Staff changes by Bush Office of Special Counsel director contradicted consultant’s recs
Federal employees depend on the Office of Special Counsel (OSC) for protection against job discrimination, retaliation for whistle-blowing or anything else their bosses might not like, but which is unrelated to their work performance.
However, under Pres. George W. Bush’s OSC director Scott Bloch, these protections have slowly disappeared.
Bloch’s actions have produced considerable controversy during his tenure at OSC, and it now appears that an outside consultant’s report that he has used to justify some of his actions did not in fact make recommendations pointing toward the steps he’s taken.
Shortly after his appointment in 2004, Bloch ordered the category “sexual orientation” be removed from the agency’s website, training materials and complaint forms as a category protected from job discrimination. Even though past case law has been interpreted at least since 1984 to prohibit such discrimination—Theodore Olsen, Pres. Ronald Reagan’s assistant attorney general, wrote the brief establishing the guideline—Bloch said he wasn’t sure that he agreed with the interpretation.
This despite the fact that during his Senate confirmation hearing Bloch said he would enforce the policy.
It didn’t take long before Bloch was being questioned by members of Congress, including Barney Frank, a gay Massachusetts Democrat, and Elliot Engel, a New York Democrat. Only after the White House issued a statement that it expected the OSC to follow precedent, did Bloch relent.
Then came word that Bloch was reorganizing the office. He informed 12 employees, including the office’s only two openly gay employees, that they had 10 days to consider accepting transfers to either Dallas or a newly created Midwest field office in Detroit, or be terminated. Only two accepted the reassignment.
An OSC press release stated that “After extensive discussions with staff and an outside assessment team’s review of the Agency structure and organization, the decision was made to enhance field operations and ‘power down’ from a D.C.-centric based operation.”
Sources familiar with the OSC claimed Bloch was retaliating against those in his office who had voiced disapproval of his handling of the “sexual orientation” matter or his treatment of pending cases within the agency.
Sharon Lee, an OSC investigator was one employee who was ordered transferred. On March 18, she told the Washington Post, contrary to the OSC’s public statement, that “We had no idea that this was coming. Absolutely none. We were all in shock… It felt like being kicked in the stomach and you had no breath.”
Eventually, even the two employees who agreed to move to Detroit announced they had found other employment, and the OSC, an agency consistently faced with budget shortfalls and backlogged cases, was left with a lease on empty Detroit offices.
All 12 employees have now filed suit against Bloch and the OSC for prohibited personnel practices, the very actions the OSC is supposed to investigate and prevent throughout the federal government. The plaintiffs’ primary claim is that Bloch terminated any employee who hired a lawyer to protect themselves against an involuntary transfer. Even though none now work at OSC, they have chosen to remain anonymous for fear of further reprisal.
Their suit alleges that Bloch has also made several non-competitive hires since his appointment, and that these individuals were never faced with involuntary transfers.
It is one of these hires, James McVay, who now examines the merits of all sexual orientation complaints, an unusual practice begun under Bloch. Such complaints are normally handled by career investigators.
The complaint further states that Bloch has routinely closed the office early on Good Friday, but has scheduled mandatory off-site retreats during Passover.
The current way the OSC handles backlogged cases, a reported source of contention between Bloch and career OSC employees, has been altered by Bloch to favor federal government managers. In an effort to show progress in eliminating the agency’s backlogged cases, Bloch has ordered OSC employees to dismiss any whistle-blower case that seemed incomplete or ambiguous without first contacting the employee, according to Jeff Ruch, executive director of Public Employees for Environmental Responsibility (PEER), a government watchdog group.
“Not only does this go against previous OSC policy, but it’s contrary to good common sense as well,” Ruch said.
Bloch now proudly boasts in press releases he has all but eliminated more than 1,000 whistle-blower cases waiting at the agency when he was appointed.
However, because the OSC is so short-staffed after the recent resignations, most of these cases appear to have been closed without investigation. Leaked minutes from the OSC’s February 9 meeting indicate Bloch discussed hiring summer interns to fill the staff shortage and assist in evaluating whistleblower cases.
“Since Scott Bloch, not one whistle-blower has been helped,” Ruch said.
But the heat is on. The U.S. General Accountability Office has undertaken an independent investigation of the process used to dismiss these cases.
Also, Sens. George Voinovich, an Ohio Republican, and Susan Collins, a Maine Republican, have promised that they will hold a hearing regarding the OSC’s reorganization. Collins is chair of the Senate’s Committee on Homeland Security and Governmental Affairs. And in a further blow to Bloch, PEER two weeks ago obtained through a FOIA request the independent consultant’s report that Bloch used to justify his reorganization.
The assessment by Military Professional Resources nowhere recommends the creation of a Midwest office. It does call for the expansion of the Alternate Dispute Resolution Unit, and that the unit’s mediation practice is “a growth industry which should be expanded.” The entire Alternate Dispute Resolution Unit staff resigned after Bloch tried to move them out of Washington. The OSC has no trained mediators at the moment.
The consultant’s report also called for the agency to be more aggressive with public outreach.
The OSC did not returns calls seeking comment.