Special Counsel Employees Say They’re Reluctant to File Internal Complaints

The Office of Special Counsel, while coping with an expanding backlog of complaints about prohibited personnel practices, needs to better communicate expected timelines to sometimes-frustrated whistleblowers, a congressional watchdog recommended.

The agency’s long-criticized system for handling complaints from its own employees could use a more neutral internal channel, the Government Accountability Office added in a long-anticipated report released on Monday.

The agency that specializes in doing intake and coordinating agency investigations of whistleblower complaints from around the government has itself been accused of stifling complaints from within. That was one reason Sen. Ron Johnson, R-Wis., chairman of the Senate Homeland Security and Governmental Affairs Committee, requested the report in April 2016, the first such review since 2007.

OSC’s 135-member staff is stretched. The number of cases received and cases closed by the agency rose by more than 60 percent from fiscal 2011 to 2016, GAO found. Fifty-one percent of closures involved cases from three agencies—the Veterans Affairs Department, the Army Department and the Homeland Security Department. “Agency officials we interviewed told us that they routinely request extensions and OSC rarely or never rejects their initial requests,” auditors wrote.

“Although the number of cases OSC closed increased by 62 percent during this period, the pace at which cases were closed did not keep pace with the number of cases received,” the report said. “As a result, the backlog also grew.”

Internally, 17 of the 87 OSC employees who responded to a GAO survey considered filing allegations against another OSC employee but “chose not to do so in part because they feared losing anonymity, feared management reprisal, or were uncertain how to file an internal OSC complaint,” the report said. “Employees told us they are reluctant to report their workplace concerns in part because OSC management and the authorized individual are involved in the review process for certain cases. This in turn increases OSC’s risk that workplace violations go unreported.”

In statutes and the latest OSC reauthorization, Congress did provide some additional safeguards for the agency’s own employees, including use of an outside inspector general at the National Science Foundation. But that agency has yet to fully implement them, GAO added. Some OSC employees in discussions with GAO said “partnering with an agency IG that is large or that may frequently have employees that file allegations for OSC to review could create conflicts of interest if the agency IG in turn has to review OSC employee allegations.”

GAO made seven recommendations, including keeping whistleblowers better informed of their case timeline, better documenting procedures and training, and revamping internal database systems to track cases.

OSC agreed with all, saying it has already taken steps to implement them. In a statement to Government Executive, Special Counsel Henry Kerner said his agency “appreciates the significant time and effort GAO expended reviewing our processes and generating this thoughtful report, and we are committed to robust enforcement of the laws entrusted to us, now and into the future.”

Johnson said in a statement, “Whistleblowers play a vital role in identifying problems within our government. Unfortunately, far too often they need to be protected.  I am confident Special Counsel Kerner will take these recommendations to heart in carrying out OSC’s mission to enforce our nation’s whistleblower protection laws.”

Nick Schwellenbach, a former press officer at OSC now director of investigations at the nonprofit Project on Government Oversight, told Government Executive, “The GAO [report] shows that the surging workload that's been hitting OSC in the last half decade is straining the agency. While its staff tries to triage and identify important and urgent cases, OSC isn't as timely as it should be. Whistleblowers suffering retaliation aren't getting relief as fast as they need it and disclosures with merit take longer to investigate and address. Kerner is trying to address this, but streamlining processes can only go so far--and can risk having good cases fall through the cracks if it's not done in a thoughtful way. OSC still needs more resources.”

Schwellenbach characterized the arrangement with the NSF as “better than nothing” for OSC staff who seek to file their own complaints, but faulted the approach for its requirement that OSC have an authorized point of contact initiate the NSF IG's work rather than allowing a whistleblower to go straight to them.