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This week, the U.S Office of Special Counsel (OSC) presented their report regarding the allegations made by four whistleblowers about retaliation at U.S Port Mortuary in Dover, Delaware's Air Force Base. The report reviewed events that occurred over a 17 months period in 2009 and 2010. It concluded that three Port Mortuary officials had indeed retaliated against the four whistleblowers, and a recommendation was made by OSC to take disciplinary action against the officials.

The four civilian employees disclosed a variety of ways in which some remains of soldiers' bodies had been disposed of without proper respect. Thereafter, these employees suffered retaliation ranging from five day suspensions, indefinite administrative leave, and job terminations. Some of the disclosures were the subject of a November 2011 OSC report regarding allegations on the mishandling of remains at the Mortuary. Under the Whistleblower Protection Act the reprisals were illegal.

The investigation conducted by OSC on the whistleblowers’ retaliation claims found the allegations to be true. OSC now seeks corrective action for the whistleblowers and disciplinary action against the officials who imposed the prohibited personnel practices (PPPs). OSC reports that Air Force officials are working with OSC to provide relief to these whistleblowers.

If the Air Force and OSC do not reach agreement, OSC can pursue disciplinary action against civilian employees before the Merit Systems Protection Board (MSPB). However, MSPB does not have jurisdiction over active military personnel. One of the officials who engaged in retaliation is active military. OSC cannot pursue a case against him at the MSPB but can instead recommend the Air Force discipline the official.

See Special Counsel Carolyn Lerner speak with CNN's John King.

Intern Laura Berumen wrote this blog entry.

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The American Bar Association (ABA) is holding a brown bag lunch panel with staff members from the Office of Special Counsel (OSC) on Thursday, November 3rd, from 12:00 pm-1:30 pm EST. The panel discussion will cover recent developments in Merit Systems Protection Board (MSPB) and Federal Circuit case law that impact whistleblowers. The panel will also discuss matters within OSC’s jurisdiction, practice tips for attorneys representing clients in OSC matters, and the Special Counsel’s new policy initiatives.

The panelists for the presentation are: Mark Cohen, Deputy Special Counsel of OSC; Shirine Moazed, Chief of the OSC’s Washington Field Office; and Andrew J. Perlmutter, Attorney at Passman & Kaplan, P.C. (Moderator).

You can attend the event in person at 740 15th St. NW, John Marshall Room, 9th floor, Washington, DC 20005 or by teleconference.

The event is open to the public, but prior registration is required and space is limited. You do not need to be an ABA member to attend. Please return the registration form by Tuesday, November 1st. Any questions please contact Ryan Spagnolo at ryan.spagnolo@americanbar.org.

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Last Thursday, April 14, 2011, the Senate confirmed Carolyn Lerner as Special Counsel. This post, which investigates and takes positions on federal employee whistleblower allegations, has been vacant for over two years. I reported here last month about her confirmation hearing.

Ms. Lerner has a difficult job ahead of her. Her staff is underfunded, and the law does not give her office all the tools it needs to effectively protect whistleblowers. Notably, her office does not have the power to order federal agencies to reinstated whistleblowers who are wrongly fired.

The previous administrations were notorious for failing to protect whistleblowers, and Ms. Lerner will need to dramatically and quickly change the culture of the Office of Special Counsel. I do not know if the incumbent staff has investigated or prepared any cases that are ready for action. It may take many months for us to see if Ms. Lerner's leadership can accomplish the kind of improvements we hope for.

The Senate digest reports that the Senate confirmed Ms. Lerner for a term of five (5) years. Ms. Lerner was a founding partner of the Washington, DC, civil rights and employment law firm called Heller, Huron, Chertkof, Lerner, Simon & Salzman. I extend my best wishes to her in this challenging and important office.

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Scott Bloch, the former head of the Office of Special Counsel (OSC), was sentenced to one month in prison, twelve months probation and 200 hours of community service yesterday, after he pled guilty to criminal charges for his misconduct during is tenure at OSC. 

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The Office of Special Counsel (OSC) is the federal government's attorney charged with protecting federal employee whistleblowers. It took President Obama a long time to finally pick a nominee for this position. Today, the Senate Homeland Security and Government Affairs Committee (HSGAC) held a hearing on that nominee, Carolyn Lerner.  One thing that Sen. Daniel Akaka and I agree on is that Carolyn Lerner is "a well-qualified nominee." You can read Sen. Akaka's introduction here, and Carolyn Lerner's prepared statement here. Follow this link to the Committee's video of the confirmation hearing. I can also agree with Sen. Ron Johnson that the Special Counsel is an important position that plays a key role in protecting people who want to come forward and do the right thing. Sen. Johnson lamented that the office has gone two years without a leader, and expressed thanks that the Committee could finally hold this confirmation hearing.

