To Counsel Jarrett, Department of Justice Office of Professional Responsibility
July 10, 2008
Honorable Marshall Jarrett, Counsel
Office of Professional Responsibility, Suite 3266
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Subject: Office of Special Counsel (OSC) nondiscretionary duties as an investigatory agency per 5 USC 1214(e).
Dear Counsel Marshall,
By law at §2302(c), the heads of agencies are charged "to prevent" PPP's in their agencies, while OSC is charged at §1212(a)(1) and §1214(a)(1) to "protect employees from PPP's," with MSPB being charged at §1204(a)(2) to conduct the "special studies" of OSC and other agencies necessary to determine and report "as to whether the public interest in a civil service free of PPP is being adequately protected."
My point is that DOJ, by itself, cannot adequately protect DOJ employees (and applicants for employment from PPP's - it (as other agencies) must rely, in significant part, on OSC and MSPB faithfully complying with their respective duties to protect federal employees from PPP's.
I contend that OSC and MSPB has misinterpreted essential aspects of their nondiscretionary duties to protect federal employees from PPP's - what happened in DOJ, as described in your report, did not happen in a vacuum, it is, in essential part, the result of OSC/MSPB now 30 year long misinterpretations of what is now §1214(e) and §1204(a)(2).
Your recent report shows the "public interest in a civil service free of PPP's" was NOT adequately protected in DOJ hiring in 2002 and 2006 and scores, if not hundreds, of applicants for employment in DOJ suffered adverse consequences as a result of DOJ PPP's. So where were OSC and MSPB? I suggest in your ongoing reviews of PPP's and related violations of law in DOJ, you should be asking questions as "Why am I now finding all these PPP's? Why were not they not complained of to OSC? Why did MSPB "special studies" not determine them?"
I am the current "dean" of federal whistleblowers, as somewhat described at <www.carsonversusdoe.com>. I am also the chair of the OSC Watch Steering Committee <www.oscwatch.org>. My story is fairly simple - I have been a nuclear engineer for over 30 years and a licensed professional engineer for over 20 years. When I accepted a position in the Department of Energy (DOE) in 1990 as a nuclear safety engineer, I came to my position "encumbered" with positive legal and ethical professional obligations to the public health and safety, professional obligations which independent of my status as a federal employee - just as you are "encumbered" with positive legal and ethical professional obligations as a licensed attorney, in your employment in the Department of Justice.
In conducting safety assessments of DOE facilities and programs in the early 1990's, I was shocked by the obvious and significant safety deficiencies I kept "finding." I put "finding" in quotes, because I was not really "finding" them - they were known to people running the programs or facilities, even if undocumented. I learned that because I asked "why am I finding these things instead of those responsible?" Then I found out that my "findings" were known and I also found out (by pointedly asking) that fear of reprisal for voicing unwanted concerns is what kept these conditions undocumented and uncorrected. I also found out that people who are afraid of reprisal for voicing unwanted concerns are generally afraid to say they are afraid too, but generally will not directly deny being afraid if asked a leading question.
I was an officer in the military for 6 years (submarines). One long-time truism for military officers is "an officer should be as good a shot as his men." Consistent with that, how could I expect workers and managers in DOE facilities to voice concerns about safety issues, if I, the safety inspector, was afraid to voice the (unwanted, I can assure you!) concern that fear of reprisal was a significant factor in the existence and persistence of the safety issues I was "finding"?
So, consistent with my positive legal and ethical duties as a PE, employed by DOE as a nuclear safety engineer, I voiced concerns. And I have confronted, via rule of law, the resulting reprisal, for 16 years. What have I learned? That OSC and MSPB lawbreaking is an essential factor in DOE's unlawful reprisal against me - just as it is an essential factor in the PPP's you identified in DOJ. OSC is an essential part of the "immune system" of the federal civil service by protecting concerned employees from PPP's - if it fails in this mission, as it has since 1989 (if not 1978) - it allows corruption and this function to take root and flourish in many federal workplaces, beyond PPP's. MSPB enables OSC non-compliance with its duties by failing to conduct oversight of them, contrary to its duties. This has gone on since 1989, if not 1978. And here we are, with a battered civil service, that places us at an unnecessarily increased risk of a nuclear 9/11 or other catastrophe in a war on terror.
Neither OSC nor MSPB have Inspector Generals, their General Counsels supposedly play that role, despite the obvious conflict of interest. They are small, specialized, agencies that do not get much detailed Congressional oversight (and much of the "institutional memory" for them in Congress left after the 1994 election). The Republican Congress from 1995-2006, particularly from 2001-2006, did little relevant oversight of OSC and MSPB, in part because Congressional staff size was significantly reduced and staff jobs came to be seen more as stepping stones to more lucrative lobbying positions, so staff turnover increased, hindering the creation of specialized knowledge in staff for OSC/MSPB.
