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2018 Whistleblower Summit: Working with the Office of Special Counsel

This is the third post in a five-part series.

The Government Accountability Project (GAP) organized two instructive panels to help whistleblowers collaborate with OSC (Office of Special Counsel) and Congress to advance their whistleblowing while protecting them in the process. One panel featured leadership at OSC and the Merit Systems Protection Board (MSPB), which hears and decides whistleblower reprisal claims. As Tom Devine, GAP Legal Director, explained, “This is the panel of individuals who deliver on your rights.”

Unfortunately the MSPB has been unable to deliver — notwithstanding MSPB Vice-Chairman Mark Robbins’ effort to keep the Board functional — because it currently lacks a quorum and has a backlog of approximately 1,300 cases. In July the Senate Homeland Security and Government Affairs Committee held a nomination hearing for three MSPB nominees, and those individuals are still being vetted.

Special Counsel Henry Kerner explained that due to limited resources and statutory limitations, OSC is only able to obtain corrective action for a small percentage of whistleblowers. Largely as a result of the outreach and improvements made under former Special Counsel Carolyn Lerner, the number of OSC cases has almost doubled in the last five to six years. However, OSC’s resources have not kept pace, making it difficult process cases in a timely manner.

One of Kerner’s biggest priorities is to increase the OSC’s efficiency and effectiveness, and they have already made progress. For FY2017 OSC’s average time to take a complaint and assign an examiner was 18 days, and in 2018 OSC has reduced it to five days. There’s more work to be done, however, and the OSC is beginning to implement recommendations from a June 2018 Government Accountability Office report on ways in which to improve processing of whistleblower disclosures and reprisal complaints. “One thing we can do is tell you as early as possible if there are other options for you,” Kerner told the whistleblowers in attendance.

Panelists described OSC’s structure and previewed some changes. The Disclosure Unit is where OSC receives disclosures about government waste, fraud, abuse, and public health and safety dangers. OSC’s website provides a description of what a whistleblower can expect after he or she makes a disclosure.  The Complaint Examining Unit investigates prohibited personnel practices, which span a variety of whistleblower reprisal actions.

In response to its large caseload, OSC is planning to change the structure for investigating whistleblower retaliation. Its goal is to provide a system where the same one to two attorneys can handle a retaliation case from the beginning to end. Tristan Leavitt, Principle Deputy Special Counsel, explained, “The importance and challenge is that the [whistleblower’s] evidence is sufficient to prove retaliation.” OSC panelists recommended that whistleblowers prepare for working with OSC by providing a timeline of the events.

Since 2012 OSC has also offered alternative dispute resolution (ADR), a form of mediation that “often yields resolutions that are more creative and tailored to the needs of the parties as well as far less costly in time and money than traditional legal routes”, according to the OSC website. Jane Juliano, who leads the ADR Unit, explained that ADR can be a good fit for whistleblowers who want to sit down with the agency officials and have a conversation, and want to maintain confidentiality. It’s not a good fit for whistleblowers who want an investigation into the alleged reprisal, which they forgo through ADR.