Written Statement of Jason M. Zuckerman Senior Legal Advisor, U.S. Office of Special Counsel

Good afternoon. My name is Jason Zuckerman and I am the Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel. The Office of Special Counsel, or OSC, is an independent federal investigative and prosecutorial agency whose primary mission is to safeguard the merit system in federal employment by protecting employees and applicants from prohibited personnel practices (PPPs), especially reprisal for whistleblowing. In addition, the agency operates as a secure channel for federal whistleblower disclosures of: violations of law, rule or regulation; gross mismanagement; gross waste of funds; abuse of authority; and substantial and specific dangers to public health and safety. OSC also is authorized by the Hatch Act to protect the civil service against undue political influence. And OSC investigates and enforces the civilian employment and re-employment rights of military service members under the USERRA.¹

OSC faces significant resource challenges. Overall, the agency's caseload is growing more than four times faster than its budget. During the past three years, OSC's case docket has grown 29% while its budget edged up marginally. Extrapolating from past experience, the agency conservatively projects an annual caseload growth in the 6% to 8% range for the foreseeable future. And this year OSC will receive nearly twice the number of PPP complaints that were filed at OSC a decade ago. The following chart illustrates the increase in PPP complaints in recent years.

Prohibited Personnel Practice Complaints Filed at OSC

Imagen

Given the challenging fiscal environment, OSC recognizes that it must prioritize clear strategic goals and objectives that are ambitious yet realistic, and work creatively and efficiently toward achieving them. My remarks today will focus on trendsthat we are seeing in allegations of prohibited personnel practices in the federal sector and steps that OSC has taken to strategically focus its resources.

Retaliation Complaints Dominate OSC's PPP Docket

OSC has the authority to investigate and, where appropriate, prosecute claims of prohibited personnel practices. There are twelve prohibited personnel practices, including reprisal for whistleblowing, which are defined by law at § 2302(b) of title 5 of the United States Code (U.S.C.). A personnel action" (defined in 5 U.S.C. § 2302(a)(2(A) to include appointments, promotions, reassignments, disciplinary actions, and other personnel matters) may need to be involved for a prohibited personnel practice to occur. Generally stated, § 2302(b) provides that a federal employee who has authority over personnel decisions may not:

(1) discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;

(2) request or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;

(3) coerce the political activity of any person;

(4) deceive or willfully obstruct anyone from competing for employment;

(5) influence anyone to withdraw from competition in an effort to improve or injure the employment prospects of any person;

(6) give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;

(7) engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);

(8) engage in reprisal for whistleblowing – generally, a person with personnel authority cannot take or fail to take a personnel action with respect to an employee or applicant because of a disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. The prohibition does not apply, however, if the disclosure is barred by law or is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs, except when such a disclosure is made to the Special Counsel, the Inspector General, or a comparable agency official.

(9) take or fail to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law;

(10) discriminate based on personal conduct which is not job-related and does not adversely affect the on-the-job performance of an employee, applicant, or others;

(11) take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans' preference requirement; or

(

12) take or fail to take a personnel action, if taking or failing to take the action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301.

As illustrated in the following table, more than half of the PPP complaints filed with OSC in recent years allege retaliation for engaging in a protected activity. Indeed, this year, retaliation complaints comprise nearly seventy-five percent of the PPP complaints filed at OSC. The "(b)(8)" category refers to whistleblower retaliation complaints brought under 5 U.S.C. § 2302(b)(8) and the "(b)(9)" category refers to complaints brought under 5 U.S.C. § 2302(b)(9).

Two Recent MSPB Studies Underscore the Need to Focus Resources on Combatting Whistleblower Retaliation

In addition to data from OSC's docket showing that most PPP complaints allege retaliation, the Merit Systems Protection Board (MSPB) recently performed two studies that underscore the need to focus enforcement resources on combatting retaliation.²

In a study published in November 2011titledBlowing the Whistle: Barriers to Federal Employees Making Disclosures, the MSPB found that in 2010, approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing perceived either threats or acts of reprisal, or both.³The response to a similar survey performed in 1992 was nearly identical. In other words, the study reveals that perceptions of retaliation and threats of retaliation remain a serious problem. In contrast, another recent MSPB study, which is discussed below, found that perceptions of other PPPs have declined substantially over a similar period of time.

It is worth noting a few specific findings of the study.

First, approximately 38.9% of respondents witnessed waste caused by a badly managed program and 17.6% of respondents witnessed a serious violation of law or regulation in the prior 12-month period.

Table 1:Percentageofrespondentsindicatingthatthemostseriouswrongdoingtheyobservedinthelast12monthswasinaparticularcategory.

Second, 35% of respondents did not report wrongdoing that they had observed.

