Successful Case Summaries
Below is a sampling of some recent cases that were successfully resolved. They cover each of OSC’s four statutory areas of enforcement: processing Whistleblower Disclosures, protecting the jobs of military servicemen under the Uniformed Services Employment and Reemployment Rights Act (or USERRA), investigation and prosecution of Prohibited Personnel Practices and enforcement of the Hatch Act.
2007 Case Summary
Disclosures of Substantial and Specific Dangers to Public Health and
Infrequent and Inadequate Customs Inspections. OSC referred to
the Secretary of Homeland Security allegations that the Interim Port
Director, Salt Lake City International Airport, significantly curtailed the
frequency and scope of customs inspections conducted at the airport. The
whistleblower alleged that, in doing so, the Interim Port Director violated
applicable regulations and created a substantial and specific danger to
public safety. An agency investigation substantiated the whistleblower’s
allegation that the Interim Port Director fails to conduct adequate customs
inspections. Nevertheless, the agency concluded that the Interim Port
Director did not violate any law, rule, or regulation because the applicable
laws and regulations do not specify a minimum number of inspections to be
performed. However, based on the findings of the investigation, the Special
Counsel concluded that the Interim Port Director’s policies did create a
substantial and specific danger to public safety, as customs inspections
play an integral role in the federal government’s overall strategy for
averting terrorism. Referred June 2004; OSC’s Analysis of Disclosure
submitted to the President and Congressional oversight committees November
Misallocation of Funds Earmarked by Congress for Wireless Initiatives at
the Southwest Border. OSC referred to the Secretary of the
Department of Homeland Security (DHS) allegations that in 2004 and 2005, DHS
failed to allocate sufficient funds to support the acquisition of wireless
telecommunications equipment and technologies as intended by Congress, and
instead used the monies for non-wireless procurements. According to the
whistleblower, the failure to support wireless communications at the
southwestern U.S. border has rendered the border unsafe for agents and
vulnerable to terrorist infiltration.
The agency investigation did not substantiate the allegation that money
allocated by Congress for wireless initiatives was improperly spent on
non-wireless initiatives. The agency’s report acknowledged the need for
adequate technologies for border patrol agents in the southwest, and cited
the Secure Border Initiative and SBInet as recent efforts to provide Border
Patrol agents with the means to protect themselves against violence from
criminal traffickers. Referred September 2005; OSC’s Analysis of
Disclosure submitted to the President and Congressional oversight committees
Faulty Repairs of F/A-18 Fighter Jets. OSC referred to the Secretary
of the Navy allegations that mechanics in Shop 93503, Naval Air Depot, North
Island, California, assembled generator conversion units (GCUs) for F/A-18
fighter jets incorrectly. Specifically, the whistleblower alleged that, from
March 2005 until July 2005, the mechanics did not have the necessary torque
tools required to properly torque the screws used to assemble the GCUs.
Although Shop 93503 mechanics finally received torque tools in July 2005,
the whistleblower stated that the GCU screws on hundreds of F/A-18s
currently deployed by the U.S. military and several foreign militaries still
have not been properly torqued. The whistleblower also alleged that Shop
93503 does not perform mandatory quality assurance inspections on all GCU
An agency investigation substantiated the whistleblower’s allegation that
the GCU Shop artisans did not use proper torque tools to assemble GCUs for
F/A-18 fighter aircraft. Nevertheless, the agency did not find that this
situation posed any “safety of flight” issues. The Navy took corrective
action to ensure that all GCU Shop artisans are currently using proper
torque tools on GCU screws; however, the agency decided against pursuing
disciplinary action against any individuals for the violations. The Special
Counsel determined that the agency’s decision to refrain from disciplining
any of the GCU Shop managers was unreasonable. Referred February 2006;
OSC’s Analysis of Disclosure submitted to the President and Congressional
oversight committees April 2007.
Ineffective Border Security Tactics Mandated by Sector Management.
OSC referred to the Secretary of Homeland Security allegations that Blaine
Sector management ordered agents to discontinue their successful
low-visibility tactics and adopt high-visibility tactics that stand no
reasonable chance of deterring smuggling activities along a particular
section of the U.S. Canada border. According to the whistleblowers,
management allocated 3 agents to patrol a 75-mile stretch of border and
adopted policies which left the border unprotected for at least 16 hours per
day. These policies also impede cooperation with other federal and local law
enforcement agencies. Given the recognized risk that terrorists may target
the unprotected border area as a point of entry into the United States, the
whistleblowers alleged that management’s new policies amount to a
substantial and specific danger to public safety as well as gross
mismanagement. In addition, the whistleblowers also alleged that the now
retired Patrol Agent-in-Charge for the station in question engaged in
violations of law, rule or regulation, gross mismanagement, and a gross
waste of funds.
The agency investigation did not substantiate the allegations that agency
officials adopted inappropriate new tactics and policies, exposed Border
Patrol Agents to surveillance, impeded cooperation with other agencies, or
engaged in a gross waste of agency funds. The investigation did substantiate
two allegations against the Patrol Agent-in-Charge: inattention to duty and
a violation of a DHS Directive regarding facility security. The Patrol
Agent-in-Charge retired before the investigation was completed. The agency
reports acknowledged that there are limitations on the ability of the Border
Patrol to exercise full operational control of many zones within the Blaine
Sector, resulting from limited availability of personnel and technical
resources. Referred November 2005; OSC’s Analysis of Disclosure submitted
to the President and Congressional oversight committees June 2007.
Falsification of Secure Database at Airport. OSC referred to the
Secretary of the Department of Homeland Security allegations that management
officials directed the entry of false records of customs inspections to
inflate statistics at the Sanford International Airport (Sanford), Sanford,
Florida. According to the six whistleblowers, Customs and Border Patrol (CBP)
Agents, during the summer and fall, 2005, they were detailed to work at
Sanford. During their shifts in the secondary agricultural inspections area,
they were instructed by Sanford CBP Supervisors to take stacks of passenger
and crewmember customs declarations, and enter the names into the
enforcement database as reports of enforcement screens, or IO25s. They were
told to guess at the information that would otherwise be obtained during
direct interview and inspection of the passenger or crewmember, such as
race, length of stay, and number of bags. They also alleged that they were
instructed to enter an “ENF” code, rather than the code for an agricultural
secondary inspection, “PPQ.” This would falsely reflect that the passenger
or crewmember had been stopped, interviewed, and bags inspected in
connection with a suspicion of possessing contraband or engaging in unlawful
The report partially substantiated the whistleblowers’ allegations. The
report reflects that personnel assigned to enter data were improperly
directed to use default or generic data, and that authorized users were
directed to enter data under another employee’s user identification number
and password. The agency has taken disciplinary and corrective action in
response to the findings of violations of law. Referred April 2006; OSC’s
Analysis of Disclosure submitted to the President and Congressional
oversight committees May 2007.
During the first three quarters of FY 2007, OSC’s USERRA Unit has continued
to receive, investigate, analyzed, and resolve federal sector USERRA claims
pursuant to the demonstration project established by Congress under section
204 of the Veterans Benefits Improvement Act of 2004 (VBIA), P.L. 108-454.
The corrective actions obtained has been numerous and varied. The unit has
ensured that service members are reemployed to appropriate positions
regarding pay, seniority and status (DP-07-0644, DP-07-0959); protected
service members from wrongful disciplinary actions by having a demotion
(DP-07-2917) and letters of reprimand rescinded (DP-07-0633, DP-07-0964);
alleviated discrimination against service member by obtaining promotions for
service members (DP-07-0634, DP-07-0605, DP-07-1048); and secured other
employment benefits such that the service member received correct accounting
of health insurance expenses (DP-07-0127) and military leave (DP-07-1091).
For example, in one USERRA reemployment rights case, a service member
returned to his civilian employment after serving in Iraq. Upon his return,
the claimant learned that co-workers with less seniority had been promoted
ahead of him. After making inquiry into the allegations, OSC determined that
the agency had violated claimant’s USERRA reemployment rights. Thus, at the
behest of OSC, the agency promoted the service member retroactively to the
date that he should have originally been promoted and awarded him back pay.
This represents full corrective action. (DP-07-0959)
The Special Counsel has also continued to enforce USERRA through prosecution
of cases before the U.S. Merit Systems Protection Board (MSPB).
Specifically, OSC is currently prosecuting a case of first impression
concerning whether a federal agency’s decision to terminate a service
member’s probationary employment while he is absent due to military service
relieves the agency of its reemployment obligation. The Special Counsel
firmly believes that Congress did not intend for federal agencies to be able
to avoid their reemployment obligations in such a manner, so he authorized
prosecution to clarify this important aspect of service member’s
Nor has the Special Counsel shied away down from aggressively investigating
possible USERRA violations against the highest ranking U.S. government
officials. For example, OSC is currently investigating whether the U.S.
Attorney General violated USERRA’s anti-discrimination provisions when he
purportedly fired a U.S. Attorney for being an “absentee landlord.” The
fired U.S. Attorney is a member of the Navy Reserve and was absent from
employment approximately 40 days per year because of his military service
In addition to investigating, favorably resolving service member claims, and
litigating novel issues, OSC has been very active in providing USERRA
outreach and training. The USERRA Unit conducted five trainings for federal
agencies, two presentations for a federal employment sector professional
association, and two federal personnel law briefings for its USERRA partner:
the U.S. Department of Labor’s Veterans’ Employment and Training Service.
Moreover, the Special Counsel was the keynote speaker at a USERRA conference
sponsored by the Reserve Officers Association. The unit’s outreach even
extended to the international level as its chief met with representatives of
the Australian Defense Department’s Office of Reserve Service Protection to
discuss common issues and exchange ideas concerning service member
employment and reemployment rights.
In one USERRA discrimination case, the claimant alleged the agency violated
USERRA by proposing a 3-day suspension because she had a disrespectful
verbal altercation with her supervisor. The altercation occurred soon after
claimant returned from an 18-month absence due to military service. The
deciding official mitigated the proposed 3-day suspension to a Letter of
OSC investigated the matter. The letter of suspension was an appropriate
penalty for the claimant`s misconduct, and it was evident that the
claimant`s military service played no part in the deciding official`s
ultimate imposition of discipline.
OSC was concerned, however, that the claimant`s military service played a
factor in the proposing of discipline. Specifically, OSC substantiated
Claimant`s allegation that her supervisor (the proposing official and the
person with whom claimant had the verbal altercation) had made statements of
animus indicating that the supervisor would not have hired her had he known
that she was a service member.
The USERRA Unit attorney turned to MSPB case law that states even where a
disciplinary action is appropriate because of the claimant`s misconduct, the
MSPB can grant relief if the proposing of the disciplinary action was the
result of a "retaliatory investigation" connected to the claimant`s whistle
blowing. See Russell v. Dept. of Justice, 76 M.S.P.R. 317 (1997).
Because there was sufficient evidence to suggest that the claimant`s
military service was a substantial factor in the proposing of the
disciplinary action , OSC relied on the aforementioned case law (which
supported the argument that, but for the illegal proposal, the claimant
would not have been disciplined) and approached the agency about settlement.
OSC persuaded the agency to take corrective action, namely: rescind the
letter of reprimand. The rescission of the letter is full corrective action.
In another USERRA case against the U.S. Postal Service, Indianapolis, Indiana (agency), the claimant alleged the agency denied him military leave to perform his military service. The claimant presented documentation which supported his allegations that agency management had denied him military leave. OSC contacted the agency liaison and informed him of the issue at hand. OSC received confirmation that a memo had been signed by the Greater Indiana Regional District Manager and Plant Manager regarding USERRA and military leave. Standup talks were conducted to remind everyone that employees are to be allowed to depart for military duty without exception. A requirement was also made that this memo be posted at all postal facilities in the region. Claimant indicated that after OSC involvement, he noticed a greater interest in the agency’s attempt to recognize and support veterans. This amounts to full corrective action.
In a USERRA case against the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), Mayaguez, Puerto Rico (agency), the claimant alleged the agency denied him military leave to perform his military duties and created a hostile work environment. The claimant presented documentation which supported his allegations that agency management had denied him military leave.