Your recent report on hiring resulted from an anonymous letter to Congress. Why would one or more DOJ employees need to write anonymous letters to Congress about PPP's in DOJ if they were not afraid of PPP's in DOJ? It appears that you did not pointedly ask the involved career individuals in DOJ if fear of experiencing a PPP in DOJ inhibited them from voicing concerns about the apparent PPP's they were witnessing or had good reason to suspect. Your report certainly describes a lot of direct conversations that should have taken place but did not and lots of concerns that should have raised to OSC, DOJ IG or DOJ OPR but were not. But I suspect you and/or others involved in this investigation may be (possibly reasonably) afraid to ask such questions about the lack of direct conversations or formal concerns of those involved, because you do not want to be told that fear of PPP's was an essential part of it, because you might find yourself in the unwelcome position of reporting that unwelcome fact and quite possibly experiencing PPP's yourself for doing so.
Are Michael Elston and Esther McDonald possibly victims too? It seems to me that if fear of PPP's was not so present in DOJ, they would have heard many objections and concerns about possible PPP's in the hiring process and they would have done things differently. Now their professional reputations have been significantly harmed and they may also be publicly disciplined by their licensing authorities - publicized complaints of significant professional misconduct on their parts, based on your report, have been submitted to these authorities.
My suggestion is that you recommend that a anonymous survey of DOJ employees about PPP's and fear of experiencing one in DOJ be prepared and distributed. In nuclear facilities licensed by the NRC, "safety-conscious work environment" is a term of art and means a working environment in which safety concerns are recognized and can be documented without fear (or the fact) of reprisal. Does DOJ have a "merit principles conscious work environment" in which possible violations of the merit principles are recognized and can be documented without fear of reprisal? If not, why not, and how much may be the result of deficiencies in the way OSC and MSPB implement their responsibilities so that "the public interest in a civil service (in DOJ) free of PPP's is adequately protected?"
A copy of this letter, and my recent, related, letter to Attorney General Mukasey, with hyperlinks to relevant documents, is available at <whsknox.blogs.com/osc>.
Respectfully,
Joe Carson, PE 1
0953 Twin Harbour Drive
Knoxville, TN 37934 865-300-5831<jpcarson@tds.net>
"multiple-time prevailing" federal whistleblower www.carsonversusdoe.com;
Chair, OSC Watch www.oscwatch.org;
President, Affiliation of Christian Engineerswww.christianengineer.org;
and political spouse <www.carson08.com>
copy:
DOJ Office of Inspector General
Relevant Congressional Oversight Committees
U.S. MSPB and U.S. OSC
all me the dean of federal whistle-blowers," says Joe Carson, handing me his business card. prevailing whistle-blower, it reads, along with his job as a Department of Energy (DOE) nuclear safety engineer. Carson, a towering man whose shoulders slope forward as if he's pushing into a gale wind, hovers above the crowd at the Warehouse Theater bar in Washington detailing his bona fides: He first blew the whistle on safety violations at Tennessee's Oak Ridge lab in 1992; since then, he has blown it seven more times, all while still employed at DOE. "Anybody want to match that record?" he barks. 
Actually, there are plenty of people here at the kickoff reception for Whistleblower Week in Washington who can blow it away. It's the first whistle-blowers' convention in 15 years, and everybody who has ever told on anybody has come to town for it. There are old movement patriarchs like Jeffrey Wigand, who ratted out big tobacco in the '90s (the Russell Crowe movie he inspired--The Insider--will play later in a small theater behind the bar), and younger stars of the Bush era like FBI whistle-blower Coleen Rowley, who hobnobs with a clutch of admirers. There is a U.S. air marshal who estimates he has blown the whistle 20 or 30 times, in the beginning under the code name "Vegas," and an ob-gyn in plaid who hands everyone packets detailing his cases against several hospitals and the California Medical Board from a box he drags around on a little trolley.
wo days later, at the Willard Hotel, the conventioneers further their education with such colloquia as "The ABCs of a Successful Whistleblower Case" and "Whistleblowers and the Press." Inside the seminar rooms, sports-coach-like instructors scribble power-balance diagrams on whiteboards: In one, the whistle-blower is a tiny dot and the bureaucracy a circle around him; fat arrows of hostility shoot in from the circle toward the hapless speck. Guest speakers advise rapt audiences to keep money in mind ("sometimes, you're so worried about winning the case, you forget about damages!"), consider going anonymous ("we have Mr. Blue, we have Apples, we have P.J."), and maintain perspective ("know when it's time to move on"). 
t the beginning of the week, I was skeptical of the proposition that whistle-blowing is a personality type you are born with. But it never seemed more true than at the end of Whistleblower Week, during a $150-a-head wrap-up retreat to help whistle-blowers de-stress. Seated with the whistle-blowers in a darkened room, retreat leader Don Soeken--a psychotherapist who runs a mountain sanctuary for whistle-blowers in West Virginia--encouraged them to contemplate a healing career change. But conversation soon circled back to the whistle-blowing life, as one Naval whistle-blower recounted the story of a cryptographer whose valiant work at Pearl Harbor the Navy had rewarded with bitter demotions. "Oh--oh," an ex-Army Corps of Engineers manager cried out, as though the long-dead cryptographer's humiliation was her own. Later, Soeken showed a relaxation video, because "it's hard for whistle-blowers not to make noise," he explained. "It's like a group of unruly children." During the film, one whistle-blower threw spitballs. 