From OSC Watch. Thanks Joe!
The “Good News” for America and the Federal Civil service about 30 years of Lawbreaking at U.S. Office of Special Counsel (OSC) and U.S. Merit Systems Protection Board (MSPB).
By the Civil Service Reform Act of 1978, federal civilian employment is governed by “merit principles, found at 5 U.S.C. §2301. Agency violations of the “merit principles,” termed “prohibited personnel practices (PPP’s), are detailed at §2302(b) and include the whistleblower reprisal type PPP. The legislative scheme to protect federal employees from PPP’s assigns complementary duties to agency heads, OSC and MSPB. Specifically, OSC is the federal law enforcement agency responsible to protect federal employee from PPP’s, by §§1212 and 1214. Agency heads are responsible to “prevent PPP’s” in their agencies by §2302(c). MSPB is responsible to conduct, per §1204(a)(3), the “special studies” necessary to determine and report whether OSC and agency heads are adequately performing their duties in protecting federal employees from PPP’s.
This system is broken and has been for 30 years. Most specifically, by §1214(e), OSC is required to issue a report to the involved agency head when it determines “there is reasonable cause to believe” a violation within its enforcement jurisdiction occurred and the agency head is required to certify his review of OSC’s report and the agency’s response (excepting when OSC has additionally, at its complete discretion, determined the violation is one “which requires corrective action” and reported both determinations per §1214(b)(2)(B)). By §1219(a)(3), these are permanent, publicly available records.
Joe Carson, PE, Chair of the OSC Watch Steering Committee, can personally attest, based on his review of the Annual Reports to Congress OSC has issued since its creation in 1979 and his personal review of its “publicly available” records, that OSC has not made a single §1214(e) report since 1979 – not for its about 50,000 investigations of complaints alleging about 100,000 specific violations of law, rule, or regulation (the large majority PPP’s) within its jurisdiction.
For 30 years, until recently, OSC claimed that the reporting requirements of §1214(e) did not apply to the laws, rules, or regulations within its jurisdiction. It has now apparently abandoned that claim. Additionally, in a May 11, 2009 decision in Carson v. Office of Special Counsel, no. 08-330, Eastern District of Tennessee at Knoxville, Federal Judge Thomas Phillips determined the reporting requirements of §1214(e) do apply to the laws, rules, and regulations within OSC’s jurisdiction (see pages 10-11). There should be thousands of such §1214(e) reports – along with the agency head’s certified response – in OSC’s public reading room and/or website, instead there is nothing, absolutely nothing.
MSPB has yet to conduct a “special study” that considered OSC’s compliance with and performance of its non-discretionary duties to protect federal employees from PPP’s. Mr. Carson can personally attest, based on FOIA responses, that the current Chair of MSPB has no formal opinion as to whether federal employees are adequately protected from PPP’s – and that he contends the purpose of MSPB’s “special studies” is not to provide a basis for such an MSPB determination but to merely inform the opinions of its readers. So agency heads – as the White House and Congress – are largely “in the dark” about whether they are adequately “preventing PPP’s – including whistleblower reprisal” in their agencies.
Because they have not, all too often, federal workplaces allow dysfunction and corruption to take root and flourish. Bottom line, America is both much diminished and more threatened as a result of OSC and MSPB’s 30 year failure to discharge their positive duties to ensure federal employees are protected from PPP’s.
What is the “good news” about that? Given the number of challenges and crises facing America, the exposure of OSC’s and MSPB’s 30 years of lawbreaking is “good news” for at least two reasons:
1) it explains an essential factor to much of what has befallen America in past 30 years, and
2) it can be readily fixed. Congress is considering passing a new law to protect federal employees from the whistleblower reprisal type PPP – and OSC Watch hopes it does so.
But when OSC and MSPB can, for 30 years, not comply with existing law, with apparent impunity, is passing a new law an adequate response? Should not Congress also do the oversight necessary to ensure current law to protect federal employees from PPP’s is being followed at OSC and MSPB?
Joe Carson, PE Chair OSC Watch Steering Committee