US whistleblower agency lacks proper system for internal complaints, report finds

By on 25/07/2018 | Updated on 24/09/2020
The US agency dedicated to safeguarding federal employee rights and protecting whistleblowers has been criticised for operating weak internal complaints systems (Image courtesy: Alno).

The US agency that addresses claims of unfair personnel practices and protects whistleblowers across the federal workforce lacks a fully independent system for handling its own employees’ grievances about HR issues, according to the Government Accountability Office (GAO).

The Office of Special Counsel (OSC) says its “primary mission is to safeguard the mer​it system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing”. But a GAO report says that, in some cases, the agency is failing to provide its own staff with the protections afforded workers in other agencies.

In a GAO survey, 17 out of 87 Office of Special Counsel (OSC) employees responding said they had considered filing allegations against a fellow employee, but did not. Most of the 17 feared their anonymity would be compromised, thought they might suffer from reprisals, and were concerned about conflicts of interest or a lack of objectivity in the complaint process. About half said they were not sure how to file.

The survey was part of a larger GAO report, which also found that OSC’s processing time for cases rose and its case backlog nearly doubled in a five-year period. OSC’s responsibilities include acting as a secure channel for whistleblowers alleging gross mismanagement, waste of funds, authority abuses or dangers to public health or safety. OSC also enforces restrictions on political activities by federal employees, and enforces certain federal employment rights. 

Who guards the guardians?

GAO director of strategic issues Yvonne Jones, who managed the research team, told Global Government Forum that part of the difficulty with internal complaints stems from an unusual inspector general (IG) arrangement. Unlike many federal agencies, OSC does not have its own IG, because Congress hasn’t authorised one. Instead, it’s required to use another agency’s IG – and that risks conflicts of interest, Jones said.

The internal review process also involves OSC staff. With the agency numbering only 135 employees, management is not kept separate from allegation reviews, the GAO report said, which could fuel perceptions of conflict of interest.

The upcoming expiration of OSC’s partnership with the IG of the National Science Foundation represents a chance for the agency to establish a fully independent review system, GAO said. It recommended that the agency finalise a timeframe for creating this review process, and increase its communications with staff about the process.

Slow responses

The report also found that OSC’s processing time for whistleblower cases rose from a median of 10 days in 2011 to 29 days in 2016. For prohibited personnel practice (PPP) cases, the median rose from 82 to 97 days.

For the small percent of whistleblower cases that OSC referred to agencies for investigations, the median processing time increased 48% to a median of 668 days, with some cases taking over four years to close.

Cases filed with the OSC rose 66% from 2011 to 2016, probably due in part to the Whistleblower Protection Enhancement Act of 2012. The act clarified what disclosures receive protection and improved available remedies, among other measures.

Cases may have also increased because of increased educational efforts by the OSC, including certifying 69 new agencies under its 2302(c) certification program, which aims to help agencies inform staff of whistleblowing rights.

Hear the whistles

At the same time, OSC staffing levels did not keep pace with the increased workload, Jones said. The level of cooperation from investigated agencies, and the number of extensions agencies filed for, were other factors influencing case length, she added.

All these factors contributed to OSC’s backlog of PPP and whistleblower cases nearly doubling from 953 in 2011 to 1,858 in 2016 – more than 24% of OSC’s caseload.

OSC has failed to adequately communicate the longer processing times to whistleblowers, Jones said – and that’s a problem.

“Oftentimes whistleblowers are reporting on very sensitive issues, [that]… seem to be very important and might affect the ability of the agency to achieve its mission,” Jones said.

“It’s often a very big decision for someone to come forward as a complainant. They have concerns about how they may be treated if an agency discovers that they filed this whistleblower complaint,” she added. “Also, if it takes a really long time to look at these cases, the people who were involved in the situation in the agency could have moved on… It can affect the agency’s ability to take remedial actions.”

The OSC is unrelated to judicial special counsels, such as Robert Mueller, the counsel investigating possible collusion between Russia and Donald Trump’s presidential campaign.

About Tamar Wilner

Tamar Wilner is a Dallas-based journalist and researcher who writes about public policy and the media. She's written extensively on energy, the environment, urban planning and small business for trade publications in the US and UK, and contributes regularly to the Columbia Journalism Review. Find her at @tamarwilner.

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