What is the history and purpose of OSC?
The Office of Special Counsel (OSC) was formed with the Civil Service Reform Act of 1978. As it relates to FAA, OSC’s primary purpose is in two areas: first, to protect federal employees from prohibited personnel practices such as whistleblower retaliation; and second, to enforce the Hatch Act (to ensure federal employees do not engage in partisan politics).
OSC was initially an independent investigative and prosecutorial arm of MSPB. Then, with passage of the Whistleblower Protection Act in 1989, OSC became an independent agency.
Who are the key people within OSC?
The OSC website says they have roughly 110 employees, in their DC headquarters office as well as at field offices in Detroit, Dallas and Oakland. OSC is headed by Special Counsel Carolyn Lerner, a Presidential appointee. Her full five-year term runs until June 2016. Deputy Special Counsel is Mark Cohen. Two other key officials (relevant to FAA Whistleblower cases) are Lisa Terry (General Counsel) and Catherine McMullen (Chief, Disclosure Unit).
What is a disclosure, and how do I file it?
A ‘disclosure’ is the presentation of information by a current or former federal employee or applicant with a reasonable belief that it is evidence of a variety of failures. These include: a violation of any law, rule or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; a substantial and specific danger to public health, or, a substantial and specific danger to public safety. Filing can be done online or via mail.
Can the Public see the record on Disclosures?
At the completion of each disclosure that is referred to an agency for investigation, the Office of Special Counsel sends a report to the President and Congress. Copies are posted online, on the annual Public Files pages. Here is a link to the OSC portal for Public Files pages; it links to separate reports for 2009-2013.
The presentation is a bit cryptic, but all (or at least most?) of the key records are viewable via PDF links. For each annual Public Files page, a line is constructed presenting links related to each disclosure. The links typically include:
- Letter to the President (may include followup letters)
- Investigative Report (typically by DoT-IG)
- Analysis (and possible supplemental analysis)
- Agency Report (and possible supplemental reports)
- Whistleblower Comments (and possible supplemental comments)
One of the more tedious aspects of the current presentation is that any single Disclosure may have parts documented/linked on many different pages. That is, due to the tendency for FAA to delay case handling, the cases drag on for many years, and OSC then posts the records on the Public Files pages for year-one, year-two, year-three, etc. This needs to be fixed.
What is OSC’s process for FAA WB disclosures?
A typical FAA whistleblower disclosure follows this sequence:
- The whistleblower files the information with OSC’s Disclosure Unit.
- In accordance with 5 U.S.C. § 1213, OSC is required to review the submitted records and, within 15 days, determine whether there is a substantial likelihood that the disclosure information reveals a violation, waste, danger etc.
- If the determination is positive, OSC then promptly transmits a letter to the DoT Secretary, requiring an investigation and a written report back to OSC within 60 days.
- Normally, the investigation is conducted by the DoT-IG (inspector general).
- The investigative conclusions are processed by DoT and FAA officials and, eventually, are shared with OSC as the Agency response. The timing routinely goes far beyond the official 60-day time limit.
- OSC will then share a copy back with the whistleblower, who is invited to submit his/her comments.
- It is not unusual for an additional round of comments by both agency and whistleblower to follow, before OSC makes their final decision.
- In some cases, OSC prepares an Analysis of the case.
- At the end, OSC submits a letter to the President (and to appropriate congressional committees), reporting the entire process and conclusions.
The whole process typically stretches out for years, during which time the Whistleblower experiences retaliation, and is often fired or forced to retire.
How might OSC improve their transparency & performance?
OSC has had a ‘colorful history’ in which many good citizens who spoke up about safety, fraud, waste and other failures have turned to OSC for help … which has failed. There have been some success stories, but they are few and far between.
It is admirable that the present administration has posted records in Public Files for the years 2009 onward, but the Public should also see the records for past years. And, if any of those records were lost or destroyed in earlier times (when OSC was more openly hostile against Whistleblowers), OSC should post that fact in black-and-white. OSC would also better serve the Public if they reformatted their presentation on each Disclosure; i.e., an interested citizen should be able to see ALL records for EACH case, cleanly laid out in one location.
As for Performance, FAA Whistleblower David Pardo drafted a good article on 4/15/12, and posted it at MSPBWatch: “Is it time to re-examine OSC’s informal resolution practice?” David is a lawyer and one of the most passionate advocates for reforming our system, which still routinely fails to support the FAA/Aviation Whistleblower. This particular article presents a lot of data, backed up with many links. The reading can be tough, but so is the subject. So, if you are truly interested in the Whistleblower process at FAA, take the time to focus on David’s content. You can gain a lot of keen insight into what works — and fails — at OSC. Here’s a good link to look at the challenging process (and hyper-spin) of OSC Disclosures: http://mspbwatch.org/tag/disclosure-unit/