch

 

Dear Ms. Kaplan and Mr. Hannapel,

 

You are the former Special Counsel and Deputy

Special Counsel.  You are licensed attorneys and

long-time employees of a government employee

union.  I have closely read your recent 15 page

issue brief  “Reinvigorating the US Office of

Special Counsel: Suggestions for the Next

Administration” which is issue brief of the

American Constitution Society for Law and

Policy.  It is available on the internet at

< http://www.acslaw.org/files/Kaplan%20FINAL.pdf&gt;.

 

I also read the recent article in “Government

Executive” that mentions the recent removal of

former Special Counsel Scott Bloch and summarizes

your suggestions for OSC.  It is available on the internet at

 < http://www.govexec.com/story_page.cfm?

articleid=41273&dcn=todaysnews >.

 

As you know, I contend OSC is, relatively

speaking, the most corrupt and corrupting agency

in our Country’s history.  It was created, along

with Merit Systems Protection Board, by the Civil

Service Reform Act of 1978.   I contend that its

now 30-year long lawbreaking failure to protect

federal employees from agency violations of the

merit system principles (i.e., “prohibited

personnel practices (PPP’s) and other agency

violations of law, rule or regulation under OSC’s

investigatory jurisdiction has resulted in many

dysfunctional and corrupt federal workplaces, a

battered federal civil service, and a much

diminished and more threatened America.

 

OSC’s lawbreaking has also created thousands of

direct victims – loyal, patriotic federal

employees who put professional duty to the public

welfare before their personal economies and who

were betrayed by OSC lawbreaking failure to

protect them from agency retribution.

 

OSC’s lawbreaking has not occurred in a vacuum,

it was enabled by 30-year long lawbreaking

failure of US Merit System Protection Board to do

the statutory required oversight of OSC’s

compliance with law in protecting the federal

employees who sought its protection.

 

Basically, OSC and MSPB nullified themselves, at

their creation in 1978, by

OSC’s  (mis)interpretations of its key duties to

protect the federal employees who sought its

protection and MSPB (mis)interpretation of one of

its primary duties to conduct “special studies”

focused on OSC’s compliance with law and performance in protecting

them.

 

These fundamental misinterpretations include

(using the law’s current numbering, which was

changed by the Whistleblower Protection Act of 1989):

 

1.      OSC’s claim that the reporting

requirements of 5 U.S.C. §1214(e) do not apply to

laws, rule, or regulation under OSC’s

investigatory jurisdiction, meaning OSC never has

an unqualified requirement to formally report its

determinations of violations of law, rule, or

regulation under its investigatory

jurisdiction.   It also means OSC has yet to make

a report per §1214(e), not in over 20,000

investigations it has conducted since 1989.

 

2.      OSC’s claim (one which is contrary to

Supreme Court precedent) that there is no such

thing as a “civil service rule.”  As a result,

OSC does not investigate or even consider if

agency directives (i.e. “civil service rules”)

such as workforce discipline procedures,

grievance procedures, performance evaluation

procedures, etc were violated as part of a

PPP.  By 5 U.S.C. §1216(a)(4), OSC has

jurisdiction over any agency “activities

prohibited by any civil service law, rule or regulation.”

3.      OSC’s policy of not considering or

investigating, as part of its investigations of

PPP’s, whether any agency “activities prohibited

by any civil service law rule or regulation” also

occurred.   When OSC is conducting an

investigation of an alleged PPP, it only

considers whether a violation of 5 U.S.C.

§2302(b) occurred, unless the PPP complaint

specifically alleges violations of laws, rules,

or regulations under OSC’s jurisdiction per

§1216(a)(4) occurred as part of the PPP or

separate complaint of “other prohibited activity” alleging them is

filed.

4.      MSPB’s claim that the “special studies”

it conducts per 5 U.S.C.§1204(a)(3) need not

focus on “whether the public interest in a civil

service free of PPP’s is being adequately

protected.”  MSPB claims to have no opinion as to

whether it is, despite its statutory requirement

to regularly report its determination on this

point to the President and Congress.  Since OSC

is, by law, the primary bulwark to protect

federal employees from PPP’s, MSPB should have,

for the past 30 years been doing what it has yet

to do – conduct reviews of OSC’s compliance with

law and performance in protecting federal

employees from PPP’s.  Had it done so, OSC

misinterpretations of law would have been exposed

and corrected almost 30 years ago – and the

federal civil service and America would be in a

much different and better place today.

 

Why Has This Gone On For 30 Years?  Follow the Money!

