The Washington Post

Federal Diary: Whistleblowers get a defender


There’s been something special lately about the Office of Special Counsel.

It’s doing its job.

Joe Davidson writes the Federal Diary, a column about federal government and workplace issues that celebrated its 80th birthday in November 2012. Davidson previously was an assistant city editor at The Washington Post and a Washington and foreign correspondent with The Wall Street Journal, where he covered federal agencies and political campaigns. View Archive

OSC is an independent federal agency with a long and well-deserved reputation for failing to protect federal whistleblowers, although part of its mission is “to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices.”

One ugly prohibited practice is reprisal against federal workers who speak out against harmful policies and programs. Punishing employees who blow the whistle on stupid and illegal actions is wrong, wasteful and counterproductive on so many levels, you’d think it would be a rarity.

But one look at the number of lawyers typically involved in whistleblower cases demonstrates that is not the case. And bipartisan support for the Whistleblower Protection Enhancement Act, a piece of legislation a Senate committee will consider on Wednesday, indicates more tools are needed to protect workers.

The agency’s bad reputation was only enhanced by Scott Bloch, the former special counsel, who pleaded guilty last year to contempt of Congress. He had been accused of retaliation against his staff and closing whistleblower cases without proper investigation. When Congress looked into those allegations, he had his computer’s memory wiped clean by Geeks on Call. That led to his guilty plea.

But he made his plea with the understanding he would get probation. A judge would not let him withdraw his plea when he was told he’d have to spend at least a month in jail. Bloch appealed and was allowed to withdraw his plea in August.

That, however, certainly is not restoring OSC’s reputation. Carolyn Lerner gets the credit. She was sworn in as special counsel in June.

Her “tenure is very young, but she hit the ground running and appears to be fearless,” said Thomas Devine, legal director of the Government Accountability Project, a whistleblower advocacy group.

She showed her determination “to rebuild the trust of all federal whistleblowers in OSC and our whistleblower protection program” with the announcement this month that her office asked the Merit Systems Protection Board (MSPB) to stay, or temporarily block, “serious adverse personnel actions” against two federal employees.

Stays were granted in those cases, plus another one in July. That’s just three, but they mark a significant increase for OSC. It won no stays from MSPB in 2008, 2009 or 2010. Under Lerner, the office has taken “a great step forward,” said Stephen Kohn, executive director of the National Whistleblowers Center. “The office had been stagnant for 10 years.”

In one case, Franz Gayl, a civilian science and technology adviser with the Marines, faced indefinite suspension without pay. Gayl, according to an OSC statement, “blew the whistle on the failure of the Marine Corps to timely provide Mine Resistant Ambush Protected (MRAP) vehicles to our troops in Iraq.”

The Marines stripped Gayl of his needed top secret security clearance and placed him on administrative leave. The Marine Corps would not discuss Gayl’s situation.

In another case, the Public Health Service fired Paul T. Hardy, a biomedical engineer who was detailed to the Food and Drug Administration. Along with other scientists, he found serious safety problems with a device designed to detect breast cancer.

The OSC’s description of what happened to Hardy sounds like a bad dream:

“Concerned that FDA managers intended to approve the device over his team’s recommendations, Hardy objected and his supervisor accused him of insubordination. Hardy then documented his objections in official FDA records and disclosed his concerns to members of Congress. FDA then launched a criminal investigation of Hardy for ‘releasing Agency information without authorization.’ ”

The FDA approved the device, and Hardy was not charged.

But that wasn’t the end of the nightmare.

After receiving “exceptional” or “fully successful” performance evaluations for the prior three years, Hardy was given a negative rating this year, then placed on “non-duty with pay status,” according to the special counsel’s office. He wasn’t even allowed to enter an FDA facility.

Then the Public Health Service, which had no comment, recommended against his promotion, which resulted in his termination. OSC asked MSPB to block the negative evaluation.

MSPB doesn’t cover members of the uniformed services, which includes the Public Health Service. But OSC argues that Hardy “was effectively an employee of the FDA at the time of his fatal performance evaluation.”

Lerner demurs at the suggestion that the Hardy case indicates she is willing to push the envelope in her laudable drive to protect federal whistleblowers.

“Federal workers should know they are not going to be singled out and punished for doing the right thing. . . . ” she said in an interview. “This is a simple question of fairness.”

Follow the Federal Diary on Twitter: @JoeDavidsonWP.

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