OSC contacted the ICE Liaison and was successful in obtaining the desired relief. OSC received confirmation that agency management understands and will abide by USERRA and military leave with respect to all employees. Agency management is also aware that when making shift changes due to a worker`s military duty, the agency is responsible for finding replacement workers, not the employee. Furthermore, copies of the USERRA poster have been posted throughout the facility in accessible locations for employees. These results amount to full corrective action.
PPP Corrective Actions (non-litigation):
- Complainant, a Decision Review Officer with a federal agency, blew
the whistle on his supervisor for authorizing payments to veterans in
violation of agency regulations. He was later suspended for 14 days,
supposedly for failing to process his case work in a timely manner and
for other minor matters. He alleged that the suspension was in reprisal
for his whistleblowing. The OSC investigation found sufficient evidence
that whistleblowing was a contributing factor to his suspension, and
that the agency lacked clear and convincing evidence that the suspension
would have occurred without the whistleblowing. The agency agreed to
grant full corrective action to the complainant, including back pay,
interest, and removing the suspension from his personnel record. In
return, the complainant withdrew his OSC complaint. No disciplinary
action was recommended, because the supervisor had already accepted a
two-grade demotion to a non-supervisory position.
- Complainant, a Medical Records Administration Specialist, alleged
that her supervisors initiated an internal investigation into her
whistleblowing activities; suspended her for three days; and, detailed
her for 120 days to a different facility in another state, all in
reprisal for her disclosing to her first- and second-level supervisors
that one employee had given preferential treatment to another by
inappropriately filling a prescription at the facility’s pharmacy. The
complainant believed that this act of favoritism violated an agency
rule. OSC investigated the complainant’s whistleblowing allegations and
found that they had sufficient merit to warrant issuing a formal
correction action letter and prohibited personnel practice report. In
response to the OSC letter and report, the agency and complainant
reached a global settlement agreement. Under the agreement, the
complainant received $40,000 in cash, $30,000 for attorney fees, back
pay, restored leave, training, and a clean record. In return, the
complainant withdrew her OSC complaint and a related EEO complaint.
- Complainant, a former Federal Air Marshal with a federal agency,
alleged retaliation for whistleblowing and participating in an
investigation. Specifically, the complainant had provided testimony in
an Office of Professional Responsibility investigation. Shortly
thereafter, he received three counseling letters and a proposed 14-day
suspension. He resigned after receiving the proposed suspension. The
parties agreed to the following settlement terms: The agency would
forward the complainant’s unofficial personnel records to its
headquarters office. The complainant would direct prospective employers
to a designated agency official, who would confirm that the complainant
voluntarily resigned his employment for personal reasons. The agency
would remove all copies of the proposed 14-day suspension from the
complainant’s unofficial personnel records. In return, the complainant
would withdraw his OSC complaint.
- Complainant, a federal employee, alleged that the agency provided a
preferred candidate an unauthorized employment preference in violation
of 5 U.S.C. ?2302(b)(6). The complainant alleged, among other things,
that the preference was granted to management’s preferred candidate
after she failed to qualify on the certificate of eligible candidates.
Thereafter, the agency re-announced the position including a new
Knowledge Skills and Abilities (KSAs) requirement—knowledge of EEO
law—which the position did not call for. Consequently, the preferred
candidate, who had extensive experience with EEO matters, was ultimately
selected for the position under the revised announcement. OSC
investigated and found that that there was sufficient evidence to
warrant issuing a formal corrective action letter and prohibited
personnel practice report to the Secretary of State. In response to the
OSC letter and report, the State Department agreed to take the following
full corrective action: (1) re-assign the selectee to another position;
(2) re-advertise the position using the original vacancy announcement
and KSAs; (3) contact all applicants, including veterans, who applied
under the first announcement; (4) ensure that all applicants are
evaluated by individuals who were not involved with the first two
vacancy announcements and; (5) require identified staff members within
the agency to attend prohibited personnel practice training.
- A complainant reported to OSC that federal agency officials at an
agency medical center violated civil service laws prohibiting the
employment of relatives. Specifically, the center’s Rehabilitation and
Long Term Care Administrative Director approved the selections of her
two daughters as temporary Student Nurse Technicians. Later, she
approved one daughter’s selection as a Registered Nurse. All three of
these positions fell under the Administrative Director’s chain of
command. She approved additional personnel actions for her daughters
until she retired in 2006. OSC concluded that she had violated 5 U.S.C.
?2302(b)(7) by appointing and employing her daughters.
Because the Administrative Director had retired, OSC could not pursue
disciplinary action against her. Instead, a disinterested party reviewed
the daughters’ official personnel folders and determined that the
personnel actions would have been taken in the absence of any family
relationship. The agency also agreed to provide nepotism training to the
entire division human resources staff, including the Human Resources
- Complainant, a GS-9 Program Assistant with a federal agency, alleged
that management violated 5 U.S.C. ?2302(b)(12) when it charged her sick
leave for a day she left work after she became ill while on the job.
According to 5 C.F.R. ?551.425, time spent waiting for (or receiving)
medical attention for illness shall be considered hours of work if: (1)
the medical care is required on a workday on which the employee reported
for work and subsequently fell ill, (2) the medical attention occurs
during the employee’s regular work hours and, (3) the care was received
on agency premises or off-site at the agency’s direction. All three of
the above factors were present in this case. Accordingly, OSC contacted
the agency and the agency credited complainant with the wrongfully
charged sick leave.
- Complainant, a GS-13 Investigator with a federal agency alleged that
his right to compete for future promotions was deceitfully or willfully
obstructed when his second-level supervisor lowered the performance
score issued by his first-level supervisor. Complainant alleged that his
score was lowered because his second-level supervisor was upset with
complainant’s wife who resigned from the agency so that she could
accompany her husband when he was transferred from Houston, Texas to
Mobile, Alabama. After OSC initiated settlement discussions, the agency
agreed to raise the complainant’s rating and place the First Level
Promotion Evaluation form in his 2005/2006 Promotion Cycle folder. In
return, complainant withdrew his OSC complaint because he had received
full corrective action.
PPP Disciplinary Actions (non-litigation):
- Complainant, a GS-7 Sandblaster with a federal agency, alleged that
she was sexually harassed by a co-worker and a work leader, and that the
harassment was condoned by her supervisor in violation of 5 U.S.C. ?
2302(b)(1). While the OSC investigation revealed insufficient evidence
to prove that complainant was the victim of Title VII defined sexual
harassment, OSC did find as did a Commander’s inquiry, that she had been
subjected to inappropriate conversations and other unacceptable
behavior. The agency issued the co-worker a letter of reprimand prior to
the complainant filing her OSC complaint. With regard to the work leader
and the supervisor, the agency requested under the provisions of 5 U.S.C.
?1214(f) to demote the work leader to a sandblaster, demote the
supervisor to a work leader, and reassign both to different work
centers. OSC approved these requests.
- Complainant, an Equipment Cleaner with a federal agency, alleged that
she was subjected to sexual harassment and other inappropriate behavior by
her supervisor. While the OSC investigation revealed insufficient evidence
to prove that complainant was the victim of Title VII defined sexual
harassment, OSC did find as did a Commander’s Inquiry, that the supervisor
had made inappropriate comments in the workplace and had engaged in
inappropriate behavior with the complainant. The agency requested
authorization from OSC, under the provisions of 5 U.S.C. ?1214(f), to
demote the supervisor to a work leader and reassign him to a different work
center. OSC approved this request.
- An Anonymous complainant alleged that a high level official with a
federal agency signed off on the promotion of her son-in-law in violation of
5 U.S.C. ?2302(b)(7). The OSC investigation substantiated the allegations.
Specifically, OSC obtained the SF-52 form that the subject official signed
as the “requesting official” to promote her son-in-law. In response to a
request from OSC to suspend the subject official for 15-days, she elected to
retire from the federal government.
PPP Corrective and Disciplinary Actions (non-litigation):
Complainant, a GS-13 Supervisory Physical Security Specialist with a federal
agency, alleged that the agency issued him a letter of reprimand,
prematurely cancelled a 90-day temporary promotion, failed to select him for
a permanent GS-14 position, inserted negative comments in his 2005 annual
performance evaluation, issued him a proposed 14-day suspension, and issued
him an interim mid-year evaluation in 2006 containing negative comments in
reprisal for his disclosures to the agency director. Complainant reported
that both his first and second level supervisors were abusing their
authority, grossly mismanaging a local agency office and that they had
violated various laws, rules or regulations. The OSC investigation confirmed
that the disclosures were a contributing factor in these personnel action
decisions. As a result, the agency agreed to promote complainant to the
GS-14 position permanently; grant him the pay he would have received had he
served the entire 90-day temporary promotion period; cancel the letter of
reprimand and proposed 14-day suspension; remove the derogatory comments
from the 2005 annual performance evaluation and the 2006 interim appraisal;
and pay his attorney’s fees. In addition, OSC granted the agency’s 5 U.S.C.
?1214(f) request to issue the first level supervisor a letter of reprimand
for her role in the aforementioned personnel actions.
- On March 21, 2007, OSC filed a petition for corrective action with
the Merit Systems Protection Board (MSPB), charging that a federal
agency violated 5 U.S.C. ?2302(b)(8), when it reassigned a special
agent in reprisal for his disclosure of a violation of law. The OSC
investigation revealed that the special agent made a written anonymous
disclosure that a district assistant special agent in charge had
violated the civil rights of a criminal suspect. The regional agent in
charge requested a review by the DEA Office of Inspection (OIN) into
allegations made in the anonymous letter in which he told them to
identify the author. The agent in charge recommended the special agent’s
reassignment immediately upon the OIN identifying the special agent as
the source of the protected disclosure. The DEA Deputy Administrator
then approved the reassignment and the special agent was reassigned to a
different branch of the agency.
A Team Leader with a federal agency, disseminated four partisan political
e-mails to agency employees, including subordinates, and other individuals.
One of the e-mails the employee distributed contained a video that was 12:39
minutes long and was paid for by the Republican National Committee and the
Bush/Cheney ‘04 campaign. The employee was on duty and in his federal
workplace when he disseminated this e-mail. OSC concluded that the
employee’s actions violated the Hatch Act. OSC, the federal agency and the
employee agreed to informally settle this complaint. The employee was
suspended without pay for ten consecutive work days, from October 23, 2006,
through November 3, 2006.
An employee of a state agency, was a candidate in a 2005 partisan election
for Alderman. After investigating the complaint, OSC determined that the
employee violated the Hatch Act. OSC, the employee and the state agency
agreed to informally settle this matter with the employee serving a
suspension of 30 consecutive work days without pay. The employee served her
suspension from November 27, 2006 through January 9, 2007.
A civilian employee of a federal agency, was a candidate in the November
2006 partisan election for Bibb County School Board. After investigating the
complaint, OSC determined that the employee violated the Hatch Act. OSC, the
employee, and the federal agency agreed to informally settle this matter
with the employee being suspended for 32 consecutive work days without pay.
The employee’s suspension is being served from May 14, 2007, through June
A federal employee, disseminated a partisan political e-mail to 27 of her
work colleagues while she was on duty and in her federal workplace. The
e-mail the employee disseminated invited the recipients to a party she was
co-hosting that would feature Mr. Ken Gordon, a candidate for partisan
political office, as a special guest. The e-mail and its attachment informed
recipients of the partisan political office that Mr. Gordon was a candidate
for, stated that hearing Mr. Gordon speak would be “a treat,” described Mr.
Gordon in favorable terms and contained a link to Mr. Gordon’s campaign
website. After investigating this matter, OSC determined that the employee
violated the Hatch Act. OSC, the employee and the federal agency agreed to
informally settle this matter by suspending the employee without pay for 40
consecutive work days. The employee is serving her suspension from May 15,
2007, through July 10, 2007.
OSC has a case which involves a high level supervisory official at a federal
agency who solicited her subordinate employee to contribute money to a
gubernatorial candidate while on duty and in a federal building. OSC filed a
complaint for disciplinary action against the federal employee. A hearing
was held in this matter last November and the administrative law judge
issued his initial decision in favor of OSC finding that the federal
employee’s solicitation of a political contribution from her subordinate
violated three separate provisions under the Hatch Act. The initial decision
is currently before the full Board for a determination as to the appropriate
penalty for the federal employee’s egregious violation.
