Key Senator Asks GAO to Look Into Office of Special Counsel

On the same day his Senate panel voted to approve President Obama’s nominee for a second term leading the Office of Special Counsel, a key Senate committee chairman wrote to the Government Accountability Office requesting an in-depth examination of that office’s procedures and oversight mechanisms.

The re-nomination of Special Counsel Carolyn Lerner unanimously cleared the Senate Homeland Security and Governmental Affairs Committee on April 25, just as Chairman Ron Johnson, R-Wis., was asking GAO to conduct its first in-depth look at the OSC since 2007.

Lerner’s independent agency, which enforces whistleblower protections, safeguards the merit system and provides a secure channel for whistleblower disclosures, has been commended in recent months for increased productivity and progress in protecting whistleblowers exposing misconduct at the Veterans Affairs and Homeland Security departments. 

But Lerner’s tenure has also been criticized by employees responding to the Federal Employee Viewpoint Survey and by anonymous employees who question her priorities and even the legality of her serving another term.

“With the increase in whistleblower disclosures in recent years, and the passage of the Whistleblower Protection Enhancement Act in 2012, the time is ripe for GAO to examine the process and procedures of the OSC,” Johnson wrote.

He asked the watchdog to look into OSC’s processes for reviewing and referring complaints of prohibited personnel practices and referring disclosure complaints, as well as the metrics it uses for assigning complaints to employees for processing. He asked for OSC’s success rate in protecting whistleblowers, along with descriptions of practices and procedures regarding stays of personnel actions, procedures for ensuring confidentiality for whistleblowers, and “how OSC ensures a consistent approach to the treatment of complaints across the agency.”

Johnson also seeks to learn about the role that senior OSC leadership plays in determining which complaints are referred for investigation.

Finally, Johnson asked auditors to examine “whether there are adequate safeguards in place for proper oversight of the OSC.”  That would cover “how and to whom OSC employees report prohibited personnel practices or make disclosures.”

And it would address the adequacy of the 2014 memorandum of understanding between OSC and the inspector general’s office at the National Science Foundation (since renewed by Lerner). The NSF watchdog provides independent investigative services for OSC when OSC employees (including senior executives and political appointees, except for the agency’s top two) have complaints about management or are accused of waste or fraud.

Lerner and her top deputy fall under the oversight of the Integrity Committee of the governmentwide Council of the Inspectors General on Integrity and Efficiency. Johnson also sought a review of “the adequacy of the mechanisms in place to prevent a conflict of interest of the special counsel or deputy special counsel.”

Asked to respond, OSC spokesman Nick Schwellenbach said, “We look forward to working with GAO to build on the record-setting accomplishments and positive outcomes for whistleblowers that OSC has obtained over the past several years. Last year, OSC secured 278 favorable actions for whistleblowers and other federal employees – a more than 300 percent increase from the level five years ago. During this same time, our caseload has increased 50 percent. We are working closely with Chairman Johnson on reauthorization legislation that will strengthen OSC’s authorities and further improve our processes.”

A GAO spokesman confirmed that the last major reports done on OSC were in 2007, though several narrower ones were done in 2011-14 on OSC’s ability to manage the Uniformed Services Employment and Reemployment Rights Act. GAO has accepted Johnson’s request.

Committee ranking member Sen. Tom Carper, D-Del., was copied on the letter, but he did not sign it.