Under Carolyn Lerner, special counsel office is doing its job now, observers say


Left to right, Shirine Moazed and Elizabeth McMurray look on as Special Counsel Carolyn Lerner hands whistleblower James Parsons an honorary award Thursday. (Daniel C. Britt/The Washington Post)
Joe Davidson
Columnist June 28, 2012

A year ago this month, Carolyn Lerner took over a special counsel’s office that held a special place among federal agencies for failing to do its job.

Before President Obama appointed her as special counsel, the office was best known for its previous boss who faced incarceration for contempt of Congress. Morale had been in the pits, right next to the agency’s reputation for effectiveness, especially in protecting the rights of federal whistleblowers.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

But with Lerner heading the Office of Special Counsel (OSC), whistleblower advocates now give it strong praise.

Danielle Brian, executive director of the Project on Government Oversight: “There is a real sense that professionals are running the place now.”

Tom Devine, legal director of the Government Accountability Project: “It’s like switching from night to day.”

Jeff Ruch, executive director of the Public Employees for Environmental Responsibility: “She and her staff have begun to turn a moribund, listing battleship onto a course where the Office of Special Counsel can become a formidable force for good government.”

Protecting federal whistleblowers against retaliation by supervisors is one of the main responsibilities of the office. But under former boss Scott Bloch, advocates told clients that the agency was not a place they could get a fair shake. Now, Devine said, OSC is “the first and best option.”

The renewed emphasis on whistleblower protections was symbolized by the Public Servant of the Year Award that Lerner presented Thursday to James Parsons, Mary Ellen Spera and William Zwicharowski for their roles in exposing serious misconduct at the Port Mortuary on the Dover Air Force Base. It was a case of the tiny OSC pointedly taking on the mighty Pentagon and winning.

“Whistleblowers are patriots,” Lerner said at the ceremony. “They possess unusual courage. They come forward because they are driven by conscience. When they see something that is not right, they speak. They know they may be unpopular for it. They do it anyway.”

The Federal Diary asked Lerner about protecting whistleblowers from retaliation:

Q: Generally speaking, do federal whistleblowers feel free to report fraud, waste and abuse or is there a fear of retaliation? Has this changed in the past year?

A: “I remain optimistic that federal employees feel free to report waste, fraud, abuse and health or safety issues when they see them. Our government relies on them in order to weed out problems and to be effective and efficient. Retaliation against whistleblowers is a very real phenomenon, but our office and other government bodies stand prepared to help them.”

Q: There have been many cases of retaliation over the years. What is your office doing to prevent or reduce retaliation?

A: “Shortly after I took office last June, we began a Retaliation Pilot Project to both train more OSC attorneys in this area of law and to accelerate our handling of such cases. As a result, the number of favorable resolutions in OSC prohibited personnel practice cases nearly doubled. We have also emphasized mediation to efficiently and effectively resolve our cases, and this has also led to an increased number of positive resolutions for agencies and employees alike.

“We are also doing our best to get the word out to all government agencies that whistleblower retaliation in any form is unacceptable and against the law. For example, I recently sent a memo to all federal agencies explaining that it is retaliatory and unlawful to monitor the communications of an employee because that employee has engaged in whistleblowing.”

Q: Why are managers and supervisors who engage in retaliation seldom punished? What should be done to correct that? Is additional legislation needed on this point?

A: “After OSC’s investigation of whistleblower retaliation at Dover Air Force Base, all three managers involved received significant disciplinary actions. OSC often gets corrective and/or disciplinary action in response to our investigations. However, we would be able to do more in this area if pending legislation was passed by Congress.

“The Merit Systems Protection Board established an extremely difficult standard for proving retaliation in a whistleblower case. The board has also held that OSC may be responsible for the private attorneys’ fees for government managers if OSC does not meet this exceptionally high burden. Pending legislation — the Whistleblower Protection Enhancement Act — would address both of these barriers and I strongly support it.”

Q: The Whistleblower Protection Enhancement Act (WPEA) has been pending for many years. What difference would it make?

A: “In addition to helping our ability to bring disciplinary action . . . the legislation will address several court decisions that have narrowed the whistleblower protections available to federal employees. These decisions handcuff OSC in our efforts to protect conscientious whistleblowers. For example, under current precedent, a whistleblower is not protected for disclosing information up the chain of command in the normal course of the employee’s job duties. This leaves too many employees — like auditors and safety inspectors — who may encounter waste, fraud or abuse in their day-to-day work, without the full scope of protections Congress intended.”

Q: Does your office need more authority?

A: “The WPEA would also give OSC the authority to issue amicus (friend of the court) briefs in appellate cases. It makes sense that the agency charged with enforcing the whistleblower law be permitted to help shape that law through court proceedings, and I support this change as well.”

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.

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