While Special Counsel Hampton Dellinger continues to challenge President Trump’s attempts to fire him, he has been allowed to remain in his post as the head of the Office of Special Counsel (OSC) by a federal judge. On February 24, the OSC announced that it had filed initial requests with the Merit Systems Protection Board (MSPB) to “stay” the terminations of six probationary employees across various executive branch agencies.
The OSC is responsible for protecting federal employee from prohibited personnel practices, including whistleblower retaliations, and investigating their concerns.
According to the OSC, “there are reasonable grounds to believe that agencies engaged in prohibited personnel practices (PPPs) under 5 U.S.C. § 2302(b)(12) by terminating the employees in violation of federal laws and regulations governing probationary terminations and reductions in force.”
The agencies involved include the Department of Veterans Affairs, Department of Education, Department of Energy, Department of Housing and Urban Development, Office of Personnel Management and Department of Agriculture.
“In most cases, probationary employees in the competitive service may only be terminated if their performance or conduct demonstrates that they are unfit for federal employment,” the OSC argues in its request for stays. “If agencies wish to terminate probationary employees not for performance or conduct, but as part of a general restructuring or downsizing, they must initiate a reduction in force (RIF) and follow the relevant procedures for that process.”
According to the OSC, the agencies violated the law by not following RIF procedures and the firing of the employees were PPPs which, for the fired employees, involved “loss of pay and benefits, loss of their federal careers, and deprivation of their legal rights.”
The OSC is authorized the request the MSPB to issue 45-day stays in instances where it “determines that reasonable grounds exist to believe that a personnel action was taken, or is to be taken, as a result of a prohibited personnel practice.”
“Since the Civil Service Reform Act was passed in 1978, the merit system principles have guided how federal government agencies hire, manage, and, if necessary, remove federal employees,” Dellinger stated. These principles establish that all federal employees, including those in a probationary status, should be evaluated based on individual performance.”
“Firing probationary employees without individualized cause appears contrary to a reasonable reading of the law, particularly the provisions establishing rules for reductions in force,” Dellinger added. “Because Congress has directed that OSC ‘shall’ protect government employees from PPPs, I believe I have a responsibility to request a stay of these actions while my agency continues to investigate further the apparent violation of federal personnel laws.”
According to the OSC, “The Special Counsel believes other probationary employees are similarly situated to the six workers for whom he currently is seeking relief” and “is considering ways to seek relief for a broader group without the need for individual filings with OSC.”
Dellinger was himself fired on February 7 and then quickly sued to stop the firing, arguing that under the law, the Special Counsel “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” A district court found that the Trump administration violated the law in firing Dellinger without cause and temporarily ordered Dellinger to remain as Special Counsel. On February 26, the court is holding a hearing to determine whether to issue a preliminary-injunction allowing Dellinger to remain in his role as the case proceeds.
“The future of federal employee whistleblowing hangs in the balance,” says Stephen M. Kohn, Chairman of the Board of National Whistleblower Center. “If the Special Counsel is not independent, that office will become a trap and the confidentiality of whistleblowers will not be protected.”
“This is not a partisan issue,” Kohn added. “It is simply an issue of whether federal employees can report waste fraud and abuse.”
National Whistleblower Center has launched an emergency campaign in response to the
wrongful termination of Special Counsel Dellinger. They are urging supporters to join them and to contact their Representatives and Senators immediately and express their concern on the issue.