Holding the Government Accountable

Vacancies Leave Whistleblowers Vulnerable

Photo: Sean Spicer/Twitter

Less than 40 days in office, President Donald Trump confirmed that his administration isn’t nominating individuals to some posts in a deliberate effort to slim down government operations. In an interview with Fox & Friends, President Trump stated that, “in many cases, we don’t want to fill those jobs.”

However, vacancies at Offices of Inspectors General (OIGs) and at the Merit Systems Protection Board (MSPB) weaken the government’s ability to effectively act on whistleblower disclosures and protect employees who raise concerns. More broadly, the government’s oversight system does not work as well without leaders in place that have the bipartisan confidence of Congress. And without a nomination by President Trump, another key agency that protects federal whistleblowers—the Office of Special Counsel (OSC)—will be without leadership.

Following his Fox & Friends interview, President Trump withdrew President Obama’s nominations for four IGs (at the Defense Department, National Security Agency, Office of Personnel Management, and Social Security Administration) and the Special Counsel. Additionally, the MSPB, a quasi-court in the executive branch for handling employment disputes, has not had a quorum since a member resigned on January 7th. As of today, there are still no pending nominations for these IG, OSC, and MSPB positions.

The Project On Government Oversight (POGO) has long advocated the need for permanent, independent IGs, warning that IG vacancies are detrimental to effective government oversight. Temporary, acting IGs are not secure in their positions and potentially could be vying to become a permanent IG. This creates an incentive to try to please the leaders of the agency they are supposed to oversee, instead of maintaining independence. This has a trickle-down effect on the staff within those offices. The temporary nature of the job also gives acting IGs less authority in long-term planning, and can have a direct impact on the quality and effectiveness of that office’s work.

Independent, qualified IGs are needed to maximize the effectiveness of their offices and to prevent waste, fraud, and abuse in the government. And while POGO has reported on accountability problems at some OIGs, vacancies at the top can exacerbate these problems. Those cases highlight the need for qualified and carefully vetted IGs in order to instill confidence in potential whistleblowers, office staff, and the public.

President Trump should evaluate the four IG candidates whose nominations he pulled, and consider resubmitting their names to Congress if he determines they will be independent and qualified for those nonpartisan jobs.

Similarly, we want an independent, thoroughly vetted Special Counsel that prioritizes protecting federal workers. One potential solution is for Trump to renominate the current Special Counsel, Carolyn Lerner. She has widespread and bipartisan support in Congress and is known as a fair and independent champion of whistleblowers. The OSC significantly improved its performance with regard to whistleblowers under Lerner's leadership, which will end in June. If President Trump decides that Lerner is not the right choice for his administration, he should work quickly to nominate another candidate who is equally dedicated to making sure federal whistleblowers are protected.

In contrast, President Trump should avoid candidates like Carolyn Lerner‘s predecessor, Scott Bloch, who is a case study in why leaders of key oversight agencies need to be adequately vetted. Bloch shifted OSC resources away from whistleblower cases and retaliated against his own employees.

“The lack of a quorum at the MSPB means that it’s operating with one hand tied behind its back,” said Eric Bachman, a whistleblower attorney and former Deputy Special Counsel at OSC.

The lack of a quorum at the MSPB is another impediment to whistleblower protection that leaves in limbo hundreds of federal employees who appeal decisions on their retaliation and other claims. The three-person MSPB needs at least two members to have a quorum. Since January, the MSPB has only one voting member. Without a quorum, it cannot hear cases where federal employees appeal decisions made by administrative law judges. The lack of a quorum means those federal employee will have to wait for a shot at justice.

The MSPB issued 879 decisions in 2016, but has not issued a decision since January 6th. Meanwhile, its backlog is growing.

The last time the MSPB lacked a quorum was nearly 15 years ago, according to the MSPB website.

“The lack of a quorum at the MSPB means that it’s operating with one hand tied behind its back,” said Eric Bachman, a whistleblower attorney and former Deputy Special Counsel at OSC. “These whistleblowers are key to making our government more accountable and efficient and it’s vital that whistleblowers continue to be fully protected by the law,” he said.

Bachman says that the lack of quorum “directly impacts the kind of protection that OSC and others can provide to federal employee whistleblowers.” For example, OSC can file with the MSPB to block an agency’s decision to fire a whistleblower based on the employee’s disclosure. A single board member can stay the termination for 45 days, but a quorum is needed to grant any extensions beyond that.

Vacancies at offices that affect whistleblowers should be filled immediately with independent, qualified individuals. Otherwise, federal employees who speak out against waste and corruption may face a system that does not adequately investigative their claims or protect them from retaliation. President Trump should strengthen IGs, the OSC, and the MSPB to better protect whistleblowers—not undermine them.