Amended Perfected Allegations of Wrongdoing – Part II of IV

U.S. Office of Special Counsel: November 2014 to February 2021 - Part 1

02 March 2025

This Part II of Perfected Allegations of Wrongdoing examines the inner workings of the U.S. Office of Special Counsel (OSC), which was created by Congress as part of the 1989 Whistleblower Protection Act (WPA) to: (1) protect employees, former employees, and applicants for employment from prohibited personnel practices; (2) receive and investigate allegations of prohibited personnel practices, and . . . (B) file a complaint or make recommendations for disciplinary action under section 1215 [5 U.S.C., ⸹⸹1212, et. seq.]. The critical question, however, is the OSC working as intended by Congress.

Part II of Perfected Allegations of Wrongdoing provides an answer by examining factual evidence collected between November 2014 and February 2021 to determine whether and to what extent the OSC honored its duty under the statute. This examination takes the form of an investigation which produced documents and witness statements shedding light on how senior managers in the OSC performed, beginning with a review of the statutory scheme to determine what the WPA directed them to do, then producing evidence of what they did, and forming legally defined perfected allegations where clear and convincing evidence they failed to meet statutory requirements.

What this investigation found was clear and convincing, if not evidence beyond reasonable doubt, substantiating the allegations of wrongdoing in seven (7) specific cases:

· Did the OSC grossly mismanaged and abused it authority by delaying for 3.5 years a simple

15-day review of an OSC disclosure to determine if it met minimum standards for investigation in violation of the WPA?

· Did OSC Special Counsel, Henry J. Kerner knowingly corrupt a statutory mandate requiring a Special Counsel to order an agency investigation following a finding that a disclosure met the minimum substantial likelihood standard that its information qualified as a disclosure of waste, fraud, abuse of authority and/or corruption?

· Did senior responsible management officials (RMO) in the U.S. Department of Labor (DoL), the OSC, and the Council of the Inspectors General on Integrity and Efficiency (CIGIE), engaged in an interagency obstruction of the investigation of an OSC Disclosure to protect themselves and preferred others from accountability for wrongdoing?

· Did OSC RMOs obstruct a federal whistleblower OSC complaint of prohibited personnel practices by failing to follow WPA mandates, then close their investigation in the context of the

whistleblower disclosing OSC senior RMOs wrongdoing which would have been a prohibited personnel practice?

· Did OSC RMOs obstruct the processing of an OSC whistleblower disclosure by improperly dismissing it without a proper, statutorily mandated review and finding to protect OSC

senior RMOs from accountability for serious criminal wrongdoing?

· Did OSC RMOs deprive a federal whistleblower of his appeal rights by refusing to timely produce the OSC documents necessary for an appeal of an OSC adverse action?

· Did OSC RMOs engage in abuse of authority when for 5.5 years they denied a federal whistleblower relief from a stay of his removal from federal employment?

Index

Background: Part II Perfected Allegations of Wrongdoing.

Statutory Construct of the OSC: 1989 Whistleblower Protection Act, as Amended.

Preliminary Matter: GAO 1978 Audit [18-400].

Allegation: OSC Gross Mismanagement/Obstruction of a Simple, Mandated 15-day Review of Disclosure (DI-15-1950) in Violation of Federal Law.

Allegation: OSC Special Counsel Henry J. Kerner Corrupted a Statutorily Mandated Order for an Agency Investigation of OSC Disclosure (DI-15-1950) in Violation of Federal Law.

Allegation: Senior responsible management officials in the DoL, OSC, and CIGIE, engaged in a multi-year, interagency obstruction the investigation of OSC Disclosure (DI-15-1950) in violation of federal criminal law.

Allegation: OSC Obstructed the Investigation of an OSC Complaint of Prohibited Personnel Practices (MA-16-3007) for 28 Months, Then Dismissed the Complaint in Violation of Federal Law.

Allegation: OSC Obstructed the processing of OSC disclosure (DI-18-4904) by dismissing the disclosure without a proper statutorily mandated review and finding in Violation of Federal Law.

Allegation: OSC engaged in gross mismanagement and abuse of authority in denying for 5.5

years the federal whistleblower a stay of his removal from his federal employment in the context of the whistleblower disclosing agency wrongdoing to the OSC.

