Transparency and urgency are needed to deter agency misconduct and protect federal workers

The controversy will continue over when presidents might be considered above the law. But it should be undisputed that the millions of employees in the executive branch never are. And from what I see as the head of the independent agency designated by Congress to protect them, they don’t want to be. 

Instead, what government workers and lawmakers count on is a cycle of accountability and protection: federal employees should be hired based on merit, report wrongdoing when they see it, and be safeguarded from retaliation when they blow the whistle on misconduct.

The agency I lead, the Office of Special Counsel, helps police the cycle. Federal workers come to OSC with allegations of government misconduct and, if we determine there is a “substantial likelihood” that the disclosure indicates lawbreaking or certain other wrongdoing, then I ask the agency in question to investigate and report back. My colleagues and I assess the report, provide the whistleblower a chance to comment, and share it and our take with the president, Congress, and the public.

Here's the problem: a process Congress envisioned taking a couple of months is too often taking years. 

And worse: until the very end, no one outside my agency and the agency being investigated knows anything about what’s going on. 

Today, I am proposing a new policy where, with the consent of the whistleblowers who first flagged the possible misconduct, we will provide public notice about the allegations being investigated.

Specifically, OSC would post summaries of whistleblower allegations where my colleagues and I have made a “substantial likelihood” of agency wrongdoing determination. These summaries would be for open matters where I await final agency reports detailing their findings and fixes. 

And we propose doing something similar on the employee protection side. When OSC sees evidence indicating that whistleblower retaliation or some other prohibited personnel practice has occurred, and the agency is not timely and reasonably responding to the injured employee, we would say something quickly and publicly whenever the wronged worker agrees.

These proposals for greater transparency and urgency may be new but they are intended to fulfill directives from Capitol Hill. When it comes to “substantial likelihood” of wrongdoing investigations, the expectation Congress enshrined in the law is that agency heads will issue findings within 60 days after receiving a referral from OSC. My agency would not post a summary of an allegation until then.  If an agency asks for more time before issuing the required report, OSC will agree when reasonable. But the summary of the allegation will be available to all while my agency and the public waits. That’s because I think people have a right to know what might be going wrong inside the government they pay for and be assured that serious allegations are being taken seriously and investigated expeditiously.

When it comes to redressing retaliation, discrimination, nepotism, and other acts that violate the merit-based and positive work environments federal employees are guaranteed, Congress has made clear it wants my office to focus on getting any inflicted harm undone as quickly as possible. The legal term used is “corrective action” and the phrase is mentioned no less than 20 different times in the statute OSC helps enforce. 

So before posting a summary of the workplace misconduct, OSC would give agencies a short window of time to agree to correct unlawful actions. But if a quick resolution fails, OSC is ready to make public a summary of its view that it appears a federal worker has been unlawfully mistreated. 

And in cases where OSC believes an agency may be in the process of a wrongful employment decision, – firing or suspending a whistleblower for example – we want the agency to hold off (in legal terms, stay the action) until my office can make a final determination as to whether the adverse consequence is justifiable or, instead, retaliatory. If an agency doesn’t heed our advice and we have to ask the Merit Systems Protection Board to step in, I want to start making our legal briefs public at the same time we file them with MSPB.

While I hope summaries can be posted in most if not all ongoing matters where OSC believes agency misconduct or employee mistreatment may have occurred, there could be situations where it would be against the whistleblower’s interest or the public interest to say anything publicly until the matter is resolved. If that’s the case, my office will do everything in its power to bring the case to a fast conclusion so that details on what the outcome was, and why, can be safely revealed.

While the steps proposed here will shine a light on other agencies, OSC will provide more visibility into our own operations. My colleagues and I are finding ways to make our policies and protocols more transparent and we’ll be posting them in the weeks ahead at www.osc.gov. One practice that will be explained is why OSC is now insisting that agency heads personally review and sign their reports to my agency or, at a minimum, provide a clear statement that they are aware of and agree with the findings.  

And soon after the start of the new federal government fiscal year on Oct. 1, I will make an announcement about which aspects of this proposal OSC will put into official effect.

The question of when presidents can be criminally prosecuted should not be confused with the obligation of federal agencies to follow the rules. Congress and common sense tell us the same thing: when you execute the law as a government employee, you must follow the law. When that doesn’t happen, I believe the fix should occur as soon as possible. And the process should be as public as possible. These goals – greater transparency and faster accountability – are the catalysts for this proposal.

Hampton Dellinger heads the Office of Special Counsel. He was confirmed by the Senate to a five-year term earlier this year.