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Former Special Counsel Scott Bloch pled guilty earlier this year to one count of criminal contempt of Congress. He was due to be sentenced on Wednesday, but it was delayed so that the magistrate judge can decide whether there is a minimum one-month mandatory jail term. The statute (2 U.S.C. Section 192) says a person “shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”

Bloch and the government both claim that the plea deal reached was based on a sentence of probation, a fine and community service. The prosecutors are not seeking jail time. The court is not bound by the plea deal, but if the judge rules that there is a minimum one-month sentence, Bloch could move to withdraw his plea deal.

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We are deeply disappointed at the letter from Darshan A. Sheth, Acting Director of Public Affairs for the Office of Special Counsel (letter to the editor, Washington Post on Monday, July 26, 2010). There is bipartisan consensus that the Office of Special Counsel (OSC) is dysfunctional, and instead of suggesting reforms, the OSC responded to this criticism by obfuscating its record. This is a bureaucracy that has failed to protect whistleblowers for the past ten years.

The letter from the OSC fails to mention the most recent statistics it released, which show that during fiscal year 2008 the OSC ignored 95% of whistleblower disclosures without any investigation and obtained zero stays from the Merit Systems Protection Board. Indeed the letter notes that there is an “increase in the number of whistleblower reprisal complaints“ even as the OSC continues to do little or nothing to support the whistleblowers who file these complaints.

The only way for whistleblowers to be truly protected is if this defensive posturing by the OSC ends.  Real reform must occur, and President Obama must appoint a new chief watchdog at the OSC who will protect and champion the whistleblower. 

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On the eve of former Scott Bloch’s criminal sentencing hearing, Dave Nolan hoped to send a message to President Obama; the Office of Special Counsel needs change, too. Scott Bloch is scheduled to be sentenced today, July 20^th, for withholding information from the House Oversight and Government Reform Committee about having files on his computer professionally deleted in 2006. Under the terms of Bloch’s plea, he could receive up to six months in prison and a $5,000 fine.

Photo: Dave Nolan and NWC Intern Kevin Heade

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Former U.S. Special Council for the Office of Special Council (OSC) Scott Bloch has been charged with criminal contempt of Congress for withholding “pertinent” information from the House Oversight and Government Reform Committee. Bloch, the head of an office designed to protect whistleblowers and enforce anti-discrimination laws, allegedly retaliated against employees and dismissed whistleblower cases without fully investigating them. Bloch resigned in October 2008 amid these allegations, and the office has remained vacant under the Obama administration.  See Truthout.org coverage of the Bloch scandal for more information

The National Whistleblowers Center has since called for President Obama to appoint a new Special Council who will protect whistleblowers. In a statement, Stephen Kohn, Executive Director of the National Whistleblowers Center said:

The new (Special Council) appointee must be top notch and must have the background and experience, not only as a proven strong advocate for whistleblowers, but as a tough and aggressive enforcement official…Whistleblowers need a real advocate and a powerful voice within the administration.

The OSC has a duty to fully review legitimate whistleblower claims, and employees should not be retaliated against in an office structured to combat that very behavior within the government. The Office of Special Council has had a highly criticized history, but President Obama can write a new chapter and fulfill his campaign promise to appoint a Special Council who will protect whistleblowers.  

The public can help this cause by taking action and sending a letter supporting the appointment of a true whistleblower advocate for Special Council.

*Philip Barrett (NWC Intern) contributed to this post

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GovernmentExecutive.com reports that President Barack Obama still has not appointed anyone to lead the Office of Special Counsel (OSC). The article quotes leaders of a federal employee union, Danielle Brian of the Project on Government Oversight (POGO) and former OSC officials who all agree that a new Special Counsel is needed.  OSC investigates reports by federal employee whistleblowers, and can intervene to protect their jobs from retaliation. It has been eighteen (18) months since the former Special Counsel, Scott Bloch, was forced out amidst scandal.  This protracted time without a permanent leader is unprecedented for OSC. "We need a win for whistleblowers," Brian said, "and we have not had one."

One candidate for Special Counsel, Dave Nolan, has asked the National Whistleblowers Center (NWC) for an endorsement, and we gave it. He is currently Legal Director of the Federal Ethics Center, and he has endorsed H.R. 1507, the version of the Whistleblower Protection Enhancement Act (WPEA) that would give federal employees a genuine right to jury trials for whistleblower retaliation claims.

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