April 19, 2005
David Holman
Editorial Assistant
American Spectator Magazine
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 article—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.
Moreover, your claim that I used OSC to advance “liberal causes”
(whatever that means), and at the direction of President Clinton,
no less, is ludicrous. President Clinton never directed me to do
anything; in fact the last two and one half years of my term were
served under President Bush. Further, I incurred the ire of a major
AFL-CIO affiliated labor union in the weeks before the hotly
contested 2000 Presidential election when I issued an opinion that,
under the Hatch Act, the union could not display posters promoting
the election of Al Gore, and disparaging then-Governor Bush on its
bulletin boards at the federal worksite. The union, in fact, sued
me.
In that regard, your claim that I hired “labor union friends” to
work in the Office of Special Counsel is another baseless smear.
You neglect to mention that the few former union staff members that
OSC hired into career positions during my tenure were all hired
after an open competition, and were selected for their positions by
the career supervisors to whom they would report, not by me.
Further, the former union staff members who were hired by the
career supervisors were obviously qualified for the jobs because of
their significant experience in the area of federal sector
employment law. I understand that Mr. Bloch has stopped holding
competitions for attorney positions, and also does not include
career supervisors in hiring decisions at all. Is it any wonder
that this approach (which OSC should be the last one to follow)
causes questions to be raised about favoritism and the like?
Let me emphasize that, in my opinion, the issue of which law
schools Mr. Bloch’s new hires graduated from, which was discussed
in your article, is irrelevant. If Mr. Bloch held open
competitions, gave his career managers a say in who would be
working for them, and hired employees with relevant experience, no
one would be able to legitimately question his motives, regardless
of the law schools the new employees attended or their
philosophical bent. As Mr. Bloch should know, open competition is
key to the merit- based civil service that OSC is charged with
protecting. While an open competition cannot insulate hiring
decisions from criticism, it goes a long way to address the
appearance of political favoritism.
I know that my response to your piece is rather lengthy but the
charges you leveled against me in your article, and the recent
spate of media stories about backlog reduction and related matters
OSC, do not admit of sound-bite responses. For obvious reasons, I
am concerned that you will selectively edit my remarks or take them
out of context. Therefore, I ask that if you choose to publish my
response, you include the full text. I also ask that you resist any
future temptation you or your magazine might have to smear me, or
the work that the OSC staff did under my leadership, in order to
defend or deflect negative attention from Mr. Bloch.
Elaine Kaplan
Washington, D.C.
