Chairman Joseph Lieberman
Committee on Homeland Security and Governmental Affairs
340 Dirksen Senate Office Building
Washington, DC 20510
Chairman Daniel Akaka
Subcommittee on Oversight of Government Management, the Federal
Workforce, and the District of Columbia
605 Senate Hart Building
Washington, DC 20510
Chairman Edolphus Towns
Committee on Oversight and Government Reform
2157 Rayburn House Office Building
Washington, DC 20515
Chairman Stephen Lynch
Subcommittee on Federal Workforce, Postal Service and the District of Columbia
349A Rayburn House Office Building
Washington, DC 20515
Re: “FAA Whistleblower Alliance” Urges Strong Oversight of the Office
of Special Counsel
Dear Chairmen Lieberman, Akaka, Towns and Lynch:
The FAA Whistleblower Alliance is a newly-formed group of Federal
Aviation Administration professionals that have been retaliated
against by the FAA for raising concerns about substantial and
specific dangers to aviation safety. This letter urges the committees
that have oversight jurisdiction of the Office of Special Counsel to
enact badly-needed accountability and transparency reforms in the
Office of Special Counsel and Merit Systems Protection Board
Reauthorization law.
Common to our experience in speaking out at the FAA to correct
serious dangers to the flying public is the FAA’s insistence on
ignoring, diminishing, and suppressing the safety concern raised, as
well as the viscous backlash from FAA management in the form of
retaliation. Federal employee whistleblowers are statutorily forced
to bring their retaliation claims to the OSC for relief, rather than
to the public courts, and are systematically denied redress evident
by the OSC’s dismal rate of corrective action. The OSC fails to
fulfill its Congressional mandate of protecting legitimate
whistleblowers. Instead the OSC appears to be following an internal
institutional mandate of closing out cases regardless of genuine
merit. The common experience of the Alliance members, all who have
had or currently have an OSC prohibited personnel practices
complaint, is that OSC consistently fails to do a proper
investigation of claims and to adequately communicate with
whistleblowers during the investigation process. We have attached a
summary of individual Alliance member’s experiences with the OSC.
The FAA Whistleblower Alliance urges Congress to initiate aggressive
oversight of how the OSC has functioned, particularly since former
Special Counsel Scott Bloch’s resignation. Many have attempted to
personify him as the primary cause of the Office’s weakness. But in
our experience, the combination of bureaucratic arrogance and
incompetence has sharply increased since his departure. We hope that
oversight hearings can be scheduled promptly after appointment of a
new Special Counsel, to provide the context and a mandate for
leadership, both in terms of changed practices and accountability for
those who have grossly abused their discretion.
Hearings also are necessary to create a record for provisions in the
upcoming OSC – MSPB Reauthorization bill. To illustrate, the attached
case studies demonstrate that arbitrary practices are the rule,
rather than the exception, necessitating professional regulations as
a standard operating procedure for investigating and acting on
prohibited personnel practice complaints. On occasion, OSC staff even
engaged in retaliatory closeouts, officially canceling investigations
when pressed to communicate about what work, if any, had been
completed. That illustrates our most basic plea — the right to know
what happened to our rights. Although cases are open for extended
periods, we are not allowed to know what evidence, if any, was
gathered. The lack of consistent procedures, communication and
transparency are three strikes for a credible Office of Special
Counsel. Our experiences illustrate that those professional
breakdowns have become the norm.
We thank you for considering our views on the OSC and request the
opportunity to work with your Committees on the OSC – MSPB
Reauthorization bill and the amended Whistleblower Protection Act.
Please contact Gabe Bruno at 407-977-1505 and/or Tom Devine of the
Government Accountability Project at 202-457-0034, ext. 124 with any
follow-up communications.
Sincerely,
Gabriel Bruno, retired Manager, Flight Standards Service,
Mike Cole, active Air Traffic Control, Flight Service Specialist,
Mary Rose Diefenderfer, former Flight Standards Inspector,
Bogdan Dzakovic, former Special Agent/Air Marshal Service, currently with TSA,
Kim Farrington, former Flight Standards, Air Carrier Cabin Safety Inspector,
Edward Jeszka, former Flight Standards Inspector,
Chris Monteleone, active Flight Standards Inspector,
Peter Nesbitt, active Air Traffic Controller,
Geoffrey Weiss, active Air Traffic Controller,
Anne Whiteman, active Air Traffic Control, Front Line Manager
Enclosure
Some of our members wish to keep their names confidential, due to
fear of continued retaliation.
[Any listed affiliation with the FAA or any other federal agency is
listed only for identification purposes. We are speaking in our
capacity as citizens and as part of the FAA Whistleblower Alliance,
and not on behalf of the FAA or any other federal agency.]
The following are short statements from some members of the FAA
Whistleblowers Alliance that characterize their experiences with the
Office of Special Counsel. Further information is available on all of
the cases mentioned. A number of our members decided not to provide
statements at this time because of concerns of retaliation.