OSC has a case which involved a federal employee who forwarded a partisan
electronic mail message to approximately 30 of his colleagues while he was
on duty and in his federal office. Specifically, the email message contained
a letter from then chairman of the Democratic National Committee, Terry
McAuliffe, that urged its recipients to take immediate action after the
Presidential debates so that John Kerry would win the Presidential election.
OSC filed a complaint for disciplinary action against the employee. The
Board concluded that the federal employee’s forwarding of this email
constituted political activity in violation of the Hatch Act. The case was
remanded back to the administrative law judge for a determination as to the
On February 1, 2007, OSC filed a complaint for disciplinary action against
an employee of a state agency, charging that he violated the Hatch Act by
being a candidate in the November 2005 partisan election for Lawrence
Township Council. After OSC filed the complaint, the parties entered into a
settlement agreement. Pursuant to the agreement, the employee was removed
from his position as Executive Director and debarred for a period of six
months from seeking or accepting employment at a state or local agency
within the State of New Jersey.
OSC investigated events surrounding a 2004 presidential campaign appearance
by Sen. John Kerry at a federal agency in Florida. OSC found that
broadcasting and Web-streaming this campaign event to 2,000 agency employees
and 13,000 agency contractors in the community, while on duty and in the
federal workplace, violated the Act. OSC’s investigation revealed that
senior management officials at the agency relied on incorrect advice of
counsel and then-existing agency guidelines in authorizing the broadcasting
and web-streaming of the Kerry campaign event to the community. As a result
of OSC’s investigation, the agency has updated its guidelines so that they
are consistent with the protections and prohibitions of the Hatch Act. In
addition, as part of a settlement agreement, all agency employees are
required to view an OSC training video on the Hatch Act.
OSC investigated allegations that, on March 24, 2006, while appearing in his
official capacity as Administrator of a federal agency, the employee
endorsed former Representative Tom DeLay, then a Congressional candidate in
Texas. The endorsement allegedly occurred during the employee’s keynote
speech at the Rotary Club National Awards for Space Achievement Banquet in
Houston, Texas, which was near Representative DeLay’s Congressional
district. The employee’s statement was ambiguous, and he denied that he
meant to endorse Mr. DeLay. OSC concluded that as a high-level federal
government official, the employee should have exercised better judgment when
making his remarks at the banquet and that, arguably, the remarks he made in
his official capacity as agency administrator could have been viewed as an
endorsement of Mr. DeLay. OSC decided, however, to close its file in the
matter and send a firm warning letter detailing OSC’s concerns to the
A federal agency employee, forwarded an e-mail to 27 recipients, some of
them fellow agency employees, from his government office, during official
duty hours, on October 24, 2004. The e-mail was entitled “Your Vote,”
criticized presidential candidate John Kerry, and concluded with the
statement, “I vote the Bible” superimposed on a picture of President George
Bush. OSC determined that the employee had violated the Hatch Act. The
employee, who left federal employ, settled the case with a written agreement
dated September 26, 2006, in which the employee admitted a Hatch Act
violation. In view of the employee’ departure from government employ, no
other sanctions were imposed.
The employee was Executive Director, of a private, not-for-profit
organization, which is subject to the Hatch Act by virtue of its significant
federal funding. On September 7, 2004, The employee allowed an agency
employee who was on leave of absence, running for election to the U.S. House
of Representatives, to give a campaign speech at a mandatory meeting of the
entire agency staff. OSC determined there was a Hatch Act violation and
filed a complaint with MSPB on July 10, 2006. On October 25, 2006, the
employee and OSC entered a settlement whereby the employee admitted
liability and agreed to serve a 30-day suspension. The suspension was served
October 25 to November 24, 2006.
These companion cases concern serious allegations of coercion by an elected
county prosecutor and his Executive Assistant. OSC’s investigation focused
on numerous situations in which the subjects used their official authority
to interfere with or affect the results of elections for preferred
candidates (including the prosecutor’s wife) and/or coerce Hatch Act-covered
employees into contributing money and time to the local Democratic party.
The prosecutor was first elected in 1992 as a representative of the
Democratic party and has successfully run for re-election every four years
The Prosecutor’s Office has received three federal grants – the Violence
Against Women Act (VAWA) grant, the Victims of Crime Act (VOCA) grant, and
the IV-D grant – since at least 1997. The prosecutor has duties in
connection with these programs due to his oversight of the Prosecutor’s
Office, including those programs funded with federal grants, and also due to
his responsibility for seeking and receiving the grants. His Executive
Assistant was covered by the Hatch Act because he was paid by and otherwise
had duties in connection with the IV-D grant received by the Prosecutor’s
Among other things, OSC’s investigation focused on allegations that the
prosecutor coerced subordinates to make yearly contributions to two
Democratic party fundraisers, to volunteer for his 2004 re-election
campaign, and to volunteer their time to the Democratic Party; used
Prosecutor’s Office resources to further his 2004 candidacy for reelection
to the Prosecutor position; and used his official authority to interfere
with or affect the outcome of the 2004 election for United States Congress
when he allowed his name and official title to be used on a fundraising
invitation for a Democratic candidate.
OSC’s complaint also focused on allegations that the Executive Assistant
similarly coerced employees, including subordinates, to make contributions
to two yearly Democratic party fundraisers, and to volunteer on behalf of
the Democratic party and on behalf of the prosecutor’s wife when she was a
candidate in a partisan election in 2005; and used Prosecutor’s Office
resources to further the prosecutor’s 2004 candidacy for re-election.
At the conclusion of our investigation, we filed complaints for disciplinary
action against both officials with the Merit Systems Protection Board.
2006 Case Summary
Physician Misconduct at VA facility. In this whistleblower
case, a doctor providing care to veterans was found to have provided
substandard care in several cases. This was uncovered by several
whistleblowers who reported on the doctor's actions. With OSC's help, an
investigation ensued and additional scrutiny was added to the facility.
Violations of Federal Contracting Laws and Regulations. OSC
investigated an allegation of improper military contract awarding. OSC found
that an officer had improperly delegated a service contract awarding
decision to a subordinate, a policy violation. Corrective actions were
recommended and subsequently adopted by the violating entity.
Improper Storage of Military Equipment and Supplies. OSC
investigated allegations of improper military equipment storage. OSC found
that violations had occurred and recommended more thorough inspection,
increased education, and better inventory accountability.
Falsification of Agency Records reporting Federal Air Marshal Flights.
OSC investigated allegations of isolated cases of falsified DHS and FAMS
reports, indicating a greater amount of time worked than was possible with
then current staffing levels. OSC determined that the reporting did not
result in financial gain.
Deficiencies in Security and Safety Violations at Nuclear Research Laboratories and Facilities.
OSC investigated claims of improper security procedures at a nuclear
research facility. The investigation did not result in recommendation or
corrective action in addition to already implemented process improvements.
OSC also investigated a classified allegation, resulting in referral to
individuals and agencies charged with oversight in this national security
Airport Security Vulnerabilities and Violations. OSC referred to the Secretary of Homeland Security allegations of security vulnerabilities and violations of law, rule or regulation at the Cherry Capital Airport, Traverse City, Michigan. The whistleblower alleged that airport personnel were not trained for emergencies, that a back door of the facility was always left unlocked, and that a door to a tunnel in the secure baggage area was routinely left unlock allowing unauthorized personnel entry and possible access to aircraft. He also alleged that the emergency back-up lights in the tunnel did not work. Finally, the whistleblower alleged that a one-way revolving door from the sterile passenger area presented a security risk because the one-way mechanism had failed and attempts to fix it had been unsuccessful. In addition, the door’s alarm was inaudible to airport personnel located at the nearest checkpoint approximately 100 yards away.
The Secretary tasked the Inspector General with conducting the investigation and writing the report. The report did not substantiate the allegations but did acknowledge some of the security issues identified, including a problem with the door, but also describes how those issues were resolved. In addition, the report noted that the terminal building at issue in this case was no longer in use. The airport began operating out of a new facility described as a “state-of-the-art terminal complex” on October 27, 2004. Referred October 20, 2004; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on March 1, 2006.
Improper Treatment of VA Psychiatric Patients. OSC referred allegations from four whistleblowers that the U.S. Department of Veterans Affairs (VA), Greater Los Angeles Healthcare System (VAGLAHS), West Los Angeles Medical Center (Medical Center), Los Angeles, California was providing substandard care to veterans with mental illnesses. The whistleblowers alleged that the Medical Center was warehousing mentally ill veterans in its Emergency Department (ED), where they were exposed to conditions that were neither therapeutic nor safe for patients in need of psychiatric care. The whistleblowers disclosed that the VAGLAHS management had reduced the number of psychiatric beds available at the Medical Center and closed its Psychiatric Emergency Service (PES) in violation of 38 U.S.C. ?1706. They further alleged that the allocation of psychiatric resources adopted by VAGLAHS management endangered patients, staff, and the public.
According to the whistleblowers, during the frequent bed shortages, psychiatric patients presented for emergency care were either admitted to a fictitious ward, Ward 1 East, or denied immediate treatment and referred to an outpatient facility that is not equipped to treat their serious psychological conditions. Patients admitted to Ward 1 East were allegedly left on gurneys in the ED without the supervision of adequately trained nursing staff or psychiatrists for as long three days. In addition, the whistleblowers alleged that VAGLAHS management engaged in an ongoing waste of funds in connection with the administration of long-term care contracts, needlessly extending the amount of time patients spend in high-cost hospital wards and refusing to renew cost-effective, long-term care contracts for mentally ill veterans subject to conservatorships.
The Secretary Veterans Affairs delegated responsibility for investigating the whistleblowers’ allegations to Dr. Jonathan B. Perlin, Undersecretary for Health. The agency’s report found that the Medical Center experienced some complications in its provision of psychiatric services when the PES and ED were merged but that there was little evidence these complications produced lasting conditions in which patients were receiving substandard care. In addition, the agency concluded that the whistleblowers’ allegations regarding the administration of long-term care contracts were largely unfounded. Finally, where the agency identified shortcoming in psychiatric programs at the Medical Center, it made recommendations for improvement. Referred July 14, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on March 22, 2006.
Proper Medical Care Denied to Patients. OSC referred allegations that patients at the Department of Health and Human Services (HHS), Indian Health Service, Acoma-Canoncito-Laguna (ACL) Service Unit, Albuquerque, New Mexico, were being denied necessary medical services. The whistleblower, a physician, alleged that, from July 2004 until October 2004, Dr. Stephen Ryter, then-Clinical Director, routinely denied all requests for contract medical services. The ACL Service Unit relies upon contracts with other hospitals as a means of providing advanced medical services to its patients. The whistleblower alleged that Dr. Ryter’s practice of denying all requests for contract services created a substantial and specific danger to the health of the hospital’s patients because patients were not receiving proper medical care.
The HHS OIG Dallas Regional Office, Albuquerque Field Office, investigated the allegations and found them to be unsubstantiated. The investigators found that Dr. Ryter implemented the case priority system properly. They also reviewed the medical records of the eight patients specifically mentioned in the disclosure and, in each case, found that there was a satisfactory explanation for the ACL Service Unit’s decision not to pay for further treatment. Referred April 25, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on March 30, 2006.
Dangers to Public Safety at Prison Factories. OSC referred allegations that inmate workers and civilian staff members at United States Penitentiary Atwater, California (USP Atwater) and other Federal Bureau of Prisons (BOP) institutions were being exposed to lead, cadmium, barium, and beryllium in computer recycling facilities. The whistleblower, a BOP Safety Manager, alleged that toxic materials were released when Cathode Ray Tubes (CRTs) were broken during the recycling process. Despite numerous air quality tests documenting excessive levels of airborne lead and cadmium, management personnel at USP Atwater and Federal Prison Industries, Inc. repeatedly ordered reactivation of recycling operations without implementing recommended safety measures or the required approval the safety department. According to the Occupational Health and Safety Administration (OSHA), overexposure to such toxic materials can cause cancer, kidney disease, disruption of the blood-forming system, damage to the central nervous system, impairment of the reproductive system, or even death. The whistleblower also disclosed that in his attempts to address safety concerns at USP Atwater, he discovered similar dangers in recycling facilities located at other BOP institutions throughout the country.
