The Office of Special Counsel (OSC) is the lead advocate in the U.S. government, for the protection of federal employees against whistleblower retaliation. OSC has existed since 1979, and their performance history has included numerous stretches of ineffectiveness. However, that appears to have changed, after Special Counsel Carolyn Lerner was sworn in at OSC, on June 17, 2011. OSC has since become largely rejuvenated and is beginning to provide timely and in-depth whistleblower support.
One of the important members of Ms. Lerner’s staff is Jason Zuckerman, who became her Senior Legal Advisor in July 2011. Online documents shed light on the professional background and values of Mr. Zuckerman. Here is an excerpt from an article he wrote in the Fall 2006 issue of Docket Call, the newsletter of the Young Lawyers Conference at the Virginia State Bar:
“Eleven years ago, I was contemplating a response to a law school application essay about what inspired me to become a lawyer. I wrote my essay about Atticus Finch, the attorney in Harper Lee’s To Kill a Mockingbird who stands up for justice by defending an African American falsely accused of raping a Caucasian woman in the Depression-era South. Going into law school, I hoped to become a civil rights lawyer.
“While I was fortunate to do a lot of volunteer legal work in law school for prison inmates, I did not go into public interest law immediately after law school. The opportunity to get good training and pay off law school loans led me to practice at a big firm in D.C. While I had a much better experience at a big firm than I would have ever expected, I realized five years out of law school that I wanted my practice to focus more on serving the public interest. About a year and a half ago, I started my own practice focused on representing whistleblowers in retaliation claims and in qui tam actions. As I read about recent surveys showing record associate dissatisfaction, despite record salaries, I feel fortunate to have found a practice that is very satisfying and rewarding. The following are some of the reasons to consider practicing whistleblower law:
“Representing whistleblowers is about more than just pursuing a client’s pecuniary interest. Litigating whistleblower cases serves a public interest by exposing and in some cases, rectifying fraud and threats to public health and safety. In just the past year, I represented individuals who blew the whistle on lax security at a nuclear power plant, unsafe work conditions, deficient aircraft maintenance, predatory lending, billing fraud in a government contract, Medicare fraud, accounting fraud, and securities fraud….”
That was 2006. Six years later, Ms. Lerner and Mr. Zuckerman had both been on board at OSC for a year, and news articles about OSC performance had become predominantly positive, when this June 2012 interview was done by Camille Tuutti at FCW.com:
FCW: How can federal managers foster a more ethical culture, especially amid budget pressures and anti-government sentiments?
Zuckerman: I’m glad that you ask about culture because in my experience representing whistleblowers, culture makes all the difference. Optimal policies or procedures don’t amount to much if the culture is broken.
Management must make ongoing efforts to reinforce an ethical culture. This includes offering ongoing training, rewarding ethical conduct and holding employees at every level accountable for unethical conduct. Management must lead by example and set the right tone at the top. For example, management should praise employees for disclosing wasteful spending or unethical conduct.
FCW: What can federal managers and employees do if faced with an ethical dilemma?
Zuckerman: The Merit System Principles and the 14 principles of ethical conduct are a good starting point to assess the best path forward when confronting an ethical dilemma.
The first principle is that “public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain.” In other words, federal employees have a duty to act in the public interest and should oppose unlawful or unethical conduct.
Similarly, ethics principle No. 11 requires employees to disclose waste, fraud, abuse and corruption to appropriate authorities, and merit principle No. 4 requires federal employees to maintain concern for the public interest.
Disclosing wasteful spending, gross mismanagement, and dangers to public health or safety is an important responsibility of every federal employee. But understandably, many employees fear reprisal, and fortunately, employees can disclose wrongdoing anonymously to an inspector general or to OSC.
It’s important for an employee to understand the scope and limitations of applicable whistleblower protection laws, including loopholes that leave whistleblowers with little or no protection against reprisal. Hopefully, those loopholes will be eliminated if Congress enacts the Whistleblower Protection Enhancement Act.
FCW: You have said that the number of whistle-blower cases filed with OSC has increased. What is behind that trend?
Zuckerman: OSC is experiencing significant increases in its caseload in all program areas, including a substantial increase in whistleblower disclosures and whistleblower retaliation complaints. Special Counsel Carolyn Lerner has injected a new vigor in the agency and raised the public profile of OSC. Over the past year, OSC has handled several high-profile matters, demonstrating its critical role in helping whistleblowers disclose and remediate waste, fraud and abuse, and other wrongdoing and showing that OSC will protect whistleblowers who suffer reprisal.
As OSC becomes more visible and continues to demonstrate its effectiveness, more employees will disclose wrongdoing to OSC and seek relief when they are subjected to whistleblower retaliation. Also, at a time when government is focused on cost cutting, more employees understand the importance of identifying and reporting wasteful spending, gross mismanagement and abuse of authority. Indeed, disclosures to OSC about wasteful or improper spending go a long way in promoting efficiency and accountability in government and saving taxpayer dollars.
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A closing thought, regarding OSC’s resurrection, and how it relates to FAA…
It is beyond dispute that FAA’s work culture was seriously dysfunctional by the end of 2008; that, for air traffic controllers, the years of imposed work rules and draconian maltreatment had taken a great toll. It is also quite clear, from the record, that other agencies that were essentially broken in late 2008 included FLRA, MSPB, NTSB and OSC. Since then, both NTSB and OSC have made great progress. MSPB has improved substantially. The report card on FLRA is not clear.
FAA is the only one of these five agencies that has failed to clean up. Especially, in view of the latest failures exposed by the Dreamliner battery fires, FAA remains in failure mode, mired in a deep mud-pit of dysfunction.
We face major serious economic changes in our funding of government. Soon, the Public will demand: FAA must clean up its act. OSC can help make that happen, if they will assist the many whistleblowers who have been clearly damaged by this rogue agency.
UPDATE, 10/4/2014: — Mr. Zuckerman left OSC in November 2013.