Office of the Special Counsel
The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency whose authority derives from the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA).
For the purposes of enforcing whistleblower protections, he OSC has two functions:
- Investigation complaints of retaliation for whistleblowing; and
- Reviewing and pursuing whistleblower disclosures where employees report waste fraud or abuse.
1. Retaliation Complaints
Election of Remedy
If you a union member covered by collective bargaining agreement providing for negotiated grievance, that grievance procedure is an alternative to the OSC/MSPB route. Once you make this selection, however, it is irrevocable and becomes your exclusive remedy.
Two Types of Whistleblower Complaints
Whistleblower retaliation complaints must first be brought to OSC although more serious adverse personnel actions, such as terminations or demotions may be brought directly to the Merit Systems Protection Board (MSPB).
If OSC fails to act or dismisses your complaint, you can go to MSPB. Complaints brought first to OSC versus ones filed first with MSPB carry different procedural burdens and features.
If OSC accepts your complaint, it can request the agency to stay the personnel action or even go to MSPB to obtain a stay order. It is supposed to investigate the complaint, make findings and recommend corrective action to the agency but not exceeding the relief available at MSPB. This investigative process is not quick and OSC staff is swamped with more complaints than they can handle.
OSC also offers mediation of complaints, which can lead to quick settlement of matters that could otherwise take years.
If the agency declines to take corrective action, OSC can bring an action on behalf of the employee to MSPB, but this is rarely done. OSC can also bring disciplinary cases against retaliating managers to the MSPB, but this also a rarity. Instead, OSC relies mainly on voluntary compliance by agencies.
2. Whistleblower Disclosures
OSC also accepts whistleblower disclosures. Disclosures do not seek relief for retaliation against the whistleblower. Instead, this a venue by which an employee can blow the whistle, that is, report violations of laws, gross mismanagement or waste of funds, abuse of authority or specific dangers to the public health and safety.
If OSC determines that the disclosure has a “substantial likelihood of validity,” it refers the information to the agency head for investigation. Although OSC by law is supposed to make this determination within 15 days, it usually takes far longer.
Once OSC makes that determination, it then refers the matter to the relevant Cabinet secretary or other top official for a reply. The agency then must report back to OSC the results of any investigation to verify the whistleblower disclosure plus any corrective action it will take. The whistleblower can comment on the agency report. OSC then makes an independent determination as to whether the agency response is reasonable and complete. If it finds the response lacking it can order additional review.
At the end of this process, the Special Counsel transmits a final report to the President and the congressional committees with oversight of the agency, and posts the report on its website, along with the whistleblower’s comments.
This OSC disclosure avenue has the advantage of transparency and a review process in that the agency reply is subjected to rebuttal by the whistleblower and outside scrutiny. This is in many ways superior to a disclosure to an Inspector General which has the discretion to ignore the disclosure, reframe it or delay an investigation until the matter is moot.
In our experience, OSC disclosures have had impacts, such as reforming the federal land and mineral appraisal process or exposing boondoggle public works projects.