BOP produced two reports in response to OSC’s referral. The reports substantiate some of the allegations but ultimately conclude that BOP FPI and Safety Staff appeared to have adequately addressed the safety concerns. The agency found that BOP and FPI management and staff took appropriate steps to ensure factories were operating safely. The whistleblower strongly disagreed and provided OSC with documentary evidence to support his comments. According to him, BOP investigators neglected to interview some witnesses in possession of relevant evidence.
Upon review of the agency’s submissions and the whistleblower’s comments, the Special Counsel found that the agency’s findings were unreasonable. The Special Counsel observed that the agency’s reports made little effort to explain why documentary evidence appearing to contradict the agency’s findings was unreliable or how this evidence could be reconciled with the conclusions of the agency’s investigation. The Special Counsel also noted that the agency’s reports appeared to rely on strained interpretations of applicable rules in order to justify management’s actions and that the agency’s investigation into recycling facilities at other BOP institutions appeared cursory at best. In light of these and other deficiencies, the Special Counsel recommended an independent and impartial investigation into BOP’s recycling activities. It is our understanding that such an investigation is currently being conducted by the Office of Inspector General for the U.S. Department of Justice and that this investigation comprises all computer recycling facilities located in BOP institutions. Referred November 15, 2004; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on April 3, 2006.
Improper Administration of Respiratory Medications. OSC referred allegations that medical personnel at the Department of Veterans Affairs (VA), Miami VA Medical Center (VAMC), Miami, Florida, endangered the health of respiratory patients by administering respiratory medications improperly. The whistleblower, a Respiratory Technician, alleged that medical personnel delivered the medications albuterol sulfate and ipratropium bromide to patients in diluted doses and at incorrect intervals of time in order to cut costs. He also alleged that management at the VAMC instructed medical personnel to falsify medical records in order to conceal this wrongdoing.
The VA Office of the Medical Inspector (OMI) investigated the whistleblower’s allegations and found them to be unsubstantiated. However, the investigation did uncover other problems in the VAMC’s Respiratory Care Unit, including a shortage of staff and poor documentation of medical treatments. To correct these deficiencies, the OMI recommended that the VAMC: 1) document respiratory treatments with greater consistency, 2) increase staffing levels in the Respiratory Care Unit, 3) improve recruitment and retention strategies for respiratory therapists, and 4) clarify the policy on the administration of medications via aerosol delivery devices. Referred September 15, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on May 9, 2006.
Deficiencies in Screening Procedures at Airports. OSC referred allegations that TSA screeners and management personnel at the U.S. Department of Homeland Security (DHS), Transportation Security Administration (TSA), Orlando International Airport, Orlando, Florida were not following standard operating procedures (SOPs) for the inspection at the airport. DHS partially substantiated the allegations and acknowledged that there an omission in its SOPs which created a security deficiency. In response to this finding, Secretary Chertoff noted that TSA acknowledged the vulnerability and plans to issue revised SOPs to airports required to conduct security screening to correct the omission and inconsistent screening methods. Referred November 16, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on May 25, 2006.
Inadequate Provision of Cardiac Care to Veterans. OSC referred allegations that the lack of competence and questionable credentials of the Chief of the Cardiology Division have compromised the provision of cardiac care to veteran patients. A cardiologist with the Department of Veterans Affairs (VA), St. Louis VA Medical Center, St. Louis, Missouri, disclosed that he had become aware that the Cardiology Chief made significant errors in the interpretation of electrocardiograms and other heart monitors. He also alleged that the Cardiology Chief had publicly misrepresented his standing as a board-certified cardiologist, and that the Cardiology Chief regularly failed to report for duties in the Cardiology Division. The whistleblower maintained that this significantly compromised patient care and safety.
The agency did not substantiate the whistleblower’s allegations that the lack of credentials and incompetence of the Chief constituted a violation of law, rule, or regulation, gross mismanagement or a danger to public health. According to the report, the agency did not find that there had been a misrepresentation or that the Cardiology Chief was incompetent or failed to report for duty, but acknowledged that he had some difficulties in management early in this tenure.found that these early missteps did not affect his overall management skills and that he continues to provide high quality care. Referred October 31, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on July 14, 2006.
Police Officer Used Unauthorized Weapon and Ammunition. OSC referred allegations that a Supervisory Police Officer at the Department of the Army, Directorate of Emergency Services, Fort Meade, Maryland, often carried his personal weapon while on duty and sometimes loaded it with his own ammunition. The whistleblower, a former Civilian Police Officer, also alleged that the Supervisory Police Officer used hollow point ammunition in military rifles on the firing range, and provided hollow point ammunition to other police officers to use on the range. The whistleblower contended that, in doing so, the Supervisory Police Officer violated Army regulation 190-56 and created a substantial and specific danger to public safety.
The Department of the Army investigated the whistleblower’s allegations and found them to be unsubstantiated. However, the agency investigation did uncover ambiguities and deficiencies in Fort Meade’s policies and procedures for registering and storing privately owned weapons. It also found that Lt. Russell failed to secure necessary approval before acquiring training ammunition from the National Security Agency. According to the agency report, Fort Meade has taken appropriate corrective action to remedy these deficiencies. Referred March 7, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on July 28, 2006.
Improper Testing of Harrier Jet Engine Component. OSC referred allegations that personnel at the U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station Cherry Point (NADEP CP), North Carolina were using an unauthorized procedure to conduct a functional test of an exhaust diffuser main repairable assembly (exhaust diffuser MRA). The exhaust diffuser MRA is a component of the F402-RR-408A/B jet engine used in the U.S. Marine Corps’ AV8B Harrier. The whistleblower, production supervisor for Shop No. 96556, alleged that the unauthorized testing procedure was a violation of law, rule or regulation and created a substantial and specific danger to public safety. NADEP CP’s Shop No. 96556 is responsible for the repair and overhaul of the F402-RR-408A/B jet engine.
After a thorough investigation, the Navy substantiated the allegations. The Navy found that the artisans’ use of an oil squirt can to perform the functional test on the exhaust diffuser MRA was improper. In addition, the Navy found that NADEP CP Quality Assurance (QA) personnel violated the QA procedures, specifically NAVAVNDEPOSINST 4855.8A, when they failed to issue a Corrective Action Request, as requested by the whistleblower, to determine if a recall of Harrier jet engines contained exhaust diffuser MRAs tested by the oil squirt can was necessary. The report disagrees with the whistleblower’s assertion that the testing was flight critical and emphasizes that the deficient testing did not pose a risk of loss of aircraft because the engine cells undergo comprehensive testing prior to reinstallation on the aircraft. This subsequent testing would have revealed any problems with the engine. Thus, the Navy concluded the deficient testing did not pose a danger to the fleet. Referred August 5, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on August 1, 2006.
Failure to Support Wireless Communications at the Southwest Border. OSC referred allegations that the failure to support wireless communications at the southwestern U.S. border has rendered the border unsafe for agents and vulnerable to terrorist infiltration. The whistleblower, a high-level telecommunications specialist, alleged that in 2004 and 2005, officials in the Office of the Chief Information Officer, Department of Homeland Security, failed to allocate sufficient funds to support the acquisition of wireless telecommunications equipment and technologies as intended by Congress, and instead used the monies for non-wireless procurements. He alleged that in many places along the nearly 2000 mile border with Mexico, agents could not communicate directly with one another and that routing calls through a dispatcher created delays that jeopardized the safety of agents and the mission of the agency.
The agency report acknowledged the need for adequate technologies for border patrol agents in the southwest, and cited recent initiatives designed to improve communications on the border, including the Secure Border Initiative and SBInet. These recent efforts are intended to provide border patrol agents with the means to protect themselves against violence from criminal traffickers. The agency did not substantiate the allegation that money allocated by Congress for wireless initiatives was improperly spent on non-wireless programs. Referred September 9, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on September 26, 2006.
- The service member left the U.S. Army Corps of Engineers for active duty in
the U.S. Air Force. ischarge, he requested
reemployment. The agency did not reemploy him because it believed that the
- The service member alleged that the U.S. Park Police failed to reemploy him
promptly and did not reemploy him to the appropriate “status” upon being
honorably discharged. The service member had served as a police officer for
the agency. The agency reemployed the service member but assigned him to an
office in a different part of the country. OSC’s investigation uncovered
sufficient evidence to establish that the agency should have reemployed the
service member to his former duty station and should have reemployed him
sooner. OSC successfully persuaded the agency to pay the service member an
amount equaling the lost wages he suffered as a result of the delay in
reemploying him and as a result of being reemployed in the other city.
- The service member alleged that the U.S. Department of the Navy, Kings Bay
Submarine Base violated USERRA by failing to reemploy him to a suitable
position. Specifically, the service member, an agency Police Officer who
suffered a serious back injury while performing military service, alleged
that the agency removed him from federal service after determining: 1) he
was unable to perform the essential duties of a Police Officer because of
his service-connected injury and 2) there were no other available positions
in which to place him. OSC’s review of the service member’s complaint
revealed that the agency did not comply with federal USERRA regulations
requiring it to contact the U.S. Office of Personnel Management for
placement assistance after determining that it could not reemploy the
service member because of his service-connected disability. When informed by
OSC of its USERRA obligations, the agency endeavored to comply with USERRA
by looking for an alternative position and readying itself to request
placement assistance from OPM. Additionally, OSC prepared and sent a
training document to the agency explaining its responsibilities when
presented with the task of reemploying service members who are injured while
performing military service. The agency agreed to circulate the training
document among the Human Resource Staff and other agency supervisors so
that, if the agency is faced with a similar situation in the future, it will
be fully aware of its responsibilities. The agency also agreed to post and
circulate a USERRA information poster.
- The service member alleged that he was offered and accepted a position with
the U.S. Department of Army. When the agency gave the service member an
entry on duty (EOD) date, the service member informed the agency that he
could not start on such date because of military service. In response, the
agency withdrew the offer of employment. OSC contacted the agency and
explained that it is illegal under USERRA to deny initial employment because
of military service. In response, the agency re-offered the position, which
the service member again accepted, and the parties agreed to a new EOD date.
- The service member, a member of the United States Air Force Reserve, applied
for two Social Insurance Specialist/Claims Representative positions with the
Social Security Administration. During her job interview, the selecting
official noted that she was a member of the Air Force Reserve and asked if
she could be activated. The agency later notified the service member that
she was not selected. OSC’s subsequent investigation uncovered evidence that
that the service member would likely have been selected but for her military
service obligations. OSC negotiated full relief for the service member,
namely: the agency agreed to pay the service member a lump sum reflecting
loss of pay from the time the service member would have been selected until
the time the service member began her job with another employer. (The
service member declined the agency’s employment offer.)
- Two service members alleged that the U.S. Department of Justice, Bureau of
Prisons, did not consider them for competitive promotions to GS-8 Senior
Officer Specialist positions while they were away due to military service
obligations. OSC’s investigation confirmed that the agency violated federal
USERRA regulations requiring that a federal agency’s promotion plan provide
a mechanism for considering absent service members for promotion. Thus, OSC
persuaded the agency to consider the service members for promotion.
Subsequently, the warden selected the service members for promotions to GS-8
Senior Officer Specialist positions. OSC also obtained evidence establishing
that the service members would have been selected for promotion had the
agency considered them earlier. Consequently, OSC requested that the agency
provide full corrective action to the service members, and agency officials
also agreed to promote the service members retroactively and to award them
back pay and other applicable seniority-based employment benefits.
- The service member alleged that the U.S. Drug Enforcement Administration
denied her a career ladder promotion to the GS-12 level because she was
absent from employment due to military service. During its investigation,
OSC obtained evidence indicating that, but for the service member’s
departure for military service, the service member would have attained her
promotion. Thus, upon her return from military service, the agency granted
OSC’s request that it provide the service member appropriate training and,
upon successful completion of such training, promote her retroactively and
award her back pay.
- The service member alleged that the U.S. Postal Service did not grant the
service member his step increase in salary upon being reemployed after
completing 17 months of military service with the U.S. Army National Guard.
OSC contacted the agency and educated it about its USERRA obligations. In
response, the agency made the step increase retroactive and will award back
pay to the service member.
