Holding the Government Accountable

Breaking the Sound Barrier: Experiences of Air Marshals Confirm Need for Reform at the OSC

Executive Summary

The Project On Government Oversight (POGO) has long been concerned about the operations of the Office of Special Counsel (OSC), the agency to which whistleblowers in the federal government must turn for help. Even with former Special Counsel Scott Bloch gone, POGO and many others in the whistleblower community have no confidence that the OSC can perform its functions. The tenure of Bloch has significantly weakened the agency: there has been an exodus of experienced staff from the OSC and a shift away from the OSC programs and policies that directly benefit federal employees. OSC’s own annual reports show that the number of favorable actions the OSC has taken that directly benefit whistleblowers, such as reinstatement and back pay, has dropped 60 percent during Bloch’s tenure.

POGO wanted to look more systemically at how the OSC has been working, to see where changes will need to be made, regardless of the new appointee at the top. POGO focused on the OSC’s handling of federal air marshal cases for its investigative report for two reasons: President Bush has pointed to the critical role in homeland security played by air marshals, and Bloch himself has touted his work with air marshals as evidence of the success of his tenure.

Despite contacting almost a dozen current and former air marshals who blew the whistle, POGO could not identify one instance in which the OSC upheld its responsibility to provide a secure whistleblower disclosure channel for the resolution of workplace improprieties, to protect whistleblowers from retaliation, and to hold accountable those responsible for whistleblower retaliation.

It is especially problematic that the OSC did not provide the needed channel to resolve federal air marshals’ safety and security concerns given the critical role they play in homeland security. However, despite the OSC failures, due to air marshals’ persistence on their own and the validity of the concerns they raised, we understand that the Federal Air Marshal Service (FAMS) has recently addressed many of the problems raised by whistleblowers.

This investigative report seeks not only to set the record straight on former Special Counsel Bloch’s actual accomplishments, but also to provide lessons-learned for the next Special Counsel. Through this review, POGO uncovered a number of policies and practices implemented during the tenure of Bloch that have seriously debilitated the OSC:

  • The OSC leadership was unwilling to hold the offending agency’s feet to the fire, a practice which had previously been very effective in pressuring agencies to properly remedy significant wrongdoing.
  • OSC’s Complaints Examining Unit is less active in communicating and working with complainants in recent years; this communication system is a key step in the process to ensure whistleblowers have clearly made their cases to the OSC.
  • Due to an attitude within the OSC that it should not even bother going to the Merit Systems Protection Board (MSPB) because of the assumption that the MSPB will not rule in favor of the whistleblower, the OSC does not utilize its full range of options to help whistleblowers.
  • Neglect and under-investment in the OSC’s certification and outreach programs to federal agencies have caused missed opportunities to prevent whistleblowing retaliation.

There are also a number of systemic and structural problems at the OSC that date back to its founding:

  • The OSC lacks the independence it needs to truly be successful: it is a small, weak institution located in the executive branch; its head is a presidential appointee that is expected to carry out the President’s agenda. It may be impossible for an executive branch agency to effectively extend justice to whistleblowers who have been retaliated against by their executive branch agencies’ management.
  • The OSC faces the challenge of having to rely on an MSPB with a track record of 2 decisions for and 53 decisions against whistleblowers.

With new leadership at the OSC it is a good time to critically examine whether the model of the OSC and MSPB is in fact the most effective, responsive, and efficient way to serve the whistleblowers who take great professional and personal risks to sound the alarm about fraud, waste, and abuse in our federal government.

Also, with new leadership at FAMS, an organizational culture can now be created where employees are not only encouraged to bring forward concerns and reform ideas, but are also protected when they do so. This includes rehiring those federal air marshals who lost their jobs after disclosing incidents of workplace wrongdoing but who still would like to come back and continue to support FAMS’ mission.

Recommendation Highlights

  • The next President should immediately appoint a Special Counsel who ideally has a background in working constructively with whistleblowers and federal employees.
  • The new Special Counsel should make a number of immediate changes to the OSC, including:
    • Make clear that the OSC exists to advocate on behalf of federal employees, especially whistleblowers.
    • Set a tone of trust and ethics among his or her staff.
    • Make more assertive goals for seeking corrective action before the MSPB.
    • Implement a system for complaints to be prioritized for evaluation and investigation based on the severity of retaliation and the seriousness of the whistleblower allegations. This requires shifting the focus away from evaluating complaints only by the order in which they are received. This also requires making a note when numerous complaints come from the same agency, and consider setting up a task force to investigate systemic issues.
    • Require a staff interview and communication with the whistleblower complainant before closing a case.
    • Not closing a disclosure case without considering the whistleblower’s response to the agency’s investigation, including requiring the agency to respond explicitly and reasonably to all elements of a whistleblower disclosure.
    • Establish a system for staff to jointly evaluate complaints before they are closed, so that more than one person determines the fate of whistleblowers. This review panel should be comprised of a rotating group of three people.
    • Incorporate into the performance criterion of staff the number of favorable actions they seek on behalf of whistleblowers.
    • Increase the budget request to increase the number of qualified investigators and prosecutors on staff at the OSC.
  • The new Special Counsel should advocate for legislation to fix the federal whistleblower protection system.
  • Congress should make participation in OSC’s 2302(c) Certification Program mandatory for federal agencies, and the OSC should have the capacity, including at least two staff positions, to hold agencies accountable for their participation and performance.
  • Congress should commission a Government Accountability Office or Congressional Research Service study on the overall performance of the OSC, something that has not been done since the mid-1990s.
  • FAMS Director Robert Bray should create an organizational culture where employees are not only encouraged to bring forward concerns and reform ideas, but are also protected when they do so. Bray should rehire those federal air marshals who lost their jobs after disclosing incidents of workplace wrongdoing but who still would like to come back and continue to support FAMS’ mission.
  • Congress should pass legislation that prohibits executive agencies such as the Transportation Security Administration from retroactively marking or labeling information with the unclassified information designations Sensitive Security Information, Law Enforcement Sensitive, or For Official Use Only. Information that has been labeled or marked should also be re-evaluated after a certain time.

Click here to read the full report.