UNITED STATES OFFICE OF SPECIAL COUNSEL ANNOUNCES POLICY GOVERNING STAY REQUESTS

FOR IMMEDIATE RELEASE - 6/14/00
CONTACT: JANE MCFARLAND
(202) 653-7984

   The United States Office of Special Counsel (OSC), the independent federal agency responsible for investigating and prosecuting complaints by federal employees and applicants alleging the commission of “prohibited personnel practices,” today announced the issuance of a new policy statement governing the exercise of its authority to request stays of personnel actions. The new policy statement represents OSC’s first ever public announcement of the criteria it uses when deciding whether to approach another federal agency or formally petition the Merit Systems Protection Board (MSPB) to request that a personnel action, alleged to be unlawful, be stayed.

    By law, OSC is authorized to petition the MSPB for a stay of a personnel action for 45 days, when the Special Counsel determines that there are reasonable grounds to believe that the personnel action was taken, or is to be taken, as a result of a prohibited (unlawful) personnel practice. OSC is also authorized to request extensions of such stays from the Board, when appropriate. OSC typically requests such extensions when additional time is needed to permit it to complete its investigation of a complaint.

    Under OSC’s new policy statement, unless the employing agency agrees to a voluntary stay, OSC will formally seek a stay from the Board when, on the basis of the evidence before it, it possesses reasonable grounds to believe that a prohibited personnel practice has been, or is about to be committed, and where absent a stay, the employee will be subjected to removal; a suspension for more than 14 days; a reduction in grade; a significant reduction in pay; a geographic reassignment; the non-renewal of an appointment; or any other personnel action which the complainant demonstrates (by compelling evidence) will result in a serious, immediate hardship. The policy further provides that OSC will seek a stay in other cases where there exists a substantial likelihood that a prohibited personnel practice has been, or will be committed, or where the Special Counsel determines, in her discretion, that it would be appropriate and consistent with OSC’s statutory mission to seek a stay. Under the policy, OSC will expedite, to the greatest extent possible, the processing of any case in which a stay has been ordered by the Board, or agreed to by the agency.

    In Fiscal Year 1999, OSC obtained approximately 15 stays of personnel actions against complainants, either by petitioning the Board directly, or through agreement with the employing agency. The personnel actions stayed included, among others, removals, geographic reassignments, and failures to reappoint. The majority of the cases in which stays were obtained involved claims of retaliation for whistleblowing, a prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b)(8).

    Special Counsel Elaine Kaplan said: “OSC’s stay authority is a powerful tool in our enforcement of the prohibited personnel practice laws. I am issuing this policy statement so that the public – including agencies, potential complainants, and the federal sector legal community – has better information on how we employ this tool.”

    OSC’s new stay policy is posted in its entirety at OSC’s web site, www.osc.gov, in the Reading Room.

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