Special counsel report counters complaints from watchdog groups

The independent agency responsible for upholding the merit system and protecting federal whistleblowers referred more cases for in-depth investigation in fiscal 2004, while engaged in a backlog reduction effort, than it did the previous year, according to statistics provided to Government Executive Wednesday.

The figures, included in a May 17 letter from Scott Bloch, head of the Office of Special Counsel, to David Walker, head of the Government Accountability Office, indicate that the agency forwarded 26 whistleblower allegations to agencies or inspectors general for further investigation in fiscal 2004, compared with 14 in fiscal 2003. Bloch wrote the letter to update GAO on backlog reduction progress.

OSC moved roughly 10 percent of prohibited personnel practice complaints past an initial screening stage in both years, according to the letter. But from April 2004 to September 2004--months devoted to a major backlog reduction project--the agency referred 22 percent of personnel cases for further investigation.

Critics have argued that Bloch, who took office in January 2004, disposed of a backlog of about 600 whistleblower disclosures and 330 prohibited personnel practice complaints by dismissing cases without adequate review. But the statistics show that OSC "did not superficially close meritorious cases during the backlog reduction efforts," the letter stated.

Figures in Tuesday's letter indicate that while the number of whistleblower allegations of mismanagement referred for agency or inspector general investigation grew by 12 in fiscal 2004, the number of cases processed also rose significantly, from 401 in fiscal 2003 to 1,154 in fiscal 2004. Consequently, the percentage of whistleblower cases forwarded for investigation decreased, from about 3.5 percent to 2.3 percent.

But the number of whistleblower disclosures passed along tells a more accurate story than the percentage, said James McVay, principal assistant to the special counsel. Bloch inherited about 500 whistleblower allegations that already had been assigned to the lowest of three priority levels and slated for dismissal, McVay said. Inclusion of these when calculating the referral rate artificially deflates the percentage for fiscal 2004, he said.

The 500 low-priority cases "should have been closed before," but were sitting in files "stacked up to the ceiling," McVay said. "We wanted to make sure that we finally cleaned up this problem."

A disclosure would be placed in the lowest of the three priority levels if the whistleblower failed to make an accusation of gross mismanagement, or lacked direct evidence of alleged illegal behavior. For instance, many whistleblowers report misuse of funds, McVay said. But a reported waste of $27.50, for example, would not meet the standard for "gross" abuse of taxpayer money.

OSC increased the number of cases referred for investigation in fiscal 2004 by loosening the threshold for determining if an allegation warrants further attention, McVay said. The agency formerly referred cases only if staff members found "clear and convincing" evidence to support the claim, he said. OSC now is forwarding cases if the allegation is "more likely true than not," or, in legal terminology, supported by a "preponderance of evidence." That is the standard that agencies use when investigating disclosures, he noted.

Prohibited personnel practice cases now pass an initial screening if the employee filing the complaint can tell a credible, coherent story, backed by basic supporting facts, McVay said.

"We continue to be impressed with the sincerity and pragmatism with which you and all your staff approach your jobs," wrote Rep. Tom Davis, R-Va., chair of the House Government Reform Committee, and Rep. Jon Porter, R-Nev., chair of the House Government Reform Subcommittee on the Federal Workforce, in a May 17 letter praising Bloch for his efforts to cut the backlog. The committee had requested an April 2004 GAO report analyzing the backlog problem, and had asked OSC for an update on attempts to resolve old cases.

The lawmakers acknowledged recent criticisms of Bloch's efforts, but noted that OSC invited a bipartisan group of congressional staff members to review cases that had been closed. The staff members visited Bloch's office three times, the legislators wrote, and "at the end of this period of review, one previously critical Senate staffer informed us: 'We have satisfied ourselves that they did not throw any folders into the Potomac.' "

But Jeff Ruch, executive director of Public Employees for Environmental Responsibility, a Washington-based advocacy group, said he has yet to hear any evidence that OSC is taking complaints seriously enough. He had not seen Bloch's May 17 letter, but said that an increase in the number of cases referred for further investigation isn't that meaningful.

"A referral is a good thing," Ruch said. "But the issue is whether or not … there's a thorough investigation that [OSC] has overseen."