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6. Federal Whistleblower Protection in Jeopardy

Source:

Public Employees for Environmental Responsibility website
Titles: “Whistleblowers Get Help from Bush Administration,” December 5, 2005
“Long-Delayed Investigation of Special Counsel Finally Begins,” October 18,2005
“Back Door Rollback of Federal Whistleblower Protections,” September 22, 2005
Author: Jeff Ruch

Faculty Evaluator: Barbara Bloom
Student Researchers: Caitlyn Peele and Sara-Joy Christienson

Special Counsel Scott Bloch, appointed by President Bush in 2004, is overseeing the virtual elimination of federal whistleblower rights in the U.S. government.

The U.S. Office of Special Counsel (OSC), the agency that is supposed to protect federal employees who blow the whistle on waste, fraud, and abuse is dismissing hundreds of cases while advancing almost none. According to the Annual Report for 2004 (which was not released until the end of first quarter fiscal year 2006) less than 1.5 percent of whistleblower claims were referred for investigation while more than 1000 reports were closed before they were even opened. Only eight claims were found to be substantiated, and one of those included the theft of a desk, while another included attendance violations. Favorable outcomes have declined 24 percent overall, and this is all in the first year that the new special counsel, Scott Bloch, has been in office.

Bloch, who has received numerous complaints since he took office, defends his first thirteen months in office by pointing to a decline in backlogged cases. Public Employees for Environmental Responsibility (PEER) Executive Director Jeff Ruch says, “. . . backlogs and delays are bad, but they are not as bad as simply dumping the cases altogether.” According to figures released by Bloch in February of 2005 more than 470 claims of retaliation were dismissed, and not once had he affirmatively represented a whistleblower. In fact, in order to speed dismissals, Bloch instituted a rule forbidding his staff from contacting a whistleblower if their disclosure was deemed incomplete or ambiguous. Instead, the OSC would dismiss the matter. As a result, hundreds of whistleblowers never had a chance to justify their cases. Ruch notes that these numbers are limited to only the backlogged cases and do not include new ones.

On March 3, 2005, OSC staff members joined by a coalition of whistleblower protection and civil rights organizations filed a complaint against Bloch. His own employees accused him of violating the very rules he is supposed to be enforcing. The complaint specifies instances of illegal gag orders, cronyism, invidious discrimination, and retaliation by forcing the resignation of one-fifth of the OSC headquarters legal and investigative staff. The complaint was filed with the President’s Council on Integrity and Efficiency, which took no action on the case for seven months. PEER was one of the groups who co-filed the complaint against Bloch and Ruch wants to know, “Who watches the watchdogs?”

This is the third probe into Bloch’s operation in less than two years in office. Both the Government Accountability Office and a U.S. Senate subcommittee have ongoing investigations into mass dismissals of whistleblower cases, crony hires, and Bloch’s targeting of gay employees for removal while refusing to investigate cases involving discrimination on the basis of sexual orientation.

The Department of Labor has also gotten on board in a behind-the-scenes maneuver to cancel whistleblower protections. If it succeeds, the Labor Department will dismiss claims by federal workers who report violations under the Clean Air Act and the Safe Drinking Water Act. General Counsel for PEER, Richard Condit says, “Federal workers in agencies such as the Environmental Protection Agency function as the public’s eyes and ears . . . the Labor Department is moving to shut down one of the few legal avenues left to whistleblowers.” The Labor Department is trying to invoke the ancient doctrine of sovereign immunity, which says that the government cannot be sued without its consent. The Secretary of Labor’s Administrative Review Board recently invited the EPA to raise a sovereign immunity defense in a case where a woman was trying to enforce earlier victories. Government Accountability Project General Counsel Joanne Royce sums up major concerns: “We do not want public servants wondering whether they will lose their jobs for acting against pollution violations of politically well-connected interests.”

UPDATE BY JEFF RUCH

With the decline in oversight by the U.S. Congress and the uneven quality of investigative journalism, outlets such as the U.S. Office of Special Counsel become even more important channels for governmental transparency. Unfortunately, under the Bush-appointed Special Counsel, this supposed haven for whistleblowers has become a beacon of false hope for thousands.

Each year, hundreds of civil servants who witness problems ranging from threats to public safety to waste of tax funds find that their reports of wrongdoing are stonewalled by the Office of Special Counsel (OSC). Consequently, these firsthand accounts of malfeasance are not investigated and almost uniformly never reach the public’s attention.

The importance of this state of affairs is that the actual workings of federal agencies are becoming more shrouded in secrecy and disinformation. Americans are less informed about their government and less able to be in connection with the people who actually work for them—the public servants.

In a recent development, employees within the OSC have filed a whistleblower complaint about the Special Counsel, the person who is supposed to be the chief whistleblower defender. After several months delay, the Bush White House assigned this complaint to the Inspector General for the Office of Personnel Management for review. This supposedly independent investigation has just begun in earnest, nearly one year after the complaint was filed.

Also, the Government Accountability Office (GAO) issued a report in May 2006 blasting the Bush-appointed Special Counsel for ignoring competitive bidding rules in handing out consultant contracts. GAO also recommended creating an independent channel whereby Office of Special Counsel employees can blow the whistle on further abuses by the Special Counsel.

In another recent development, PEER’s lawsuit against the Special Counsel to force release of documents concerning crony hires has produced more, heavily redacted documents showing that these sole source consultants apparently did no identifiable work. Ironically, the PEER suit was filed under the Freedom of Information Act, a law that the Special Counsel is also charged with policing.

And in a new annual report to Congress, OSC (stung by criticism about declining performance) has, for the first time, stopped disclosing the number of whistleblower cases where it obtained a favorable outcome. Consequently, it is impossible to tell if anyone is actually being helped by the agency.

PEER’s web page on the Office of Special Counsel has posted all developments since this story and also allows a reader to trace the story’s genesis.

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