OSC turns whistleblower law ‘upside down’

I am almost 62, have more than 31 years of spotless federal service (including six years as an engineering division officer on nuclear submarines), have been a licensed professional engineer (PE) for more than 30 years, have held numerous volunteer leadership positions in several major engineering societies over the years, have been married for 30 years and have held high security clearances for almost the entirety of my federal career.

I publicly claim, regardless of risk to my PE license and federal job and benefits:

• The U.S. Office of Special Counsel (OSC) is a decades-long, law-breaking fraud.

• The U.S. Merit Systems Protection Board (MSPB) is OSC’s decades-long, law-breaking enabler.

• This decades-long, compounded and continued law-breaking has put our unprecedented global civilization at an unnecessarily increased risk of nuclear terrorism and/or other civilization-threatening calamities.

This is due to their battering impact on the integrity of federal agencies, particularly given that America, as diminished and threatened as it has become during my career, is still civilization’s indispensable country.

OSC’s recent withdrawal of its proposed regulations to become a whistleblower disclosure channel to agency contractor employees is the latest example of the counsel’s problems.

Its proposed regulation was quite possibly spurred by my whistleblower disclosure. I first made it about 4 years ago to both OSC and my supervisor in the Department of Energy. My whistleblower disclosure is that OSC has been unlawfully claiming since 1989 to lack the jurisdiction to refer whistleblower complaints from federal contract employees to the agencies.

Some background

When considering whistleblower disclosures there are three groups from which the disclosures may come:

• Group A — Current and former employees of the involved agency.

• Group B — Current and former employees of another agency who became aware of the information disclosed as part of their job duties.

• Group C — Anyone else, including current and former agency contractor employees.

Prior to 1989, OSC only had jurisdiction to formally refer whistleblower disclosures it received from Groups A and B. However, during the 1980s, the Office of Legal Counsel (OLC) of the Department of Justice clarified that if OSC received a whistleblower disclosure from someone in Group C, it could, at its discretion, informally refer it to the involved agency for whatever consideration it chose to give it. The involved agency did not even have to acknowledge such an informal OSC referral, let alone investigate it.

As part of the landmark Federal Whistleblower Protection Act of 1989, Congress created a new law, 5 U.SC. § 1213(g)(1). When OSC now received a whistleblower disclosure from Group C, it could formally refer it to the involved agency head. If OSC did so, then the agency head would have to respond to OSC (and, via OSC, the whistleblower) with a report of what the agency had done (or planned to do and by when) in response to the whistleblower disclosure. The agency head’s report would also become a permanent, publicly available record at OSC.

How did OSC turn the plain reading of this law upside down?

In plain reading, the law applies to everyone not previously covered — (Group C in addition to Groups A and B). But OSC claims that the law still only applies to current or former federal agency employees who made whistleblower disclosures not involving their agency or not involving information they obtained in the performance of their duties in another agency. In other words, the law essentially applies to no one. Consistent with its self-nullifying interpretation of this law, OSC has not, since 1989, referred to the involved agency head a single whistleblower disclosure by this law.

How incoherent is OSC’s interpretation?

Say for instance, an agency contractor employee at some point worked at a federal agency, even if just for a day. Then they are, by OSC’s interpretation of §1213(g)(1), “former agency employees” with a lifetime “right” to make whistleblower disclosures, while their fellow contractor employee co-workers do not. This is typical of the decades-long fraud that is OSC.

At the same time, a Veterans Affairs patient who was a current or former federal agency employee could make a whistleblower disclosure to OSC about shoddy treatment, while other VA patients could not.

This is not just my opinion. MSPB issued a non-precedential final decision last year that the plain reading of the law is that OSC can refer whistleblower disclosures it receives from contractor employees Carson v. Department of Energy, docket no. AT-1221-14-0520-W-1, see paragraph 10, first sentence, on page 6).

That ruling did not change anything, but it apparently spurred OSC to propose language to Congress to remove §1213(g)(1) in its upcoming (and long-overdue) congressional reauthorization.

