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Jun 30, 2006

Comments

Joe Carson

Every time Congress performs oversight of a federal agency, the viability of the merit principles for employment in the federal civil service in that agency are, indirectly at least, involved.

The Office of Special Counsel (OSC) was created as an independent agency in 1989 to be the "watchdog" for protecting federal employees from agency offenses against the merit principles of the federal civil service. Since then, Congress has conducted no oversight of its compliance with law and performance in protecting federal employees from such agency offenses (i.e. "prohibited personnel practices"), particularly whistleblower reprisal.

Let's see how that plays out in nuclear facilities, the safety and security of which are of interest to POGO:


Concerned employees of nuclear facilities rely on the Department of Labor (DOL) and NRC to protect them, generally in vain. Concerned employees in DOL and NRC rely on Office of Special Counsel (OSC) to protect them, similarly in vain. I suggest there is a connection.

Why should anyone expect an employee in a nuclear facility to risk job and career loss for the sake of public health and safety when the DOL and NRC will not comply with its duty to protect them? Why should anyone expect a DOL or NRC employee to risk job and career loss for the sake of public health and safety when OSC will not comply with its statutory obligations protect them?

Congress has oversight responsibilities over federal agencies as OSC. But Congress is reactive, the "squeaky wheel gets the grease." Unless individuals and organizations call for Congress to conduct oversight of OSC's compliance with law and performance in protecting concerned federal employees from prohibited personnel practices (PPP's), particularly whistleblower reprisal, Congress will continue to assume "OSC is okay," and nothing will change.

I do not think anyone has much ethical/moral basis to criticize safety in nuclear facilities, unless they can assure employees in them that the DOL and NRC will comply with their duty to protect them if they responsibly voice concerns. I do not think anyone has much ethical/moral basis to criticize DOL and NRC for their employees not doing their duty to protect concerned employees in nuclear facilities, unless they can assure DOL and NRC employees that OSC will comply with its duty to protect them if they responsibly voice concerns. Absent Congressional oversight of OSC adequate to verify OSC's compliance with its statutory duties and Congressional intent in protecting federal employees, upon what basis can anyone assure any federal employee that if they do their duty to protect public health and safety, OSC will do its duty to protect them?

So, I suggest we, the citizens, do our jobs and petition Congress to conduct oversight of OSC. A draft letter to Congress follows.

Feel free to contact me with questions or comments.

Joe Carson, P.E.
Knoxville, tN
865-300-5831
jpcarson@tds.net

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DRAFT

Senator Susan Collins, Chair,
Homeland Security and Governmental Affairs Committee

Senator Joe Lieberman, Ranking Member
Homeland Security and Governmental Affairs Committee

Congressman Tom Davis, Chair
House Government Reform Committee

Congressman Henry Waxman, Ranking Member
House Government Reform Committee

Subject: Request for Congressional Oversight of U.S. Office of Special Counsel's (OSC) Compliance with Law in Protecting Federal Employees from Prohibited Personnel Practices (PPP's), Particularly Whistleblower Reprisal

Dear Senator Collins,

From working with many skilled and dedicated federal civil service employees for many years on difficult issues including the environment and public health and safety, we realize the vital importance that the merit principles of the federal civil service be protected, particularly the prohibition on whistleblower reprisal.

As you know, the recent Supreme Court decision in Garcetti, et al v. Ceballos, denied first amendment protection to a government whistleblower. We all know that concerned federal employees can face difficult decisions. At a minimum, these employees should know - and we want to be able to assure them - that Congress has done and is doing the oversight necessary to verify the US Office of Special Counsel (OSC) is complying with its statutory duties to protect them from prohibited personnel practices (PPP's).

We understand that OSC has jurisdiction over almost all civilian federal employees, except those in FBI and intelligence agencies. We understand OSC receives almost 2000 PPP complaints annually and conducted about 25,000 PPP investigation since being created as an independent agency by the Federal Whistleblower Protection Act of 1989 (P.L. 101-12). Congress recognized the vital importance of OSC’s responsibilities in protecting federal employees from PPP’s by inserting the related statutory language in the law - 5 USC 1201 Appendix A.

We understand OSC's 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, 2) making such a determination, and, 3) if a positive determination is made, reporting it, in every instance, to the involved agency. We understand 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.

From a review of recent OSC Annual Reports to Congress, we are unable to tell how many times OSC had made or reported positive PPP determinations. Additionally, we understand that OSC is required to maintain a public record of every positive PPP determination reported to the involved agency head, together with the agency head-certified response (see 5 USC 1219(a)(3)). We understand, based on a review of documents in OSC's public reading room, that it has not made a single such report since being created in 1989, not in approximately 25,000 PPP investigations. We also understand OSC recently admitted, in a court proceeding, that it has failed to include the required “termination statements” in approximately 18,000 PPP investigation termination letters since 1994.

This raises troubling questions about OSC's compliance with its statutory duties to protect federal employees from PPP's. There should be no doubt, given current events and threats, about OSC's scrupulous compliance with its statutory obligations to protect federal employees from PPP's, and Congress' commitment to ensuring it. Unfortunately, it now seems there is reasonable ground for such doubt. OSC scrupulous compliance with its statutory obligations to protect federal employees from PPP’s, especially its reporting all 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(a)).

Therefore, we respectfully request that you promptly take the necessary action to dispel the doubt or correct the situation. Our Country's protection depends, in part, on the willingness of concerned federal employees to responsibly act on their concerns. These employees need to be protected, as the law requires, by OSC. Everyone now needs to know, based on Congressional oversight, this is happening.

Respectfully,


Name of individual or group

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