STATEMENT BY THE HONORABLE ELAINE KAPLAN SPECIAL COUNSEL U.S. OFFICE OF SPECIAL COUNSEL Before the Subcommittee on Oversight and Investigations [March 11, 1999] Good morning. Thank you for inviting me to testify about the role of the U.S. Office of Special Counsel (OSC) in preventing reprisal for whistleblowing. OSC is an independent federal agency whose basic mission is to protect federal employees and job applicants from prohibited personnel practices, especially reprisal for whistleblowing. OSC receives, investigates, and prosecutes complaints of reprisal for whistleblowing before the Merit Systems Protection Board. A federal civilian employee or job applicant is protected from reprisal when he or she discloses information which he or she reasonably believes evidences a violation of law, gross mismanagement, gross waste of funds, abuse of authority or a significant danger to the public health or safety. Reprisal for whistleblowing can take many forms including taking or failing to take personnel action or threatening to take or fail to take personnel action because of an individual’s disclosures. Personnel actions may include written reprimand, reassignment of duties, removal, transfer, position nonselection, and/or lowered performance ratings. By design, the Congress made OSC an independent and neutral body, and as such we represent neither complainants nor employing agencies. Rather, our client is the merit system. I was sworn in as Special Counsel in May 1998 to serve a five-year term, and my primary goal is for federal agency managers and employees to come to understand and appreciate OSC’s role as an impartial advocate for the merit system. Representing the merit system does not necessarily mean advocating on behalf of employees who allege that their rights have been violated. Instead, our job is to conduct an impartial investigation that should reveal whether a personnel action serves the efficiency of service or, instead, is tainted by improper motives such as reprisal for whistleblowing. If warranted, an OSC prosecution follows an investigation that reveals the commission of a prohibited personnel practice unless the matter can be settled in another fashion. To do our job effectively, we need the cooperation of other federal agencies. In principle, OSC’s interests and those of the employing agency should be the same. All federal agencies should be interested in correcting and preventing illegal personnel actions. At the present time, we do enjoy excellent mutually beneficial relationships with some federal agencies. I will single out the Department of Defense, the Army and the Navy, as examples of agencies that work as partners with us. These agencies have designated agency liaisons that we generally contact at the beginning of an investigation. The liaisons help us coordinate an investigation and often play an active role in brokering settlements and corrective actions when our investigation uncovers violations of law. These agency relationships have developed over time and they are based upon mutual trust. The relationships benefit both the employing agency and OSC. The employing agency benefits because it has an opportunity to clean its own house. It also has a clear channel of communication with OSC to present its own concerns. OSC benefits because we will often expend fewer resources to successfully resolve a matter and we will resolve it more quickly than we would without the cooperation of the agency liaison. One of the initiatives we are currently considering is to establish a more formal agency liaison program. We envision establishing a process by which we would train agency liaisons and enter into a formal agreement about our respective roles. We would use as our role model the system that the Office of Government Ethics has established for designated agency ethics officers. Part of the role of the agency liaison would be to help the agency meet its statutory responsibility to educate and inform employees about their rights. Establishing a liaison program in highly decentralized agencies such as the VA, would present a formidable challenge. In our present day successful liaison programs, our contacts have significant influence on field activities and are very effective in convincing their field offices to take appropriate action. In order to replicate that in the VA, presumably, VA’s headquarters would have to take a leading role in working with field installations.
In 1994, the Congress passed legislation designed to strengthen the Whistleblower Protection Act (WPA). That legislation did many things. It expanded whistleblower protection coverage to approximately 160,000 new employees, including 80,000 title 38 VA health professionals. It increased OSC’s authority, duties and responsibilities. It gave all federal agencies the statutory responsibility to advise their employees about their rights under the WPA, and directed that OSC play a consultative role in that process. It appears that this key statutory educational responsibility has not been implemented in a serious fashion at a number of federal agencies, including the VA. Yet, we would all benefit if it were. If managers are given appropriate information and training in personnel matters, the federal government will be able to operate more effectively and employees will be able to focus on their mission. Today, when new employees enter government service, they are usually given a packet of material regarding government ethics laws, family and medical leave, flex-time and other laws. I’ve yet to meet the new employee, however, who received a packet of information regarding prohibited personnel practices and the Whistleblower Protection Act. I will point out that one federal agency -- the Customs Bureau -- recently mailed an OSC informational brochure on these subjects to each of its employees in a pay stub mailing. It did so to build whistleblower awareness within the agency at the direction of the new Customs Commissioner who wants to change the culture of the workforce and wants OSC to actively engage in training agency managers. Awareness is very important. For example, in addition to our responsibilities to investigate and prosecute prohibited personnel practices, OSC also enforces the Hatch Act. Last year, we provided more than 2,000 advisory opinions on this Act, enabling individuals to determine whether or not they were covered and whether their contemplated activities were legally permitted. And, while we do receive and prosecute some Hatch Act complaints, they are very small in number as compared to complaints for whistleblower reprisal. Before closing, I would like to provide an abbreviated summary of how OSC prosecutes complaints. We have a Complaints Examining Unit known as "CEU," which serves as our intake unit. It is staffed by 14 examiners who conduct preliminary investigations into about 2,000 complaints per year. These examiners include personnel specialists and lawyers. Through a committee process, where other lawyers and investigators participate, they determine whether a prima facie case has been alleged and whether further investigation is warranted. In FY 1998, about 20 percent of the whistleblower retaliation complaints filed in the CEU were referred to our Investigation Division for further investigation. The remainder were closed. When a preliminary decision to close a matter has been made, the CEU sends out a preclosure letter to the complainant that spells out the reasons for the decision. The complainant may respond in writing to the preclosure letter and provide additional information within 16 days. In the interest of humanizing our agency as much as possible, and enhancing due process protections, I have also instituted a policy where the complainant can request a telephone conference to discuss the pre-closure letter with the CEU examiner. When a matter is referred for further investigation by the CEU, an attorney and investigator are assigned to it who work as a team. The Investigation Division of OSC consists of 24 investigators and we have 10 attorneys in the Prosecution Division, although one of them works full-time on Hatch Act matters. In 1998, about 25 percent of the cases referred for investigation were settled favorably for the claimant without formal litigation. These cases were settled either at some point during the investigation, after information supporting the complainant’s claims was shared with the employing agency or, after the Prosecution Division decided that prosecution was warranted. Before OSC formally begins prosecution, we are required by law to send an explanatory letter to the agency head and request voluntary corrective and/or disciplinary action. Clearly, there is great value to settling a case. It avoids litigation costs and time. I explain all this in the way of background because in looking at OSC, one should not look simply at cases pending before the MSPB. We seek relief for complainants through multiple channels. Another key avenue of resolution of complaints which needs to be explored is Alternative Dispute Resolution (ADR). ADR might be extremely helpful to some of our complainants and the agency is exploring a pilot ADR program at this time. In closing, I will offer a few comments as they pertain to the Veterans Administration. The bulk of complaints filed at OSC by VA employees involve either medical centers or hospitals. One issue this Committee might want to explore is what sort of personnel training, in terms of prohibited personnel practices and the Whistleblower Protection Act, have VA Medical Personnel Officers and Medical Centers Directors received? Are centers being run by Directors with a medical background but no personnel training? These are important questions for the Committee because whistleblower disclosures involving the VA health care system can involve serious public health issues. Again, thank you for giving me the opportunity to be here today. We would welcome the opportunity to work with the VA in establishing whistleblower awareness and prohibited personnel practice training programs. We would also welcome its cooperation in establishing a liaison program with OSC. Back to News of the Hearing on |