Congressional Questions Office of Special Counsel and Merit Systems Protection Board

All Americans rely on federal employees in a number of agencies doing their work, without fear or favor, in protecting and advancing the public health, safety, and welfare, particularly during a war on terror.

Therefore, we support a federal workplace that is free from prohibited personnel practices (PPPs), particularly whistleblower reprisal. By current law, most specifically the Federal Whistleblower Protection Act of 1989 (WPA), federal employees who responsibly act on their concerns, particularly if it involves blowing whistles, rely on the U.S. Office of Special Counsel (OSC) and the U.S. Merit Systems Protection Board (MSPB) to protect them from retribution.

We think Congress, as others, should be able to reasonably assure federal employees, based on results of Congressional or other third-party oversight of OSC, that OSC is, at a minimum, complying with its statutory obligations to protect them from retribution.

Both OSC and MSPB are due to be re-authorized by Congress by the end of FY 2007. On March 22, 2007 the Senate Subcommittee for Oversight of Government Management, the Federal Workforce, and the District of Columbia held a hearing about re-authorizing OSC and MSPB. The heads of OSC and MSPB were the two witnesses. The hearing record is being kept open until March 29, 2007 which means any member of the Subcommittee can add a statement or enter questions into the record of the hearing. Any questions entered into the record will be answered in writing and become part of the hearing record.

We respectfully request the following questions for OSC and MSPB be entered into the hearing record as part of Congress ensuring OSCs and MSPBs compliance with law and Congressional intent in protecting federal employees from PPPs, particularly whistleblower reprisal.

Questions for OSC, based OSCs 2004 Annual Report to Congress, and a published decision of a Federal Appeals Court

1) How many specific PPPs allegations were contained in the 5529 PPP complaints OSC dispositioned in FY 2002 - 2004?

2) Of these, in how many did OSC make a positive PPP determination - there are reasonable grounds to believe a PPP has occurred, exists, or is to be taken?

3) Of these, in how many were negative PPP determinations made?

4) If the numbers do not add up, what is the explanation for the discrepancy, given OSCs statutory obligation to make and appropriately report this positive or negative PPP determination?

5) OSC claims to have obtained 321 favorable actions in 255 cases in FY 2002-2004. How many positive PPP determination reports did it make to the Merit Systems Protection Board (MSPB) during this time, per 5 USC 1214(b)(2)(B), as required by a 2000 court decision in Weber v. Department of Army, 209 F.3d 756, 758 (D.C. Cir. 2000)?

6) Do OSC PPP investigation termination letters contain the required termination notice of 5 USC 1214 (appendix)? If not, why not?

7) Does OSC provide the information described in the termination statement, by phone, when requested by the complainant? If not, why not?

8) Do OSCs PPP termination letters report OSCs statutory required PPP determination or only OSCs discretionary determination about seeking corrective action on behalf of the complainant at MSPB?

9) How can the heads of agencies comply with their statutory obligations to prevent PPPs in their agencies (see 5 USC 2302(c)), if OSC does not formally report all its positive PPP determinations?

10) How can the information required by the No FEAR act (see 5 USC 2301 appendix) be compiled if OSC does not formally report all its positive PPP determinations?

Questions for MSPB relative to its responsibilities to protect federal employees from prohibited personnel practices (PPPs)

1. When and how often since 1989 has MSPB complied with its statutory obligation, per 5 USC 1204(a)(3), to report to the President and to the Congress as to whether the public interest in a civil service free of PPPs is being adequately protected.

2. Since the Office of Special Counsel (OSC) has primary responsibility to protect federal employees from PPPs, can MSPB make its required report without first using its authority, per 5 USC 1204(e)(3), to review OSCs compliance with statutory obligations to protect federal employees from PPPs?

3. Does MSPB know, for each year since 1989, how many PPPs occurred, of which type, and in which agencies, based on its or OSCs determination? If not, why not and how can it make its statutory required reports about PPPs without such information?

4. Does MSPB refer to OSC for investigation for possible disciplinary action all its determinations that (b)(2) to (b)(12) PPPs occurred, or only (b)(8) ones? If not, why not?

5. Why is the evidentiary standard - substantial likelihood - found in MSPB regulations at 5 CFR 1209 for whistleblower stays greater than the statutory established evidentiary standard - reasonable grounds to believe - for OSC stay requests made per 5 USC 1214(b)(1)? Does the law allow MSPB to use reasonable grounds to believe as its evidentiary standard for whistleblower stays?

6. How many whistleblower stays have been sought and how many granted per 5 USC 1221 since 1989? In how many cases, after MSPB denied the stay, did the employee obtain relief as a result of his whistleblower appeal? In how many cases, after MSPB granted the stay, did the employee fail to obtain relief?

7. Has MSPB conducted a special study, per 5 USC 1204(a)(3) and (e)(3), about its and OSCs implementation of the 1994 amendments to the WPA, to determine whether they are effective in strengthening the protection of federal employees from PPPs? If not, why not?