Whistleblower Handling Investigated

The FBI investigation of the federal Office of Special Counsel intensifies calls for reform. The FBI searched the home and office of the organization's leader this week looking for evidence of misconduct. The raid may prompt Congress to enact new whistleblower legislation.

By Christine Cave and Melissa Turley, cyberFEDS®

The investigation into alleged misconduct by the head of the Office of Special Counsel has put the credibility of the agency charged with protecting federal employees at stake.

"A situation that's already bad is in effect going to get a lot worse," says Adam Miles, a legislative representative with the watchdog Government Accountability Project.

The FBI raided OSC head Scott Bloch's home and office Tuesday, looking for traces of evidence tied to the alleged mishandling of whistleblower cases and retaliation against OSC employees. This latest development in Bloch's controversial term has renewed calls for his resignation. But experts worry about the toll it may take on the agency and its processing of claims in the short term.

"It is unlikely he'll step down," Miles says. "It was bad enough for federal employees when [Bloch] didn't have this over his head. Now he'll have to put all his time and energy into this investigation when the entire federal workforce is relying on the OSC."

The special counsel serves a five-year term and can be removed by the president only for a cause such as inefficiency or abuse of power. Bloch's term runs through January 2009.

Agents from the Office of Personnel Management's Office of Inspector General, which is investigating the retaliation claims against Bloch, participated in the raid.

"We are cooperating with law enforcement officials, but we do not yet understand what this is about," OSC spokesman James Mitchell said in a statement. "We are continuing to perform our independent mission to enforce the laws for which we have jurisdiction."

The FBI investigation should not affect the OSC legally, says federal employment attorney Bill Wiley. The agency should continue to function as long as he remains in office. Although he will be busy with the criminal charges, he has a career and political staff that are capable of moving forward with its responsibilities.

"Whether he resigns or stays on until the end of his term, the next person in his job has a lot of work to do to bring the agency back," he says.

Eleanor Holmes Norton, the Democratic representative to the House from Washington, notes the irony in the investigation into Bloch.

"The official charged with watching everyone else turned out to be the one in need of a watchdog," Norton says. "The Oversight and Government Reform Committee has uncovered one for the books -- an apparent across-the-board case-study that may go the full distance, from apparent internal corruption to retaliation against employees who tried to alert the government."

Call for change

Between 2003 and 2006, the number of favorable actions for whistleblowers declined from 150 to 77, according to OSC data. Bloch came on board in 2004.

What's more, how the OSC prioritizes complaints isn't clear. Current regulations only require the OSC to instruct employees to fill out a form.

"Right now, it's all in secret. It's like sending a complaint into a black hole and then getting a call several months later," Miles says.

Jason Zuckerman, principal for the Employment Law Group, which represents federal employees, agrees there should be more transparency. His organization is pressing Congress to:

* Provide additional resources to enable OSC to investigate the thousands of whistleblower disclosures it receives from federal employees each year.

* Create an independent panel to investigate the causes of OSC's non-compliance with their statutory duties and make recommendations to reform OSC.

* Increase transparency by requiring OSC to report on the findings of its investigations. Currently, OSC only reports its determination of "reasonable cause to believe" there has been a violation of any law, rule, or regulation when it makes the discretionary decision to initiate a prosecution, which occurs in very few cases.

Attorney Bryan Schwartz, who works on whistleblower and Hatch Act cases, says the OSC should have to report on all the cases it doesn't investigate, how long it sits on cases, how many witnesses were interviewed, and how many prosecutions it engaged in.

"When you get a case where five or six people come forward saying the same thing and the OSC punts on all [of their cases], it's essentially saying, 'We don't see anything to investigate and the matter is before an IG. So we're not going to look into it, but we're also not going to tell you what the IG is doing or give you a copy of the report,' then it's not doing its job," he says.

Congress may act

Congress can take the situation into its own hands, because the OSC is up for reauthorization this year. The vehicle for change could be the Federal Merit System Reauthorization Act, which would impose increased reporting requirements and require more communication between OSC and complainants.

Whistleblower advocates are pressing for the legislation to include a bill of rights for whistleblowers to get a full hearing and codification on how OSC should prioritize claims.

The OSC fallout may also spur Congress to move more quickly on the Whistleblower Protection Enhancement Act, which has been in conference committee since December. If passed, the legislation would extend protection to employees in federal national security occupations.

"Whistleblower legislation is vital to ensure taxpayer dollars are spent wisely and to protect federal employees that come forward to disclose government waste, fraud and abuse. Now that both the House and Senate have taken action on whistleblower legislation, I hope that we can resolve differences in the bill in a timely fashion," Sen. Daniel Akaka, D-Hawaii, says.

May 9, 2008
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