Kim Farrington Flight Standards Inspector (removed from service/ in litigation)
I filed an OSC Form 11 on 4-27-08. The Midwest Field Office OSC IPD
attorney did not effectively communicate with me throughout the 10
months my complaint was open. With the exception of an initial intake
interview by an IPD investigator, I was never re-contacted by the OSC
again about the details of my case, the status of the investigation,
or asking for information to rebut the information learned from FAA
before the OCS IPD attorney sent a preliminary determination letter
saying they were going to close out my case. My witnesses I provided
were never contacted by the OSC IPD investigator or attorney. The
preliminary decision letter and final close-out letter stated “based
on our investigation” but did not indicate to me that there had been
an investigation because the information they outlined was only a
restatement of the details I initially provided to them in my
complaint. The final close out letter misstated the law on the job
duties doctrine sweeping in all disclosures of information learned
during my job duties but communicated outside the normal chain of
command. My claim was closed with no corrective action recommended.
Gabe Bruno Flight Standards Manager (retired)
My experience with the Office of Special Counsel began in 2002, when
I filed two safety disclosures about the FAA creating a danger to the
public. It took OSC two years to process these disclosures while the
FAA was taking a series of adverse personnel actions against me. I
requested that OSC file for a “stay” to halt the adverse actions,
including my removal, until my safety disclosures were properly
investigated, but my request was ignored. Ultimately, the OSC
Disclosure Unit found that two of my whistleblower disclosures had a
substantial likelihood finding. The problem was that the FAA never
completed the corrective actions as promised to the OSC, and while no
one was monitoring the FAA’s promises, an aircraft carrying 18
passengers and a crew of two crashed, in 2005, killing all 20 on board.
I also have a Prohibited Personnel Practice complaint with the OSC,
originally filed in 2005 and reopened by Former Special Counsel Scott
Bloch in 2008, because of the retaliatory adverse actions the FAA
took against me. After the case was reopened, the OSC refused to
communicate with me about the status of the investigation or answer
questions posed after the initial interview beyond acknowledging
receipt of my correspondence. The OSC provided me with a letter
stating that the OSC has not completed the investigation after 240
days and I had options regarding extensions to the OSC. My counsel
contacted the attorney on the case to speak about the extension
options, get an update on the investigation to date, and ensure the
prohibited personnel practices were framed correctly for
investigation. The OSC attorney refused to speak to my counsel and
instead sent me a preliminary determination letter that is about to
close my case out. This is troubling because two weeks before I
received the preliminary determination letter I received a letter
stating that the OSC had not completed its investigation.
Geoffrey Weiss Air Traffic Controller (active)
In 2008, I submitted an OSC complaint. My whistleblower disclosure
was found by the OSC Disclosure Unit to have a substantial likelihood
of substantial and specific danger to public safety. My prohibited
personnel practices complaint was assigned to the Midwest Field
Office. The OSC IPD attorney never spoke with me except an
introduction call with the OSC IPD investigator. I provided
documents, witnesses, and other evidence to the OSC IPD investigator
but was never granted the face to face interview I repeatedly
requested to present all my documents for review. The OSC IPD
investigator did call on occasion to ask for clarification but he
never presented me with anything specific provided by the FAA to
refute or verify. I did not hear from the OSC IPD attorney until he
sent a letter proposing that the OSC wanted to drop my complaint
because it could not verify retaliation had taken place. The letter
was full of glaring inaccuracies and seemed to be completed devoid of
any real understanding of the issue and the dynamics of the Air
Traffic portion of the matter. I provided my comments to that
preliminary determination and am awaiting a response. I contacted
some of the witnesses I had provided and was told that they had never
been contacted by the OSC.
Peter Nesbitt Air Traffic Controller (active)
The FAA retaliated against me for disclosing an unsafe practice and
procedure which placed the American flying public at risk with
intersecting flight paths at the Memphis International Airport.
While I have been impressed with OSC personnel within the Disclosure
Unit, I do not believe that the OSC Midwest Field Office thoroughly
investigated my allegations of Prohibited Personnel Practices (PPP)
by Memphis FAA Management. During the course of my PPP investigation,
I was verbally informed of the FAA’s position by the OSC — but never
formally informed or allowed to refute the FAA’s position. At the
request of the OSC Midwest Field Office, I provided a list of
approximately 30 co-workers and supervisors as character references
— none of which were ever interviewed. The original OSC investigator
was removed from my case, and it was obvious during my first and only
personal interview with the replacement OSC investigator — that he
did not believe my allegations of retaliation by Memphis FAA Management.
The Midwest Field Office intervened on my behalf during two key
situations, however these interventions came only after I had been
subjected to additional acts of retaliation by Memphis FAA Management
— and only after I demanded that the OSC do something to help me. I
continued to make additional safety disclosures throughout my PPP
investigation, and the FAA eventually informed the OSC that they
wanted to settle my PPP case. Based on conversations with the OSC
attorney who handled my PPP case, it is my belief that the continued
and repeated safety disclosures are what drove the FAA to finally
enter a settlement agreement with me nearly 1.5 years after I filed
my original complaint with the OSC.