Acronyms

AG: Attorney General of the United States Chief Executive: President of the United States CEU: OSC’s Complaints Examining Unit

CFR: Code of Federal Regulations

CIGIE: Council of Inspectors General on Integrity and Efficiency

CIGIE-IC: CIGIE Integrity Committee

DCODC: District of Columbia Office of Disciplinary Counsel

DI-xx-xxxx: OSC disclosure number

DoJ: U.S. Department of Justice DoL: U.S. Department of Labor OIG: Office of Inspector General

FBI: Federal Bureau of Investigations

FOIA: Freedom of Information Act

GAP: Government Accountability Project GAO: Government Accountability Office HOUSE: U.S. House of Representatives

IPD: OSC Investigations and Prosecutions Division

LAWS: federal statutes adopted by Congress

Ltr: Letter

MA-xx-xxxx: OSC PPP complaint number OGE: U.S. Office of Government Ethics OMB: Office of Management and Budget OPM: Office of Personnel Management OSC: U.S. Office of Special Counsel OSC-DU: OSC Disclosure Unit

OSC-IPU: OSC Investigations and Prosecutions Unit

OSEC: Office of the Secretary of Labor

OSHA: Office of Occupational Safety and Health Administration in Department of Labor

PPP: Prohibited personnel practices (See, 5 U.S.C., ⸹2302(b)) RDU: OSC Retaliation and Disclosure Unit

Regulation: The federal Code of Regulations

RMO: An official with the authority to take, refrain from taking, or order others to take or refrain from taking prohibited personnel practices.

RULE: Established and approved federal rules concerning the federal Executive Branch

SENATE: U.S. Senate

WBPP: OSHA Whistleblower Protection Program

WPA: Federal Whistleblower Protection Act

Background: Part II Perfected Allegations of Wrongdoing.

The U.S. Office of Special Counsel (OSC) was created in 1979 as part of the Merit System Protection Board (MSPB), which itself was created as part of the broader reform of the U.S. administrative state under the 1978 Civil Service Reform Act (CSRA). For the first ten years, the OSC and the MSPB were linked together. However, when serious questions were raised about how this linkage created potential conflicts of interest between the two agencies. Consequently, when Congress drafted the 1989 Whistleblower Protection Act (WPA), it operationally separated the two programs, with the OSC limited to receiving and reviewing whistleblower disclosures to determine if the information they contained qualified as WPA disclosures [see 5 U.S.C., ⸹1213], and investigating whistleblower retaliation complaints for a prima facie case of prohibited personnel practices [see, 5 U.S.C., ⸹1214], which the MSPB would then adjudicate and take corrective action.

Key takeaways this investigation:

As the WPA statutory scheme reveals, the key to whistleblower protection is a timely review of a disclosure, followed by a timely investigation, or a timely OSC investigation of a whistleblower retaliation complaint, followed by a timely referral to the MSPB for corrective action. Timeliness is particularly important if PPP actions threaten irreparable harm to the whistleblower, which explains the short timelines: 45 days to conduct a simple OSC review of a disclosure, 60 days for an agency head to conduct an investigation and take corrective action and return a report of the investigation to the OSC, and 240 days for the OSC to conduct an investigation of PPP allegations and report that to the MSPB, with the OSC acting as the whistleblower’s legal counsel arguing the case during a MSPB hearing. Without these timely actions, the whistleblower suffers irreparable harm, and the evidence base degrades making it difficult, if not impossible, to conduct an independent, objective and credible investigation.

Further, as the disclosures alleged here argue: a) the development of a collaborate culture between the OSC and the system of agency Inspectors General who carry out OSC ordered actions, has produced wide-spread criminal wrongdoing by senior RMOs in the OSC and their Inspector General collaborators. Such collaborations, facilitated by the Counsel of Inspectors General on Integrity and Efficiency (CIGIE) ensure protection from accountability for IGs, who can and do convert orders for investigation into audits and are then protected by the CIGIE Integrity Committee, and protection from accountability for OSC Special Counsels and Deputy Special Counsels, also by the CIGIE Integrity Committee RMOs, in exchange for protecting senior IGs.

Relevant Statutes: WPA, 5 U.S.C., ⸹⸹1213 and 1214ⁱ

Statutes identify the general purpose of an agency, as well as describe its specific duties and obligations. For the purposes of examining the integrity of the OSC, the following statutes provide the context for the 1989 Whistleblower Protection Act as amended.

