The American Spectator

Reader Mail

April 19, 2005

p>David Holman br> Editorial Assistant br> American Spectator Magazine /p>

Dear Mr. Holman:

Your recent article, "No Catholics Need Apply," makes several inaccurate representations about my tenure as head of the U.S. Office of Special Counsel. Yesterday, you took another swipe at me in your response to a letter from Jeff Ruch, the Director of Public Employees for Environmental Responsibility. You questioned Mr. Ruch's motives for not "campaigning" against me when I allegedly "allowed hundreds of cases to accumulate" during my tenure.

During my tenure, as in that of Mr. Bloch (and all of our predecessors), OSC has been challenged to find ways to process often complex whistleblower disclosure and retaliation cases more quickly, without sacrificing quality or leaving complainants with the sense that their allegations have not been given fair consideration. As a result, virtually every Special Counsel, now including Mr. Bloch, has been accused from time to time of giving too much priority to one goal, at the expense of the others. It is a difficult balance to achieve, and I am sympathetic to Mr. Bloch in that respect. On the other hand, I am not sympathetic to the use of baseless attacks on me or others to deflect legitimate questions about the priorities Mr. Bloch has chosen amongst these competing goals, or about his hiring practices and various policy decisions.

The accusation in your original article that cases "gathered dust" during my tenure while "legitimate problems went unchecked" is inaccurate and unfair. During my tenure, the backlog of over-age whistleblower retaliation cases was reduced significantly, as OSC's annual reports demonstrate. Mr. Bloch claims to have reduced that backlog further, but that claim remains unsubstantiated because he has not released any data to show how many overage retaliation cases are now pending in OSC's investigative units. The statistics Mr. Bloch has released, and to which your article and others have referred, concern a reduction in the number of cases in OSC's intake unit. Obviously, to the extent that cases are being shifted from one unit to another, or piling up in the investigative unit, the backlog "reduction" in the retaliation cases that is being touted may be exaggerated. Whether it is being exaggerated and by how much can only be known when Mr. Bloch releases full comparative statistics about the case load in all of OSC's units, including its investigative divisions. If he has responsibly reduced the over-age backlog of retaliation cases at the agency, without sacrificing the other interests I identified, I congratulate him.

There is no question that during my term we had to struggle with an increasing and frustrating backlog of whistleblower disclosures, caused largely by the fact that the intake of new matters soared in the last few years of my tenure. We secured a doubling of the positions for the Unit that handles those cases in my last budget request, to address the backlog of disclosures without sacrificing the attention and contact with whistleblowers that I thought was important. Incidentally, I have no idea why OSC told you that some "500 backlogged cases were low priority and were already slated for closure by Bloch's predecessor." I did not "slate" 500 disclosures for closure because they were low priority or for any other such reason. Further, I understand that all of the additional positions we secured to help the Disclosure Unit address its backlog remain vacant, while Mr. Bloch's political staff is at least twice the size of mine.

During my tenure, among other accomplishments, we created a successful outreach program, obtained relief for numerous whistleblowers and other victims of unlawful personnel actions, and oversaw the investigation of many important whistleblower disclosures (including at least some if not all of those for which you credit Mr. Bloch in your articleâ€"i.e. those involving nuclear security, air traffic control, and uncertified work on naval ships). These accomplishments are documented in OSC's annual reports for 1998 though 2003, as well as press releases issued during those years which, at least for the time being, remain on OSC's website.

I also think we did a good deal to enhance the credibility of the agency during my tenure, as most knowledgeable observers, even OSC's most persistent critics, would concede. As Mr. Bloch is now learning, credibility and trust are at least as important to OSC's ability to accomplish its mission as "backlog" reduction. So is the "bureaucratic diplomacy" that he derides in your article. Even if their cases are ultimately closed, people who come to OSC seeking its assistance want their phone calls returned and deserve an adequate explanation if the agency decides not to pursue their cases.

In addition, in your original article you claim that I made "propagandistic use" of OSC's website when I added a few sentences advising federal employees that it is a prohibited personnel practice to discriminate on the basis of sexual orientation. You refer to the fact that I am openly gay and claim that "President Clinton . . . improperly extended OSC's jurisdiction over sexual orientation claims" by Executive Order, and that the office was used as a "battering ram for liberal causes under Bill Clinton."

The gratuitous reference to my sexual orientation is ironic given the theme of your article. I don't appreciate the snide inference that I had some agenda, other than enforcing the law because I happen to be gay, any more than Mr. Bloch appreciates similar irrelevant references to his religious convictions.

In fact, the charges that I used the website for "propaganda" purposes and used OSC to advance "liberal causes" are complete and utter nonsense. When I added the reference to sexual orientation discrimination as part of a comprehensive revamping of OSC's website in 1999, I was not implementing President Clinton's executive order. I was informing the federal workforce of the anti-discrimination provisions of 5 U.S.C. §2302(b)(10) which has been interpreted to make sexual orientation discrimination illegal under every President since Ronald Reagan, including the current President Bush. Indeed, the Justice Department so interpreted the law as early as 1983, in an opinion personally signed by then-Assistant Attorney General, Ted Olson (himself hardly a "battering ram for liberal causes"). This interpretation has been explicitly adopted in far greater detail on the website of the Office of Personnel Management throughout the Bush Administration including under the tenure of its recently departed Director, Kay Coles James, who was formerly involved with the work of the socially conservative Family Research Council. To her credit, Ms. James explicitly assured the Senate Committee on Governmental Affairs during her confirmation hearing that she was aware of and would follow this well-established interpretation of the law.

topics:
Environment, Law