Petition Congress to Conduct Oversight of the U.S. Office of Special Counsel

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

OSC and MSPB collude to violate the "protections guaranteed" by WPA

Convincing evidence that the U.S. Office of Special Counsel (OSC) and U.S. Merit Systems Protection Board (MSPB) colluded to evade providing the "protections guaranteed" by federal Whistleblower Protection Act.

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

U.S. OFFICE OF SPECIAL COUNSEL ANNOUNCES FAVORABLE
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. 
 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

EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503

S(Rep. Waxman (D) CA and 24 cosponsors)

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.

* * * * *

The Administration supports accountability and transparency in the implementation of Federal programs.  However, the Administration strongly opposes House passage of H.R. 985 because it could compromise national security, is unconstitutional, and is overly burdensome and unnecessary.  Rather than promote and protect genuine disclosures of matters of real public concern

March 13, 2007
(House)

OSC fails to make required "termination statement"

By the 1994 amendments (P.L. 103-424) to the Whistleblower Protection Act of 1989, when OSC terminates a PPP investigation, it is required to include a “termination statement” in its investigation termination notice as described in the “amendment” section of 5 USC 1214, that allows the employee to talk to an appropriate OSC official about its investigation, its findings, and how the law was applied by OSC.

The "termination statement" is:

Section 12(b) of Pub. L. 103-424 provided that:  "The Special Counsel shall include in any letter terminating an investigation under section 1214(a)(2) of title 5, United States Code, the name and telephone number of an employee of the Special Counsel who is available to respond to reasonable questions from the person regarding the investigation or review conducted by the Special Counsel, the relevant facts ascertained by the Special Counsel, and the law applicable to the person's allegations."

OSC recently admitted in Federal Court that it has failed to include this "termination statement" in the PPP investigation termination letters it has sent (approximately 18,000) since the law  came into force in late 1994.

Evidence of OSC's not making a single 1214(e) report since 1989.

By the law at 5 USC 1219(a)(3), OSC must make a public record of every 1214(e) report it makes, together with the agency response.

OSC regulations about access to its public records are located at 5 CFR 1820.1.   

The "lists of matters" referenced in 5 USC 1219 for FY 1989 through FY 2003 were obtained from OSC in April 2004.  Not a single 1214(e) report is listed.  A visit to OSC HQ in March 2005 verified that no 1214(e) reports were made from the end of FY 2003 (September 30, 2003) to March 2005.

OSC's non-compliance with its statutory obligations to protect federal employees in its own words

OSC's essential statutory obligations to protect federal employee who file prohibited personnel practice complaints with it are detailed at 5 USC 1214 and include:

1) investigating the PPP complaint to extent necessary to determine whether there are reasonable grounds to believe a PPP occurred (5 USC 1214(a)(1)(A)),

2) making such a determination (1214(b)(2)(A)), and

3) if a positive determination is made, reporting it, in every instance, to the involved agency.   

The law allows OSC two methods of making its required report - either directly to the head of the involved agency, in which case the agency head must certify a response addressing what the agency will do to correct the PPP and by when (see 5 USC 1214(e)) - or, in the alternative, or if dissatisfied with the initial agency response, to both the Merit System Protection Board (MSPB) and the agency, as part of establishing jurisdiction for seeking corrective action on behalf of the affected employee, if the agency does not promptly correct the PPP (see 5 USC 1214(b)(2)(B)).   

However (and contrary to OSC's recent filing with a Federal Court, see pages 2 and 3), statements in OSC's 1996 Annual Report to Congress (similar statements appear in other OSC annual reports to Congress) indicate that OSC practice is: 1) to never file a 1214(e) report of a positive PPP determination, because OSC (with no basis in law) contends 1214(e) does not apply to violations within OSC's enforcement authority (i.e. PPP's), and 2) to only file a 1214(b)(2)(B) report when efforts to informally settle the complaint with the agency fail.  In an earlier filing in the case, OSC's position was consistent with those in the 1996 Annual report (see pages 14 and 15). 

By OSC's current position to the Federal Court, it has made a formal report, per 1214(b)(2)(B), for each and every posite PPP determination it has made since 1989, thereby fulfilling the 1214(e) reporting requirement.   The problem with OSC's position is that the law makes its reporting its positive PPP determinations per 1214(b)(2)(B) clearly discretionary, a result of OSC's complete discretion as a prosecutor that the PPP is one "which requires corrective action."   The reason OSC is now taking this extreme position and not responding to FOIA requests that it provide copies of its 1214(b)(2)(B) reports for past few years is because there is no legal basis for its previous position that, somehow, 1214(e) did not apply to violations of law within its enforcement authority.

Because OSC is not responding to FOIA requests for these reports, they have been made of MSPB, which has a track record of being promptly responsive to FOIA requests, even though, believe or not, OSC is responsible to enforce every agency's compliance with FOIA requests!

OSC says "trust us" to make the statutory required PPP determination

OSC's essential statutory obligations to federal employees who seek its protection from prohibited personnel practices (PPP's)  are detailed at 5 USC 1214. (Note:  By law, OSC is to "act in the interest of those who seek its protection.") include:

1) investigating their PPP complaint to extent necessary to determine whether there are reasonable grounds to believe a PPP occurred (5 USC 1214(a)(1)(A)),

2) making such a determination (1214(b)(2)(A)), and

3) if a positive determination is made, reporting it, in every instance, to the involved agency.   

4) Informing the complaintant of its PPP determination, positive or negative, in its pre-determination notice (1214(a)(1)(D)) and/or PPP investigation termination letter (1214(a)(2)(A)).