5 U.S.C., ⸹⸹702-706, provide the authority of the federal court for appeals from OSC wrongdoing.

5 U.S.C., ⸹1212 provides the statutory purposes and obligations of the OSC, including mandates regarding the duties of the OSC with respect to whistleblower protection.

5 U.S.C., ⸹⸹1213-1214, provide directions for the conduct of OSC reviews of whistleblower disclosures, referrals to the agency heads for investigation, and conduct of investigations of disclosures of whistleblower retaliation.

5 U.S.C., ⸹2302(b), details what constitutes prohibited personnel practices.

Authority of the Federal Court: 5 U.S.C., ⸹⸹701-706

The provisions of 5 U.S.C., ⸹⸹702-706 are part of Pub. L. 89-554, which created Title 5, Government Organization and Employees which codifies general and permanent laws concerned with the organization and management of the federal government, its senior officials and employees. It is a core part of the federal Merit System which, inter alia, authorizes aggrieved federal employee to bring a petition to federal court for relief from misconduct/wrongdoing by federal officials.

5 U.S.C., ⸹702, A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided that any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

5 U.S.C., ⸹703. The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.

5 U.S.C., ⸹704. Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.

5 U.S.C., ⸹705. When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.

5 U.S.C., ⸹706. To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be - (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

Protecting Federal Whistleblowers: 5 U.S.C., ⸹⸹1212-1214, 2302

5 U.S.C., ⸹1212(a). The OSC shall (1) protect employees, former employees, and applicants for employment from prohibited personnel practices; (2) receive and investigate allegations of prohibited personnel practices, and, where appropriate—bring petitions for stays, and petitions for corrective action . . . and file a complaint or make recommendations for disciplinary action . . .; (3) receive, review, and, where appropriate, forward to the Attorney General or an agency head . . . disclosures of violations of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

5 U.S.C., ⸹1213(b) Whenever the Special Counsel receives information of a [violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety] the Special Counsel shall review such information and, within 45 days after receiving the information, determine whether there is a substantial likelihood that the information discloses a violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety.

5 U.S.C., ⸹1213(c) If the Special Counsel makes a positive determination under subsection (b) of this section, the Special Counsel shall promptly transmit the information with respect to which the determination was made to the appropriate agency head and require that the agency head—(A) conduct an investigation with respect to the information and any related matters transmitted by the Special Counsel to the agency head; and (B) submit a written report setting forth the findings of the agency head within 60 days after the date on which the information is transmitted to the agency head or within any longer period of time agreed to in writing by the Special Counsel.

5 U.S.C., ⸹1213(d) Any report required under subsection (c) shall be reviewed and signed by the head of the agency and shall include— (1) a summary of the information with respect to which the investigation was initiated; (2) a description of the conduct of the investigation; (3) a summary of any evidence obtained from the investigation; (4) a listing of any violation or apparent violation of any law, rule, or regulation; and (5) a description of any action taken or planned as a result of the investigation, such as—(A) changes in agency rules, regulations, or practices; (B) the restoration of any aggrieved employee; (C) disciplinary action against any employee; and (D) referral to the Attorney General of any evidence of a criminal violation.

5 U.S.C., ⸹1213(e)(2) Upon receipt of any report that the head of an agency is required to submit under subsection (c), the Special Counsel shall review the report and determine whether (A) the findings of the head of the agency appear reasonable; and (B) if the Special Counsel requires the head of the agency to submit a supplemental report under paragraph (5), the reports submitted by the head of the agency collectively contain the information required under subsection (d). . . (3) The Special Counsel shall transmit any report submitted to the Special Counsel by the head of an agency under subsection (c) or paragraph (5) of this subsection, any comments provided by the complainant pursuant to subsection (e)(1), and any appropriate comments or recommendations by the Special Counsel to the President and the congressional committees with jurisdiction over the agency which the disclosure involves. . . (5) If, after conducting a review of a report under paragraph (2), the Special Counsel concludes that the Special Counsel requires additional information or documentation to determine whether the report submitted by the head of an agency is reasonable and sufficient, the Special Counsel may request that the head of the agency submit a supplemental report— (A) containing the additional information or documentation identified by the Special Counsel; and (B) that the head of the agency shall submit to the Special Counsel within a period of time specified by the Special Counsel.

