YourABA December 2011 Masthead

A new day for the Office of Special Counsel, say panelists at ABA program

There’s no denying that the Office of Special Counsel has seen some tough times, so it’s not surprising that—some 4 ½ months into the term of new special counsel, Carolyn Lerner—many are withholding judgment as to whether real change is forthcoming.

The OSC, recent developments in the Merit Systems Protection Board and federal circuit case law that impact whistleblowers, were among the topics of discussion during a  panel program in November sponsored by the Section of Administrative Law and Regulatory Practice’s Government Personnel Committee. 

As Mark Cohen, its deputy special counsel, explained, the OSC is a small, independent agency that provides a safe channel for federal employees to come forward with whistlelower disclosures and other complaints about prohibited personnel practices, and also promotes the integrity of civil service by ensuring that federal employees don’t participate in partisan activities on duty. 

Among the goals of the OSC vis-à-vis retaliation claims—again according to Cohen—are: ensure that the workplace is a friendly place for those with the courage to speak up; handle claims quickly, especially through alternative dispute resolution processes; facilitate better communications immediately following a claim; increase the frequency of customer satisfaction feedback opportunities; expand stays to protect employees against removal while claims are being investigated; and undertake a new pilot project to secure quicker resolution of retaliation claims.

Shirine Moazed, chief of the Washington field office of the OSC, spoke about the practical processing of whistleblower retaliation cases, where there is a requirement to show:  protected disclosure; personnel action; actual or constructive knowledge of the protected disclosure; and that the protected disclosure was a contributing factor in the personnel action.  

In handling a retaliation claim, said Moazed, the office seeks to keep investigations—like OSC’s overall processes—as transparent as possible.  Investigators and attorneys look at all the relevant evidence, including evidence provided by both complainants and agencies.  Moazed outlined some of the red flags that may result in her office moving forward with a claim.  If a really strong disclosure is made, there is greater motive to retaliate, and that grabs the attention of the OSC.  The agency also looks at the timing of the personnel action.  If an employer takes action the day after a disclosure is made, for example, that raises a red flag.

Additional issues that appear on the radar screen of OSC are a trail of emails; statements of animus—which are often found in interviewing witnesses; and  disproportionately harsh discipline taken against the employee.  The use of “chain of command” language by the employer is also a red flag.

The panelists also answered audience questions regarding mediation and its availability, dealing with classified information, and the availability of corrective and/or disciplinary action following retirement of an employee. 

Andrew J. Perlmutter, attorney at Passman & Kaplan, P.C., and co-chair of the Government Personnel Committee, served as moderator of the program.

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