Commentary: Lack of protection for whistleblowers imperils us all

By JOE CARSON
Federal Times-April 16, 2007
Many civilian federal employees, in a variety of agencies, are on the front lines of the war on terrorism. But who protects them from workplace retribution when they put their sworn duty to defend and protect the public’s health and safety ahead of their self-interest or the interests of their supervisors and agencies?

The primary mission of the Office of Special Counsel (OSC) is to protect employees in nearly every agency — except FBI and intelligence agencies — from 11 types of prohibited personnel practices, particularly whistleblower reprisal. OSC has about 110 employees, about 40 percent of whom are licensed attorneys. Like public defenders, OSC’s attorneys are paid by the government to act in the interests of federal employees who seek their protection.

OSC annually receives about 1,700 complaints of prohibited personnel practices, alleging about 3,500 specific practices. We contend the law — 5 USC 1214(b)(2)(A) — is absolutely clear that OSC is required to investigate complaints and report its determination “whether there are reasonable grounds to believe a [prohibited practice] has occurred, exists, or is to be taken.”
If OSC makes a positive determination, according to the law and a 2000 federal court decision, then it must report that determination to the involved agency, the Office of Personnel Management (OPM) and the Merit Systems Protection Board (MSPB). This is to enable the agency heads to comply with their lawful duty to prevent prohibited personnel practices in their agencies.

However, according to OSC’s annual report for 2004, public records maintained by OSC, and a Freedom of Information Act response from MSPB, OSC did not report a single positive determination of prohibited personnel practices to MSPB during 2002-2004, not in 5,529 separate complaints it investigated and closed in that time. It made three such reports to MSPB in fiscal 2005-2006.

While OSC claims to have obtained about 320 “favorable actions” when agencies took actions as a result of OSC investigations of complaints from fiscal 2002 through 2004, there is little, if any, publicly available documentation to substantiate OSC’s claims.

We contend that MSPB is statutorily required to conduct the necessary inquiries of OSC and other federal agencies to determine and publicly report “whether the public interest in a civil service free of [prohibited personnel practices] is being adequately protected.” In response to a Freedom Of Information Act request, MSPB acknowledged that it has not conducted the necessary inquiries of OSC and other agencies to make that report but claims that its special studies and reports, particularly in the aggregate, contain the relevant information.
Our position is that MSPB has failed to conduct required reviews of OSC, enabling OSC noncompliance with its specific statutory obligations to protect federal employees from prohibited personnel practices.

Bottom line: No one in any agency or Congress can reasonably assure federal employees, based on any independent oversight of OSC, that if they stick their necks out to do their duty to protect public safety — including in the war on terrorism — OSC will comply with its lawful duty to protect them from government retaliation. That is a formula for failed levees, doomed space shuttles, catastrophic terrorist attacks, neglected veterans, etc.

What to do? The new Congress must perform its constitutional duty of oversight of OSC and MSPB to ensure their scrupulous compliance with relevant law in protecting federal employees from prohibited personnel practices. Both OSC and MSPB are due to be reauthorized by the end of fiscal 2007, so thorough congressional oversight of these agencies is now timely.
If congressional or judicial oversight substantiates our concerns, there are potentially thousands of victims who may well merit official restoration and rehabilitation via congressional action.

If we are correct, OSC attorneys can be seen as failing to comply with their legal and professional duty to “blow whistles” on OSC’s failure to comply with the law in protecting federal employees.

Joe Carson is a whistleblower and Energy Department nuclear safety engineer. His co-authors are Jeffrey Black, a federal air marshal and whistleblower; Carol Czarkowski, former Navy contracting officer and whistleblower; Jeffrey Fudin, founder and director of the Veterans Affairs Whistleblower Coalition; David Nolan, former White House attorney under President Reagan; and Michael Springman, former Foreign Service officer and whistleblower. The opinions are those of the authors and not of their current or previous employers.