OSC Watch Letter to NTEU Office of General Counsel
October 28, 2008
Ms. Elaine Kaplan, Esq.
Senior Deputy General Counsel
National Treasury Employees Union
1750 H Street, N.W.
Washington, DC 20006
Mr. Tim Hannapel
Office of the General Counsel
National Treasury Employees Union
1750 H Street, N.W.
Washington, DC 20006
Subject: Critique on your recent article “Reinvigorating OSC: Suggestions for Next Administration” and request for your active assistance in advancing the objectives of OSC Watch
Dear Ms. Kaplan and Mr. Hannapel,
You are the former Special Counsel and Deputy Special Counsel. You are licensed attorneys and long-time employees of a government employee union. I have closely read your recent 15 page issue brief “Reinvigorating the US Office of Special Counsel: Suggestions for the Next Administration” which is issue brief of the American Constitution Society for Law and Policy. It is available on the internet at < http://www.acslaw.org/files/Kaplan%20FINAL.pdf>.
I also read the recent article in “Government Executive” that mentions the recent removal of former Special Counsel Scott Bloch and summarizes your suggestions for OSC. It is available on the internet at < http://www.govexec.com/story_page.cfm?articleid=41273&dcn=todaysnews >.
As you know, I contend OSC is, relatively speaking, the most corrupt and corrupting agency in our Country’s history. It was created, along with Merit Systems Protection Board, by the Civil Service Reform Act of 1978. I contend that its now 30-year long lawbreaking failure to protect federal employees from agency violations of the merit system principles (i.e., “prohibited personnel practices (PPP’s) and other agency violations of law, rule or regulation under OSC’s investigatory jurisdiction has resulted in many dysfunctional and corrupt federal workplaces, a battered federal civil service, and a much diminished and more threatened America.
OSC’s lawbreaking has also created thousands of direct victims - loyal, patriotic federal employees who put professional duty to the public welfare before their personal economies and who were betrayed by OSC lawbreaking failure to protect them from agency retribution. OSC’s lawbreaking has not occurred in a vacuum, it was enabled by 30-year long lawbreaking failure of US Merit System Protection Board to do the statutory required oversight of OSC’s compliance with law in protecting the federal employees who sought its protection.
Basically, OSC and MSPB nullified themselves, at their creation in 1978, by OSC’s (mis)interpretations of its key duties to protect the federal employees who sought its protection and MSPB (mis)interpretation of one of its primary duties to conduct “special studies” focused on OSC’s compliance with law and performance in protecting them.
These fundamental misinterpretations include (using the law’s current numbering, which was changed by the Whistleblower Protection Act of 1989): OSC’s claim that the reporting requirements of 5 U.S.C. §1214(e) do not apply to laws, rule, or regulation under OSC’s investigatory jurisdiction, meaning OSC never has an unqualified requirement to formally report its determinations of violations of law, rule, or regulation under its investigatory jurisdiction. It also means OSC has yet to make a report per §1214(e), not in over 20,000 investigations it has conducted since 1989.
OSC’s claim (one which is contrary to Supreme Court precedent) that there is no such thing as a “civil service rule.” As a result, OSC does not investigate or even consider if agency directives (i.e. “civil service rules”) such as workforce discipline procedures, grievance procedures, performance evaluation procedures, etc were violated as part of a PPP. By 5 U.S.C. §1216(a)(4), OSC has jurisdiction over any agency “activities prohibited by any civil service law, rule or regulation.”
OSC’s policy of not considering or investigating, as part of its investigations of PPP’s, whether any agency “activities prohibited by any civil service law rule or regulation” also occurred. When OSC is conducting an investigation of an alleged PPP, it only considers whether a violation of 5 U.S.C. §2302(b) occurred, unless the PPP complaint specifically alleges violations of laws, rules, or regulations under OSC’s jurisdiction per §1216(a)(4) occurred as part of the PPP or separate complaint of “other prohibited activity” alleging them is filed.
MSPB’s claim that the “special studies” it conducts per 5 U.S.C.§1204(a)(3) need not focus on “whether the public interest in a civil service free of PPP’s is being adequately protected.” MSPB claims to have no opinion as to whether it is, despite its statutory requirement to regularly report its determination on this point to the President and Congress. Since OSC is, by law, the primary bulwark to protect federal employees from PPP’s, MSPB should have, for the past 30 years been doing what it has yet to do - conduct reviews of OSC’s compliance with law and performance in protecting federal employees from PPP’s. Had it done so, OSC misinterpretations of law would have been exposed and corrected almost 30 years ago - and the federal civil service and America would be in a much different and better place today.