- The service member alleged that the Centers for Disease Control and
Protection prepared its monthly schedule in such a way that discriminated
against him because of his reservist duties. The service member and his
co-workers are required to work on weekends. The agency, however, gives its
employees weekends off on a rotating basis. OSC’s investigation confirmed
that the agency always scheduled the service member to be off on the weekend
he had reservist duties. Although the agency had a business reason for not
scheduling the service member to work on weekends that it knew he would be
unable to come to work (i.e., his reservist weekend), the agency’s
scheduling practice violated one of the purposes of USERRA, namely: minimize
the inconveniences to civilian careers that arise from military service.
Accordingly, at OSC’s request, the agency changed the manner in which it
prepared its monthly schedule such that it would not automatically schedule
the service member to be off the weekends he had military duty.
- The service member alleged that the Department of Veterans Affairs violated
USERRA by not awarding her a “goal sharing” bonus that all the members of
her team had received for participating in fulfilling team goals. The agency
did not award the service member the bonus because she did not fully
participate in the team’s work because of her absence from employment due to
military service. Prior to the service member’s deployment, she had
participated in the goals for which the other employees were being rewarded.
The evidence showed that the service member would have been given a bonus
but for her absence due to military service. Under OSC’s interpretation of
the statute, which is to be liberally construed in favor of the service
member, such team bonuses constitute a benefit of employment different from
salary or wages. Thus, OSC contacted agency officials, and they agreed to
award the service member the same goal-sharing bonus.
In this case, the complainant was Port Director, GS-13, at Tampa International Airport. When his supervisor suggested a reassignment to an Adjudication Officer position, the complainant accepted it. However, he was not notified that it was a GS-12 position and that by accepting it, he was going to be downgraded. Therefore, his downgrade was not voluntary and he was constructively demoted without being given Chapter 75 due process rights. OSC concluded, on these facts, that there were reasonable grounds to believe that (b)(12) had been violated.
The complainant has since retired from the federal government. In resolution of his complaint, the agency offered and he accepted a lump sum payment of $82,732.96 (which is equivalent to the amount of pay that he lost between his GS-13 and GS-12 positions). In exchange, the complainant withdrew this complaint.
An Appraiser with the Department of Interior (DOI), alleged that Bureau of Land Management (BLM) officials failed to select him for a promotion, significantly changed his working conditions, and took other personnel actions against him because he blew the whistle on BLM`s improper appraisal practices. He asserted that BLM`s failure to divorce land appraisal from exchange negotiation violated legal requirements and national standards of appraisal practice. These land exchanges grossly inflated property values to the detriment of the federal taxpayer.
The Whistleblower`s protests led to investigations by the OIG and GAO and a review by the Appraisal Foundation, all of which validated his allegations.
OSC investigated the complaint of reprisal for whistleblowing and approached DOI regarding informal corrective action for personnel actions taken in violation of 5 U.S.C. §§ 2302(b)(8), (9), and (12) (first amendment).
DOI agreed to provide the Whistleblower the following relief: a retroactive noncompetitive promotion to BLM Acting State Chief appraiser, GS-13, for 120-days; a retroactive promotion to BLM State Chief Appraiser, GS-13; a retroactive promotion to a GS-13 appraisal position within the Appraisal Services Directorate (ASD); $7000 for performance awards; to purge his personnel records of all negative references related to his status as a whistleblower; to restore 10 days of annual or sick leave; not to retaliate against him with respect to the terms and conditions of his employment, including his position description, work assignments, training, and promotional opportunities; to pay $2000 for career training; and to pay attorneys fees not to exceed $17,500. In exchange, the complainant agreed to withdraw his complaint to OSC.
In this case, the complainant, a Real Estate Specialist with the Department of Interior (DOI), along with his coworker, alleged that Bureau of Land Management (BLM) officials failed to select him for a promotion, significantly changed his working conditions, and took other personnel actions against him because he blew the whistle on BLM`s improper appraisal practices. The complainant asserted that BLM`s failure to divorce land appraisal from exchange negotiation violated legal requirements and national standards of appraisal practice. These land exchanges grossly inflated property values to the detriment of the federal taxpayer.
The complainant’s protests led to investigations by the OIG and GAO and a review by the Appraisal Foundation, all of which validated his allegations.
OSC investigated the complaint of reprisal for whistleblowing and approached DOI regarding informal corrective action for personnel actions taken in violation of 5 U.S.C. §§ 2302(b)(8), (9), and (12) (first amendment).
DOI agreed to provide the complainant the following relief: $7000 for performance awards; to treat his future requests for continuing education as it would treat any other individuals` request; to pay for him to maintain his status as a General Certified Appraiser; $2000 for career training; to purge his personnel records of all negative references related to his status as a whistleblower; to restore 7 days of annual or sick leave; not to retaliate against the complainant with respect to the terms and conditions of his employment, including his position description, work assignments, training, and promotional opportunities; and to pay attorneys fees not to exceed $11,500.
In this case, the complainant was a computer technician for the Department of Veterans Affairs. He alleged that he was placed on enforced annual leave and suspended for 14 days because he had posted critical comments about his agency on his personal web site.
he agency agreed to provide the complainant with a clean record and back pay for the enforced annual leave and suspension. The complainant withdrew his OSC complaint.
In this case, the complainant alleged that the Border Patrol failed to select him for over 200 border patrol vacancies because he and his supervisor had disclosed that other Border Patrol agents had engaged in voucher fraud through a kickback scheme involving various rental property owners in Arizona. (The whistleblowing is the subject of a separate OSC Disclosure Unit file that has resulted in significant investigative work and disciplinary action.) The complainant moved to another agency and lost no pay.
The complainant and Border Patrol agreed to a no-fault settlement that will pay the complainant $40k in cash. In return, the complainant has withdrawn his OSC complaint and an EEO lawsuit filed in district court alleging age discrimination.
The complainant filed a complaint with OSC alleging that U.S. Department of the Interior (DOI) officials retaliated against him for disclosures he made concerning contracting irregularities permitted by DOI officials. The complainant claimed that his whistleblowing led to several personnel actions against him, including two suspensions, a reprimand, and the denial of awards since 2002.
After investigation of the complainant’s allegations, OSC believed that the complainant’s disclosures may have contributed to his first suspension and the length of his second suspension (because the length was based, in part, on the existence of the first suspension). The assigned attorney encouraged settlement discussions. DOI ultimately agreed to rescind both suspensions, pay the complainant a lump sum of $6,500, and pay $10,000 in attorney fees. In exchange, the complainant agreed to closure of his OSC complaint. He and the agency agreed to keep the settlement confidential.
The complainant, a WS-10 electrician with the U.S. Department of Navy, Norfolk Naval Shipyard, alleged his work duties were changed because he engaged in protected activity. Specifically, he alleged that in reprisal for filing a complaint with OSC in January 1997, he suffered a significant change in duties and responsibilities which continued until OSC`s intervention in late 2005. Due to OSC`s investigation, the agency agreed to reassign the complainant to the type of duties normally performed by a WS-10 electrician and provide any necessary training to enable him to perform those duties.
The Office of Special Counsel (OSC) obtained informal corrective action where officials at the Veterans Administration Medical Center in Anchorage, Alaska, improperly granted a $10,000 relocation bonus to a GS-7 Human Resources Assistant in violation of 5 U.S.C. ?2302(b)(12) and the VA rules governing relocation bonuses. VA officials neglected to comply with any of these provisions when they offered the relocation bonus.
OSC concluded that VA officials had failed to comply with laws, rules, and regulations that implemented or directly concerned the merit system principle that the federal workforce be used efficiently and effectively, 5 U.S.C. ?2301(b)(5), and had thus violated 5 U.S.C. ?2302(b)(12).
VA officials took all of the corrective action that OSC recommended, including initiating a bill of collection to recoup the improper bonus, training the approving official regarding the failures in the bonus, and writing Standard Operating Procedures to ensure proper administration of recruitment bonuses in the future.
In this case, the complainant was the secretary to the Alaska State Director, Rural Development, USDA. She alleged that the state director detailed her to a lower-graded position outside his immediate office because he suspected she had made IG hotline complaints and because she refused to perform nongovernment duties related to his appointment to a local borough assembly seat. The complainant further alleged that the state director instituted a misconduct investigation against her for the same reasons.
The investigation confirmed the complainant`s allegations. A formal PPP report was sent to the Secretary. Whereupon, the state director resigned and the agency granted full corrective action: (1) merit promotion appointment to a GS-7 loan technician position with a promise of noncompetitive promotion to GS-9 after one year; (2) 10k in attorney fees; (3) $10,311.68 in medical costs; and (4) a clean record.
In this case, the complainant alleged that Pine Bluff Arsenal (PBA) officials violated 5 U.S.C. ?2302(b)(8) when they terminated his one-year term appointment as a WG-10 Heavy Equipment Mobile Mechanic at the Pine Bluff Arsenal (PBA) on February 12, 2004, one day before the expiration of his one-year term appointment. The complainant had made arguably protected disclosures.
OSC`s investigation revealed that the decision to remove the complainant was based, in part, on unsubstantiated claims that he had lied on his application for a security back ground investigation and was ineligible for a security clearance.
OSC also found that the complainant’s supervisor, James Reed, had inappropriately referenced an oral admonishment for not following the chain of command in making his disclosures in the record of his 2003 mid-year performance review.
On 1/30/06, the complainant and PBA signed a settlement agreement in which PBA agreed to 1) cancel the action removing the complainant during his trial period and change it to a termination-expiration of appointment effective February 13, 2004; 2) remove all references to the termination in the complainant`s personnel records; 3) remove the reference to the oral admonishment from the record of his 2003 mid-year performance review; and 4) ensure that its response to any requests for his employment references/ history accurately reflected the changed personnel action. In exchange, the complainant has agreed to withdraw his OSC complaint.
The complainant was a GS-5 seasonal helitack firefighter at Mt. Zion National Park. He disclosed to management that his supervisor assaulted a co-worker. Subsequently, his supervisor gave him a "not achieved" performance rating for the fire season and told him he would not be rehired for the following season. He alleged that both decisions were based on his protected whistleblowing.
The investigation showed that management had knowledge of the complainant`s disclosure at the time it gave him his rating and informed him he would not be rehired. The investigation also showed that the evidence to support the rating was pretexted.
The agency agreed to take corrective action. It removed all derogatory information from its personnel files, gave the complainant a new "achieved" rating, provided the complainant with back pay ($23,681.56) for missed salary and overtime because he was not rehired, and issued a letter offering him a position for the 2005 fire season. The complainant accepted the job offer.
A former Supervisory Program Manager for the Department of the Army alleged that the Army knowingly made illegal temporary and permanent promotions to the position of Deputy Chief of Staff for Resource
Management at the Rock Island Arsenal.
Management at the Rock Island Arsenal detailed employees without the necessary qualifications to the position on a temporary basis. When the permanent position was announced, the announcement lacked the language restricting it to the Army Acquisition Corp (AAC) employees. The Agency could have requested a waiver to fill the position outside of CAP, but they failed to do so. The Agency selected an employee without AAC membership to fill the open position. The complainant was the only applicant who possessed AAC qualifications.
As a result of OSC`s investigation, the Agency acknowledged that the position had been filled, both temporarily and permanently, by unqualified applicants. In settlement, the Agency agreed to temporarily promote the complainant, retroactively, for a period of 120 days. At the end of the temporary promotion, the Agency retroactively permanently promoted him from the effective date of the promotion to his retirement date. The Agency agreed to provide back pay, with interest; to recalculate the amount of his leave payment, based on his higher salary at the time of his retirement; and to request an adjustment of his annuity, from OPM, based on a recalculation of his high three salary.
In this case the complainant, a 30 percent disabled vet, applied for a GS-7 budget analyst position with the Bureau of Reclamation, DOI. He was not selected. Instead the agency selected a lower standing nonveteran under the Outstanding Scholar Program (OSP).
Complainant appealed his nonselection under USERRA and VEOA before the MSPB. The AJ, with the full Board affirming, denied his appeal. His OSC complaint followed alleging that the selection of the nonveteran was a PPP.