OSC thinks differently.  It thinks the complaintant should "trust it" that 1) it made the statutory required determination, by the statutory required evidentiary standard, and 2) reported it to the agency if positive.  This is indicated in an OSC court filing in federal court (see pages 4-7).

Additionally, OSC claims its actions are beyond judicial review, that a Federal Court has to "trust it" too, while, according to the current Special Counsel, it "heroically" protects those "lamplighters" who "shine the light on truth."

Finally, OSC says "trust us" to Congress also.  Its annual reports to Congress do not contain the required information about its positive PPP deteriminations and associated reports to agencies.

Questions and Answers about OSC's compliance with law

July 1, 2006

Open Letter to Past or Present Federal Employees Who Have Sought the Protection of the US Office of Special Counsel (OSC) From Prohibited Personnel Practices (PPP's), particularly Whistleblower Reprisal, Since 1989.

We (others like you) need your help in obtaining justice from the Office of Special Counsel (OSC) and we may be able to help you obtain it also.

We believe OSC is a systemic, years-long, lawbreaking failure in protecting federal employees from PPP's.  This, its primary function, stated at 5 USC 1212(a)(1), has received little, if any, Congressional oversight since 1989, when it was created as an independent agency by the federal Whistleblower Protection Act.

We think OSC's lawbreaking, indirectly at least, contributed to 9/11, the failure of the levees in New Orleans, the loss of Columbia Space Shuttle, and many other, less well-known, federal agency mishaps impacting public health and safety or national security.  If OSC's lawbreaking continues, uncorrected, we fear it may indirectly contribute to a nuclear 9/11 in an American city in the next decade.

1)   What are OSC's statutory obligations to the federal employees who seek its protection?

OSC's obligations to concerned federal employees are mentioned at 5 USC 1201 Appendix A and detailed in 5 USC 1214.  OSC was created for the primary purpose of protecting federal employees from PPP's and, by law, is to act in the interest of those who seek its protection.  Its essential statutory obligations to these concerned employees include:

1) investigating the PPP complaint to extent necessary to determine whether there are reasonable grounds to believe a PPP occurred (5 USC 1214(a)(1)),

2) making such a determination (1214(b)(2)(A)), and

3) if a positive determination is made, reporting it, in every instance, to the involved agency.   

The law allows OSC two methods of making its required report - either directly to the head of the involved agency, in which case the agency head must certify a response addressing what the agency will do to correct the PPP and by when (see 5 USC 1214(e)) - or, in the alternative, or if dissatisfied with the initial agency response, to both the Merit System Protection Board (MSPB) and the agency, as part of establishing jurisdiction for seeking corrective action on behalf of the affected employee, if the agency does not promptly correct the PPP (see 5 USC 1214(b)(2)(B)).   

Additionally, when OSC terminates a PPP investigation, it is required to include a ?termination statement? in its investigation termination notice as described in the ?amendment? section of 5 USC 1214, that allows the employee to talk to an appropriate OSC official about its investigation, its findings, and how the law was applied by OSC.

2) How does OSC fail to comply with these obligations?

It's impossible to ascertain the extent of OSC's lawbreaking without court-ordered discovery or Congressional oversight, but the following has been admitted by OSC or can be verified by the public record:   1) it has not included the required "termination statement" in its approximately 18,000 PPP investigation termination letters since 1994, 2) it has not issued a single 1214(e) report since 1989, not for approximately 25,000 PPP investigations, 3) its PPP pre-determination notices and termination letters do not state that OSC either made the statutory required determination, by the statutory established standard or evidence, or what it was.  Instead, OSC informs such employees that "there is insufficient evidence" for it to take further action on their behalf.

We estimate that OSC made positive PPP determinations in several thousand of its 25,000 PPP investigation since 1989, but has only formally reported them, per 1214(b)(2)(B), in several hundred cases.  We think OSC wants a 95%+ chance of winning a conviction at MSPB before it will make formally make a positive PPP determination.   We think OSC, contrary to its statutory obligations, only reports its positive PPP determinations in the few instances (perhaps 10%) when it decides to prosecute them.  We think OSC has unlawfully suppressed about 90% of its positive PPP determinations - several thousand - since 1989, causing immense harm to the affected employees, their agencies, and the health, safety, and security of the American public.

3)   Why is it vital that OSC formally report every positive PPP determination it makes?

OSC?s reporting of its positive PPP determinations is essential to the heads of agencies complying with their positive obligation to prevent PPP's in their agencies (5 USC 2302(c)), as well as for agencies to make accurate reports to Congress, per the No FEAR Act (5 USC 2301, amendment section, section 203.

OSC's 1989 Annual Report to Congress, its first as an independent agency after the 1989 Whistleblower Protection Act, stressed the shared responsibilities of different people and offices in the three branches of government to protect the merit principles of the federal civil service.

4)  What do we hope you will do?

Contact us if you are interested in either or both the following: 

A) petitioning Congress to conduct the necessary oversight of OSC's compliance with law and its record in protecting federal employees from PPP's, so that Congress can assure federal employees that if they risk their jobs and careers by responsibly voicing concerns to protect public health, safety, and national security, that OSC will comply with its statutory duty to protect them.   Congress has the power to make OSC report every instance in which it made a positive PPP determination internally, but did not formally report it, since 1989.

B) Investigating if there is a reasonable basis to bring a class-action suit against OSC, by some or all of the 25,000 federal employees who trusted OSC to comply with its statutory duties to protect them from PPP's since 1989 and whose trust was misplaced.

5)  Anything else?

Yes, please circulate this open letter to others who might be interested.

6)  How can I contact you?

osc@tds.net