OSC_Watch

Post 008 Whistleblower advocate groups calls for President Bush to fire Special Counsel Bloch

There is a story in today's Wall Street Journal that describes how Office of Special Counsel (OSC) head Scott Bloch used OSC money to pay "Geeks for hire" to erase his computer hard drive and those of his two deputies using the most sophisicated computer hard drive erasure technology commerically available, while he was being investigated by the Office of Personnel Management IG.

The blogosphere has picked up on this story in a big way, see here, here, and here.

Some leading whistleblower advocacy groups have now, in light of this latest revelation, called upon President Bush to fire Scott Bloch.

But as OSC Watch as detailed, OSC has made 1181 determinations of Hatch Act violations since 1989 without once making its statutory required report of its determination to the involved agency.

Scott Bloch, just like all his predecessors at OSC since 1989, has fundamentally failed to comply with his duty to implement the laws he was appointed to implement.   

Post 007 petition to Congress to conduct oversight of OSC

PETITION TO CONGRESS TO CONDUCT OVERSIGHT OF OFFICE OF SPECIAL COUNSEL (OSC) AND MERIT SYSTEMS PROTECTION BOARD (MSPB) COMPLIANCE WITH LAW TO PROTECT FEDERAL EMPLOYEES FROM PROHIBITED PERSONNEL PRACTICES (PPP’S)

The undersigned organizations and individuals respectfully request Congress discharge its oversight authority, per 5 USC 1217, of OSC’s compliance with aspects of its statutory duties to protect federal employees from PPP’s, particularly whistleblower reprisal, and to conduct oversight, per 5 USC 1205, the compliance of the Merit Systems Protection Board (MSPB) with its statutory duty to conduct oversight of OSC’s performance in protecting federal employees from PPP’s.

This petition is largely about OSC’s compliance with a single subsection of law, 5 USC 1214(e), by which OSC is to report to the involved agency head, for any investigation it conducts per 1214 or 1216, its determination of "reasonable cause to believe" there has been a violation of any law, rule, or regulation. We understand OSC claims that 1214(e) does not apply to the laws by which it conducts investigations per 1214 and 1216 and that OSC has complete discretion in reporting its determinations of violation of any law, rule, or regulation not under its enforcement jurisdiction. The incontestable fact is that OSC has not, since this law was created in 1989, made a single 1214(e) report, not in about 8000 field investigations conducted, based on a review of its Annual Reports to Congress and its public records maintained at its Washington, DC office.

Instead, it appears to be OSC’s position that the only time it must report its determination of a violation of a law under its enforcement authority is when it makes the discretionary decision to prosecute it at MSPB per 1215. We do not believe the law gives OSC this discretion to limit its reporting its determinations of violations of law to the (few) cases it decides to prosecute at MSPB per 1215. We petition Congress to conduct oversight over this OSC interpretation of 1214(e), some of its other statutory obligations, and the compliance of MSPB with its responsibilities to conduct oversight of OSC as described in the following:

1. OSC fails to comply with its fundamental statutory duty to the approximately 1800 federal employees who annually seek its protection from prohibited personnel practices (PPP’s), particularly whistleblower reprisal - it fails to make and appropriately report, per 5 USC 1214(a)(1)(A), (a)(2)(A), (b)(2)(A), (b)(2)(B), (e), 1218, and/or 1219(a)(3), its required PPP determination "whether there are reasonable grounds to believe a PPP has occurred, exists, or is to be taken." No one, including the complainants, Congress, the public, the Merit Systems Protection Board, the heads of involved agencies, and the Office of Personnel Management know the facts about OSC’s implementation of its fundamental statutory duty as an investigatory agency - to make and appropriately report its PPP determinations. Among other things, OSC’s failure to comply with its statutory duties make it impossible for heads of agencies to comply with their duty, per 2302( c), to "prevent PPP’s" in their agencies.

2. As demonstrated in a recent federal court decision (Carson v. OSC, docket no. 06-1833, Federal District Court for the District of Columbia), OSC fails to provide the federal employees who seek its protection the statutory required information, per 5 USC 1214(a)(2)(A), and the "termination statement" found in the notes of 1214, particularly prejudicing the ability of complainants alleging whistleblower reprisal to obtain subsequent relief from the MSPB via whistleblower appeals.

3. OSC unlawfully suspends its investigation of whistleblower reprisal PPP complaints if the complaint files a whistleblower appeal with MSPB per 5 USC 1214(a)(3)(B) and 1221, contrary to the interests of the complainant and contrary to 1214(a)(4).

4. OSC, when it fails to make its required PPP determination within the 240 day limit of 1214(b)(2)(A), unlawfully threatens to close its PPP investigation unless the complainant agrees to an open-ended extension of time, it will not agreed to complete its investigation and make its PPP determination within a specified time.

5. OSC’s non-compliance with its aspects of its duties to protect federal employees from PPP’s is enabled by the failure of MSPB to conduct oversight of OSC’s performance of this function, its primary one. By 1204(a)(3) and (e)(3) MSPB is authorized and required to conduct oversight of OSC and other agencies necessary to determine and report to Congress and the President "whether the public interest in a civil service free of PPP’s is being adequately protected." Given that OSC is the agency specifically charged to protect federal employees from PPP’s, MSPB cannot comply with its duties and make its required determination and report unless it regularly conducts oversight of OSC’s performance in this area, something it has not done since this requirement was created in 1989.