Table 4:Percentageofrespondentsindicatingthattheyreportedtheobservedactivitytoaparticularindividual.

Third, many of the forms of reprisal that employees perceive showed dramatic increases, in particular the percentage of respondents reporting that their employment was terminated as a result of whistleblowing.

Table 7:Percentageofrespondentsreportingthatareprisalorthreatenedreprisaltookaparticularform.

*Respondents wereabletoselectboththe"threatened"and"experienced"optionforeachitem ifbothathreatofretaliationandthe actual retaliationoccurred.

In a study published in August 2011 titled Prohibited Personnel Practices: Employee Perceptions, the MSPB revealed the results of a survey of approximately 72,000 full-time, permanent Federal employees concerning perceptions of PPPs.⁴The report found that perceptions of many PPPs are at an 18-year low.The tables below are some examples of the decline in perceptions of particular PPPs:

Table 1:Percentageofrespondentswhoreportedexperiencingtheparticularformofdiscriminationwithintheprecedingtwoyears

*Inpreviousadministrations oftheMPS,race/national-origin baseddiscrimination wasaskedasasinglequestion.Inthe2010MPS,raceand national originweretwoseparatequestions. Thedatafromthosetwoquestionsin2010havebeen combinedinthistableforthepurposeofallowing comparisonstothepriorMPSdata.

Table2:PerceptionsRegardingPoliticalCoercion

*Thisquestiondidnotappearonthe2005 MPS.

Table 3:PerceptionsRegardingObstructionofCompetition

Table 4:PerceptionsofInfluencetoWithdrawFromCompetition

Table 5:PerceptionsofGrantinganAdvantage

Table 6:PerceptionsofNepotism

The report also found that there is room for improvement:

One of the most important lessons that we identified is the extent to which employees observe how others in the workplace are treated, and how perceptions of management's improper treatment of others affects the observer. As our report explains, an employee's perception that others in the workplace have been subjected to a PPP has a negative relationship to the observer's level of engagement, even if the observer is not personally affected. Given that many employees may observe a single act, the perceived commission of any PPP can have substantial consequences for organizational effectiveness.

Ltr. from MSPB Chair Transmitting the Report to the President and Congress.

OSC's Mission Warrants Increased Emphasis on Combatting Whistleblower Retaliation

When Congress enacted the Civil Service Reform Act, OSC's primary mission was intended to be investigating and prosecuting complaints regarding prohibited personnel practices, with a special emphasis upon protecting whistleblowers against reprisal. The statutory provisions for protecting whistleblowers, set forth in the CSRA, were strengthened in 1989 and again in 1994.

The Senate report accompanying the CSRA is worth quoting briefly:

In the vast federal bureaucracy it is not difficult to conceal wrongdoing provided that no one summons the courage to disclose the truth. Whenever misdeeds take place in a federal agency, there are employees who know that it has occurred, and who are outraged by it. What is needed is a means to assure them that they will not suffer if they help uncover and correct administrative abuses. What is needed is a means to protect the Pentagon employee who discloses billions of dollars in cost overruns, the GSA employee who discloses widespread fraud, and the nuclear engineer who questions the safety of certain nuclear plants. These conscientious civil servants deserve statutory protection rather than bureaucratic harassment and intimidation.

S. Rep. No. 95-969, at 8 (1978). At a time when our country is recovering from a fiscal crisis, OSC's role in protecting whistleblowers has never been more important.

Protecting whistleblowers is also important because retaliation can create a chilled work environment:

As noted in [MSPB's] recent report, Prohibited Personnel Practices: Employee Perceptions, employees who are not personally affected by the commission of aprohibited personnel practice may notice when it happens to others in the work unit, and such perceptions can affect the observer's level of engagement. This isparticularly truefor the prohibited personnel practice of retaliation for whistleblowing. Thus, in additionto the chilling effect that perceptions of retaliation may have on the willingness of otheremployees to blow the whistle in the future, perceptions of retaliation for whistleblowingactivities also harms the efficiency of the service in other ways.

Blowing the Whistle: Barriers to Federal Employees Making Disclosures, at 11.

OSC Initiatives

In light of the substantial data showing that whistleblower retaliation remains a significant problem in the federal workforce, OSC has stepped up its enforcement of the prohibitions against whistleblower retaliation and other PPPs using a wide variety of tools:

Increased Use of Stay Authority

If OSC has reasonable grounds to believe that the proposed action is the result of a prohibited personnel practice, OSC may ask the agency involved to delay the personnel action through an informal stay. If the agency does not agree to a delay, OSC may then ask the MSPB to stay the action. Over the past year, OSC has increased its use of its stay authority. For example, OSC obtained three formal stays with the MSPB; one against the indefinite suspension of a Marine Corps civilian, one to prevent termination after a negative performance evaluation, and the third against the firing of a Customs and Border Protection pilot. And during that period, OSC obtained dozens of informal stays.