5 U.S.C., ⸹1214(a)(1)(A). The Special Counsel shall receive any allegation of a prohibited personnel practice and shall investigate the allegation to the extent necessary to determine prohibited personnel practice has occurred, exists, or is to be taken. . .whether there are reasonable grounds to believe that a (B) Within 15 days after the date of receiving an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel shall provide written notice to the person who made the allegation that—(i) the allegation has been received by the Special Counsel; and (ii) shall include the name of a person at the Office of Special Counsel who shall serve as a contact with the person making the allegation. . .(C) Unless an investigation is terminated under paragraph (2), the Special Counsel shall—(i) within 90 days after notice is provided under subparagraph (B), notify the person who made the allegation of the status of the investigation and any action taken by the Office of the Special Counsel since the filing of the allegation; (ii) notify such person of the status of the investigation and any action taken by the Office of the Special Counsel since the last notice, at least every 60 days after notice is given under clause (i) . . .

5 U.S.C., ⸹1214(b)(2)(A)(i) Except as provided under clause (ii), no later than 240 days after the date of receiving an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel shall make a determination whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken. (ii) If the Special Counsel is unable to make the required determination within the 240-day period specified under clause (i) and the person submitting the allegation of a prohibited personnel practice agrees to an extension of time, the determination shall be made within such additional period of time as shall be agreed upon between the Special Counsel and the person submitting the allegation.

5 U.S.C., ⸹1214(b)(1)(A)(i) The Special Counsel may request any member of the Merit Systems Protection Board to order a stay of any personnel action for 45 days if the Special Counsel determines that there are reasonable grounds to believe that the personnel action was taken, or is to be taken, as a result of a prohibited personnel practice. (ii) Any member of the Board requested by the Special Counsel to order a stay under clause (i) shall order such stay unless the member determines that, under the facts and circumstances involved, such a stay would not be appropriate. (iii) Unless denied under clause (ii), any stay under this subparagraph shall be granted within 3 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date of the request for the stay by the Special Counsel.

Prohibited Personnel Practices: 5 U.S.C., ⸹2302(b)

5 U.S.C., ⸹2302(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—

(1) discriminate for or against any employee or applicant for employment—(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16); (B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a); (C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)); (D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or (E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;

(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or (B) an evaluation of the character, loyalty, or suitability of such individual;

(3) coerce the political activity of any person (including the providing of any political contribution or service) or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity.

(4) deceive or willfully obstruct any person with respect to such person’s right to compete for employment.

(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment.

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment.

(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a)(3) of this title) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official.

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of—(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—(i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—(i) any violation (other than a violation of this section) of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (C) any disclosure to Congress (including any committee of Congress) by any employee of an agency or applicant for employment at an agency of information described in subparagraph (B) that is—(i) not classified; or (ii) if classified—(I) has been classified by the head of an agency that is not an element of the intelligence community (as defined by section 3 of the National Security Act of 1947 (50 U.S.C. 3003)); and (II) does not reveal intelligence sources and methods.

(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—(i) with regard to remedying a violation of paragraph (8); or (ii) other than with regard to remedying a violation of paragraph (8); (B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii); (C) cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; or (D) refusing to obey an order that would require the individual to violate a law, rule, or regulation.

(9) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States; (11)(A) knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans’ preference requirement; or (B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans’ preference requirement;

(12) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title;

(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement—(A) does not contain the following statement: “These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General or

the Office of Special Counsel of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”; or (B) prohibits or restricts an employee or applicant for employment from disclosing to Congress, the Special Counsel, the Inspector General of an agency, or any other agency component responsible for internal investigation or review any information that relates to any violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or any other whistleblower protection; or

(14) access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13). This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a disclosure as defined under subsection (a)(2)(D) may be rebutted by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.

Preliminary Matter: GAO 2018 OSC Audit [18-400]

Before looking at the results of the investigation, as a preliminary matter, we need to review a Government Accountability Office (GAO) audit conducted during the course of this investigation. GAO audits are conducted by order of an oversight committee of Congress which gives them more weight than routine audits conducted by an Inspector General or other federal auditor. However, how an audit is shaped by the auditor highlighting or minimizing specific elements, has an outsized influence on how the audit is received.