6. OSC, for reasons described above, fails to report its determinations of apparent Hatch Act violations per 5 USC 1214(e), 1218, and 1219(a)(3). According to an recent OSC FOIA response, it has made 1,181 such determinations, based on investigations conducted per 1216, since 1989.

7. OSC fails to investigate the findings of Federal Judges of possible agency FOIA malfeasance, made per 5 USC 552(a)(4)(F) and reported to OSC per 5 USC 1216(a)(3), per 552 and 1216. It fails to report the findings and determinations of these investigations per 552, 1214(e), 1218, and/or 1219(a)(3). According to the limited information provided in its Annual Reports to Congress, OSC has conducted at least 40 such field investigations since 1989

8. Finally, Special Counsel Bloch, in writing, has repeatedly claimed to Congress that OSC’s Annual Report to Congress comply with 1218, but when those claims are challenged in Court (Carson v. OSC, docket no. 07-443, Federal District Court for the District of Columbia), instead of defending the completeness and accuracy of its Annual Reports to Congress, OSC claims its compliance with 1218 is now a matter of its discretion, so that it can apparently claim whatever it wants in this report.

Respectfully,

Post 006 OSC attorneys and legal ethics?

About 50% of OSC 110 employees are licensed attorneys.  Most of them were specifically hired to implement 5 U.S.C. 1214, the section of law that describes OSC duties to protect federal employees from prohibited personnel practices.

However, as they appear to interpret legal ethics, if OSC does not want them to implement 5 U.S.C. 1214, then they have a positive legal duty to break the law on OSC's behalf, because OSC is their "client" whose interests they are required to advance, whether legal or not.  They appear to claim that legal ethics prohibits them from "blowing whistles" on OSC lawbreaking (unless they are directly impacted by it) and requires them to do whatever they (legally?) can to conceal OSC's lawbreaking from disclosure.

That OSC has failed to comply with aspects of 5 U.S.C. 1214 and failed to protect those who sought its protection from PPP's is now established by a Federal Judge (see pages 10-12 and 15).

But the Bar Association of the responsible OSC attorney does not appear to care, based on its response to a professional misconduct complaint filed with it, based on the Federal Judge's ruling.   Here is the request for reconsideration, which questions the facts and reasons cited by the Bar association in closing the complaint.

When government attorneys, specifically hired by OSC to implement specific laws to protect concerned federal employees, who have responsibilities for the safeguards and security of America's nuclear stockpile or other things of the utmost importance for public and safety, from unlawful retribution, do not have to implement those laws, can apparently claim that their lawbreaking is their positive duty, given the wishes of their employer, OSC, and their licensing authority takes no issue with it, we are all at increased and unnecessary risk of a nuclear 9/11 or other catastrophic event in America.

For OSC Watch

Joe Carson, PE

Post 005 OSC Fails to report 1,181 Hatch Act violation determinations

OSC is the only federal agency authorized to investigate and prosecute Hatch Act violations.  The Hatch Act places significant limitations on use of government resources for advancing partisan political ends and also places some limits on federal employee's involvement with partisan political activities off-the-job.

OSC's failure to implement the laws it is responsible to implement - whether to uphold the merit principles of the civil service by protecting federal employees from prohibited personnel practices, or enforce Hatch Act, or deter agency non-compliance with Freedom of Information Act (FOIA) - is near identical in practice.

As an investigatory agency, OSC has mandatory obligations to investigate allegations of violations of the law for which it has jurisdiction, determine "whether there are reasonable grounds to believe" the violations occurred, and appropriately report its determination, positive or negative, per 5 U.S.C. 1214(e). 

As a prosecutorial agency, OSC has complete discretion about seeking corrective and/or disciplinary action to correct the violations of the laws under its jurisdiction.   But it does not have the discretion to only report the (relatively few) violations it decides to prosecute.   But that is what OSC has done, since 1989 - only report its determinations of violations of law under its jurisdiction when it has made the discretionary decision to prosecute them, if it reports them at all.

OSC's November 9, 2007 response to a Freedom of Information Act (FOIA) request about its record of documenting its determinations of Hatch Act violations demonstrates this - OSC's response states it has made 1,181 determinations of Hatch Act violations since 1989, without reporting a single one per 5 U.S.C. 1214(e).  OSC's cover letter states, without elaboration, that 5 U.S.C. 1214(e) reporting requirements do not apply to its Hatch Act determinations.  Since OSC has not made a single 1214(e) report since being created in 1989, apparently OSC thinks they do not apply to anything OSC investigates.

Because OSC fails to report its determinations of violations of the laws it is charged to implement in accordance with 5 U.S.C. 1214(e), the involved agency head does not have to certify a response to OSC, and a public record of OSC's 1214(e) report and the agency head-certified response is not created as described in  5 U.S.C. 1219.  Neither the Congress, press, nor public can obtain much information about OSC's determinations of violations of the laws for which it has jurisdiction, nor does the involved agency' have to respond to them.

A few weeks ago, the Senate had a hearing on OSC's implementation of the Hatch Act - how much more informed and effective culd Congressional oversight of OSC be if only OSC complied with the law by properly documenting its determinations of violations of laws under its jurisdiction?

For OSC Watch,

Joe Carson