OSC is charged by law to protect federal employees from prohibited personnel practices (PPP's). It has a number of specific statutory obligations to the federal employees who seek its protection. MSPB is responsible to conduct reviews of OSC's compliance with law and Congressional intent and to document, in a public report, "whether the public interest in a civil service free of PPP's is being adequately protected."
In Weber v. Department of Army, 209 F.3d 756, 758 (D.C. Cir. 2000) < http://whsknox.blogs.com/misconduct_exh/03.pdf>, a Federal Appeals Court found that OSC had a positive duty to FORMALLY report to the involved agency and MSPB every time it made positive PPP determination - that there were reasonable grounds to believe a PPP occurred. Additionally the Court found OSC had a duty to include its recommendations for corrective action in its formal report.
Despite this case law, nearly two years later, when an OSC investigation of a PPP complaint of a senior MSPB Administrative Judge, resulted in a positive PPP determination - "that there was "reasonable grounds to believe a PPP had occurred," it did not make its statutory required FORMAL report - instead it made an unlawful DRAFT report. Additionally, the draft report did not contain OSC's recommendations for corrective action, it only request MSPB voluntarily address the matter. Senior MSPB staff took no exception to this violation of law, as the January 2002 OSC press release (which follows) makes clear.
In September 2006, the Chair of the MSPB reported that OSC did not make a single positive PPP determination to it between 2002 and 2004, and only a very few since. His letter indicated no sense that something might be amiss < http://whsknox.blogs.com/misconduct_exh/02.pdf>.
The White House has now indicated its opposition to H.R. 985 – Whistleblower Protection Enhancement Act of 2007 - and stated, "The existing protections guaranteed by the Whistleblower Protection Act are sufficient to promote and protect genuine disclosures of matters of public concern.."
The Whistleblower Protection Act make OSC and MSPB responsible to ensure federal employees obtain the "protections guaranteed" by it - - but as the 2002 OSC press release shows, OSC and MSPB openly collude to evade making and receiving formal positive PPP determinations, determinations which would have to be shared with Congress and the public.
OSC's and MSPB's persistent non-compliance with their respective statutory obligations to protect federal employees from PPP's is thoroughly documented at < http://whsknox.blogs.com/osc>.
Before passing a new law, ostensibly to better protect federal employees from PPP's, I respectfully suggest Congress should do oversight of OSC's and MSPB's compliance with existing relevant law. I respectfully suggest advocates of better whistleblower protection petition Congress delay efforts to pass a new law until Congress conducts an oversight hearing of OSC's and MSPB's compliance with current law.
Respectfully,
Joe Carson, P.E.
Knoxville, TN
jpcarson@tds.net
865-300-5831
attachments:
1) OSC January 2002 press release (emphasis added throughout)
2) Whistleblower Action alert fromm the Liberty Coalition about H.R. 985 – Whistleblower Protection Enhancement Act of 2007
3) White House statement of opposition to H.R. 985 – Whistleblower Protection Enhancement Act of 2007
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attachment 1
http://www.osc.gov/documents/press/2002/pr02_01.htm
SETTLEMENT OF PROHIBITED PERSONNEL PRACTICE
COMPLAINT FILED BY MSPB REGIONAL DIRECTOR
FOR IMMEDIATE RELEASE - 1/3/02
CONTACT: JANE MCFARLAND
(202) 653-7984
Today, the U.S. Office of Special Counsel (OSC) announced the favorable settlement of a prohibited personnel practice complaint filed by Mr. Thomas J. Lanphear, Director and Chief Administrative Judge of the Atlanta Regional Office of the U.S. Merit Systems Protection Board (MSPB). Mr. Lanphear had filed a complaint with OSC, alleging that senior MSPB officials, who are no longer with the agency, retaliated against him for challenging the rating that he had received on a 1997 performance evaluation.
Mr. Lanphear alleged that after he filed an appeal challenging his 1997 evaluation, his supervisors orchestrated a series of actions and investigations against him. Mr. Lanphear alleged that the actions were designed to justify the deficient performance rating and to block his recertification as a member of the Senior Executive Service (SES). These actions included re-issuing his 1997 performance appraisal and changing his rating to “Unsatisfactory” and issuing a 1998 appraisal with an “Unsatisfactory” rating.
OSC conducted an investigation into Mr. Lanphear’s allegations. On the basis of OSC’s investigation, the Special Counsel determined that there were reasonable grounds to believe that Mr. Lanphear’s supervisor had retaliated against him because he challenged the rating on his performance evaluation. OSC provided a DRAFT prohibited personnel practice report to former MSPB Chairman Beth Slavet and requested that the MSPB voluntarily provide corrective action to Mr. Lanphear.
In response to OSC’s DRAFT report and under the terms of the settlement agreement, the MSPB agreed to provide full relief to Mr. Lanphear without admitting liability. Relief included rescinding Mr. Lanphear’s 1997 and 1998 performance evaluations and issuing “Outstanding” ratings for 1997, 1998, and 1999, which resulted in Mr. Lanphear being recertified to the SES. Relief also included the payment of performance awards associated with the revised performance appraisals and attorney’s fees.