 

Many people and organizations benefit, directly

or indirectly, from a broken, lawbreaking OSC and

an MSPB that enables it.   This includes:

 

1)      Government employee unions benefit –

their major selling point to their dues-paying

members (who are frequently only 10-15% of the

members of the bargaining unit) is dues-paying

members get more support in a negotiated

grievance procedure.  Since by “election of

remedies” of 5 U.S.C. 7121 (added to the law in

1994), a federal employee must choose between an

OSC complaint, an MSPB appeal, or a negotiated

grievance, if OSC is not credible, the relative

attractiveness of the union negotiated grievance

process (and voluntarily paying union dues) increases.

2)      Private sector attorneys who specialize

in federal employment law benefit.  A broken,

lawbreaking OSC emboldens abusive federal

managers and results in more federal employees

seeking them out, cash in hand, to pursue remedies at EEO, MSPB, or

elsewhere.

3)      “Good government groups” benefit as

concerned federal employees go to them with their

concerns about agency wrongdoing, because they

know they will not be protected from agency

retribution if they use established

channels.  “Information is power” to these groups

and they trade their insider information with

Congress and media for access and influence,

which they need to secure you are age a person

funding from the relatively few foundations that provide much of

their funding.

 

4)      Mainstream media benefits for the same

reasons the good government groups do – concerned

federal employee go to them with their concerns,

because they cannot trust OSC to protect them if

they use established channels.

 

I created OSC Watch < http://www.oscwatch.org&gt; <

http://whsknox.blogs.com/osc&gt;, with some others

who largely perceive things as I do, with three

limited objectives: 1) expose OSC’s lawbreaking

and MSPB’s enabling lawbreaking; 2) stop it; and

3) obtain some measure of justice for the

thousands of feds directly harmed by it – feds

who did not receive the nondiscretionary protection OSC owed them.

 

To return to your article – while I agree with

much of it, your analysis of OSC goes seriously

awry on page 9.  Frazier v. MSPB, 672 F.2d (D.C.

Cir. 1982) was, in large part, legislatively

overturned by the Whistleblower Protection Act of

1989.   OSC is no longer an “ombudsman” or

advocate for the merit system principles – it is

now specifically charged to “act in the

interests” of the employees who seek its

protection.  It has a specific mandate to “that

employees should not suffer adverse consequences

as a result of PPP’s.”  The law directs OSC

that  “the protection of individuals who are the

subject to PPP’s remains the paramount

consideration.”  See 5 U.S.C. §1201 “note,”

quoting from the “findings and purpose” section of the WPA.

 

While I agree that OSC does not have an

attorney-client relationship with complainants

and that OSC has discretion as a prosecutor in

seeking corrective action and/or disciplinary

action, I contend that OSC does not have

discretion as an investigator – it must

determine, for all the complaints it receives,

“whether there are reasonable grounds to believe”

the violation occurred and, if so, formally

report them to the involved agency, via a

permanent, public record, per §1214(e).  It must

do this, unless OSC additionally makes the

discretionary determination that the violation is

one “which requires corrective action” and

formally reports both determinations per

§1214(b)(2)(B), thereby satisfying the §1214(e) reporting requirement.

 

So What?

 

While I do not consider you blameless in the

federal workplace disaster at OSC, you did

inherit OSC’s now 30 year-long misinterpretations

of its key duties, which was enabled by MSPB’s

misinterpretation of one of its key

duties.  Regardless, there should be no

reasonable question about OSC proper

interpretation and full compliance with its

nondiscretionary duties to those who seek its

protection.  There is now plenty of question and

the questions go back to OSC’s creation.

 

You can help get these questions answered and, if

OSC has been, as I contend, fundamentally remiss

in its nondiscretionary duties to the 20,000 or

more federal employees who sought its protection

since 1978, you can help obtain some measure of

justice for those directly harmed.  Or you can

ignore these claims and concerns and continue, in

the eyes of many, to defend the undefendable at

OSC, including your records there.

 

You have positive professional duties as

attorneys.  As I understand the position of OSC

attorneys, because they consider OSC to be their

client, they are prohibited from “blowing

whistles” on their and OSC’s lawbreaking by legal

ethics.  On the other hand, I contend that they

are betraying both their oaths as attorneys and

their oaths as government employees by not

implementing the laws they are responsible to

implement, to protect federal employees who try

to do their duty, ethically and competently,

without fear or favor.   I suggest you consult

with ethical experts in your profession in

deciding how to proceed in this matter.

 

I was raised Catholic and while I did not

personally experience abusive priests, I was

lucky because I was around some as a youth.  The

scandal at OSC has some similarities to the

Catholic priest scandal – vulnerable people are

betrayed by those charged to protect them and the

system tries to stonewall.  But the outrage of

those betrayed would not be deterred and the

stonewalling failed.   I suggest the sense of

betrayal many feel to you and OSC should not be minimized.

 

Respectfully,

 

Joe Carson, PE

Chair, OSC Watch Steering Committee

10953 Twin Harbour Drive

Knoxville, TN 37934;  865-300-5831; jpcarson@…

Advertisements