In this case, the audit concealed and/or minimized serious violations of federal law, making it appear that the OSC was somehow exempt or excused from failing to follow the WPA. As will be documented in Part IV of this investigation, when this was brought to the attention of the senior GAO auditor, she destroyed the evidence of wrongdoing by both the OSC and the GAO auditors.

GAO-OSC Audit [18-400], dtd 16 June 2018, titled, Actions Needed to Improve Processing of Prohibited Personnel Practice and Whistleblower Disclosure Cases covered the period from FY 2011 to FY 2016.

This audit coincided with the first 15 months of OSC’s management of disclosure (DI-15-1950), and the first 06 months of the OSC investigation of PPP complaint (MA-16- 3007), suggesting OSC mismanagement of this disclosure and complaint was known to OSC senior RMOs as they worked on these projects. As the Audit was released first to OSC Special Counsel, Henry J. Kerner on 30 May 2018, who agreed to its seven (7) recommendations, claiming “I have already taken steps to implement them,” exposes his lack of integrity regarding his corruption of OSC processes.

Protected by the GAO Auditors, the DoL Office of Inspector General, and the CIGIE Chair and his CIGIE Integrity Committee, Special Counsel Kerner secured a place on the three-member MSPB Board in 2020 where he is reviewing OSC whistleblower cases he corrupted.

Audit Findings, with comments

During the Audit period FY 2011 to FY 2016, the audit found:

01. The number of PPP cases increased more than 50%. [Reflecting the failure to protect whistleblowers?]

02. The number of disclosures of wrongdoing cases increased almost 100%. [WHY?]

03. Processing time for initial “substantial likelihood findings in disclosure cases, required by statute to be completed in 15 days, increased almost 300%, from 10 to 29 days. [WHY?]

04. In fiscal year 2016, OSC approved on average 2.7 extensions for Agency investigations of whistleblower PPP disclosures, an average processing time of 690 days for statutorily mandated 60-day investigations, or more than 11 times beyond the statutory limit [degrading the evidentiary base and causing irreparable harm to the whistleblower].

05. OSC did not provide whistleblowers with specific information on timelines. [To what effect?]

06. Audit states: “If a federal employee, applicant, or former employee believes they have been subjected to a PPP, they can file a complaint with OSC using OSC Form 11 or submit correspondence.” (But what happens in actual OSC practices? No audit answer.)

07. The Case Examining Unit (CEU) may forward to the Retaliation and Disclosure Unit (RDU) hybrid cases involving both a disclosure and an allegation of PPP, or may directly refer cases to Alternative Dispute Resolution (ADR) or directly to IPD. (The WBP does not authorize ADR! Why didn’t the audit note this?)

08. The CEU examiner may determine a complaint contains evidence of a PPP or other activity that warrants further investigation by OSC, when the examiner reviews the information contained in the complaint, speaks with the complainant and may also contact liaison officials at the federal agency in question. The examiner may also request information from those parties. (WPA directs that determining PPP is not optional, but mandatory. Why did the audit fail to reflect this?)

09. After CEU’s review is complete, CEU could: (1) close the case, (2) refer the case to the ADR Unit for evaluation for potential mediation, or (3) refer the case to the IPD for further investigation. When referring a case to either office, CEU has determined information in the case shows there are reasonable grounds to believe a PPP has occurred, exists, or will occur. [There is no WPA authority for this practice. Why did the audit fail to see that?]

10. ADR reviews complaints to determine whether they are appropriate for mediation after the CEU has referred them for investigation, but before any investigation has occurred. [There is no WPA authority for this practice, which in all cases obstructs investigations.]

11. IPD investigates PPP allegations for OSC, and in some instances where there is evidence that supports the allegations in a complaint, IPD may attempt to settle a complaint with the agency or refer the case to ADR if the investigator deems it appropriate. [Again, there is no WPA authority for this practice, which in all cases obstructs investigations.]

12. At any time during the PPP process, the OSC may pursue favorable actions, such as: stays,

corrective action, systemic corrective action, and/or disciplinary actions. [But does this happen

in practice?]

