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Office of Special Counsel’s mission at risk, GAO reports

An investigation by the Government Accountability Office (GAO) found serious problems at the Office of Special Counsel (OSC), the federal agency responsible for investigating whistleblower disclosures and retaliation complaints.

Requested by members of Congress for the fiscal years (FY) 2011-2016, the investigation found an increase in complaints to OSC and a backlog that increased from 953 to 1,858. The backlog, GAO notes, “puts OSC’s ability to fulfill its mission of protecting federal employees at risk,” “delays attaining desired favorable actions and remedying wrongdoings,” and may discourage whistleblowers from making disclosures. [Originally published at Whistleblowing Today.]

Disclosure cases referred to agencies could drag on for more than 4 years, GAO found. The median time to closure was 668 days–important information OSC failed to communicate to whistleblowers. “Whistleblowers may be subject to retaliatory work environments during these extended processing times,” GAO notes, and “may have changed positions, left the agency, or otherwise given up on a remedy.”

Delays resulted from OSC’s generous approvals of agency requests for extensions of time beyond 60 days to respond to complaints. The explanation OSC offered is a stunner.  “They [OSC officials] explained that if they have to close a case because an agency did not conduct a full investigation in a timely manner, the whistleblower is ultimately disadvantaged because he or she will have to refile the allegations if he or she wants them fully investigated.”

GAO also found that OSC “does not have a systematic, standardized training program for OSC employees who review and process” whistleblower disclosures. Instead, new staff in the disclosure unit (DU) learn procedures through on-the-job training. OSC responded that the lack of formal training was due to the agency’s “small size,” but that claim lacks credibility. Formal training programs exist in organizations a fraction of OSC’s size.

“The lack of standardized training,” GAO observes, “poses a risk to the consistency with which cases are worked, reviewed, and closed.”  Lack of consistency may be a problem not only within a group of cases but over time, as personnel and administrations change. Worse, substituting informal, largely verbal training for documented, formal training carries the risk of flawed or biased guidance escaping accountability. As many whistleblowers are aware, officials engaged in wrongdoing loathe paper trails.

Investigators learned that OSC procedure sends cases first to senior managers who may dismiss them with no further review. Potentially, that allows political appointees or those who report to them to derail disclosures viewed as embarrassing to an administration or agency management. It is not reassuring to learn from GAO’s report that OSC could not produce case files for multiple complaints filed against its own officials. This is particularly troubling after a complaint of prohibited personnel practices was filed against OSC’s top officers.

GAO investigators interviewed OSC employees and officials, lawyers, NGOs, and officials at federal agencies that are frequently the subject of whistleblower complaints. But, GAO sought no input from whistleblowers themselves other than GAO employees who submitted complaints. This is a regular problem for whistleblowers, who are frequently encounter a closed group of officials, legislators, judges, NGOs and others that presume to know their needs. Can anyone then wonder why the disclosure system fails federal whistleblowers?

OSC doesn’t release details of settled cases and GAO didn’t interview the whistleblowers, so we don’t know if whistleblowers agree with OSC’s definition of “success” in resolving cases. Considering that the only satisfaction most whistleblowers receive is in serving the public, one would expect a large percentage of whistleblower cases to be validated and resolved in the whistleblower’s favor. But, the “success” rate of whistleblower disclosure cases at OSC is an abysmal 5%, a small increase from prior years. For minuscule advances like that, those responsible expect high praise and dismiss as “unrealistic” requests for more substantial change. A reasonable person could conclude that whistleblowers are damned with faint progress; and that may be a rosy view of the situation.

According to a poll, the majority of Americans believe corruption is growing in the federal government, an indication that whistleblowers are losing ground. Just to keep pace with corruption, dramatic changes are needed in the handling of whistleblower disclosures. No one is better qualified to design those changes than whistleblowers who have both experience and gritty integrity that puts the public interest above their own.

 

 

 

 

 

 

 

 

 

 

According to the GAO report, OSC employees filing their own complaints found the process frustrating, the GAO reports.

 

[Full report in PDF format here.]

 

We identified eight internal control principles that are relevant to ensuring
that OSC has an effective process in place so that its objective will be
achieved for resolving PPP and whistleblower disclosure cases. These
eight internal control principles include (1) establishing a structure,
responsibility, and authority; (2) defining objectives and risk tolerances;
(3) identifying, analyzing, and responding to change; (4) communicating
internally; (5) performing monitoring activities; (6) implementing control
activities through policies; (7) design control activities; and (8) committing
to competence. Based on our review, OSC generally adhered to five of
the relevant internal control principles, but did not fully adhere to three.

 

 

Standards for Internal Control in the Federal Government notes that it is
important for an agency to communicate quality information to external
parties in order to achieve the agency’s objectives.31 However, given that
disclosure cases that were referred and closed in fiscal year 2016 took on
average almost 1.8 years to resolve, whistleblowers are waiting a long
time for cases to close. As whistleblower representatives noted,
whistleblowers may be subject to retaliatory work environments during
these extended processing times. In some instances whistleblowers may
have changed positions, left the agency, or otherwise given up on a
remedy, which presents uncertainty for all involved. Similarly, agency
liaisons noted that officials who are the subject of allegations may have
also changed positions during the interim, which limits the corrective or
disciplinary actions an agency can take. By not providing sufficient
transparency on realistic time frames for the referral and agency referral
response process, OSC risks and limits whistleblowers’ ability to
adequately plan for the whistleblower disclosure case process and have a
better understanding of the potential timeline for case closure.

Standards for Internal Control in the Federal Government states that management should periodically review policies, procedures, and related control activities for continued relevance and effectiveness. An OSC official told us OSC had not updated its procedures due to OSC’s high caseload for whistleblower disclosures. In April 2018, OSC provided us with updated case procedures for case prioritization and informal referrals. OSC officials said they will communicate the updated procedures to the appropriate staff during a staff meeting and will make the procedures available on OSC’s intranet page. The updated procedures should help OSC staff implement case processes as intended by OSC management.

“OSC would not be able to locate 8.3 percent of closed case
files” requested by the GAO.

According to OSC officials, some of the difficulty of finding their files is because they are maintained in paper files. OSC officials said that one full-time OSC employee oversees the maintenance and retrieval of closed OSC paper case files. They explained that records are stored at multiple locations: OSC headquarters, OSC’s field offices, and at federal record and archive centers. OSC officials told us that, if given additional time beyond our January 2018 deadline, then they could locate the remaining cases files but could not provide us a time frame for doing so.