This month, the Office of Special Counsel (OSC) publicly released its 2017 Annual Report to Congress. Overall confidence in the ability of OSC to protect federal employees has increased. Nonetheless, there are still areas for improvement regarding OSC’s handling of whistleblower reports.
Positive Developments
Whistleblower Reports
OSC received nearly 6,000 new reports in FY 2017, indicating that more and more federal employees are aware of OSC’s reporting mechanisms and feel comfortable using them. In cases involving prohibited personnel practices (PPP), OSC received 323 favorable actions, which include stays and corrective actions. Not only is this an agency record of total favorable actions, but it is also more than triple the number of favorable actions in an average year. Whistleblower retaliation accounted for 241 out of 323 of these favorable actions, setting a new record. Over the past two years, OSC obtained favorable outcomes in 459 whistleblower reprisal actions, which is also triple the average rate. OSC also obtained a record 47 systematic corrective actions.
Mediation
OSC helps to protect whistleblowers and promote a culture of transparency by playing a role in mediation and in cases involving whistleblower retaliation. In FY 2017 OSC offered 20 more mediations (91 total) and conducted 15 more mediations (40 total) than FY 2016. The report demonstrates the value of this work. For example, following the complainant’s report that his agency wasted over $200,000 and interfered with his ability to carry out his professional duties, the parties reached a settlement with the help of OSC. The agency agreed to pay a lump sum, reinstate the complainant’s work privileges, change his supervisors, pay his attorney’s fees, and provide him with training opportunities. Most notably, the agency also agreed to PPP training for its employees.
Training
One of OSC’s key functions is to provide training to government agencies. In that regard, OSC has been successful. OSC fulfilled 100% of training requests from government agencies in FY 2017. Moreover, OSC also conducted 148 outreach programs at federal agencies.
Amicus curiae
In addition to trainings and dealing directly with matters, OSC has the ability to file amicus curiae, or friend-of-the-court briefs. Through amicus briefs, OSC can advocate for federal employee whistleblower protections, using institutional knowledge to ensure that the policies in place work best for those working on the ground. This past year, OSC filed four amicus briefs.
Room for Improvement
However, there is room for improvement within OSC. In FY 2017, 1,663 pending complaints carried over from the prior fiscal year, a 15% increase from FY 2016. Pending whistleblower disclosures carried over from the prior year increased in FY 2017 by 49 complaints, a 9.8% increase.
This suggests that it is taking longer for OSC to successfully address a whistleblower complaint. In fact, the data also shows that the percentage of cases processed within 240 days decreased from 85% in 2016 to 77% in 2017. For example, 155 Hatch Act complaints were still pending at the end of FY 2017. The Hatch Act is a federal law that restricts certain partisan political activities of federal employees and some local, state and D.C. federally funded employees. With the strong interest in this issue—from both sides of the political aisle—during the current White House Administration, it would seem incumbent on the OSC to prioritize reducing the number of outstanding complaints on this issue.
Not only are these time delays frustrating for those filing the complaints, but they are also discouraging to other potential whistleblowers. OSC must be more diligent and timely in their handling and processing of cases. When whistleblowers have to wait longer to have their retaliation complaints addressed, it worsens the negative effects to the whistleblower. It is imperative these matters be resolved quickly and efficiently in order to increase confidence that OSC is indeed effective in providing a safe channel for federal employees to report fraud, waste, mismanagement, abuse and dangers to public health and safety.
Looking Forward
President Trump has signed the Whistleblower Protection Coordination Act into law , which permanently reauthorizes a whistleblower protection coordinator position within each agency’s Office of Inspector General (OIG). Having a position which is specifically tasked with coordinating with different government stakeholders, educating agency employees, and halting whistleblower retaliation is incredibly important to ensuring whistleblowers are protected.
Special Counsel Henry J. Kerner released a public statement that applauds this action by President Trump, and notes its importance to OSC’s work. As stated in the press release: “whistleblower disclosures can save lives, taxpayer dollars, and play a critical role in holding our government accountable. Federal law should strongly encourage employees to disclose wrongdoing while simultaneously protecting whistleblowers from retaliation.”