The investigation found reasonable grounds to believe that the selection of the nonvet under the OSP was improper. In response to a corrective action letter from the Special Counsel, the Department appointed complainant to a vacant GS-7 budget analyst position and agreed to provide appropriate training to supervisors and human resources staff on PPPs, veterans preference, ICTAP and OSP.
The complainant alleged that the agency improperly processed his removal as a voluntary resignation as opposed to a removal action. OSC settled the complaint by having the parties agree that the agency would cancel the resignation action and re-process in accordance with the originally proposed action.
In this case, the complainant alleged that management officials at the Veterans Affairs Medical Center (VAMC), in Michigan, attempted to influence him to withdraw from competition for a position he applied for at VAMC in violation of 5 U.S.C. ?2302(b)(5).
OSC found that management officials at the VAMC did attempt to influence the complainant to withdraw from competition for a position, based on their belief that they were looking out for the complainant’s best interests in attempting to dissuade him from giving up a career appointment for a temporary position, which is nevertheless a prohibited personnel practice.
The Veterans Administration (VA) agreed to informal corrective/disciplinary action. The VA issued a memorandum to supervisors at the VAMC; specifically including the managers who attempted to influence complainant to withdraw from competition for a position. This memorandum reviews prohibited personnel practices and merit system principles. Managers with questions were directed to contact OSC.
In this case, the complainant filed a complaint with OSC alleging that U.S. Department of Housing and Urban Development (HUD) officials retaliated against him for disclosures he made to HUD officials concerning violations of HUD housing assistance regulations. The complainant claimed that his whistleblowing led to a five day suspension.
After an investigation of the complainant’s allegations, OSC believed that there was sufficient evidence to assert that the complainant had made disclosures that may have contributed to his suspension. The assigned attorney engaged in settlement discussions with HUD. As a result, HUD agreed to rescind the suspension, remove it and the accompanying proposal from the complainant’s official personnel folder, and pay the complainant for the five days when he served the suspension.
In this case, the complainant, a GS-5 contact representative for DVA and a union representative, filed a ULP on behalf of her unit challenging DVA`s unilateral decision to relocate employees within her unit. The ULP was successful. Shortly after the ULP was corrected, management detailed the complainant to a different service unit.
OSC found evidence to believe that the detail was because of complainant`s protected complaint. Based on a draft PPP report, the agency agreed to take corrective action. The agency provided the complainant with a clean record, restored 19 hours of sick leave, 50 hours of annual leave, and 70 hours of travel compensatory time, and paid her $6,746.31 for consequential damages and $22,500 for attorney fees and related costs.
In this case, a Federal Medical Center (FMC) Warden reassigned the complainant from her warden`s secretarial position to a special investigative support technician position. The complainant alleged that she was reassigned because she filed a workplace violence complaint against her first-line supervisor, Executive Assistant.
At OSC request, the agency reassigned the complainant back to her secretarial position. Her reassignment was effected concurrent with the arrival of a new FMC warden.
The complainant in this case, a contract representative with the Social Security Administration, Texas, alleged that her supervisor, willfully obstructed her from competing for a GS-5/7 social insurance specialist (claim representative) position with promotion potential to GS-11 and attempted to influence her to withdraw from competing for one of the five vacancies.
OSC investigation revealed that the supervisor told the complainant and other contract representatives, before the positions were announced, that he was only going to be considering external applicants for the claim representative vacancies so they need not apply. The complainant found applied anyway, but did not make the referral list. OSC found that while the supervisor did not commit any prohibited personnel practices, he did violate Civil Service Regulation 330.1001 (Withdrawal from Competition), which prohibits a federal official from attempting to influence another person to withhold filing an application for the purpose of improving or injuring the employment prospects of any one person.
After requesting and receiving OSC approval, the agency suspended Combs for 1 day.
The complainant, an instructor at the U.S. Citizenship & Immigration Services Academy, Georgia, alleged that his annual summary performance rating was lowered, and that he was denied training and threatened with disciplinary action because he made protected disclosures, filed a previous OSC complaint (MA-04-1932), or because he filed a grievance over his lowered performance rating.
At OSC request, the agency agreed to give the complainant an outstanding overall summary rating for the October 1, 2003 through September 30, 2004, performance year, and a 40-hour time off performance award.
Both subjects, the former director and deputy director of the Academy, have retired from federal service.
Complainant, currently a GS-12 Special Agent, Bureau of Indian Affairs, alleged that the Southwest Human Resources Office illegally promoted another employee to the position of GS-9 Special Agent. The selectee did not meet time-in-grade requirements. After the HR office made the selection and moved the employee, they realized the selectee lacked the necessary time-in-grade. Instead of reannouncing the position, the agency attempted to correct the problem by placing the selectee in a GS-7 position to allow him time to meet the time-in-grade requirements for the GS-9 promotion. OSC requested the agency agreed to reannounce the GS-9 Special Agent position to allow qualified employees the opportunity to compete.
The complainant, a senior level official at the Farm Service Agency alleged that he filed a hotline complaint with his Office of Inspector General. He believed that in reprisal for the hotline complaint, his immediate supervisor changed his duties and included negative comments in his annual performance appraisal.
Before our on-site investigation began, we learned that the supervisor had retired from federal service. At OSC’s requests, the agency then removed from the complainant`s appraisal both the supervisor`s negative comments and the complainant`s reponse to those comments.
Complainant, a GS-101-07 mental health specialist, Indian Health Service, Department of Health and Human Services, alleged that he was charged absent without leave (AWOL) and subsequently terminated during his probationary period because of complaints he made to the union about his supervisor.
Prior to the OSC investigation, the agency realized that the complainant was not a probationary employee at the time of his termination and had not been given statutory appeal rights. As a result, the agency unilaterally reinstated complainant and provided him with full back-pay.
The agency, at OSC`s request, then agreed to remove the AWOL and charge the time to the complainant`s regular pay and to remove all references to the AWOL and his termination from his Official Personnel Folder.
Complainant, currently a GS-5 police officer, U.S. Department of Army (ARMY), alleged that following his retirement from a Non-appropriated Fund position with the Army and Air Force Exchange Service on August 8, 2003, and entering on duty into a GS-3 police officer position on August 7, 2003, the agency committed a PPP, in violation of (b)(12), when it failed to properly compute his leave and pay in violation of the Portability of Benefits for Non-appropriated Fund Employees Act of 1990 (ACT).
On June 12, 2006, the agency, at OSC request, agreed to resolve this matter by: 1) changing the complainant`s date of hire from August 7 to August 9, 2003; 2) resubmitting all time cards which need to be changed as a result of the new hiring date; 3) making a good faith effort to afford the complainant the opportunity to use any accrued annual leave in a timely manner or receive pay for said leave if the complainant is placed in a situation where he has to use or lose accrued annual leave.
In this case, the complainant, a GS-12 Facility and Strategic Planner, at a Veterans Affairs Medical Center, alleged that his termination was proposed because he disclosed to the U.S. Office of Personnel Management Inspector General concerns he had with the way the local Combined Federal Campaign office was operating.
At OSC’s request, the Assistant Director of the VAMC rescinded the proposed termination letter.
In this TSA screener complaint for reprisal for whistleblowing, the agency`s disciplinary board overturned complainant`s 2004 removal. Nonetheless, the agency failed to take corrective action and after a long delay, erroneously documented that the complainant had resigned from service.
OSC intervened and persuaded TSA to rescind the removal, rescind the erroneous 2005 resignation, and grant complainant full back pay. Complainant, in turn, decided he did not want to return to his former position and resigned the day his reinstatement was effected. Complainant received back pay for the period.
|State/Local Employee Violations. OSC filed two complaints for disciplinary action against state or local employees or officers for using their official authority and influence for the purpose of interfering with or affecting the result of an election and/or coercing subordinates to make political contributions. In one complaint, OSC sought disciplinary action against a Sheriff of a local county Sheriff’s Department for asking his subordinate employees to appear in a political campaign commercial on behalf of a gubernatorial candidate. The Sheriff asked his employees to appear in this campaign ad while they were on duty and asked them to appear in the commercial wearing their official Sheriff County uniforms and standing next to Sheriff Department official vehicles. The complaint also contained a separate count that alleged the Sheriff invited his subordinate employees to political fundraisers that the Sheriff held on behalf of his own re-election campaign. In the other case, the former mayor of Atlantic City was charged with holding several meetings during which he asked subordinate employees, mainly city department directors, to collect absentee ballots for a candidate in a then-upcoming primary for City Council, Third Ward. It was further charged that the former mayor held subsequent meetings where he requested his directors to inform him of the number of ballots they had collected. In a separate count the former mayor was also charged with using his official position in an endorsement letter on behalf of the same candidate, in violation of the Hatch Act’s restrictions on use of official authority.
Federal Employee Violations. During FY 2006, OSC filed three complaints for disciplinary action against federal employees. For example, in one complaint an Assistant United States Trustee (AUST) was charged with using her official authority or influence to affect the result of an election and for soliciting a political contribution from a subordinate. Specifically, the AUST handed an invitation to a political fundraiser to a subordinate employee while the AUST admitted to the employee that she knew “it was a little outside the rules.” The AUST had received training on the Hatch Act a mere two weeks prior to this incident.
OSC also filed a complaint for disciplinary action against a federal employee for sending politically partisan electronic mail messages while on duty in violation of the Hatch Act. Specifically, the complaint was against an agency employee who sent an e-mail message to over 30 coworkers while on duty and in his federal office. The e-mail contained a letter from then-Chairman of the Democratic National Committee Terry McAuliffe, which urged its recipients to take immediate action after the Presidential Debates “to help Kerry win on November 2.”
Lastly, OSC filed a complaint for disciplinary action against an employee of the Department of Veterans Affairs for distributing campaign materials while on duty in his government work place.
Hatch Act Disciplinary Actions Obtained. In this fiscal year, OSC obtained eight disciplinary actions (through negotiated settlements or from the Merit Systems Protection Board). For example, OSC obtained disciplinary action against a federal employee for sending a partisan political e-mail, which advanced the re-election campaign of a Congressional candidate, while on duty and in the federal workplace. The e-mail was titled “Halloween Party for Tim Holden” and contained an attached invitation that encouraged people to attend the party and “meet Tim Holden,” a U.S. Representative seeking re-election to the 17th Congressional District, Pennsylvania. The federal employee sent the e-mail and invitation to over 300 recipients. In February 2006, an Administrative Law Judge (ALJ) recommended that the employee be suspended for 60 days for violating the Hatch Act. The ALJ noted that the e-mail described the candidate in highly favorable terms and strongly encouraged attendance at the event, and the ALJ concluded that the text and the attachment of the e-mail “obviously were directed toward the success of Mr. Holden’s reelection campaign.” In June 2006, the Merit Systems Protection Board upheld the ALJ’s decision and ordered that the employee be suspended for 60 days.
Also, in FY 2006, OSC obtained disciplinary action against an attorney with the Small Business Administration, who OSC had charged with knowingly and willfully violating the Hatch Act by engaging in political activity over a three year period on behalf of a political party while on duty in his government office (e.g., using his government office equipment to send and receive more than 100 e-mails, to draft documents and to have telephone conversations in support of a political party and its candidates). The Merit Systems Protection Board upheld the initial decision finding that the employee’s activities as charged warranted removal from his employment.
In April 2006, the Merit Systems Protection Board upheld an initial decision suspending a federal employee for 30 days for violating the Hatch Act’s solicitation prohibitions. OSC had charged the employee with soliciting political contributions when he permitted a campaign committee to send a letter identifying him as the sender to 144 people requesting political contributions for a candidate for partisan public office.
In yet two other cases, OSC reached settlement agreements with two federal employees who e-mailed invitations to a political fundraiser while they were on duty and in their federal workplace. One of the employees sent the invitation to subordinates. Their actions violated the Hatch Act’s prohibitions on soliciting political contributions, using official authority or influence to interfere with the result of an election, and engaging in political activity while on duty and/or in a federal building. Under the terms of the settlement agreements one employee served a ten day suspension, while the other employee served a twelve day suspension.