The MSPB is the tribunal before which OSC prosecutes prohibited personnel practice cases. All of the underlying events took place under an administration prior to that of Chairman Slavet.
Special Counsel Elaine Kaplan thanked the MSPB “for its cooperation in negotiating a full and fair settlement of Mr. Lanphear’s complaint.” Jessica L. Parks of Kator, Parks & Weiser, counsel for Mr. Lanphear, stated, “The case exemplifies the importance of having an independent watch dog agency such as the Special Counsel to protect the rights of federal employees.”
It is a prohibited personnel practice under 5 U.S.C. § 2302(b)(9) to retaliate against an employee for exercising any appeal, complaint, or grievance right granted by any law, rule, or regulation. The act of rating an employee’s performance negatively because the employee exercised such a right constitutes a prohibited personnel practice.
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attachment 2
Dear Liberty Lovers,
   Please contact your Representative and tell them to vote for H.R. 985 Whistleblower Protection Enhancement Act of 2007. Also, tell them to oppose the Hoekstra amendment (#3) which would deny whistle-blower protections to national security employees. They also need to oppose the Davis amendment (#4) which would attempt to retain uniformity in the consideration of whistle-blower cases in the federal courts by keeping in place the current requirement that all whistle-blower appeals go through the United States Court of Appeals for the Federal Circuit rather than opening up appeals to other circuits. Call (202) 224-3121 and ask for your Representative. Also, use the action alert link.Â
 In Liberty,
Michael
 Michael D. Ostrolenk
Co-Founder/National Director
Liberty Coalition
www.libertycoalition.net
The Liberty Coalition works to help organize, support, and coordinate transpartisan public policy activities related to civil liberties and basic human rights. We work in conjunction with groups of partner organizations that are interested in preserving the Bill of Rights, personal autonomy and individual privacy.
Information and action items on the Liberty Coalition website, email Update or other materials should not be taken as an endorsement by any partner organization unless explicitly stated as such.
TAKE ACTION: Whistleblower Bill Scheduled for House Vote This Week
This legislation will give Federal employees the Freedom to Tell the Truth when they bring concerns of waste, fraud, abuse, and other misconduct to the attention of their supervisors.
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attachment 3
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
TATEMENT OF ADMINISTRATION POLICY
H.R. 985 – Whistleblower Protection Enhancement Act of 2007
, it would likely increase the number of frivolous complaints and waste resources. If H.R. 985 were presented to the President, his senior advisors would recommend that he veto the bill.
H.R. 985 would expand, for the first time, whistleblower protections to employees at national security agencies who disclose classified information to Congress. H.R. 985 would permit an employee to make an individualized determination – without further review and perhaps without all relevant information – to disclose classified information. Such an independent, uncoordinated decision to disclose classified information could jeopardize not only national security programs, but also the security of the people involved in such programs. The President now has the necessary authority to control the circumstances under which others receive classified and national security information to ensure such information is not disclosed or used in a way that would jeopardize national security. By vesting subordinate Executive branch officials with a right to disclose classified information outside of the Executive branch without receiving official authorization from the President or his official designee, the bill would impede the President’s necessary coordination function. In addition, in any litigation concerning a whistleblower, if the government invokes the state secrets privilege, H.R. 985 would require that the matter at issue be resolved in favor of the plaintiff. This essentially would require the agency to choose between protecting national security information in court or conceding lawsuits. Finally, H.R. 985 would allow administrative and judicial review of Executive branch security clearance determinations, a prerogative that must be within the Executive branch’s discretion for the protection of national security programs and personnel.
The expanded definition of protected disclosures in H.R. 985 also would upset the delicate balance between whistleblower protection and the ability of Federal managers to manage the workforce by permitting employees to bring a whistleblower complaint in response to almost every adverse employment action. The existing protections guaranteed by the Whistleblower Protection Act are sufficient to promote and protect genuine disclosures of matters of public concern by offering protection from adverse personnel actions to employees who report government wrongdoing to those in a position to remedy the problem. The proposed expansive definition has the potential to convert any disagreement over an issue or contrary interpretation of a law between employees, no matter how trivial or frivolous, into a whistleblower disclosure. The proposed expansive definition also would permit employees to impede legitimate investigations (even those by Inspectors General) by arguing that such investigation itself was an adverse action against the whistleblower. Instead of providing further protection to those with legitimate claims, who are covered by the existing law, the proposed definition likely will increase the number of frivolous claims of whistleblower reprisal, compromise legitimate investigations into wrongdoing, and create protections for disgruntled employees whose jobs would not otherwise be secure.
H.R. 985 also would permit employees to engage in judicial forum shopping in having their claims resolved. Whistleblowers already have the right to seek corrective action for an unlawful personnel action from the Merit Systems Protection Board, and are afforded judicial review before the Federal Circuit. H.R. 985 would allow employees to have their claims heard de novo in any federal district court, which could result in two trials (rather than one) for each employee’s complaint, and might result in divergent local district court interpretations and split circuit court decisions.
(House)
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