Retaliation Pilot Project

Last September, OSC launched the Retaliation Pilot Project (RPP), which has increased agency resources for the investigation and prosecution of whistleblower retaliation cases. Additionally, the project offers employees from across the agencytraining in enforcing prohibited personnel practice laws.Taking this step reduced OSC's backlog and provided quicker relief for whistleblowers. This project is already showing concrete results in enhancing enforcement of PPPs. During the period of mid-June 2010-2011, OSC nearly doubled the total number of favorable actions obtained for federal employees from the previous one-year period.

Revitalizing Mediation Program

OSC substantially revitalized its alternative dispute resolution program to speed up the handling of complaints and achieve win-win outcomes for employees and agencies alike. OSC hired an expert mediator tolead the effort and we are partnering with the Federal Mediation and Conciliation Service to help us mediatenationwide and at a lower cost. With significantly increasing caseloads, a strong ADR program allows OSC to resolve many cases without resource-intensive litigation, and provide better and timelier results for employees and agencies. OSC is on track to quadruple from the previous fiscal year the number of cases mediated.

Outreach and Training

OSC's Outreach Program assists agencies in meeting the statutory mandate of 5 U.S.C. § 2302(c), which requires that federal agencies inform their workforces about the rights and remedies available to them under the whistleblower protection and prohibited personnel practice provisions of the Whistleblower Protection Act.In an effort to assist agencies in meeting the statutory requirement, OSC created a five-step Section 2302(c) Certification Program. This program gives guidance to agencies and provides easy-to-use methods and training resources to assist agencies in fulfilling their statutory obligations. Agencies that complete the program receive a certificate of compliance from OSC. OSC provides formal and informal outreach sessions, including making materials available on the agency web site. During FY 2011, OSC employees spoke at over 33 events nationwide.

In addition, OSC continues to use settlements as a vehicle to achieve systemic corrective action. For example, if we detect a pattern of a particular PPP at an agency, we require that the agency provide training and other preventive measures to avoid further PPPs.

Increased Transparency

OSC is being more transparent about its work protecting whistleblowers, which contributes to federal employees' and managers' awareness about the merit system protections enforced by OSC.In particular, OSC informs the news media and issues press releases when it closes an important whistleblower disclosure matter, files a significant litigation petition, or achieves significant corrective or disciplinary action through settlement. In addition, for the first time, OSC posted on its website a report of investigation concerning retaliation against whistleblowers at the Air Force who disclosed misconduct regarding the handling of service members' remains. At the recommendation of OSC, the Air Force took disciplinary action against the individuals whoretaliated against the whistleblowers, including a Colonel, which sent a strong signal that employees at all levels will be held accountable for whistleblower reprisal.

Improved Communication with Stakeholders

OSC has conducted numerous, valuable meetings with the agency's stakeholders, including managementand employee organizations, OSC's sister agencies, various good government groups, veterans' groups, LGBT rights organizations, andtaxpayer advocacy organizations. These meetings provided useful feedback and OSC is working to implement many of the suggestions.

Conclusion

OSC applauds the Commission's efforts to solicit input from a wide variety of stakeholders in formulating its Strategic Enforcement Plan. And we look forward to working with the Commission to achieve Congress' vision, as set forth in the Merit System Principles, of ensuring that federal agencies (1) select and advance employees on the basis of merit after fair and open competition; (2) afford applicants and employees "fair and equitable treatment in all aspects of personnel management, without regard to political affiliation, race, color, religion, national origin, sex, marital status, age or handicapping condition";⁵ and (3) protect employees against reprisal for whistleblowing.

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Footnotes

¹ Additional information about OSC, including OSC's Strategic Plan and recent annual reports to Congress, is available on OSC's website at www.osc.gov.

² OSC also continues to vigorously enforce all PPPs. For example, OSC recently obtained corrective action and disciplinary action concerning hiring-related offenses at various agencies.

³Blowing the Whistle: Barriers to Federal Employees Making Disclosuresis a publication of the Office of Policy and Evaluation, U.S. Merit Systems Protection Board. MSPB studies are available online at www.mspb.gov/studies and, for each of the MSPB reports discussed today, there is an 8 minute briefing (mini-movie) online at http://www.mspb.gov/training.htm.

⁴Prohibited Personnel Practices: Employee Perceptions is a publication of the Office of Policy and Evaluation, U.S. Merit Systems Protection Board.

⁵ 5 U.S.C. § 2301(2).