Chris Monteleone Flight Standards Inspector (on administrative leave)
On April 16, 2008 I filed OSC prohibited personnel practices
complaint and whistleblower disclosure case and was assigned to the
Washington DC Field Office. I was retaliated against for reporting
safety violations related to Colgan Air and the Office of Runway
Safety. Meanwhile, Colgan Air 3407 (operating as Continental) crashed
on February 12, 2009 killing on 49 on board and 1 on the ground, in
Buffalo, New York. I have not been informed of whether they have
interviewed my witnesses or the status of the investigation. I have
also not been notified about any FAA responses or provided with the
opportunity to rebut the responses.
Anne Whiteman Air Traffic Control, Front Line Manager (active)
OSC investigated my PPP case for 5 years. Scott Bloch sent a letter
to the Secretary of the DOT asking for compensation for the 10-year
vendetta against me. He gave them two weeks to respond and that was
the summer of 2007. Nothing came of it. During the course of their 5
year investigation, I would have to say that the OSC was always
disturbed by the way I was being treated at work, but I was never
protected. Not once did anyone at the OSC, to my knowledge make any
contact with anyone at FAA and DFW in an effort to protect me. During
the original “investigation” quite a few people were interviewed and
ultimately a report was issues, but only one person from the list I
gave them was contacted. I received a letter every 60 days for years
informing me my case was in their prosecution division. When I
started to fear termination I hired an attorney for my protection and
upon filing with the MSPB the OSC sent me a letter informing me my
case was closed. I as grateful for Scott Bloch’s support and his
efforts to effect change in the FAA and at DFW specifically, but the
OSC as a whole was ineffective in protecting me.
Mary Rose Diefenderfer Flight Standards Inspector (removed from
service/in litigation)
Mary Rose was the POI for Alaska Airlines and predicted that Alaska
Airlines was about to have a tragedy, before she was removed from her
position. At least 88 families wish someone had listened to her. Her
prohibited personnel practices case has been going on for 11 years
and is currently at the Federal Court level. Her first exposure to
the OSC was in 1994 when she was removed from her position for
reporting falsification of pilot training records at a major carrier.
The OSC was helpful and responsive in communicating with her and Mary
Rose got her position back. Then in 1997, Mary Rose was removed from
her reinstated position for reporting the same problem. The OSC took
corrective action but Mary Rose lost at the MSPB level with an AJ
that had never ruled in favor of employee as a MPSB judge.
Edward Jeszka Flight Standards Inspector (retired)
I was retaliated against after I submitted a complaint to the
Department of Transportation Inspection General about the
circumstances surrounding a false accident report. I filed a
prohibited personnel practices complaint with the OSC. I have been
told that the OSC is reviewing my submittal but as I am now retired
there wasn’t any personnel action taken as a result of my complaint
to the DOT IG. However, the FAA is attempting to revoke my pilot
certificates and the OSC IDP attorney does not think that is an
action that would qualify this as retaliation. I have submitted
additional information and am now in the process of assembling three
years of documents and statements that will show prohibited personnel
practices.
Mike Cole Air Traffic Control, Flight Service Specialist (active)
In December 2007, I was retaliated against for reporting safety
issues involving air carriers. I filed an OSC prohibited personnel
practice complaint and a whistleblower disclosure. The OSC attorney
on my whistleblower disclosure appears to have no knowledge of Air
Traffic and does not communicate with me adequately. The Disclosure
Unit found evidence of that there are safety issues and requested FAA
OIG investigate. The request for the FAA OIG to investigate omitted
many of my concerns. The OSC IDP investigator and attorney did not
effectively communicate with me and closed out my prohibited practice
case without an adequate investigation into my complaint.
Bogdan Dzakovic TSA, Former FAA Red Team Security Leader
I filed a Whistleblower Disclosure against the FAA with the OSC in
October of 2001, concerning the dangerous culture of mismanagement
within FAA Security and which contributed directly to the ease with
which the terrorists successfully attacked on 9-11. The
Transportation Security Administration (TSA) formally took over
operational responsibility of Aviation Security in February of 2002.
That same week the OSC formally (and publicly) accepted my case for
further investigation. The very first week of TSA’s existence, TSA
took away ALL my job duties which lasted for an entire year. A short
time later the OSC- sponsored a mediation session between myself and
TSA and, while the OSC didn’t explicitly state it, the results of
this “mediation” was that I should be grateful still have a job and
am being paid. That was the extent of the OSC’s protection of my
rights. I spent most of the following year assigned to this
night-shift telephone operator position when in late 2003 I was
transferred to an entry level staff position at TSA headquarters,
where I remain.
Whistleblower Support Blog 