Whistleblower Protection Agency Looks to Clean Up Its Own Backyard

The Office of Special Counsel, whose mission is to protect federal employees against reprisals for whistleblowing, is taking the unusual step of evaluating its own managers in part on their adherence to proper procedures for handling whistleblowers, Government Executive has learned.

“Over the next several months, OSC will incorporate whistleblower protection principles as a critical element in the performance plan of every OSC manager and supervisor,” said Nick Schwellenbach, the agency’s senior communications specialist. “Among other criteria, managers will be required to foster an environment that promotes disclosures and prevents retaliation. This is a significant, best-practice recommendation in the whistleblower community. OSC, the government’s defender of whistleblowers, will lead by example in this area.”

The move, which comes as Special Counsel Carolyn Lerner nears a Senate panel vote scheduled for Monday on confirmation for a second term, is in part a response to some unflattering numbers that came out in last year’s Federal Employee Viewpoint Survey. The action also comes at a time when a number of OSC’s own employees have written to lawmakers expressing dissatisfaction with the way the agency is run.

On top of the change to managers’ performance reviews, OSC has “entered into an agreement with an outside inspector general so that employees can make disclosures or report prohibited personnel practices to an independent IG,” Schwellenbach said. “We issued a new policy directive explaining how to file a complaint, and have provided all agency employees with information on how to make a complaint.”

At her Jan. 12 confirmation hearing, Lerner drew praise from several lawmakers for improving productivity at OSC and for stepping in to address problems at the Veterans Affairs Department when some felt the department’s acting IG was not.

Cases of whistleblower retaliation against VA employees have risen to 35 percent of OSC’s  caseload, noted Sen. Ron Johnson, R-Wis., chairman of the Homeland Security and Governmental Affairs Committee. Lerner also drew praise for her “professionalism” from Sen. Ben Cardin, D-Md., and from House Veterans Affairs Committee Chairman Jeff Miller, R-Fla., via a letter to the Senate panel.

Lerner told senators that OSC in 2015 “for the first time in the agency’s history received and resolved over 6,000 cases -- a 50 percent increase from 2011.” She cited “more bang for our buck” by consolidating attorney positions, which helped cut OSC’s cost of resolving a case by 45 percent. Her $24 million budget, Lerner added, had allowed her to increase her staff to 140 “really able and talented people.”

But last fall, the 2015 Federal Employee Viewpoint Survey brought some troubling feedback from those staffers. The percentage of OSC workers who gave the agency high marks for employee engagement dropped from 76 percent in 2012 to 61 percent in 2015. Those who gave the agency’s leadership high marks fell from 64 percent to 46 percent over the same period. OSC ranked 19th out of 28 small agencies in the Partnership for Public Service’s annual Best Places to Work in the Federal Government report, which is based on viewpoint survey data.

OSC earned some of its lowest marks from its employees in its purported area of expertise. Nearly 38 percent disagreed with the statement, “I can disclose a suspected violation of any law, rule or regulation, without fear of reprisal” -- almost the same percentage as those who agreed.

That helped put OSC last among 28 small agencies in the Partnership’s rankings on leadership fairness.

“We take the FEVS results seriously and convened a working group to get more feedback to ensure that our record-breaking external successes are reflected in employee satisfaction,” Schwellenbach said in an email. “OSC is operating more efficiently and effectively than at any time in its history,” he added.

But some OSC employees and others in the broader community of whistleblower advocates see things differently. They say OSC leaders have chosen to focus on highly publicized missteps at the VA at the expense of whistleblowers at other agencies. Several critics have written letters to Congress, Government Executive has confirmed.

Lerner and her team “do not truly value the experience and expertise of OSC employees, do not have the expertise to do the work, are unable to make decisions that are best for OSC, and only care about cases and complaints that can give them and OSC the most positive publicity,” said one OSC employee who spoke on condition of anonymity.

In a written critique, this employee alleged OSC managers place a low priority on its Complaints Examining Unit, which performs the initial intake of allegations of prohibited personnel practices. “When you pay workers less, but give them more work, and encourage them to close as many cases as they can quickly without an investigation, what you end up with is a lot of whistleblowers being unfairly dismissed, a lot of violators getting away with it, and a lot of agencies thinking the whistleblower was wrong," the employee wrote.

There are other disaffected employees at OSC, according to a whistleblower specialist at another agency who also spoke on condition of anonymity. Having contacted many OSC staffers, this specialist told Government Executive that “in most cases OSC will do little to nothing even for whistleblowers with meritorious cases, and has time and again not only allowed, but caused harm to those who come to OSC for whistleblower protection.”

Still, many others in the whistleblower advocacy community remain fans of Lerner’s leadership.

Tom Devine, legal director at the nonprofit Government Accountability Project, said he finds the anonymous employees’ complaints perplexing. “On balance, in terms of track record supporting the mission, the current OSC administration is unsurpassed in the agency’s history,” he told Government Executive. “They could do better in some areas,” he said, but on the whole, the current OSC is vastly improved compared to the way it operated in the past.

Of Lerner, he said, “no special counsel since 1978 could hold her head higher.”

Liz Hempowicz, a public policy associate at the Project on Government Oversight, said, “We supported the Lerner re-nomination, but we’re also aware of concerns about employee complaints as evidenced in the Federal Employee Viewpoint Survey. We’ve spoken with OSC and know they’re taking it seriously and taking steps. As an organization, we have been supportive of the good work done in the last few years, a lot of it under Lerner.”

Photo: Flickr user Alan Levine