Why Has This Gone On For 30 Years? Follow the Money! Many people and organizations benefit, directly or indirectly, from a broken, lawbreaking OSC and an MSPB that enables it.
This includes: Government employee unions benefit - their major selling point to their dues-paying members (who are frequently only 10-15% of the members of the bargaining unit) is dues-paying members get more support in a negotiated grievance procedure. Since by “election of remedies” of 5 U.S.C. 7121 (added to the law in 1994), a federal employee must choose between an OSC complaint, an MSPB appeal, or a negotiated grievance, if OSC is not credible, the relative attractiveness of the union negotiated grievance process (and voluntarily paying union dues) increases.
Private sector attorneys who specialize in federal employment law benefit. A broken, lawbreaking OSC emboldens abusive federal managers and results in more federal employees seeking them out, cash in hand, to pursue remedies at EEO, MSPB, or elsewhere.
“Good government groups” benefit as concerned federal employees go to them with their concerns about agency wrongdoing, because they know they will not be protected from agency retribution if they use established channels. “Information is power” to these groups and they trade their insider information with Congress and media for access and influence, which they need to secure you are age a person funding from the relatively few foundations that provide much of their funding.
Mainstream media benefits for the same reasons the good government groups do - concerned federal employee go to them with their concerns, because they cannot trust OSC to protect them if they use established channels.
I created OSC Watch with others who largely perceive things as I do, with three limited objectives:
1) expose OSC’s lawbreaking and MSPB’s enabling lawbreaking; 2) stop it; and 3) obtain some measure of justice for the thousands of feds directly harmed by it - feds who did not receive the nondiscretionary protection OSC owed them. To return to your article - while I agree with much of it, your analysis of OSC goes seriously awry on page 9. Frazier v. MSPB, 672 F.2d (D.C. Cir. 1982) was, in large part, legislatively overturned by the Whistleblower Protection Act of 1989.
OSC is no longer an “ombudsman” or advocate for the merit system principles - it is now specifically charged to “act in the interests” of the employees who seek its protection. It has a specific mandate to “that employees should not suffer adverse consequences as a result of PPP’s.” The law directs OSC that “the protection of individuals who are the subject to PPP’s remains the paramount consideration.”
See 5 U.S.C. §1201 “note,” quoting from the “findings and purpose” section of the WPA.While I agree that OSC does not have an attorney-client relationship with complainants and that OSC has discretion as a prosecutor in seeking corrective action and/or disciplinary action, I contend that OSC does not have discretion as an investigator - it must determine, for all the complaints it receives, “whether there are reasonable grounds to believe” the violation occurred and, if so, formally report them to the involved agency, via a permanent, public record, per §1214(e).
It must do this, unless OSC additionally makes the discretionary determination that the violation is one “which requires corrective action” and formally reports both determinations per §1214(b)(2)(B), thereby satisfying the §1214(e) reporting requirement.
So What?While I do not consider you blameless in the federal workplace disaster at OSC, you did inherit OSC’s now 30 year-long misinterpretations of its key duties, which was enabled by MSPB’s misinterpretation of one of its key duties. Regardless, there should be no reasonable question about OSC proper interpretation and full compliance with its nondiscretionary duties to those who seek its protection.
There is now plenty of question and the questions go back to OSC’s creation. You can help get these questions answered and, if OSC has been, as I contend, fundamentally remiss in its nondiscretionary duties to the 20,000 or more federal employees who sought its protection since 1978, you can help obtain some measure of justice for those directly harmed. Or you can ignore these claims and concerns and continue, in the eyes of many, to defend the undefendable at OSC, including your records there. You have positive professional duties as attorneys.
As I understand the position of OSC attorneys, because they consider OSC to be their client, they are prohibited from “blowing whistles” on their and OSC’s lawbreaking by legal ethics. On the other hand, I contend that they are betraying both their oaths as attorneys and their oaths as government employees by not implementing the laws they are responsible to implement, to protect federal employees who try to do their duty, ethically and competently, without fear or favor.
I suggest you consult with ethical experts in your profession in deciding how to proceed in this matter. I was raised Catholic and while I did not personally experience abusive priests, I was lucky because I was around some as a youth. The scandal at OSC has some similarities to the Catholic priest scandal - vulnerable people are betrayed by those charged to protect them and the system tries to stonewall. But the outrage of those betrayed would not be deterred and the stonewalling failed.
I suggest the sense of betrayal many feel to you and OSC should not be minimized.
Respectfully,
Joe Carson, PE
Chair, OSC Watch Steering Committee
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