13. OSC takes the following steps in the whistleblower disclosure process: a) OSC reviews the case to determine whether it constitutes a whistleblower disclosure defined by statute and if OSC has jurisdiction; b) If OSC determines the case constitutes a disclosure, the DU examines the material provided by the whistleblower, interviews the whistleblower, and requests additional information if needed. c) The assigned attorney determines whether there is a substantial likelihood the information discloses one of the types of wrongdoing described above. [Does this actually happen in practice? No auditor response.]

14. When there is a substantial likelihood finding, OSC submits a referral letter to the agency head, requiring an investigation of the allegations and written report to OSC in 60 days, or within any longer period agreed to in writing by the Special Counsel. [This is an open-ended process with no accountability for any abuse of authority.]

15. OSC also can informally refer the allegations to the subject agency’s general counsel, if the allegations do not meet the substantial likelihood threshold and are less egregious. [No WPA authority for this practice, and now a violation of 5 U.S.C., ⸹7515(c).

16. When OSC receives the agency’s report, OSC’s assigned attorney is to review the report to determine whether it contains the information required and whether the report findings appear to be reasonable. [No, a violation of WPA which tasks this to the Special Counsel.]

17. Agency heads are required to ensure, in consultation with OSC, that employees are

informed of the rights and remedies available to them under the WPA, as amended [5 U.S.C.

§ 2302(c)(1)(B), (2)(C)]. In 2002, OSC established a “2302(c) Certification Program” to

provide agencies and agency components with a process for meeting this mandate. [But, no auditor question as to whether it been successful after 16 years?]

18. Many federal workers and applicants for the federal workforce incorrectly submit PPP allegations as whistleblower disclosure allegations because they don’t understand the difference between PPP and disclosures. [False. The WPA allows for mere correspondence, which the OSC ignores.]

19. Starting in 2013, incoming PPP cases were assigned to non-CEU staff across the agency, including employees in the Hatch Act Unit, which normally processes cases involving

alleged illegal political activities. [Did that degrade the intake process? No auditor questions.]

20. OSC revised its review process in 2014 to help process the higher number of cases

originating from VA, which included a focus on expedited settlements for PPP cases. [A fundamental violation of the WPA.]

21. Major factor contributing to lengthy processing times for whistleblower investigations is the length of time it takes agencies to conduct their investigations. By law, the agency is mandated to respond to the allegations within 60 days. OSC granted extensions in most cases and 88% of all extension requests, and in any given year granted at least 83% of extension requests. [An OSC systematic abuse of authority, prompted by OSC senior leadership’s management failures.]

22. OSC did not receive agencies’ responses within 60 days for any of the 71 agency referrals it closed in FY 2016. The median days between the referral and agency response was 169 days and took more than 200 days, or more than three times longer than the statute mandates. [More abuse of authority by the OSC.]

23. OSC did not adhere to relevant federal internal control principles: a) CEU lacks documented, complete procedures for processing PPP cases, such as priorities, obtaining favorable actions, staff productivity expectations, and supervisory review; and b) OSC was unable to locate 8.3% of closed case files, and the processing whistleblower disclosures includes “outdated” practices, such as an informal referral process to agencies OIG. [Not an “outdated” practice - a violation of the WPA reflecting deeply embedded corruption.]

24. OSC does not have a systematic, standardized training for OSC employees who review and process PPP and whistleblower disclosure cases. [Gross mismanagement by OSC.]

Comments

Even as it reflected criticism of OSC management, the 2018 GAO audit of the OSC failed its mission to inform Congress about the integrity of OSC management, because it lacked focus, context and a basic knowledge of WPA statutes, which together mislead Congress about OSC failures to follow statutory mandates. Specifically:

01. There is no evidence GAO auditors compared OSC management to WPA statutory to test whether OSC practices effectively protected whistleblowers as mandated by the WPA, an essential element of all performance audits (see notes to Findings, above).

02. The audit exhibits a bias in favor of OSC management representations rather than an objective and independent analysis, reflected in how auditors describe and excuse OSC’s statutory failures, which violates an auditor’s duty to maintain objectivity in the conduct of an audit and avoid even the appearance of undue influence [see, Government Auditing Standards, accessed 20 June 2024 at https://www.ignet.gov/content/quality-standards)

03. This appalling account of gross mismanagement, abuse of authority, and systemic OSC violations of the WPA produced NO investigation or corrective action by Congress, thus allowing this wrongdoing to continue.