In March 2006, OSC reached a settlement agreement with the former Mayor of Atlantic City. OSC filed its petition seeking disciplinary action on November 9, 2005. He left office on December 31, 2005, after being defeated in his re-election bid. As described in greater detail in the preceding section, OSC had charged this official with violating the Hatch Act by asking several subordinates employees to collect absentee ballots for a candidate in a partisan election and by using his official position in an endorsement letter on behalf of the same candidate. Under the terms of the settlement agreement, the former mayor admitted violating the Hatch Act and he agreed not to seek or accept employment with the State of New Jersey for a period of eighteen months.
In yet another example, in November 2005, the Merit Systems Protection Board upheld an initial decision finding that an executive director of a New Jersey county agency had violated the Hatch Act when he ran for partisan public office. The Board found that the executive director’s violation was willful and ordered his county agency to remove him from his position.
2005 Case Summary
Violation of Security Regulations at Agency Facility. OSC referred
allegations to the Secretary of the agency that a lead dispatcher violated
security procedures and regulations by admitting individuals to highly
sensitive areas of the agency solely on voice recognition. The whistleblower
alleged that the dispatcher instructed other employees to admit individuals
on voice recognition and that he frequently turned off the National Crime
Information Center (NCIC) printer in the agency's Communication Center,
preventing the agency from receiving contemporaneous information on security
threats and criminal activity from law enforcement agencies and the
Department of Homeland Security. Finally, the whistle-blower alleged that
the dispatcher made violent and threatening statements to the whistleblower
and other employees.
The agency's investigation partially substantiated the whistleblower's
allegations finding that the dispatcher failed to follow the regulations for
admitting individuals in violation of agency regulations. The report stated
there were significant concerns with the dispatcher's behavior prior to
OSC's referral. In response to the investigation, the agency ordered
refresher training on access procedures for protected areas and on the
proper operation of the NCIC printer. The agency also made significant
management changes, undertaking a comprehensive reorganization which
included converting the position of Chief, Agency Operations Division, from
a military to a civilian position and hiring a civilian supervisor. The
supervisor and Agency Operating Division Chief in place during this
investigation were stripped of their responsibilities and under the
reorganization will not hold supervisory positions. Referred May 2003;
closed May 2005.
Management Involvement in Kickback Scheme Excused by Agency. The
whistleblowers disclosed to OSC that numerous employees of the Border
Patrol, including some management personnel, were engaged in extensive
kickback and fraudulent reim-bursement schemes in violation of federal law.
The whistle-blowers initially made a disclosure to the agency's Office of
Inspection General (OIG), and the OIG published a report substantiating many
of their allegations. The OIG recommended that the agency take "strong and
immediate action" against the employees involved in the wrongdoing. Nearly a
year after the OIG made its recommendation, however, OSC discovered that the
agency decided to forego disciplinary action. Given the OIG's
recommendation, the evident seriousness of the wrongdoing identified in the
OIG report and agency's refusal to take disciplinary action, OSC referred
the whistleblowers' allegations to the Secretary of the agency for formal
investigation by the agency. The agency filed two reports with OSC detailing
its investigation into the whistle-blowers allegations. These reports
uncritically accepted the assertions of management personnel that they were
unaware of any wrongdoing. OSC's analysis of the agency's reports concluded
that the agency's investigation of management appeared pretextual, at best,
and that the agencies involved "failed to conduct a thorough investigation."
In response to the press coverage generated by this analysis, the agency
publicly committed to thoroughly reinvestigate the whistleblowers'
allegations. Referred November 2003; closed May 2005.
The complainant alleged wrongful termination in violation of 5 U.S.C. ?
2302(b)(8) and (b)(9)for whistleblowing and filing a union grievance. He had
been forced to work overtime with no compensation and without proper
approval. When he refused to drop the grievance, his supervisor threatened
him with termination. Both parties agreed to OSC mediation and all issues
were resolved in a timely manner.
Termination due to military absence. Claimant, a full-time staff nurse
serving under a temporary appointment, alleged that the agency violated
USERRA by terminating her employment because she was excessively absent from
the work place due to her military service obligations. The agency had taken
the position that claimant`s position was not covered under USERRA. USERRA`s
antidiscrimination provisions, however, cover all types of appointments. OSC
filed an action before the MSPB and successfully obtained full corrective
action for claimant, namely: back pay (approximately $53,000); the expunging
of all negative documentation relating to her termination; and issuance of
an SF-50 reflecting that claimant resigned from the agency. Additionally,
the agency agreed to undergo USERRA training.
Dismissal from training due to military absence. Claimant had been accepted
into a federal agency`s 16-week Associate Supervisory training program(ASP).
Enrollees who successfully complete the ASP are noncompetitively promoted to
supervisory positions. Over the first eight weeks of the ASP, claimant
earned excellent performance evaluations and attained a grade point average
of 3.65 on a 4.0 scale. While enrolled in the ASP, however, claimant
performed reservist duties and was absent from employment and unable to
attend the ASP on Saturdays. The agency expressed concern over the fact that
claimant`s military duties caused him to miss the ASP every Saturday.
Moreover, the agency believed there would be an undesirable adverse affect
on agency morale when claimant, after completing the program, would be
assigned to a junior supervisory position but would be unavailable to work
on Saturdays -as is expected of new supervisors- because of his reservist
duty. Thus, it was decided to dismiss claimant from the ASP. Because the
evidence established that claimant`s military service obligations were a
substantial and motivating factor in his dismissal from the ASP, OSC
determined that the agency violated USERRA. OSC filed a USERRA action before
the MSPB and successfully resolved the case with claimant accepting a large
Nepotism. OSC secured disciplinary and corrective action in a case in which
agency management officials violated nepotism laws and granted an
unauthorized preference or advantage to certain applicants for vacant
positions in an installation during the fall of 1999. Our investigation
revealed that the selecting official completed job applications and advanced
the candidacy of several relatives of agency officials and advocated for her
own daughter’s employment. Our investigation also revealed that the
selecting official’s supervisor and another Division Chief advocated for
their respective daughters’ employment for one of the vacant positions. At
OSC request, the agency suspended the selecting official for five days and
her supervisor for three days, and gave the Division Chief an oral
admonishment that will remain in his supervisory file for two years. The
agency also agreed to provide Outreach training about prohibited personnel
practices to relevant management officials.
Unauthorized Preference. OSC secured disciplinary and corrective action in a
case in which a former Chief Administrative Law Judge (ALJ) of a federal
agency granted an unauthorized preference to an employee. The ALJ selected
the employee in 1998 as an Attorney Adviser and 18 months later, made
inquiries with the agency's personnel about raising her grade. In April
2000, the servicing personnel office acted on the ALJ's request,
retroactively converting the employee to a higher grade as of November 1998,
90 days after her original appointment and awarding her back pay. Four
months later, the ALJ selected the employee for a management position for
which she would not have been qualified without the retroactive upgrade. The
agency corrected all of the employee's SF-50's; initiated collection
proceedings against her for the difference in when she would have received
her promotions absent the unauthorized preference; and offered priority
consideration for future similar positions to the other candidates for the
Retaliation for Protected Activity. OSC secured corrective action in a case
in which a federal employee alleged that he was given a directed
reassignment from his duty station in Virginia, to California, in
retaliation for having joined in a class action lawsuit against the agency.
Prior to investigating the matter, OSC secured an agreement with the agency
allowing the employee to remain in Virginia, which stayed in effect until he
was ready to retire.
Reprisal for Protected Activity. OSC settled a case in which a former
Security Specialist at a federal agency alleged that he was suspended for 14
days because he provided testimony in an IG investigation and re-leased a
draft IG report to the media. Additionally, the employee alleged that his
security clearance was suspended and he was reassigned to a non-security
clearance position at the agency because of his disclosure. As a result of
our investigation and conclusion that the agency violated the whistleblower
statute when it suspended the employee, in part, because of his protected
disclosure of the unclassified draft IG report, the agency agreed to (1)
rescind the14-day suspension; (2) compensate the employee for lost pay plus
interest; (3)restore all related benefits from the rescission of the 14-day
suspension; (4) pay the employee $2,000 in attorney's fees; and (5)expunge
all records related to the employee's 14-day suspension from his employment
files, with the exception of his Personnel Security file.
Reprisal for Protected Activity. In February of 2003, a supervisory systems
accountant at a federal agency in Alabama, alleged that she was given a
letter of reprimand in part because she disclosed to the Office of Inspector
General (OIG) in May of 2002that her two supervisors violated the Federal
Acquisition Regulation and abused their authority. The OIG investigation
substantiated five of complainant's thirteen allegations. Investigation
revealed that her disclosures were a contributing factor in the decision by
her first-line supervisor to reprimand her. The agency agreed to pull the
letter of reprimand from the employee's Official Personnel File.
Conflict of Interest. OSC settled a case in which an employee alleged that
the former Director of a federal agency committed a prohibited personnel
practice when she noncompetitive hired another individual who was jointly
and severally liable with the former Director on a $261,600 promissory note
secured by their personal residence - a $2,885 monthly mortgage obligation.
The former Director appointed this individual to a Supervisory Business
Manager position. OSC investigated this matter as a possible violation of 5
U.S.C.2302 ?(b)(12). These regulations prohibit an employee from
participating substantially in an official capacity in any matter in which,
to her knowledge, she has a financial interest, if the matter will have a
direct and predictable effect on that interest. 5 C.F.R. §§ 2635.402(a) and
(c). OSC filed a disciplinary action complaint against the former Director,
and she signed a settlement agreement in which she accepted a five-day
suspension without pay.
Due Process Violation. OSC also settled a case in which a GS-13
attorney-advisor with a federal agency presently stationed overseas alleged
that the agency violated his due process rights under federal law and agency
regulations by initiating garnishment of wages for an alleged$29,962.82 debt
to the agency. The Complainant (Cp) alleged that the agency did not provide
him the required opportunity to provide proof that he did not owe this debt.
According to our investigation, the agency initiated the garnishment without
affording him due process rights in the federal regulations. Thus, we found
reasonable grounds to believe that the wage garnishment violated 5 U.S.C. ?
2302(b)(12)because the law and regulations violated implement merit
principle ?2301(b)(2). The agency agreed to stop Cp's wage garnishment
($350 biweekly) and refunded Cp a total of $14,542.57 and $772.44 in
Disciplinary action against state or local employees who were candidates in
partisan elections. In one complaint a Transportation Engineer with a state
agency was charged with running in the 2001 election for Southington Town
Council, in violation of the Hatch Act. In another complaint a Home Care
Supervisor with a New York City agency was charged with violating the Hatch
Act when he was a candidate in the 2004 election for New York State
Assembly. In yet another case, a Child Support Enforcement Specialist with
an agency in Hawaii was charged with being a candidate in the 2002 election
for Hawaii State Representative, 35th District. Lastly, the Executive
Director of a Lorain County agency was charged with violating the Hatch Act
when he was a candidate in the 2004 primary election for Lorain County
Engaging in political activity on behalf of a Congressional candidate. OSC
also filed a complaint for disciplinary action against an employee with a
federal agency, charging that he violated the Hatch Act by engaging in
political activity on behalf of a Congressional candidate while on duty and
in the federal workplace. The employee sent an e-mail to over 300 agency
employees inviting them to attend a "meet the candidate" event for
Congressional candidate Tim Holden.
Federal employees sending politically partisan electronic mail messages
while on duty. One complaint was against a federal employee who sent an
e-mail message to about 22 coworkers. The message contained a letter
purporting to be written by John Eisenhower, son of former President
Eisenhower that states, among other things: " … I intend to vote for the
Democratic Presidential candidate, Sen. John Kerry"; " … the word
'Republican' has always been synonymous with the word 'responsibility' … [t]oday's
whopping deficit of some $440 billion does not meet that criterion."; "Sen.
Kerry, in whom I am willing to place my trust, has demonstrated that he is
courageous, sober, competent … I will vote for him enthusiastically …."
Prior to forwarding the above-referenced e-mail, she added the following
statement: "Some things to ponder……….."
The other complaint also concerned a federal agency employee who sent an
e-mail message titled, "Your Vote," to 27people. The e-mail states, among
other things: " … our votes should be for the party that stands firm on
morally and ethically correct issues as written in the[B]ible"; "Kerry
claims he has morals and ethics … American society under Kerry's command is
frightening to even think about." The e-mail then states "Pass along the 'I
VOTE THE BIBLE' button" and includes a small picture of the button. In
addition, there is a picture of President Bush in front of an American flag
with the statement "I VOTE THE BIBLE" super-imposed on the picture.
