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.