That is OSC’s way of handling me, “the whistleblower who won’t go away” (as I was described in a recent Government Executive story). Get Congress to eliminate the law OSC is violating, and in so doing, is failing to protect the integrity of the federal civil service. What is sure to fix the integrity of the federal agencies in OSC’s reasoning? Remove the requirement for it!

Since OSC now intends to get the law eliminated that provides agency contractor employees the right to make confidential, even highly classified, whistleblower disclosures to it, it does not need the proposed rule, as poorly thought out as it was. It just goes away, just like 97 percent of the whistleblower disclosures made to it by federal agency employees and 95 percent of whistleblower reprisal complaints made to it by federal agency employees, according to OSC’s annual report to Congress.

OSC is tiny, about 140 employees. In my opinion, it is the most corrupt — and corrupting — federal agency, relatively speaking, in our country’s history.

We are now at unnecessarily increased risk of nuclear terrorism because of it, in my public, professional opinion as a PE.

I openly challenge Special Counsel Carolyn Lerner to stop being OSC’s “zealous advocate” based on her apparent understanding that her attorney-client relationship trumps all other considerations and justifies her doing everything she can to evade or forestall any lawful resolution of my claims that OSC has been in violation, for decades, with more than a dozen specific civil service statutes.

What should Lerner do?

She could start with what previous Special Counsels did — request opinions of the Office of Legal Counsel about how the contested laws, including §1213(g)(1) — should be interpreted. And she should publicly resign if the President or Attorney General override her request. America needs a Special Counsel with something she apparently lacks — the professional honor to publicly resign — if she cannot ensure OSC is able and willing to do its duty to protect the integrity of federal agencies. Her resignation would go far to ensure foolhardy souls like me can do our duty to protect the public health, safety, security and welfare in the performance of our professional duty. Our whistleblower disclosures must not fall on deaf ears and we must be adequately protected from reprisal.

What should the Senate Homeland Security and Government Affairs Committee do, following its Jan. 12 confirmation hearing for Lerner?

There is no particular urgency to confirming Lerner to another five-year term as Special Counsel. Her current term does not expire for several months and by law she can continue as Special Counsel for up to a year beyond her term.

I listened to the confirmation hearing, just as I have to any number of Senate or House hearing involving OSC — or related federal agency corruption and dysfunction — for too many years now. The most relevant questions do not get asked, possibly because no one wants to hear the disturbing but cogent answers. There are three questions that should be answered before Lerner’s nomination is voted upon by the HSGAC:

• Can federal agency employees, as a rule, effectively make whistleblower disclosures? Do they obtain a timely and objective resolution?

• Are federal agency employees, as a rule, adequately protected from reprisal and other types of prohibited personnel practices?

• Is there an objective basis to answer questions one and two?

If Lerner warrants confirmation to another term as Special Counsel, all these questions should have “yes” answers. But because of decades-long, compounded, continuing, civilization-threatening law-breaking in OSC and MSPB — law-breaking Lerner has done her utmost to conceal, including now asking Congress to eliminate the laws OSC is violating — the answer to these questions is either “no” or “we do not know.”

The 2 million federal employees, all of whom took oaths to “well and faithfully discharge the duties of their office,” deserve better than Lerner as Special Counsel, in my public and professional opinion as a PE. I invite Lerner to file a professional misconduct complaint against me with my PE licensing authority in Tennessee, if she wishes to claim my public and professional opinion of her trustworthiness is not “truthful and objective.”

Finally, Lerner has my public and professional pledge to end my federal employment and to shut up and go away if she exhibits the moral courage to request the Office of Legal Counsel to review 5 U.S.C. section 1213(g)(1) and its opinion is that OSC’s 26-year interpretation is acceptable, that it does not give OSC jurisdiction to refer whistleblower disclosures from agency contractor employees.

Joseph Carson, PE, is a safety engineer (including nuclear safety) in the Department of Energy and a multiple-time prevailing whistleblower. His quarter-century long ordeal was subject of a recent feature story in Government Executive.

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