Engaging in political activity on behalf of a political party. OSC also
filed a complaint for disciplinary action against a federal attorney with a
federal agency, charging that he violated the Hatch Act when engaged in
political activity on behalf of a political party while on duty in his
government office (e.g., using his government office equipment to receive
and send more than 100 e-mails, draft documents and have telephone
conversations in support of a political party and its candidates).
Soliciting, accepting, receiving political contributions. OSC also filed a
complaint for disciplinary action against a federal employee, charging that
he violated the Hatch Act's prohibition against soliciting, accepting or
receiving political contributions. The employee was identified as the sender
of a letter that was sent to approximately 144 people seeking political
contributions for a local candidate, either by attending a reception or
sending a check in an enclosed envelope. The candidate's campaign committee
sent the letter, but the federal employee was aware of and agreed to the
contents of the letter before it was sent.
NJ Candidacy. Also, in December 2004,the Merit Systems Protection Board
found that a New Jersey state employee's candidacies, in 2003 and 2004, for
Member of the Board of the Chosen Freeholders in Cumberland County, New
Jersey, violated the Hatch Act and that her removal was warranted..
MD candidacy. Similarly, in February2005, the Merit System Protection Board
found that a civilian employee of a federal agency violated the Hatch Act,
which warranted his removal, when he was candidate in the 2002 partisan
election for the Maryland House of Delegates.
Candidate in Partisan Elections. For example, in December 2004, OSC reached
a settlement agreement with a state employee with a New York agency, who was
charged with being a candidate in the partisan elections for Rochester City
Council and New York State Senate, 56thDistrict, in 2001 and 2002,
respectively. As part of the agreement, the state employee admitted that she
was covered by the Hatch Act and that she violated the Act in 2001 and 2002
by her candidacies in partisan elections. As a penalty for her violations of
the Act, the employee agreed that she would resign from FLDDS effective
January 7, 2005, and would not seek or accept employment with the State of
New York for 18 months.
Soliciting Political Contributions. In March 2005, OSC reached a settlement
agreement with the former Chief of Staff of a District of Columbia agency.
The official was charged with violating the Hatch Act during a campaign
rally on August 8, 2002,by specifically asking D.C. employees, many of whom
were his subordinates, to volunteer to work on a reelection campaign.
Additionally OSC's petition charged that, in or about May 2002, the official
personally and/or through subordinates, solicited political contributions by
asking individuals to purchase tickets to the Kennedy-King dinner, a
political fundraiser for the District of Columbia Democratic State
Committee. OSC filed its petition seeking his removal from the District of
Columbia on July 9, 2004. He voluntarily resigned as Chief of Staff
effective August 1, 2004. Under the terms of the settlement agreement, he
agreed not to seek or accept employment with the District of Columbia for a
period of two years, beginning August 1, 2004.
2004 Case Summary
- Improper Use of Government Property. OSC during FY
2004 referred allegations that a manager at a federal agency in
Minnesota violated Section 102-36 of the Federal Management Regulations
by giving a government desk to an employee for personal ownership,
instead of following the proper procedures for excessing government
OSC initially requested further information about the incident from the
Department of the Interior Office of Inspector General (OIG). When the
OIG failed to provide a satisfactory response, OSC referred the matter
to the Secretary of the Interior for investigation. According to the
Department of the Interior’s report, the investigation substantiated the
whistleblowers’ allegation that the manager did not dispose of the desk
properly; however, the agency also found that the desk was broken, and
the cost of repairing it would have exceeded the value of the desk. The
report further stated that the Superintendent would ensure that agency
personnel receive appropriate training in property management and the
disposition of government property. OSC found the agency report to be
deficient because the investigators failed to interview the
whistleblowers and the report did not include an adequate description of
the conduct of the investigation, as required by 5 U.S.C. ?1213(d).
- Time and Attendance Abuse by Air Traffic Controllers..
During FY 2004, OSC referred allegations from two whistleblowers that
air traffic controllers (ATCs) at a Michigan airport routinely failed to
arrive on time for their assigned shifts and left work early failing to
complete their scheduled tours of duty. The whistleblowers alleged that
this practice, known by such employees in different areas of the country
as “shoves, pushes or early-outs,” was a violation of law and
constituted a substantial and specific danger to public health and
safety. Under this practice, ATCs who arrive late or leave early do not
inform FAA managers they will be late or will leave early. As a result,
the whistleblowers alleged that the Air Traffic Control Tower at this
airport was often dangerously understaffed or unattended and that ATCs
received compensation for hours they did not work.
The whistleblowers also filed complaints with the Department of
Transportation (DOT). The FAA Civil Aviation Security and the DOT Office
of the Inspector General investigated allegations of “shoving” at this
airport. In April 2001, the DOT OIG concluded that at least four ATCs
were engaging in the “shoves” practice. The whistleblowers filed a
disclosure with the OSC in August 2001, because they alleged that no
action had been taken to stop the practice and that ATCs continued to
routinely engage in “shoves.”
DOT found no evidence to support the allegations that ATCs were swapping
shifts or departing the facility prior to the end of their assigned tour
of duty. Thus, the agency did not substantiate the allegation that
“shoving” has continued since being brought to the attention of the FAA
Office of Civil Aviation and the DOT OIG in 2000, or that any danger to
public safety resulted from the scheduling of air traffic controllers at
the airport. The report did conclude that there was significant distrust
between the ATCs and management and recommended that periodic audits be
conducted to attempt to address the problem. Finally, the report
acknowledged that the practice of shoving has occurred in the past and
could occur in the future. For this reason, the OIG recommended that the
FAA periodically audit the scheduling practices at this airport and
ensure that safeguards are in place to prevent the practice of shoves
- A reservist alleged that he was dismissed from the agency’s 16-week
supervisory training program because 1) his reservist duties conflicted
with the supervisory training schedule and 2) he would be absent from
work on Saturdays due to future reservist duties, which the agency
believed would cause significant morale problems at the workplace
because new supervisors were expected to work on Saturdays. Employees
who completed the supervisory training program would be automatically
promoted. The dismissal meant the reservist did not receive a promotion
and lost the economic and related employment benefits. The case focuses
on the question of whether the agency violated USERRA’s
“anti-discrimination” provisions by dismissing the reservist from the
- A reservist was terminated from his seasonal employment because he was
injured while on military duty and could not perform the tasks for which
he was hired. He suffered a loss of pay due to the termination of his
employment. The case focuses on the question of whether the agency
violated USERRA by denying the reservist retention in employment because
of his military service..
PPP Enforcement Actions summaries, FY 2004
- A federal agency suspended a selecting official for five days and
her supervisor for three days, and gave the Division Chief an oral
admonishment that will remain in his supervisory file for two years for
violating the anti-nepotism laws and granting an unauthorized preference
or advantage to certain applicants (including several relatives of
agency officials and advocacy for official’s own relative) for vacant
positions in an installation. (The federal agency also agreed to provide
outreach training about prohibited personnel practices to relevant
- OSC secured disciplinary and corrective action in a case in which we
believe a former Chief Administrative Law Judge (ALJ) of a federal
agency granted an unauthorized preference to an employee. The ALJ
selected the employee in 1998 as an Attorney Adviser and 18 months
later, made inquiries with agency personnel about raising her grade. In
April 2000, the servicing personnel office acted on the ALJ’s request,
retroactively converting the employee to a higher grade as of November
1998, 90 days after her original appointment, and awarding her back pay.
Four months later, the ALJ selected the employee for a management
position for which she would not have been qualified without the
- While our case was pending, the ALJ in the above case was removed by the
Board for alleged sexual harassment in a separate case against him.
Pursuant to the settlement, if the ALJ is successful in any appeal of
his removal, the agency will consider OSC’s recommended discipline of 30
days’ suspension for the ALJ. OSC also secured a reprimand for the
personnel specialist who assisted the ALJ in retroactively promoting the
employee at issue. The Agency also removed all of the employee’s
SF-50’s; initiated collection proceedings against the person receiving
the unauthorized preference for the difference in when she would have
received her promotions absent the unauthorized preference; and offered
priority consideration for future similar positions to the other
candidates for the management position.
A petition for corrective action was filed with the MSPB on behalf of the
complainant, who claimed that the agency involved violated his due process
rights when it terminated him without giving him 30 days written notice, nor
an opportunity to respond, nor a notice of his rights to appeal the decision
to the MSPB. The ALJ assigned to adjudicate the case ruled in the agency’s
favor against OSC. Because of some of the nuances of the case, the Special
Counsel decided not to file a petition for review of the Administrative Law
Judge’s decision with the full board.
PPP Enforcement Actions summaries, FY 2004
- Senior Executive Runs for Office.In November, 2003, OSC
settled a complaint for disciplinary action against the former Deputy
Assistant Secretary of Defense for Counter Narcotics of a federal
agency. OSC’s complaint, for disciplinary action alleged that the
employee violated the Hatch Act by becoming a candidate for nomination
and election to the U.S. House of Representatives 8th District in
Virginia. According to OSC’s complaint, the employee, acting in concert
with the Friends of the 8th Congressional District Committee (Friends of
the 8th), a partisan political group, sought nomination and election to
the House of Representatives. OSC also alleged that the employee
knowingly solicited political contributions in support of his campaign.
OSC’s complaint also included a third allegation, charging the employee
with using his official title and position description at the federal
agency while engaging in political activity. Based upon the settlement
agreement, the employee admitted that he engaged in activities from
March to October 2003, which constituted candidacy under the Hatch Act.
He also admitted that on more than one occasion between March and
October 2003, while federally employed, he knowingly solicited political
contributions. He also agreed that his violations of the Hatch Act
warranted imposition of a penalty consistent with 5 U.S.C. ?7326, which
includes removal from federal service. The federal agency agreed to
permanently place a copy of this settlement agreement in the employee’s
Official Personnel File. The employee resigned his federal employment
after OSC filed the complaint against him. As a result of the
settlement, OSC moved to dismiss its complaint against him.
- Solicitation of Subordinates in Violation of the Hatch Act.. On
July 9, 2004, OSC filed a complaint against District of Columbia (D.C.)
agency’s Chief of Staff for soliciting uncompensated volunteer services
from his subordinates to support the Mayor’s bid for reelection.
Although OSC’s investigation found that the Chief of Staff had solicited
uncompensated volunteer services from his subordinates, the evidence
failed to substantiate that the Chief of Staff solicited monetary
contributions or engaged in political activity while on duty. After OSC
filed its complaint, the Chief of Staff resigned from his position.
- Candidacy of State Official. OSC filed a complaint for
disciplinary action against the Deputy Police Chief of a state agency
and Speaker of the Nevada Assembly. OSC’s complaint charges the employee
with violating the Hatch Act’s prohibition against being a candidate for
elective office in a partisan election. The employee ran in 2002, and
after that election, OSC notified him that he was covered by the Act and
that his 2002 candidacy violated the Act. OSC also warned him that
future violations of the Hatch Act could result in disciplinary action
charges being brought against him before the MSPB. Despite OSC’s
warning, the employee filed for re-election on May 5, 2004, and became a
partisan candidate for the Nevada Assembly, District 23 (Clark County).
- Other Candidacy Violations. OSC filed a complaint for
disciplinary action against an Area Administrator who worked for a state
agency. OSC’s complaint charges the employee with violating the Hatch
Act’s prohibition against being a candidate for election office in a
partisan election. In 2002, the employee ran for re-election to the
Alabama House of Representatives after his employer notified him about
the Hatch Act and that his candidacy may conflict with the Act.
- In July 2004, OSC filed a complaint for disciplinary action against a
state employee working in a state agency. The complaint charged that
despite her employer warnings about the Hatch Act she was a candidate in
the partisan elections for Rochester City Council and New York State
Senate, 56th District, in 2001 and 2002, respectively.
- Federal Employees Send Prohibited E-mail Messages While on Duty.
During FY 2004, OSC filed two similar complaints for disciplinary action
against federal employees for sending politically partisan electronic
mail messages while on duty in violation of the Hatch Act.